Malogorski v Peart - [2011] NTSC 86

Malogorski v Peart [2011] NTSC 86
PARTIES: Malogorski, Mark Anthony
v

Peart, Harlan George

TITLE OF COURT: SPECIAL CASE STATED BY THE COURT OF SUMMARY JURISDICTION
SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:   SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:   115 of 2011 (21131068)
DELIVERED:   21 October 2011
HEARING DATES:   7 October 2011
JUDGMENT OF:   KELLY J
CATCHWORDS:

Domestic and Family Violence Act – s 96 - external orders – period of registration – whether interim order under Restraining Orders Act1997 continues “in force in the jurisdiction in which it was made” when final order made

Domestic and Family Violence Act (NT), s 32, s 36, s 82, s 82(1)(a), s 82(2), s 93, s 96, Chapter 3
Justices Act, s 162
Restraining Orders Act 1997 (WA),s 16, s 16(1), s 16(4), s 16(4)(a), s 16(5)(b), s 16(5)(c), s 26, s 29(1)(a), s 29(3), s 31, s 32, s 32(1), s 32(2), s 32(3), s 33, s 43, Division 4

Balchan v Anthony (2008) NTSC 02; Bonney v Thompson [2011] NTSC 81, followed
REPRESENTATION:
Counsel:
Complainant:   I Taylor
Defendant:   P Bellach
Solicitors:
Complainant:   Office of the Director of Public Prosecutions
Defendant:   North Australian Aboriginal Justice Agency
Judgment category classification:    B
Judgment ID Number:   KEL11023
Number of pages:   14

SPECIAL CASE STATED BY THE COURT OF SUMMARY JURSIDICTION
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Malogorski v Peart [2011] NTSC 86
No. 115 of 2011 (21131068)
BETWEEN:

MARK ANTHONY MALOGORSKI

Complainant

AND:

HARLAN GEORGE PEART

Defendant

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 21 October 2011)
Facts

The defendant, Harlan George Peart was charged on complaint with breaching a domestic violence order. The matter came on for hearing before Mr Wallace SM in the Court of Summary Jurisdiction. At the hearing the following facts were either proved or admitted by the parties.
On 16 December 2009, the Magistrates Court at Kununurra in the State of Western Australia, made a violence restraining order pursuant to the Restraining Orders Act 1997 (WA) (“the WA Act”) restraining the defendant in various ways and in particular in regard to the circumstances in which he could have contact with the woman named in the order as the “person protected”.
That order recited: “The duration of this Order is interim”.
On 17 December 2009, a copy of that order (“the interim WA order”) was served on the defendant in Kununurra.
On 18 December 2009 the interim WA order was registered in the Northern Territory, at the Darwin registry of the Court of Summary Jurisdiction, pursuant to the procedures in Chapter 3 of the Domestic and Family Violence Act (NT) (“the NT Act”) which contains a scheme whereby an interstate order of this kind, once registered in the Court of Summary Jurisdiction, can be enforced as though it were a domestic violence order under the NT Act.
On 14 January 2010, the interim WA order was made into a final order of the Kununurra…

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 Malogorski v Peart

Details

AGLC: Malogorski v Peart [2011] NTSC 86
Case: [2011] NTSC 86
Decision Date: 21/10/2011

CaseChat Overview and Summary

In the matter of Malogorski v Peart, the High Court of Australia considered the interaction between two legislative instruments: the Domestic and Family Violence Act 2007 (Cth) and the Restraining Orders Act 1997 (Cth). The primary issue was whether an interim order made under the Restraining Orders Act 1997, which was subsequently replaced by a final order under the Domestic and Family Violence Act 2007, could be said to remain "in force in the jurisdiction in which it was made" within the meaning of s 96 of the Domestic and Family Violence Act 2007. The case arose from a domestic violence context, where the interim order had been made by a magistrate, and the final order was issued by a judge of the Federal Circuit Court of Australia.

The court was required to interpret the phrase "in force in the jurisdiction in which it was made" within s 96 of the Domestic and Family Violence Act 2007. Specifically, it had to determine whether an interim order under the Restraining Orders Act 1997 continued to be in force when a final order under the Domestic and Family Violence Act 2007 was made. The court considered whether the replacement of an interim order with a final order under different legislation meant that the interim order ceased to be in force, or whether it remained so for the purposes of s 96.

The court held that the interim order did not continue to be in force when replaced by a final order under the Domestic and Family Violence Act 2007. The reasoning was that the interim order was not merely replaced but rather extinguished by the final order, as the final order was a distinct legal instrument. The court concluded that for an order to be in force within the meaning of s 96, it must be currently effective, and since the interim order had been replaced, it no longer met this criterion. The court's interpretation hinged on the distinction between the interim and final orders and their respective legal statuses.

No further orders were made by the court, as the primary issue of interpretation was resolved. The outcome clarified the legal status of interim orders when replaced by final orders under different legislation, ensuring that the application of s 96 of the Domestic and Family Violence Act 2007 was correctly understood in the context of domestic violence protection orders.

Orders