Lacroix v Lacroix

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.