PAR v JLT
[2015] WASC 362
•30 SEPTEMBER 2015
PAR -v- JLT [2015] WASC 362
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 362 | |
| 30/09/2015 | |||
| Case No: | SJA:1058/2015 | 23 SEPTEMBER 2015 | |
| Coram: | FIANNACA J | 23/09/15 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | PAR JLT |
Catchwords: | Appeal Practice and procedure Application for leave to appeal against interim violence restraining order Whether appeal was competent under pt 2 of the Criminal Appeals Act 2004 (WA) Statutory scheme for appealing violence restraining orders |
Legislation: | Criminal Appeals Act 2004 (WA), s 7, s 10(3) Magistrates Court (Civil Proceedings) Act 2004 (WA), s 40, s 41, s 42 Restraining Orders Act 1997 (WA), s 29(1)(a), s 32, s 33, s 64 |
Case References: | JS v The State of Western Australia [2014] WASCA 177 Re Magistrate G Smith; Ex parte Ives [2010] WASC 249 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Plaintiff
AND
JLT
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE E K LANGDON
File No : FR RO 437 of 2015
Catchwords:
Appeal - Practice and procedure - Application for leave to appeal against interim violence restraining order - Whether appeal was competent under pt 2 of the Criminal Appeals Act 2004 (WA) - Statutory scheme for appealing violence restraining orders
Legislation:
Criminal Appeals Act 2004 (WA), s 7, s 10(3)
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 40, s 41, s 42
Restraining Orders Act 1997 (WA), s 29(1)(a), s 32, s 33, s 64
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Plaintiff : In person
Respondent : No appearance
Solicitors:
Plaintiff : In person
Respondent : No appearance
Case(s) referred to in judgment(s):
JS v The State of Western Australia [2014] WASCA 177
Re Magistrate G Smith; Ex parte Ives [2010] WASC 249
1 FIANNACA J: On 24 June 2015, in the Fremantle Magistrates Court, Magistrate Langdon made an interim violence restraining order against the appellant under the Restraining Orders Act 1997 (WA). Essentially, the purpose and effect of the order was to prevent contact between the appellant and his daughter MR. The order was made after the learned magistrate had heard evidence from the respondent on 16 June 2015 and from Detective Jason Fuller on 24 June 2015. The appellant was not present at the proceedings.
2 By appeal notice filed 24 July 2015, the appellant seeks leave to appeal against the decision of the learned magistrate to make the interim violence restraining order, the appeal purporting to be under pt 2 of the Criminal Appeals Act 2004 (WA). The appeal notice also refers to a 'bail alteration', but the decision concerning that matter is not identified. I will return to that matter below.
3 On 24 July 2015, the appellant also filed an affidavit, the purpose of which appears to be to outline his submissions in support of the grounds of appeal for which he sought leave. On the same day, the appellant filed another affidavit containing one paragraph purporting to explain why the application for leave to appeal was out of time. If the appeal was competent under pt 2 of the Criminal Appeals Act, it would have been out of time by only two days: s 10(3) of the Criminal Appeals Act.
4 The matter was heard on 23 September 2015, at which time the appellant appeared in person. There was no appearance for the respondent. The appellant explained that the reference in the appeal notice to the alteration of bail was in respect of the alteration of the conditions of his bail in the Magistrates Court for proceedings in which he has been charged with a number of sexual offences. The hearing was otherwise concerned with the question of whether the appeal was competent, having regard to the provisions of pt 2 of the Criminal Appeals Act and the statutory scheme for appeals in respect of violence restraining orders. At the conclusion of the hearing I made orders refusing the application for leave to appeal and dismissing the appeal. As the appellant was not legally represented, I informed him I would publish reasons for the orders. These are my reasons.
5 An appeal is wholly a creature of statute. An appellate court's jurisdiction and power derive solely from the governing legislation: JS v The State of Western Australia[2014] WASCA 177 [4] (McLure P). In this case the relevant legislation is the Criminal Appeals Act, the Restraining Orders Act and the Magistrates Court (Civil Proceedings) Act 2004 (WA). It is convenient to deal first with the statutory scheme under the Restraining Orders Act and the Magistrates Court (Civil Proceedings) Act.
6 The violence restraining order was made by the learned magistrate under s 29(1)(a) of the Restraining Orders Act. It was specified to be an interim order for two years. Under s 29(3) a violence restraining order is an interim order, and div 4 of the Act applies, if the order is for more than 72 hours. Division 4 of the Act includes provisions that set out the circumstances in which an interim order will become a final order and the procedure by which the court will determine whether an interim order will become a final order when the person restrained by the order objects to the order becoming final: s 32 and s 33 of the Restraining Orders Act. At the hearing of the matter, the appellant informed the court that he had objected to the interim order becoming final, and that a 'final order hearing' was to take place in the Magistrates Court at a future date.
7 Section 64 of the Restraining Orders Act provides for appeals by persons aggrieved by decisions made under that Act. The section states that a person may appeal, in accordance with the section, against a decision of a court in relation to a final order. There is no provision for an appeal against a decision to make an interim violence restraining order. Section 64(2) provides that if the decision in issue was made by a Magistrates Court, then the appeal is to be made in accordance with pt 7 of the Magistrates Court (Civil Proceedings) Act, unless the order is made in family law proceedings, which does not apply here. Part 7 of the Magistrates Court (Civil Proceedings) Act provides that a party may appeal from a decision in the Magistrates Court, to which that Act applies, to the District Court. Any such appeal cannot be commenced more than 21 days after the date of judgment, unless the District Court gives leave to do so, and must be conducted in accordance with rules made by the District Court: s 40(3) and (4A) of Magistrates Court (Civil Proceedings) Act.
8 The Magistrates Court (Civil Proceedings) Act provides for two circumstances in which the jurisdiction of the Supreme Court can be engaged, and in both instances it is in the Court of Appeal. Section 41 provides for the transfer to the Court of Appeal of an appeal pending under s 40 in the District Court, and s 42 provides for an appeal from a judgment of the District Court on an appeal under s 40.
9 As was pointed out by Hall J in Re Magistrate G Smith; Ex parte Ives [2010] WASC 249:
[I]t is clear that the legislature has provided a process for appealing restraining orders. It must have been intended that such process would be used in circumstances where it applies [7].
10 That process does not include an appeal to a single judge sitting in the General Division of the Supreme Court.
11 As noted above, the application in the present case purports to be under pt 2 of the Criminal Appeals Act. That part provides a right of appeal to a single judge sitting in the General Division of the Supreme Court from 'a decision of a court of summary jurisdiction': s 7(1). 'Decision' is defined to mean a number of types of determination by a court of summary jurisdiction. The making of a violence restraining order under the Restraining Orders Act is not such a determination. It should be noted also that a decision as to bail is specifically excluded as a decision that can be the subject of an appeal under pt 2 of the Criminal Appeals Act: s 7(3)(c).
12 Having regard to the specific provisions of pt 2 of the Criminal Appeals Act and the statutory scheme for appeals in respect of violence restraining orders, the application for leave to appeal in this case is incompetent, as the Court does not have jurisdiction.
13 For those reasons, the application must be refused and the appeal must be dismissed.
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