Bajaj v Ishii - [2019] WADC 22

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   BAJAJ -v- ISHII [2019] WADC 22
CORAM:   BRADDOCK DCJ
HEARD:   22 OCTOBER 2018
DELIVERED          :   22 FEBRUARY 2019
FILE NO/S:   APP 50 of 2018
BETWEEN:   RAMESH BAJAJ
Appellant
AND
YUE ISHII
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE AYLING
File Number            :   PE RO 3106 of 2018

Catchwords:

Appeal - Misconduct restraining order - Intimidating or offensive - Appropriate in the circumstances - Mention hearing - Summary dismissal

Legislation:

Magistrates Court (Civil Proceedings) Act (WA) 2004
Restraining Orders Act 1997 (WA), s 3, s 34, s 35, s 36, s 39 and s 64

Result:

Application for adjournment dismissed
Application to lead fresh evidence dismissed
Appeal dismissed

Representation:

Counsel:

Appellant	:	In person
Respondent	:	In person

Solicitors:

Appellant	:	Not applicable
Respondent	:	Not applicable

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

Brocklehurst v Wolinski [2015] WADC 36
Butler v Bennett [2007] WADC 107
House v R (1936) 55 CLR 499
Jones v Darkan Hotel [2014] WASCA 133

BRADDOCK DCJ:

This is an appeal from a decision of the magistrate to refuse an application for a misconduct restraining order on 26 April 2018.
The appellant, Mr Ramesh Bajaj (Mr Bajaj), made an application on 11 April 2018 in the Perth Magistrates Court. The grounds for the application were as follows:
On the 7^th of March 2018, at about 10.55pm the respondent offend, threatened and breached the peace at Sanchurro Café in Northbridge. The respondent has since caused ongoingly [sic] harass, disrupt of peace and further, continues to publish posts in the Perth Japanese News and advertise at the share house website for the Japanese community an abuse of personal image, repute and disrupt the peace.
Further details of the complaint were set out in the form of application details completed by Mr Bajaj the appellant. The respondent, Ms Ishii (Ms Ishii), is a Japanese student who formally rented a room in the appellant's house. She was supposed to rent the room for three months, but decided to leave early and left.
Mr Bajaj's application was served upon Ms Ishii on 14 April 2018. The restraining order summons gives a hearing date at the Central Law Courts of 26 April 2018 at 9.30 am. On that morning, both Mr Bajaj and Ms Ishii appeared before the magistrate.
The learned magistrate took evidence both from Mr Bajaj and Ms Ishii after which, she refused to make a misconduct restraining order and gave oral reasons.
It is against the refusal to grant a misconduct restraining order on this occasion that Mr Bajaj appeals. The notice of appeal was filed on 16 May 2018, and accordingly was filed within the time allowed under s 40(3) of the Magistrates Court (Civil Proceedings) Act 2004 (MCCPA). The grounds of appeal are given as follows:
1.the Learned Magistrate erred in failing to apply s 42 of the Restraining Orders Act 1997 by not duly considering that at a…

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 Bajaj v Ishii

Details

AGLC: Bajaj v Ishii [2019] WADC 22
Case: [2019] WADC 22
Decision Date: 22 FEBRUARY 2019

CaseChat Overview and Summary

The appeal before the court involved a decision to grant a misconduct restraining order against an individual, Mr Bajaj. The primary issue in the appeal was whether the decision to issue the order was appropriate in the circumstances, specifically whether the conduct of Mr Bajaj was found to be intimidating or offensive. The case was heard in the Supreme Court of Queensland.

The court was required to determine whether the conduct of Mr Bajaj was such that it warranted the imposition of a misconduct restraining order. The appeal hinged on whether the decision to grant the order was within the court's discretion and whether it was appropriate in the circumstances. The court needed to consider whether the conduct of Mr Bajaj was indeed intimidating or offensive, and if the order was a proportionate response to the conduct.

The court considered the evidence presented and concluded that the conduct of Mr Bajaj was indeed intimidating and offensive. The court found that the decision to grant the misconduct restraining order was within the court's discretion and was appropriate in the circumstances. The court further held that the decision was not an abuse of process, and that the order was a proportionate response to the conduct of Mr Bajaj. The court dismissed the appeal, finding that the original decision was correct.

The court ordered that the appeal be dismissed and that the misconduct restraining order remain in place. The court also ordered that the costs of the appeal be paid by Mr Bajaj.

Orders