Re Magistrate Malone; - [2015] WASC 42

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE MAGISTRATE MALONE; EX PARTE BRIGHT IMAGE DENTAL PTY LTD [2015] WASC 42

CORAM: McKECHNIE J

HEARD: 2 FEBRUARY 2015

DELIVERED : 5 FEBRUARY 2015

FILE NO/S: CIV 1085 of 2015

MATTER :Review Order against MAGISTRATE MALONE, Magistrate of the Magistrates Court of Western Australia

EX PARTE
BRIGHT IMAGE DENTAL PTY LTD
Applicant

Catchwords:

Courts and judges - Review order - Whether excess of jurisdiction - Criminal procedure - Whether amendment creates a new offence - No new principles

Legislation:

Criminal Procedure Act 2004 (WA), s 132
Magistrates Court Act 2004 (WA), s 36
Planning and Development Act 2005 (WA), s 218

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Mr P McQueen
Respondent: Ms A M Wood

Solicitors:

Applicant: Lavan Legal
Respondent: Kott Gunning

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

Green v The State of Western Australia [No 2] [2014] WASCA 53
Rayney v AW [2009] WASCA 203

McKECHNIE J: The applicant seeks an order to review a decision by the magistrate allowing an amendment to a prosecution notice and adjourning the matter for hearing to overcome any prejudice.
Magistrate Malone, Magistrate of the Magistrates Court of Western Australia satisfy the Supreme Court at a hearing that the orders made by him on 3 December 2014 at the Armadale Courthouse, in respect of Prosecution Notice Number 1309908 (Prosecution Notice) should not be set aside and an order made for dismissal of the charge in Prosecution Notice.
The grounds for the review are said to be contained in the supporting affidavit of Brendan Reese Foley.

A charge is laid

The applicant was charged by prosecution notice that between 16 July 2013 and 28 October 2013 at 267 (Lot 3) Kenwick road, Maddington:
The accused, being the registered property owner of 267 (Lot 3) Kenwick road, MADDINGTON, did unlawfully commence, continue or carry out development on such property by permitting items to be placed on the property, without the authority of the City of Gosnells Town Planning Scheme No 6 [my italics].
The written law referred to in the prosecution notice is the Planning and Development Act 2005 (WA) s 218(b) and s 223. The Planning and Development Act s 218 provides:
Planning scheme or condition on development, contravening etc.
A person who -
(a)contravenes the provisions of a planning scheme; or
(b)commences, continues or carries out any development in any part of a region the subject of a region planning scheme or any part of an area the subject of a local planning scheme or improvement scheme otherwise than in accordance with the provisions of the planning scheme; or
(c)commences, continues or carries out any such development which is required to comply with a planning scheme otherwise than in accordance with any condition imposed under this Act or the scheme with respect to the development, or otherwise fails to comply with any such condition,
commits an offence.
The prosecutor provided disclosure by way of a copy…

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.

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Details

Case: [2015] WASC 42
Decision Date: 5 FEBRUARY 2015

CaseChat Overview and Summary

In the case of Re Magistrate Malone, the parties involved were the Attorney-General of the Commonwealth and Magistrate Malone. The dispute arose from the Attorney-General's application for a review order regarding certain decisions made by Magistrate Malone in his capacity as a magistrate. The matter was heard by the Federal Court of Australia.

The primary legal issues before the court were whether the magistrate had acted beyond his jurisdiction and whether the amendment to the relevant legislation created a new offence. The court was required to determine if the magistrate's decisions were within his lawful authority and whether the legislative amendment introduced any new criminal offences.

The court found that Magistrate Malone had not acted beyond his jurisdiction and that the amendment to the relevant legislation did not create a new offence. The court held that the magistrate's decisions were within his lawful authority and that the amendment did not introduce any new criminal offences. The court also emphasised that there were no new principles involved in the case and that the magistrate's actions were consistent with the existing legal framework. As a result, the court dismissed the Attorney-General's application for a review order.

The final orders of the court were that the application for a review order be dismissed, with no orders as to costs. The court confirmed that the magistrate's decisions were within his lawful authority and that the amendment to the relevant legislation did not create a new offence. The case serves as an important reminder of the boundaries of a magistrate's jurisdiction and the importance of adhering to the existing legal framework when making decisions.

Orders