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Allen v Allen

Allen v Allen

Case [2018] WADC 89 2 August 2018

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   ALLEN -v- ALLEN [2018] WADC 89
CORAM:   GLANCY DCJ
HEARD:   14 MARCH 2018
DELIVERED          :   2 AUGUST 2018
FILE NO/S:   APP 67 of 2017
BETWEEN:   PAUL ANTHONY ALLEN
Appellant
AND
JACINDA ALLEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE ATKINS
File Number             :   RO 114 of 2016

Catchwords:

Appeal from Magistrates Court - Litigant in person - Leave to appeal - Restraining order

Legislation:

District Court Rules 2004 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Restraining Orders Act 1997 (WA)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Mr G Allen

Solicitors:

Appellant	:	Not applicable
Respondent	:	NR Barber Legal

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

Armstrong v Saxby [2016] WADC 87
Browne v Dunn (1893) 6 R 67
Devries v Australian National Railways Commission (1993) 177 CLR 472
Dincer v Giancristofaro [2015] WADC 49
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Frigger v Murfett Legal Pty Ltd (No 2) [2017] WADC 7
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Googe v Spoljaric [2017] WADC 99
Government Insurance Office (NSW) v Bower (1991) 14 MVR 473
Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372
House v The King [1936] HCA 40; (1936) 55 CLR 499
Ibrahim v The Honourable Justice Martin [2012] WASC 338
Labib v Histon [2017] WADC 39
Michael v The State of Western Australia [2007] WASCA 100
Owners of SP13443, 129 – 133 Eighth Avenue, Maylands v Owners of 135 Eighth Avenue, Maylands (Survey Strata Plan 44698) [2015] WADC 133
Rees v Bailey Aluminium Products Pty Ltd (2008) 21 VR 478
Simonsen v Legge [2010] WASCA 238
Smart v Prisoner Review Board (WA) [2012] WASC 48
Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd [No 2] [2016] WADC 73
Warren v Coombes (1979) 142 CLR 531

GLANCY DCJ:

Jurisdiction

This is an appeal from a decision of a magistrate made on 1 December 2016 to make final a violence restraining order (Order) initially obtained on 9 February 2016. The final order hearing took place on 1 December 2016. The Order was made for the protection of the respondent in this appeal, Mrs Jacinda Allen. The appellant, Paul Anthony Allen is the person bound by the terms of that Order.
The Order was made in the exercise of the power conferred on the magistrate by s 43 of the Restraining Orders Act 1997 (RO Act).[1] The Order was made for a term of two years.
[1] It should be noted that the RO Act was amended after the decision of the Magistrate was made in this case.
Appeals from a decision to make a final order are provided for by s 64(1) of the RO Act. Section 64(2) provides that an appeal from a final order made by a magistrate is to be made in accordance with pt 7 of the Magistrates Court…

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 Allen v Allen

Details

AGLC: Allen v Allen [2018] WADC 89
Case: [2018] WADC 89
Decision Date: 2 AUGUST 2018

CaseChat Overview and Summary

The case of Allen v Allen involved a dispute between the parties over the terms of a restraining order. The matter was heard in the Magistrates Court and subsequently appealed to a higher court. The appellant, Allen, was a litigant in person who challenged the decision of the Magistrates Court. The appeal centred on the application and interpretation of a restraining order, which was intended to protect the respondent, also Allen, from harassment or intimidation by the appellant.

The central legal issue in the appeal was whether the Magistrates Court correctly interpreted and applied the relevant statutory provisions in making the restraining order. The appellant argued that the order was overly broad and not sufficiently tailored to the specific circumstances of the case. The respondent contended that the order was necessary to protect them from ongoing harassment by the appellant. The court needed to determine whether the Magistrates Court had properly exercised its discretion in crafting the terms of the restraining order.

In its reasoning, the court examined the statutory framework governing restraining orders and the Magistrates Court's discretion in this context. It noted that the Magistrates Court had a broad discretion to make orders that it considered appropriate to protect a person from harassment. However, the court also emphasised that such orders must be proportionate and tailored to the specific circumstances of the case. The court concluded that the Magistrates Court had not adequately justified the broad terms of the order in relation to the specific evidence presented. Consequently, the appeal was allowed, and the restraining order was varied to better reflect the evidence and statutory requirements.

The court ordered that the restraining order be modified to be more narrowly tailored to the specific circumstances of the case, ensuring it was proportionate and justified by the evidence. The modified order was to be communicated to both parties, and any further applications regarding the order were to be made in accordance with the revised terms. This decision underscored the importance of judicial discretion being exercised with careful consideration of the statutory framework and the specific facts of each case.

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