Re Magistrate G Smith; Ex parte Ives - [2010] WASC 249

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE MAGISTRATE G SMITH; EX PARTE IVES [2010] WASC 249

CORAM: HALL J

HEARD: 7 SEPTEMBER 2010

DELIVERED : 7 SEPTEMBER 2010

FILE NO/S: CIV 2288 of 2010

MATTER :An application under the Magistrates Court Act 2004 s 36 for a Review Order against Mr G Smith, Magistrate of the Perth Magistrates Court at Perth
EX PARTE
BENJAMIN IVES
Applicant

Catchwords:

Review order - Section 36 Magistrates Court Act 2004 - Whether appropriate where appeal available under Restraining Orders Act - Whether appeal should have been brought in District Court - Discretion not to make review order - Power to remit to District Court

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 (WA), s 40
Magistrates Court Act 2004 (WA), s 35, s 36
Restraining Orders Act 1987 (WA), s 64
Supreme Court Rules 1971 (WA), O 56A r 2

Result:

Application to be treated as an appeal under the Magistrates Court (Civil Proceedings) Act 2004 and that it be remitted to the District Court

Category: B

Representation:

Counsel:

Applicant: In person

Solicitors:

Applicant: In person

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

Ives v Johnson [2010] WASCA 137
Rayney v AW [2009] WASCA 203
Re an Application under the Magistrates Court Act 2004; Ex Parte Brecker [2007] WASC 151
Re Magistrate Black; Ex Parte Sadler [2010] WASC 222
Thomson v Lane (2005) 158 A Crim R 292

HALL J: This is an application for a review order under s 36 of the Magistrates Court Act 2004 (WA). The applicant Mr Ives is representing himself and for that reason I will set out in detail the basis for the decision I propose to make.
A review order under s 36 is the effective replacement for prerogative writs directed to magistrates: Thomson v Lane (2005) 158 A Crim R 292. Prerogative writs are now unavailable against magistrates by virtue of s 35 of the Magistrates Court Act. However, s 36 permits review of the acts, orders or directions of a magistrate.
The procedure for obtaining a review order is that a person aggrieved makes an application ex parte, supported by an affidavit ‑ O 56A r 2 of the Supreme Court Rules 1971 (WA). The application is first listed before a Judge in chambers who may make a review order, refuse the application or make an order under s 36(5) of the Magistrates Court Act. If a review order is made, it is then served and listed for hearing. The ex parte application for a review order is thus a preliminary proceeding which can act as a filtering process to identify matters which are not arguable or have some legal or jurisdictional impediment.
The present matter is at the preliminary stage. The review order sought is one to review the granting of a restraining order by a magistrate in the Perth Magistrates Court in proceedings identified as PE 2670/08.
Details of the order are not given but it appears to…

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 Smith; Ex parte Ives

Details

AGLC: Re Magistrate G Smith; Ex parte Ives [2010] WASC 249
Case: [2010] WASC 249
Decision Date: 7 SEPTEMBER 2010

CaseChat Overview and Summary

The matter under consideration involved a review application by Ives against Magistrate G Smith, as the applicant sought to challenge the magistrate's decision to dismiss his application for a restraining order. The dispute was heard and determined in the Supreme Court of Victoria. Ives argued that the magistrate's decision was incorrect and sought a review under Section 36 of the Magistrates Court Act 2004. The primary legal issue before the court was whether a review order was appropriate when an appeal was available under the Restraining Orders Act. Additionally, the court had to decide if the appeal should have been brought in the District Court instead of seeking a review in the Supreme Court.

The court examined the statutory framework and the nature of the available remedies. It noted that the Restraining Orders Act provided a specific appeal mechanism, which Ives had not utilised. The court considered whether the applicant's decision to seek a review rather than an appeal was justified, and if the Supreme Court had the discretion to remit the matter to the District Court for appeal. In exercising its discretion, the court held that the applicant's choice to pursue a review order rather than an appeal, when an appeal was available, was not appropriate. The Supreme Court concluded that the matter should have been appealed to the District Court, and thus, it declined to make a review order. Instead, the court remitted the matter to the District Court for the appeal to be heard there.

The court's decision was grounded in the principle that the statutory appeal process should be followed unless there were exceptional circumstances warranting a review. Given that Ives had an available appeal mechanism under the Restraining Orders Act, the court found that the application for a review order was not appropriate. Consequently, the court remitted the matter back to the District Court, allowing for the proper appeal process to be undertaken there. The Supreme Court's final order was that the application for a review order be dismissed and the matter be remitted to the District Court for further proceedings.

Orders