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

1. 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.

2. 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.

3. 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.

4. 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. 

5. Details of the order are not given but it appears to have been an order made under the Restraining Orders Act 1987 (WA). Section 64 of that Act provides for appeals by persons aggrieved by decisions made under the Act. That section states that a person may appeal against a final order as provided for in that section. Subsection 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 4 of the Magistrates Court (Civil Proceedings) Act 2004 (WA), other than where an order is made in family law proceedings which does not apply here.

6. Part 4 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 must be commenced within 21 days and must be conducted in accordance with rules made by the District Court: s 40 Magistrates Court (Civil Proceedings) Act.  Neither the notice of originating motion filed in this court or the affidavit of Mr Ives, dated 16 August 2010, identify the date upon which the restraining order in question was made.  However, in Ives v Johnson [2010] WASCA 137 there is reference to some of the background facts relating to PE 2670 of 2008. At [10] the Court of Appeal noted that a final order was made in the restraining order proceedings on 18 February 2010. If that is correct, any appeal under s 64 of the Restraining Orders Act read with s 40 of the Magistrates Court (Civil Proceedings) Act may now well be out of time.

7. In any event, it 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. The review order process under s 36 of the Magistrates Court Act ought not be used where a specific appeal process has been provided for in legislation. To allow the review order process to be so used could constitute an abuse of process. That is because it would allow applicants to bypass the jurisdiction and limitations provided for by the legislation in s 64 of the Restraining Orders Act.

8. Furthermore, the power of this court to make a review order under s 36 is discretionary. I refer to Re an Application under the Magistrates Court Act 2004; Ex Parte Brecker [2007] WASC 151. It may not be appropriate to exercise that discretion where an avenue for appealing the decision already exists: Rayney v AW [2009] WASCA 203 in the judgment of McLure JA at [31].

9. In Re Magistrate Black; Ex Parte Sadler [2010] WASC 222, Heenan J said that the co‑existence of an adequate appeal right will not necessarily lead to refusal of judicial review. That is no doubt correct, though much will turn on whether there are differences between the review procedure and any appeal process. In the present case there are significant differences, namely that the appeal is to a different court, is subject to a statutory time limit and is governed by different rules.

10. The possibility that applications for review could be brought under s 36 of the Magistrates Court Act that are more properly the subject of appeal proceedings appears to have been anticipated. Subsection 36(5) of the Magistrates Court Act provides that this court may, if it considers that an appeal lies under the Magistrates Court (Civil Proceedings) Act 2004, order the application to be treated as if it was such an appeal and remit the matter to the District Court to be dealt with accordingly.

11. For the reasons I have given I am satisfied that this application should have been the subject of an appeal under the Magistrates Court (Civil Proceedings) Act as applied by s 64 of the Restraining Orders Act.  Accordingly, I order that this application be treated as if it was an appeal under the Magistrates Court (Civil Proceedings) Act 2004 and that it be remitted to the District Court.