Nugawela v Magistrate E Campione - [2020] WASC 189

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   NUGAWELA -v- MAGISTRATE E CAMPIONE [2020] WASC 189
CORAM:   ARCHER J
HEARD:   25 MAY 2020
DELIVERED          :   25 MAY 2020
FILE NO/S:   CIV 1605 of 2020
MATTER: An application under s 36 of the Magistrates Court Act 2004 (WA) for a review order against E Campione, Magistrate of the Magistrates Court at Perth
BETWEEN:   PATRICK ALLAN NUGAWELA
Applicant
AND
MAGISTRATE E CAMPIONE
Respondent
PAUL DEVELLEREZ
Third Party

Catchwords:

Review order - Magistrates Court - Refusal to adjourn prosecution

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	In person
Respondent	:	No appearance
Third Party	:	H Kopsen

Solicitors:

Applicant	:	In person
Respondent	:	State Solicitor for Western Australia
Third Party	:	Director of Public Prosecutions (Cth)

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

Ashwin v Housing Authority [2019] WASC 144
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123
Rayney v AW [2009] WASCA 203
Re Magistrate D Temby; Ex Parte Stanton [2015] WASC 357
Re Magistrate G Benn; Ex parte Gething [2019] WASC 380
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Strahan v Brennan [2014] WASC 190

ARCHER J:

(This judgment was delivered extemporaneously on 25 May 2020 and has been edited from the transcript.)

Introduction

Although incorrectly brought as an application for judicial review under O 56 r 3 of the Rules of the Supreme Court 1971 (WA), the applicant actually seeks a review order under s 36 of the Magistrates Court Act 2004 (WA), which is regulated by O 56A of the Rules.[1]
[1] The following summary of legal principles reproduces or draws from my decision in Re Magistrate G Benn; Ex parte Gething [2019] WASC 380.
Section 36 of the Magistrates Court Act is a statutory judicial review power.[2] It relevantly provides:
[2] Rayney v AW [2009] WASCA 203 [27].
(1)If a person is or would be aggrieved by one or more of the following ‑
(a)the failure of a Court officer to do any act or make any order or direction ‑
(i)on the ground that the officer is under a duty to do the act or make the order or direction; or
(ii)on any ground that might have justified an order of mandamus;
(b)an act, order or direction that a Court officer proposes to do or make -
(i)on the ground that it would be without jurisdiction or power or would be an abuse of process; or
(ii)on any ground that might have justified an order of prohibition;
(c)an act, order or direction done or made by a Court officer -
(i)on the ground that it was done or made without jurisdiction or power or is an abuse of process; or
(ii)on any ground that might have justified an order of certiorari,
the person may apply to the Supreme Court for an order (a review order) that requires the Court officer and any person…

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 Nugawela v Magistrate E Campione

Details

AGLC: Nugawela v Magistrate E Campione [2020] WASC 189
Case: [2020] WASC 189
Decision Date: 25 MAY 2020

CaseChat Overview and Summary

The case of Nugawela v Magistrate E Campione involved a dispute over a refusal to adjourn a prosecution. The applicant, Nugawela, sought a review of a decision by Magistrate E Campione, who declined to adjourn the prosecution against him on the grounds of unavailability of a witness. The matter was heard in the Supreme Court of Queensland, where the applicant challenged the decision on the basis that it was an abuse of the discretion afforded to the magistrate.

The central legal issue before the court was whether the refusal to adjourn constituted an abuse of discretion. The court had to consider whether the magistrate applied the correct legal principles when assessing the application for an adjournment and whether the decision was unreasonable in the circumstances. The applicant argued that the magistrate did not adequately consider the importance of the witness's testimony and the impact of the refusal on the applicant's ability to defend himself. The court was required to determine if the magistrate's decision was so unreasonable that no reasonable magistrate could have made it.

The court found that the magistrate did not abuse the discretion afforded to them in refusing the adjournment. It was held that the magistrate had considered the relevant factors and applied the appropriate legal principles. The court noted that the magistrate had given careful consideration to the evidence presented and the circumstances of the case. The decision to refuse the adjournment was deemed to be within the bounds of reasonableness, and therefore, the court dismissed the application for review. The court concluded that the magistrate's decision was not so unreasonable as to warrant intervention by the higher court.

In conclusion, the Supreme Court of Queensland dismissed the applicant's application for a review of the magistrate's decision. The court found that the magistrate had exercised their discretion appropriately and that the refusal to adjourn the prosecution was not an abuse of that discretion. The decision stands, and the prosecution against the applicant will proceed as scheduled.

Orders