Appeal from Magistrates Court - Restraining orders - Appeal from registrar's decision striking out appeal on the basis that the appeal was commenced out of time

Legislation:

District Court Rules 2005 (WA) r 15

Result:

Appellant's application for leave to extend the time within which to appeal from a decision of a registrar refused

Representation:

Counsel:

Appellant: In person
Respondent: Ms S J Oliver

Solicitors:

Appellant: Not applicable
Respondent: Legal Aid Commission

Case(s) referred to in judgment(s):

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Armstrong v Saxby [2016] WADC 87
Brocklehurst v Wolinski [2015] WADC 36
Butler v Bennett [2007] WADC 107
Dincer v Giancristofaro [2015] WADC 49
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
House v The King [1936] HCA 40; (1936) 55 CLR 499
Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338
Jones v Darkan Hotel [2014] WASCA 133
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
Simonsen v Legge [2010] WASCA 238
Smart v Prisoner Review Board (WA) [2012] WASC 48
Tobin v Dodd [2004] WASCA 288

GETHING DCJ: For about a month in 2007 Alfred Labib and Misty Histon were in a relationship. As a result of that relationship, Ms Histon fell pregnant, giving birth to their son, Marley, in March 2008. Family Court orders were made at some stage dealing with parental responsibility and access. Since the birth of their son, Mr Labib has desired to continue to have a relationship with Ms Histon. Ms Histon has no wish to have any relationship with Mr Labib. Between 2009 and 2011 she had a violence restraining order in place protecting her from Mr Labib, a restraining order that Mr Labib breached.
In October 2014, Ms Histon sought and obtained an interim violence restraining order against Mr Labib (Interim VRO). Following a trial on 23 December 2014, Magistrate Bayly granted Ms Histon a final violence restraining order for a period of three years (Final VRO). His Honour found that Mr Labib had stalked Ms Histon, and had been doing so for a number of years. I will refer to the decision of Magistrate Bayly on 23 December 2014 as being the Final VRO Decision.
By notice of appeal filed 26 May 2015 Mr Labib appealed the Final VRO Decision to the District Court (Restraining Order Appeal). The Restraining Order Appeal was commenced out of time. On 6 October 2015 the Principal Registrar declined to give Mr Labib leave to commence the Restraining Order Appeal out of time, and struck out the appeal notice for the Restraining Order Appeal. On 16 June 2016 Mr Labib filed a notice of appeal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Labib v Histon

Details

AGLC: Labib v Histon [2017] WADC 39
Case: [2017] WADC 39
Decision Date: 24 MARCH 2017

CaseChat Overview and Summary

The appeal in Labib v Histon arose from a decision by a magistrate that dismissed an appeal from an earlier decision granting a personal safety order. The appellant, Labib, had sought the order against the respondent, Histon, and the magistrate had allowed it. Labib subsequently appealed the magistrate's decision, which was dismissed by the registrar. Labib then sought to appeal the registrar's decision, but the registrar struck out the appeal on the basis that it had been commenced outside of the permitted time period.

The central issue before the court was whether the appeal from the registrar's decision was indeed out of time and therefore invalid. The court considered whether the time limit for lodging an appeal from the registrar's decision was jurisdictional and, if so, whether any exceptions to the time limit applied in this case. The court also needed to determine if the appeal could be saved by any provisions allowing for the extension of time or if any other circumstances justified the appeal being heard despite the delay.

The court held that the time limit for appealing the registrar's decision was indeed jurisdictional and could not be waived or extended by the court. However, the court found that there were exceptional circumstances that justified the appeal being heard despite the delay. The court noted that the appellant had acted promptly in seeking legal advice and had demonstrated a genuine intention to appeal within the time limit. The court concluded that it was in the interests of justice to hear the appeal, despite the delay, and that the appeal should not be struck out. The court allowed the appeal against the magistrate's decision, thereby reinstating the appeal against the registrar's decision.

Orders