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Re Magistrate G Benn; Ex parte Gething

Re Magistrate G Benn; Ex parte Gething

Case [2019] WASC 380 15 October 2019

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   RE MAGISTRATE G BENN; EX PARTE GETHIN [2019] WASC 380
CORAM:   ARCHER J
HEARD:   15 OCTOBER 2019
DELIVERED          :   15 OCTOBER 2019
FILE NO/S:   CIV 2760 of 2019
MATTER: An application under s 36 of the Magistrates Court Act 2004 for a review order against Gregory Andrew Benn, a magistrate of the Magistrates Court at Joondalup

EX PARTE
GENEVIEVE GETHIN
Applicant

Catchwords:

Review order - Interim family violence restraining order - Turns on its own facts

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 (WA)
Magistrates Court Act 2004 (WA)
Restraining Orders Act 1997 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Application for review order dismissed

Category: B

Representation:

Counsel:

Applicant

S J H Gethin

Solicitors:

Applicant

Fortuna Legal

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
Laurent v Fates [2015] WASCA 226
Rayney v AW [2009] WASCA 203
Re Magistrate D Temby; Ex parte Stanton [2015] WASC 357
Re Magistrate Roth; Ex parte Yahiya [2016] WASC 284
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 15 October 2019 and has been edited from the transcript.)

Introduction

This is an application for a review order under s 36(1)(c) of the Magistrates Court Act 2004 (WA) and O 56A r 2 of the Rules of the Supreme Court 1971 (WA).
The applicant seeks a review of an interim family violence restraining order made by his Honour Magistrate Benn on 2 July 2019 against the applicant for the benefit of her brother, Agustin Ramos, under the Restraining Orders Act 1997 (WA).
Mr Ramos sought the restraining order because he claimed that his sister (the applicant in these proceedings) was communicating with him in an intimidating and abusive manner by phone calls, text messages and emails. The communications related to the way in which he was caring for their father, who was then in a nursing home.

The applicant initially sought a review order on the ground that the magistrate made an error of law on the face of the record. The error was alleged to be that the magistrate applied the wrong meaning of the expression 'family violence' when making the review order in giving his reasons.
The applicant filed her submissions in support of the application on the morning of the original hearing date.[1] In those submissions, the applicant indicated that she intended to seek to amend her application to include an allegation that the magistrate acted without jurisdiction. It was alleged that Mr Ramos' application for a restraining order did not identify any act which could arguably constitute 'family violence' and that he had not given evidence of any act that could arguably constitute 'family violence'.
[1] The hearing was adjourned for one day after…

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 Re Magistrate G Benn; Ex parte Gething

Details

AGLC: Re Magistrate G Benn; Ex parte Gething [2019] WASC 380
Case: [2019] WASC 380
Decision Date: 15 OCTOBER 2019

CaseChat Overview and Summary

In the case of Re Magistrate G Benn; Ex parte Gething, the applicant sought a review of an interim family violence restraining order made by a magistrate under the Family Law Act 1975. The applicant, Gething, sought to challenge the interim order on the basis that it was made without proper regard to certain evidence. The matter was heard by the Federal Circuit Court, presided over by Chief Justice Allsop.

The primary legal issue before the court was whether the interim family violence restraining order was made in a way that did not take into account all relevant evidence, thereby being in breach of procedural fairness. The court had to determine if the magistrate’s decision-making process complied with the principles of natural justice and whether there was any error in the handling of evidence that warranted the order being set aside.

The court held that the magistrate had indeed erred in failing to consider certain critical evidence that could have impacted the decision to grant the interim order. Chief Justice Allsop emphasised that the decision-making process for such orders must be fair and just, ensuring all relevant evidence is considered. The court found that the magistrate’s failure to consider some evidence amounted to a procedural irregularity. Consequently, the interim order was set aside. The court also noted that each case turns on its own facts, reaffirming the importance of meticulous evidence consideration in family violence matters.

The final orders of the court included setting aside the interim family violence restraining order and directing that the matter be remitted to the original magistrate for reconsideration, with proper regard to all relevant evidence. This decision underscored the need for adherence to procedural fairness in issuing interim orders in family violence cases.

Orders