Underhill v Murden [2007] NSWSC 761

Underhill v Murden [2007] NSWSC 761

The Magistrate erred in law and denied natural justice by refusing the adjournment and forcing the ADVO application on for hearing on the first return date when the applicant was not ready to proceed, the PINOP was absent, and the respondent had not appeared. Section 46 of the Local Courts Act 1982, construed purposively, did not authorise that course without the applicant's consent. The dismissal caused injustice to the plaintiff and the PINOP without any injustice to the first defendant, and the Magistrate's jurisdiction was constructively unexercised.

Jurisdiction
Australia
Judgment Date
13 July 2007
Procedural Posture
Summons Seeking Orders in the Nature of Prerogative Relief Concerning an Apprehended Domestic Violence Order Application / Supreme Court Determination After Coffs Harbour Local Court Refused an Adjournment and Dismissed the Application
Outcome
Relief granted; Local Court decisions set aside and matter remitted to the Coffs Harbour Local Court to be determined according to law.
Legal Topics
['natural Justice' 'apprehended Domestic Violence Orders' 'adjournment' 'certiorari' 'mandamus' 'constructive Failure to Exercise Jurisdiction' 'local Court Procedure']
['administrative Law' 'criminal Law' 'domestic Violence' 'civil Procedure'] ['natural Justice' 'apprehended Domestic Violence Orders' 'adjournment' 'certiorari' 'mandamus' 'constructive Failure to Exercise Jurisdiction' 'local Court Procedure']

Case Brief

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Procedural Posture

Summons Seeking Orders in the Nature of Prerogative Relief Concerning an Apprehended Domestic Violence Order Application / Supreme Court Determination After Coffs Harbour Local Court Refused an Adjournment and Dismissed the Application

Legal Issues

  1. 1 ['Whether the Local Court Magistrate erred in law by refusing an adjournment on the first return date of an ADVO application when neither the PINOP nor the respondent was present.' 'Whether forcing the ADVO application on for hearing and dismissing it on the first return date denied natural justice or procedural fairness.' 'Whether s 46 of the Local Courts Act 1982 permitted the Magistrate to hear and determine the matter on the first return date when the applicant was not ready to proceed.' 'Whether the Magistrate constructively failed to exercise jurisdiction so as to warrant certiorari and mandamus.']

Ratio Decidendi

The Magistrate erred in law and denied natural justice by refusing the adjournment and forcing the ADVO application on for hearing on the first return date when the applicant was not ready to proceed, the PINOP was absent, and the respondent had not appeared. Section 46 of the Local Courts Act 1982, construed purposively, did not authorise that course without the applicant's consent. The dismissal caused injustice to the plaintiff and the PINOP without any injustice to the first defendant, and the Magistrate's jurisdiction was constructively unexercised.

Court Disposition

Relief granted; Local Court decisions set aside and matter remitted to the Coffs Harbour Local Court to be determined according to law.

Orders

  • ['An order in the nature of certiorari setting aside the decision of the learned Magistrate made in the Coffs Harbour Local Court on 17 April 2007 which dismissed the application for an apprehended domestic violence order commenced by the plaintiff.' 'An order in the nature of certiorari setting aside the decision...