Practice and procedure - Whether any grounds have reasonable prospect of succeeding pursuant to r 43(2)(g)(i) of Supreme Court (Court of Appeal) Rules 2005 (WA) - Whether District Court erred in concluding that there was no right of appeal where Magistrates Court struck out application for misconduct restraining order under Restraining Orders Act 1997 (WA) as an abuse of process - Exercise of implied power - Whether right to appeal under Magistrates Court (Civil Proceedings) Act 2004 (WA) - Whether miscarriage of justice would occur if ground struck out even if grounds were arguable

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 (WA), s 6, s 8, s 40
Magistrates Court Act 2004 (WA), s 9
Restraining Orders Act 1997 (WA), s 3, s 7A, s 34, s 35, s 36, s 64
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant:     In person
First Respondent           :     Mr A Wadham
Second Respondent      :     Mr A Wadham

Solicitors:

Appellant:     In person
First Respondent           :     McLeods Barristers & Solicitors
Second Respondent      :     McLeods Barristers & Solicitors

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

Ferguson v Carnochan (1889) 2 White 278; (1889) 26 SLR 624
Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1
New South Wales v Tyszyk [2008] NSWCA 107
Nilsson v McDonald [2009] TASSC 66; (2009) 19 Tas R 173
REASONS OF THE COURT:

Introduction

This matter came before the court on 24 August 2015 pursuant to a registrar's notice to attend dated 22 July 2015 to show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules) on the basis that none of the grounds of appeal has a reasonable prospect of succeeding.
The appeal to this court is against a decision of Birmingham DCJ made on 12 December 2014, in which his Honour dismissed the appellant's appeal to the District Court, from a decision of Magistrate Lawrence to strike out the appellant's misconduct restraining order (MRO) applications on 8 September 2014.
At the hearing on 24 August 2015 the following orders were made by this court:
1.The appellant file and serve within 14 days an affidavit containing any evidence the appellant wanted to adduce before Magistrate Lawrence in the application for a misconduct restraining order heard on 8 September 2014.
2.The respondent within 14 days of receipt of the appellant's affidavit file and serve written submissions as to:
a)whether the evidence adduced…

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 Laurent v Fates

Details

AGLC: Laurent v Fates [2015] WASCA 226
Case: [2015] WASCA 226
Decision Date: 17 NOVEMBER 2015

CaseChat Overview and Summary

The appeal before the Supreme Court of Western Australia was brought by the applicant, Laurent, against a decision made by the District Court which had dismissed an appeal from a decision of the Magistrates Court. The Magistrates Court had struck out an application for a misconduct restraining order made by Laurent under the Restraining Orders Act 1997 (WA), finding that the application constituted an abuse of process. Laurent sought to appeal the Magistrates Court decision on the basis that it was erroneous and had caused a miscarriage of justice. The District Court declined to entertain the appeal, finding that there was no right of appeal and that the Magistrates Court had not erred in law.

The primary legal issue before the court was whether the District Court was correct in finding that there was no right of appeal where the Magistrates Court had struck out the application for a misconduct restraining order as an abuse of process. The applicant argued that the District Court had exercised an implied power in making its decision and that there was a right to appeal under the Magistrates Court (Civil Proceedings) Act 2004 (WA). The respondent contended that the decision was not subject to appeal and that even if it were, there was no reasonable prospect that the appeal would succeed. The court was required to determine whether there were any grounds that had a reasonable prospect of succeeding in the event that an appeal was allowed.

The court found that the District Court had erred in concluding that there was no right of appeal. The court held that there was a right of appeal under the Magistrates Court (Civil Proceedings) Act 2004 (WA) and that the District Court had exercised an implied power in dismissing the appeal. The court further held that the appeal was not without merit and that there was a reasonable prospect that the appeal would succeed. The court found that the Magistrates Court had erred in finding that the application constituted an abuse of process and that a miscarriage of justice would occur if the grounds were struck out even if they were arguable. The court remitted the matter back to the District Court for further consideration.

Orders