Underhill v Murden [2007] NSWSC 761

Reported Decision : 173 A Crim R 336

New South Wales Supreme Court

CITATION : Underhill v Murden [2007] NSWSC 761

HEARING DATE(S) : 28 June 2007

JUDGMENT DATE : 13 July 2007

JUDGMENT OF : Price J at 1

DECISION : 1. An order in the nature of certiorari setting aside the decision of the learned Magistrate made in Coffs Harbour Local Court on 17 April 2007 which dismissed the application for an apprehended domestic violence order commenced by the plaintiff. 2. An order in the nature of certiorari setting aside the decision of the learned Magistrate made in Coffs Harbour Local Court on 17 April 2007, which refused the adjournment sought by the plaintiff. 3. A declaration that the learned Magistrate erred in law in refusing the adjournment. 4. A declaration that the learned Magistrate erred in law in forcing the application on for hearing on the first return date and in dismissing the application when the PINOP was not present. 5. A declaration that the jurisdiction of the learned Magistrate is constructively unexercised. 6. An order in the nature of mandamus that the matter be remitted to the Coffs Harbour Local Court to be determined according to law.

CATCHWORDS : Natural justice - application for apprehended domestic violence order - refusal to adjourn on first mention date - dismissal of application - extent of jurisdiction - constructive failure to exercise jurisdiction.

Crimes Act 1900 s 15A, s 562ZQ(1), LEGISLATION CITED : s 562ZZN(9) Crimes (Appeal and Review) Act 2001 s 59(2)(a) Local Courts Act 1982 s 46, s 46(1), s 46(3),

Ex parte Hebburn Ltd (1947) 47 SR (NSW) 416 John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 Maxwell v Keun [1928] 1 KB 645 CASES CITED : Public Prosecutions v Gursel Ozakca & Anor [2006] NSWSC 1425 Sali v SPC Limited (1993) 67 ALJR 841 Solution 6 Ltd v Industrial Relations Comm (NSW) (2004) 60 NSWLR 558 Queensland v JL Holdings Pty Limited (1997) 189 CLR 146