STRAPP -v- HAUNOLD [2016] WADC 177

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WADC 177
Published:	22/12/2016
Case No:	APP:67/2016	Heard:	16 DECEMBER 2016
Coram:	PARRY DCJ	Delivered:	16/12/16
Location:	PERTH
No of pages:	10	Judgment Part:	1 of 1
Result:	Appeal allowed Decision dismissing appellant's costs application set aside Cost application remitted to Busselton Magistrates Court for determination by a different magistrate
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Parties:	SUZANNE PATRICIA STRAPP MICHELLE PETA HAUNOLD
Catchwords:	Appeal from Magistrates Court Violence restraining order proceeding Costs application Whether denial of procedural fairness Magistrate adjourned costs application and granted leave for appellant's counsel to appear at further hearing by telephone Magistrates Court did not telephone appellant's counsel at commencement of further hearing Magistrate heard further submissions from respondent in absence of appellant and appellant's counsel and dismissed appellant's costs application
Legislation:	District Court Rules 2005, r 50(2), r 50(3) Magistrates Court (Civil Proceedings) Act 2004 (WA), s 40(4), s 40(5), s 43(7) Restraining Orders Act 1997 (WA), s 64(1), s 64(2), s 69(1)
Case References:	Hall v The University of New South Wales [2003] NSWSC 669 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Smith v Mandurah Auto Pty Ltd [2014] WADC 69; (2014) 86 SR(WA) 254

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : STRAPP -v- HAUNOLD [2016] WADC 177 CORAM : PARRY DCJ HEARD : 16 DECEMBER 2016 DELIVERED : 16 DECEMBER 2016 PUBLISHED : 22 DECEMBER 2016 FILE NO/S : APP 67 of 2016 BETWEEN : SUZANNE PATRICIA STRAPP

Appellant

AND

MICHELLE PETA HAUNOLD

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE MILLINGTON

File No : MC/CIV/BUS/RO 169 of 2015

Catchwords:

Appeal from Magistrates Court - Violence restraining order proceeding – Costs application - Whether denial of procedural fairness - Magistrate adjourned costs application and granted leave for appellant's counsel to appear at further hearing by telephone - Magistrates Court did not telephone appellant's counsel at commencement of further hearing - Magistrate heard further submissions from respondent in absence of appellant and appellant's counsel and dismissed appellant's costs application

Legislation:

District Court Rules 2005, r 50(2), r 50(3)

Magistrates Court (Civil Proceedings) Act 2004 (WA), s 40(4), s 40(5), s 43(7)
Restraining Orders Act 1997 (WA), s 64(1), s 64(2), s 69(1)

Result:

Appeal allowed

Decision dismissing appellant's costs application set aside
Cost application remitted to Busselton Magistrates Court for determination by a different magistrate

Representation:

Counsel:

Appellant : Mr R I M Bannerman

Respondent : In person

Solicitors:

Appellant : Bannerman Solicitors

Respondent : Not applicable

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

Hall v The University of New South Wales [2003] NSWSC 669
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Smith v Mandurah Auto Pty Ltd [2014] WADC 69; (2014) 86 SR(WA) 254

PARRY DCJ

: (This judgment was delivered extemporaneously on 16 December 2016 and edited from transcript).

Introduction

1 Ms Suzanne Strapp appeals, pursuant to s…

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 Strapp v Haunold

Details

AGLC: Strapp v Haunold [2016] WADC 177
Case: [2016] WADC 177
Decision Date: 16 DECEMBER 2016

CaseChat Overview and Summary

The appeal before the court involved a dispute over a costs application in a proceeding for a violence restraining order. The appellant, Strapp, sought to appeal the decision of the Magistrates Court to dismiss their application for costs. The respondent, Haunold, did not contest the appeal but opposed the application. The appeal was heard in the Magistrates Court Appeal Panel.

The central legal issue before the court was whether the Magistrates Court had denied procedural fairness to the appellant by not providing them an opportunity to be heard on the costs application when their counsel was unable to attend the further hearing by telephone. The appellant argued that the Magistrates Court did not adhere to the principles of natural justice and procedural fairness by hearing submissions from the respondent in the absence of the appellant and their counsel.

The court found that the Magistrates Court had indeed denied the appellant procedural fairness. The court reasoned that the appellant's counsel had been granted leave to appear at the further hearing by telephone, and it was incumbent upon the Magistrates Court to ensure that this opportunity was facilitated. By not telephoning the appellant's counsel at the commencement of the further hearing, the Magistrates Court did not provide the appellant with a fair opportunity to be heard. The court concluded that the decision to dismiss the appellant's costs application should be set aside and the matter should be remitted to the Magistrates Court for determination by a different magistrate.

The appeal was allowed, the decision dismissing the appellant's costs application was set aside, and the cost application was remitted to the Busselton Magistrates Court for determination by a different magistrate.

Orders

Orders of the court

Appeal allowed

Decision dismissing appellant's costs application set aside

Cost application remitted to Busselton Magistrates Court for determination by a different magistrate

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

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