Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Whether "substantial miscarriage of justice" – On review of magistrate's decision granting family violence order "proviso" applied – Order made when application not served and respondent not present – Necessary statutory requirements for making order not complied with – Appeal allowed.

Justices Act 1959 (Tas), s 110(2)(ab)
Family Violence Act 2004 (Tas), s 31(7)
Wilde v The Queen (1998) 164 CLR 365; Weiss v The Queen [2005] HCA 81, 244 CLR 300; Baiada Poultry Pty Ltd v The Queen [2012] HCA 14, 246 CLR 9, applied.
Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
           Appellant:  F Cangelosi
           Respondent:  J Bourke
Solicitors:
           Respondent:  Blissenden Lawyers

Judgment Number: [2018] TASFC 8
Number of paragraphs: 18

Serial No 8/2018
File No 1720/2015

ADRIAN LACROIX v CHANTELLE LACROIX

REASONS FOR JUDGMENT FULL COURT
WOOD J

ESTCOURT J
PEARCE J
24 October 2018

Orders of the Court:

Appeal allowed.

The order of Blow CJ dated 3 September 2015 is set aside.

The motion to review is upheld.

The Family Violence Order made by Magistrate Mollard on 5 March 2015 is quashed.

Serial No 8/2018
File No 1720/2015

ADRIAN LACROIX v CHANTELLE LACROIX

REASONS FOR JUDGMENT FULL COURT

WOOD J
24 October 2018

I agree with Estcourt J and with the additional reasons of Pearce J.

File No 1720/2015

ADRIAN LACROIX v CHANTELLE LACROIX

REASONS FOR JUDGMENT FULL COURT

ESTCOURT J
24 October 2018

The appellant, Adrian Lacroix, appeals against a decision of Blow CJ made on 3 September 2015 by which his Honour dismissed the appellant's motion to review an order of a magistrate making a final family violence order against him on 5 March 2015. Lacroix v Lacroix [2015] TASSC 42.
The background to that order was somewhat unusual but is well explained by the learned primary judge in his reasons for judgment at [2]–[10] as follows:
"2 The order in question was made on 5 March 2015. On 7 March 2014 an earlier family violence order was made against Mr Lacroix, for the protection of Ms Lacroix, by a magistrate. That order was made by consent. Mr Lacroix made no admissions on that occasion as to the conduct that Ms Lacroix complained of. The magistrate ordered that that first order was to remain in force for a period of 12 months.
3 On 23 February 2015 Ms Lacroix made an application for an extension of the first family violence order. By virtue of s 20(3) of the Family Violence Act 2004, a court may not entertain an application…

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 Lacroix v Lacroix

Details

AGLC: Lacroix v Lacroix [2018] TASFC 8
Case: [2018] TASFC 8
Decision Date: 24 October 2018

CaseChat Overview and Summary

This matter concerned an appeal to the Supreme Court of Tasmania from a decision of a magistrate. The appellant, Mr Lacroix, sought to review a final family violence order made against him. The primary judge had found that the magistrate erred in making the order without proper service of the application on Mr Lacroix, contrary to section 31(7) of the relevant Act.

The central legal issue before the Full Court was whether the primary judge had erred in applying the proviso to section 110(2)(ab) of the Justices Act 1959 (Tas). This proviso allows a court to dismiss a motion to review even if the applicant might succeed on the grounds raised, provided no substantial miscarriage of justice has occurred. The Full Court had to determine if the failure to comply with the statutory service requirements for making a final family violence order was an irregularity so fundamental that it precluded the application of the proviso, even if the primary judge believed no substantial miscarriage of justice had occurred.

The Full Court reasoned that the proviso to section 110(2)(ab) should not be applied where the order being reviewed was made without lawful authority. Citing *Wilde v The Queen* and *Pattison v Tasmania*, the Court held that an irregularity that goes to the root of the proceedings, such as making an order without fulfilling essential statutory requirements like service, is a departure from the essential requirements of the law and fundamentally flawed. Such an irregularity prevents the operation of the proviso, as it means the proceedings were not a trial at all, or were so fundamentally flawed as to exclude the operation of the proviso.

The appeal was allowed. The Full Court concluded that the primary judge erred in applying the proviso to dismiss the motion to review, as the magistrate's order was made without lawful authority due to the failure to comply with statutory service requirements.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

After considering the appellant's submissions the learned primary judge concluded as follows:"Conclusion29 The learned magistrate made only one error that is relevant to the applicant's grounds of review. He erred by proceeding to make a final family violence order when, because a sealed copy of the application had not been served on Mr Lacroix and no attempt had been made to serve one on him, s 31(7) did not authorise him to proceed that far. However, in my view, no substantial miscarriage of justice resulted because Mr Lacroix had notice of the application, when and where it would be made, and the evidence to be relied upon, and had come to court with a lawyer for the purpose of defending a substantially similar application. There was no procedural unfairness. 30 I have already referred once to s 110(2)(ab) of the Justices Act. It provides that, on the hearing of a motion to review, this Court may do the following:'(ab) in a case where the court considers that no substantial miscarriage of justice has occurred even though the cause or matter raised by the motion might be decided in favour of the applicant, dismiss the motion'.31 Because there was no denial of procedural fairness to the slightest degree, and no substantial miscarriage of justice has resulted, I consider that this is an appropriate case in which to do what s 110(2)(ab) authorises. I have therefore decided to dismiss the motion to review." In my view the appellant's appeal must succeed because it could never be appropriate to apply the proviso contained in s 110(2)(ab) where the order sought to be reviewed by the motion was an order made without lawful authority. In Wilde v The Queen [1988]; 164 CLR 365 at 373 [10], Brennan, Dawson and Toohey JJ, said, in the context of the application of the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW):"… the proviso was not intended to provide, in effect, a retrial before the Court of Criminal Appeal when the proceedings before the primary court have so far miscarried as hardly to be a trial at all. It is one thing to apply the proviso to prevent the administration of the criminal law from being 'plunged into outworn technicality' (the phrase of Barwick CJ in Driscoll v The Queen, at p 527); it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the appellant would inevitably have been convicted. The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings." In Pattison v Tasmania [2017] TASCCA 13 Wood J, with whom Pearce and Brett JJ agreed, said at [125]:"The proviso may be denied because of the nature of the irregularity, even if the appellate court is satisfied to the requisite standard of the appellant's guilt. Examples have been where the errors or miscarriages of justice occurring in the course of a criminal trial may amount to a significant denial of procedural fairness (Weiss at [45]; Libke v The Queen [2007] HCA 30, 230 CLR 559 at [43]) or errors that are 'so fundamental or involve such a departure from the essential requirements of a fair trial that they exclude the operation of the proviso' (AK per Gleeson CJ and Kiefel J at [23]; Nudd [2006] HCA 9, 225 ALR 161, per Gleeson CJ at [6]-[7]). It has been emphasised that the operation of the proviso will fall for consideration in a wide variety of circumstances, and the courts have declined to define the circumstances in which the application of the proviso is denied: AK per Gummow and Hayne JJ at [54]."

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Lacroix v Lacroix [2018] TASFC 8

Most Recent Citation

Glenorchy City Council v Wiertek [2018] TASSC 59

Cases citing this decision · 1 of 1 shown

Glenorchy City Council v Wiertek
[2018] TASSC 59 Para 7

…ncil was plainly aware of its right to make a transfer application under s 30. However, as the recent decision of the Full Court in Lacroix v Lacroix [2018] TASFC 8 illustrates, if a statutory provision concerned with procedural fairness requires a step to be taken as a prerequisite to the making of an order, and…

View all 1 citing cases →

Cases cited in this decision · 10 of 10 shown

Pattison v Tasmania
[2017] TASCCA 13 Para 7

…In Pattison v Tasmania [2017] TASCCA 13 Wood J, with whom Pearce and Brett JJ agreed, said at [125]: "The proviso may be denied because of the nature of the irregularity, even if the appellate court is satisfied to the requisite standard of the appellant's guilt. Examples have been where the errors or miscarriages…
Lacroix v Lacroix
[2015] TASSC 42 Para 1

…smissed the appellant's motion to review an order of a magistrate making a final family violence order against him on 5 March 2015. Lacroix v Lacroix [2015] TASSC 42.…
Windoval Pty Ltd v Donnelly
[2014] FCAFC 127 Para 3

…visions in the Justices Act for review of a decision of the magistrate apply, but is to be considered in that context: cf Windoval Pty Ltd v Donnelly [2014] FCAFC 127, 226 FCR 89.…
Baiada Poultry Pty Ltd v The Queen
[2012] HCA 14 Para 2

…so has been considered by the High Court in many cases, including Weiss v The Queen [2005] HCA 81, 224 CLR 300. In Baiada Poultry Pty Ltd v The Queen [2012] HCA 14, 246 CLR 9, the majority stated at 103 [23] that, following from the Court's decision in Weiss , no single universally applicable criterion can be st…
AK v Western Australia
[2008] HCA 8 Para 2

…try at [21]. A significant denial of procedural fairness was suggested as such a case, as were the circumstances dealt with in AK v Western Australia [2008] HCA 8, 232 CLR 438.…
Libke v The Queen
[2007] HCA 30 Para 7

…of justice occurring in the course of a criminal trial may amount to a significant denial of procedural fairness ( Weis s at [45]; Libke v The Queen [2007] HCA 30, 230 CLR 559 at [43]) or errors that are 'so fundamental or involve such a departure from the essential requirements of a fair trial that they exclud…
Nudd v The Queen
[2006] HCA 9 Para 7

…arture from the essential requirements of a fair trial that they exclude the operation of the proviso' ( AK per Gleeson CJ and Kiefel J at [23]; Nudd [2006] HCA 9, 225 ALR 161, per Gleeson CJ at [6]-[7]). It has been emphasised that the operation of the proviso will fall for consideration in a wide variety of c…
Weiss v The Queen
[2005] HCA 81

…Justices Act 1959 (Tas), s 110(2)(ab) Family Violence Act 2004 (Tas), s 31(7) Wilde v The Queen (1998) 164 CLR 365; Weiss v The Queen [2005] HCA 81, 244 CLR 300; Baiada Poultry Pty Ltd v The Queen [2012] HCA 14, 246 CLR 9, applied. Aust Dig Magistrates [1349]…
R v Resource Management and Planning Appeal Tribunal; ex parte
[2000] TASSC 101 Para 9

…ource Management and Planning Appeal Tribunal Act 1993, s 17(2) (see R v Resource Management and Planning Appeal Tribunal; ex parte Gary James Wilson [2000] TASSC 101).…
Wilde v the Queen
[1988] HCA 6

…Justices Act 1959 (Tas), s 110(2)(ab) Family Violence Act 2004 (Tas), s 31(7) Wilde v The Queen (1998) 164 CLR 365; Weiss v The Queen [2005] HCA 81, 244 CLR 300; Baiada Poultry Pty Ltd v The Queen [2012] HCA 14, 246 CLR 9, applied. Aust Dig Magistrates [1349]…

Legislation cited in this decision · 4

Family Violence Act 2004 (TAS)
31(7) 2 mentions (from Para 2)
Justices Act 1959 (TAS)
110(2)(ab) 2 mentions (from Para 2)
Criminal Appeal Act 1912 (NSW)
1 mention (from Para 6)
Resource Management and Planning Appeal Tribunal Act 1993 (Repealed) (TAS)
17(2) 1 mention (from Para 9)