Seah v Ousby - [2011] WADC 54

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SEAH -v- OUSBY [2011] WADC 54

CORAM: WAGER DCJ

HEARD: 14 MARCH 2011

DELIVERED : 14 APRIL 2011

FILE NO/S: APP 83 of 2010

BETWEEN: EDMOND KAN HWEE SEAH
Appellant
AND
LYNNE DONNA OUSBY
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE LANE
File No  :PE 1723 of 2010

Catchwords:

Appeal from Magistrates Court - Out of time - Mandatory time limit - Should violence restraining order be set aside

Legislation:

Criminal Code
District Court Rules 2005
Magistrates Court (Civil Proceedings) Act 2004
Restraining Orders Act 1997

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: In person
Respondent: In person

Solicitors:

Appellant: Not applicable
Respondent: Not applicable

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

Lau v Chua [2009] WADC 172
McKeon v Knapton [2009] WADC 170
Wilson v Westpac Banking Corporation [2011] WADC 13

WAGER DCJ: By notice of appeal filed 1 November 2010, Mr Seah appeals against the decision of her Honour Magistrate Lane made on 5 October 2010 granting a violence restraining order to the respondent, Ms Ousby against Mr Seah for a period of two years.
Mr Seah's ground of appeal is that no reasonably instructed judge or magistrate with the evidence before the court could reasonably find that an act of family and domestic violence had occurred, namely the acts of intimidation and abuse pursuant to s 6(1)(d) of the Restraining Orders Act 1997.
Section 40 of the Magistrates Court (Civil Proceedings) Act 2004 provides that a party to a case that is not a minor case (and the current matter is not) may appeal to the District Court against any order made by the Magistrates Court in the course of proceedings in the case or against any judgment of the Magistrates Court in the case. The appeal must be commenced within 21 days after the date of judgment and be conducted in accordance with the District Court Rules 2005.
The District Court must decide the appeal on the material and evidence that was before the Magistrates Court and on any other evidence that it gives leave to admit provided that leave may only be given to admit other evidence in exceptional circumstances. Leave to admit additional evidence is not sought in this case.
There is no provision in the Act in relation to an extension of time in which to file an appeal.
The rules for appeals to the District Court are set out in Pt VI of the District Court Rules 2005. Rule 51 provides for the commencement of an appeal and sets out that a notice of appeal must be filed within 21 days after the date of the appealable decision.
Rule 57 sets out that the rule is subject to the written law that provides for the appeal made to the court. There is no provision within r 57 empowering the court to grant an extension of time to allow a notice of…

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 Seah v Ousby

Details

AGLC: Seah v Ousby [2011] WADC 54
Case: [2011] WADC 54
Decision Date: 14 APRIL 2011

CaseChat Overview and Summary

In the matter of Seah v Ousby, the appellant, Seah, sought to appeal a Magistrates Court decision to set aside a violence restraining order against the respondent, Ousby. The appeal was filed beyond the mandatory 21-day time limit. The appeal was heard in the District Court of Western Australia, presided over by Braddock DCJ. The central legal issue was whether the District Court had the authority to extend the mandatory 21-day time limit for appealing a Magistrates Court decision. This issue was considered in light of the relevant statutory provisions and previous judicial decisions.

The court examined the Magistrates Court (Civil Proceedings) Act and the Supreme Court (Court of Appeal) Rules 2005 to determine whether the mandatory time limit for appeals could be extended. Braddock DCJ relied on the decision in Wilson v Westpac Banking Corporation [2011] WADC 13, where it was held that the mandatory 21-day time limit was prescribed by the principal legislation and not subject to extension under the rules. This was contrasted with other jurisdictions where either the primary legislation or subsidiary legislation provided for the extension of time limits. The court found that since the time limit was set by the principal legislation, it was mandatory and could not be extended.

In conclusion, the District Court held that the mandatory 21-day time limit for appealing a Magistrates Court decision was not subject to extension. This conclusion was based on the statutory language and previous judicial interpretations that found similar mandatory time limits in other jurisdictions to be non-extendable. Therefore, the appeal was dismissed due to the failure to file within the prescribed time limit.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Recently in the decision of Wilson v Westpac Banking Corporation [2011] WADC 13, Braddock DCJ considered this issue and said [16] ‑ [21]:The Bank (the respondent in the proceedings) relies upon the decision of McKeon v Knapton [2009] WADC 170. In that case, Sweeney DCJ considered the same issue in relation to an appeal from a Magistrates Court decision, arising out of a motor vehicle accident. Sweeney DCJ, having considered and contrasted various other appeal provisions in West Australian jurisdictions, including the Supreme Court (Court of Appeal) Rules 2005, the State Administrative Tribunal Act 2004 and the Criminal Injuries Compensation Act 2003 concluded that there was no power to extend time in relation to an appeal under s 40 of the Magistrates Court (Civil Proceedings) Act.Sweeney DCJ also considered a previous decision of this court in Wise & Anor v The Proprietors of Strata Plan 21513 [2008] WADC 80, in which Keen DCJ came to a contrary conclusion. I am not persuaded by the reasoning of Keen DCJ and respectfully agree with Sweeney DCJ, that the mandatory 21 day time limit is prescribed by the principal legislation. It is not a period provided by subordinate legislation, such as the rules of the Supreme Court or the District Court, authorising the filing of the appeal. The primary legislation both creates the right of appeal and prescribes its operation by time. This is in distinction to the provisions of the other jurisdictions previously referred to, which may contain express power to extend time, for example, the Criminal Appeals Act 2004, s 28(3). Alternatively, the time limits are provided in the subsidiary legislation, for example, the Supreme Court (Court of Appeal) Rules 2005, which provide:Unless another written law expressly provides otherwise, any other appeal to the Court of Appeal must be commenced within 21 days after the decision being appealed.Those rules may be read in conjunction with r 5(4) and O 3 of the Rules of the Supreme Court 1971, which provide for extension of time.Sweeney DCJ was assisted in her consideration of the issue by the case of Patterson and James v Public Service Board of NSW [1984] 1 NSWLR 237, where the right of appeal was found in s 54 of the Government and Related Employees Appeal Tribunal Act 1980, which provided that in s 55(1):An appeal under s 54 shall be made within 21 days after the date of the tribunal's decision on the question of law the subject of the appeal and shall be made in accordance with the Rules of the Supreme Court.Whilst reliance was sought to be placed by the appellants in that case on r 4(1) of the Rules of the Supreme Court of NSW, which provided for extension of time, the Court of Appeal found that Parliament had, by fixing a mandatory time limit, shown an intention contrary to the power to enlarge time contained within the rules and that s 55 of the Act was mandatory.The provision of a statutory right of appeal, the placing of the time limit within the primary legislation, and the failure to made any express provision for the extension of time, in conjunction with that time limit, leads to the conclusion that there is no right of appeal after 21 days have elapsed.