| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : TACIAK -v- LYONS [2012] WADC 61 CORAM : BOWDEN DCJ HEARD : 20 APRIL 2012 DELIVERED : 26 APRIL 2012 FILE NO/S : APP 7 of 2011 BETWEEN : KOBI JANE TACIAK Appellant
AND
DAMIAN JAMES LYONS
Respondent
FILE NO/S : APP 8 of 2011 BETWEEN : KOBI JANE TACIAK Appellant
AND
SHELLICE REGAN
Respondent
Catchwords: Violence restraining order - Appeal - Section 43A Restraining Orders Act 1997 - Appeal from a magistrate's dismissal of an application purportedly made under
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section 43A Restraining Orders Act 1997 - Appeal dismissed - Medical reports tendered to the court Legislation: Magistrates Court (Civil Proceedings) Act 2004
Restraining Orders Act 1997 Result: Appeal dismissed APP 7 of 2011 Counsel:
Appellant : Mr G Rodgers
Respondent : Ms V Kafentzis
Solicitors:
Appellant : Rodgers Solicitors
Respondent : Stoddart & Co
APP 8 of 2011 Counsel:
Appellant : Mr G Rodgers
Respondent : Ms V Kafentzis
Solicitors:
Appellant : Rodgers Solicitors
Respondent : Stoddart & Co
Case(s) referred to in judgment(s):
Defendi v Chartstar Pty Ltd (t/as Coletti Refrigeration and Airconditioning) [2011] WADC 42
Grossetti v Grossetti [2011] WADC 78
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Lau v Chua [2009] WADC 172
McKeon v Knapton [2009] WADC 170
Seah & Ousby [2011] WADC 54
Wilson v Westpac Banking Corporation [2011] WADC 13
Wise & Anor v Proprietors of Strata Plan 21513 [2008] WADC 80
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1 BOWDEN DCJ: On 20 April 2011 I dismissed the two appeals in this matter. I now provide my reasons.
2 This matter has a tortuous history. The first and second respondent (Mr Lyons and Ms Regan) each applied for violence restraining orders against the appellant (Ms Taciak). The applications were made on 14 March 2011 and on that date interim orders were granted. 3 Objections were filed by Ms Taciak and a hearing date was set for 30 May 2011. Ms Taciak failed to appear and the interim violence restraining orders were made final. 4 Ms Taciak deposes as follows: I was unable to attend the court on the day being 30 May 2011 as I was restricted to my hospital bed. I attach a copy of the medical certificate … (affidavit sworn 19 June 2011). 5 The medical certificate is undated and makes no mention at all that Ms Taciak was confined to a hospital and provides no confirmation whatsoever that she was in hospital. The medical report says, insofar as I am able to ascertain from the almost illegible handwriting: The above is unfit to attend court … for two months from 30/4/11. (Affidavit of Ms Taciak sworn 19 June 2011). 6 In my opinion, a medical report proffered to the court should specifically refer to the date the patient has advised the doctor they are required to appear in court, when the doctor was first approached to provide the report, the medical condition that causes the patient to be unable to attend the court, the date of the onset of that condition, how long it is likely to last and an acknowledgement within the report that the doctor is aware the report is to be produced to the court. 7 A form 23 application was filed by Ms Taciak filed on 17 June 2011 to set aside the final restraining order of 30 May 2011. Clearly, the wrong form was used. Form 14 which is headed 'application to set aside a decision under section 42 of the Restraining Orders Act 1997' was the correct form. The form 23 application of 17 June 2011 refers to it being an application under s 43A(2)(b) of the Restraining Orders Act1997 so nothing turns on this. 8 Section 43A of the Restraining Orders Act 1997 provides: (Page 5)
or such further period as the court may allow at a hearing fixed under subsection (3), apply to the court, in the prescribed form setting out the grounds of the application, to have that decision set aside. (3) On receiving an application under subsection (2) the registrar is to fix a hearing, to be held in the absence of the other party to the proceedings, at which, subject to subsection (4), the court — 9 The court listed the application for hearing on 20 June 2011. His Honour Chief Magistrate Heath dealt with the application on an ex parte basis. As it was made within time, the chief magistrate was satisfied pursuant to s 43(3)(b)(i). Ms Taciak may have had a reasonable cause not to attend the final restraining order hearing and adjourned the application to allow the Mr Lyons and Ms Regan to oppose it. 10 The matter was adjourned to 13 July 2011, from that date adjourned to 5 September 2011, from that date further adjourned to 3 October 2011. 11 In the meantime, Ms Taciak made another application to set aside the final violence restraining order of 30 May 2011 which was filed on 26 September 2011, this time on the correct form. The application was received and date stamped by the Magistrates Court on 26 September (Page 6)
2011 and a copy sent by Ms Taciak's solicitor to Mr Lyon and Ms Regan's solicitors. 12 The court failed to complete 'the notice of court hearing or date and time of hearing' section of the form. Although the application was filed and served, no hearing date was given and the application remains on the court's file. 13 On 3 October 2011 the original much adjourned application of 17 June 2011 was heard. On that date there was no appearance by Ms Taciak, whose application it was, and it was dismissed with costs. The only recourse left to Ms Taciak following that decision was to appeal to the District Court under s 64 of the Restraining Orders Act which provides: (1) A person aggrieved by the decision of a court — (2) If the decision was made by the Magistrates Court, the appeal is to be made in accordance with Pt 7 of the Magistrates Court (Civil Proceedings) Act 2004. 14 Section 40(3) of the Magistrates Court (Civil Proceedings) Act 2204 provides that the appeal must be commenced within 21 days after the date of judgment and be conducted in accordance with the District Court Rules 2005. 15 The District Court Rules (r 51)provides the notice of appeal must be filed and served within 21 days after the date of the appealable decision. There is no provision in the Magistrates Court (Criminal Procedure) Act or the District Court of Western Australia Act 1969 (District Court Act) or the District Court Rules for an extension of time limit for filing and serving a notice of appeal against the decision in the Magistrates Court.
16 A large number of decisions by judges of the District Court have held that there is no power on the District Court to grant an extension of time within which a party may institute an appeal: McKeon v Knapton [2009] WADC 170; Wilson v Westpac Banking Corporation [2011] WADC 13; Defendi v Chartstar Pty Ltd (t/as Coletti Refrigeration and Airconditioning) [2011] WADC 42; Seah & Ousby [2011] WADC 54; (Page 7)
Grossetti v Grossetti [2011] WADC 78, although there are some decisions to the contrary Wise & Anor v Proprietors of Strata Plan 21513 [2008] WADC 80; Lau v Chua [2009] WADC 172. 17 Notwithstanding Ms Taciak's only avenue was to appeal to the District Court or to make another application under s 43A of the Restraining Orders Act she filed in the Magistrates Court on 9 November 2011 an application to set aside the decision of 3 October 2011. This application was to set aside the decision dismissing an application to set aside the final restraining order in default of appearance. That is not an application that can be made under the Restraining Orders Act. It should have been dismissed. 18 On 10 November 2011 it came before the Magistrates Court. Although it should have been dismissed, leave was granted to continue the application out of time and it was adjourned to 1 December 2011 to allow Mr Lyons and Ms Regan to oppose it. 19 On 1 December 2011 it was further adjourned to 16 January 2012. On the 16 January 2012 the application was dismissed. It had to be as it was not an application that could be made under the Act. 20 Ms Taciak now appeals saying the magistrate erred by dismissing the application. The magistrate was correct to dismiss the application. The application could not be made under the Act, and there was no application to amend its terms. 21 Although the magistrate dismissed it, it is clear from the transcript of 16 January 2012 that there was much confusion over what the application was. The confusion was brought about by Ms Taciak's original application of 17 June 2011 being on the wrong form (a form 23 was used instead of a form 14) and the fact that the court had received a further application of 26 September 2011 and not given it a hearing date. 22 I have dismissed this appeal as the application of 9 November 2011 to set aside the decision of the magistrate made on the 3 October 2011, dismissing an application of 17 June 2011 to set aside the final restraining order in default of appearance was not an application that can be made under the Restraining Orders Act. 23 It is open to Ms Taciak to either appeal my decision or alternatively make a further application under s 43A of the Restraining Orders Act to set aside the decision of 30 May 2011. (Page 8)
24 It is well recognised that to make a violence restraining order against a person is a serious step. It is an infringement on that person's civil liberty. Although civil proceedings, they have a quasi criminal nature. Ms Taciak says she has the right to be heard in opposition to the final violence restraining order being granted however this has to be weighed against the public interest in finality in litigation. If a party wishes to set aside a violence restraining order, there is an obligation to prosecute that application promptly. On occasion applicants are hospitalized or required to be in more courts than one however that does not alleviate the need to prosecute these applications promptly. 25 The fact remains that Ms Taciak did not attend the final hearing date for the violence restraining order. She produces a medical certificate which in my opinion is deficient. When her original application to set aside the final violence restraining order was called on for hearing she was not present because she says she was in another court. Her applications have been adjourned numerous times. An application dated 9 November 2011 was later made that was not within the Magistrates' Court jurisdiction to grant. When it was dismissed, as it had to be, an appeal was lodged. With respect, the appeal was bound to fail. This has resulted in further delays. The final orders have been in place for almost 11 months. 26 All of these matters will need to be considered by the magistrate if a further application is made. It is not appropriate I make any further comment. I dismiss the appeals.
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