Case type: Application for review of Magistrate’s decision not to make a final family violence restraining order and application for stay of proceedings.
Facts: The applicant made an application for a family violence restraining order pursuant to s 24A of the Restraining Orders Act 1997 (WA) (‘Restraining Orders Act’) against her former partner (). The Court made an interim family violence restraining order (). The respondent objected to the interim order (). The next hearing was listed as a 'Restraining Order Final Order Directions Hearing'. The respondent did not attend at that hearing. The Magistrate did not make a final order, and adjourned the hearing (-).
The applicant applied for a review order under s 36 of the Magistrates Court Act 2004 (WA) (), to review the Magistrate’s decision not to make a final restraining order. The applicant also applied for a stay of the substantive hearing.
Issues: Whether the applications should be granted.
Decision and Reasoning: Tottle J granted the review order and the stay of proceedings.
Tottle J set out the principles governing judicial review under s 36of the Magistrates Court Act 2004 (WA) at -. His Honour set out the principles governing when a final order must be made under s 42 of the Restraining Orders Act at -. Tottle J held that it was irrelevant that the hearing was described as a 'Restraining Order Final Order Directions Hearing' even though no hearing of that nature is contemplated or provided for by the Restraining Orders Act (discussing Kickett v Starr  WADC 52) (-). Tottle J was satisfied that the Magistrate made a jurisdictional error by not exercising the jurisdiction conferred on him by the Restraining Orders Act ().
Tottle J set out the principles governing when a stay ought to be granted at . Tottle J granted a stay of the proceedings on the grounds that the applicant’s medical conditions and stress would be exacerbated by having to face the respondent in a contested hearing (-). Tottle J noted that s 10B of the Restraining Orders Act requires courts to have regard to the possibility of re-traumatisation during the proceedings ().