JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BROOKS -v- LATHONG [2019] WASCA 176
CORAM: MURPHY JA
MITCHELL JA
HEARD: 6 NOVEMBER 2019
DELIVERED : 6 NOVEMBER 2019
PUBLISHED : 6 NOVEMBER 2019
FILE NO/S: CACV 56 of 2019
BETWEEN: RICHARD CHARLES BROOKS
Appellant
AND
KUSUMA KHAMHONGSA LATHONG
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: DAVIS DCJ
Citation: BROOKS -v- LATHONG [2019] WADC 24
File Number : APP 63 of 2018
Catchwords:
Restraining orders - Appeal from an application to set aside a conduct agreement order - Whether duress, undue influence or unconscionable conduct arguably established - Whether denial of natural justice arguably established - Turns on own facts
Legislation:
Restraining Orders Act 1997 (WA), s 10H
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Ms E Jance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Moana Chambers |
Case(s) referred to in decision(s):
REASONS OF THE COURT:
At the conclusion of the hearing on 6 November 2019, we ordered that this appeal be dismissed. These are our reasons for dismissing the appeal.
Background
On 31 July 2017, the respondent obtained an ex parte interim violence restraining order against the appellant, under the Restraining Orders Act 1997 (WA) (Act). A trial of the application for a final order was listed to commence on 14 February 2018.[1]
Conduct agreement order
[1] Brooks v Lathong [2019] WADC 24 (Primary decision) [1] - [2].
When the matter was first called on by the magistrate on 14 February 2018, counsel for the respondent indicated that the parties were close to reaching agreement as to a conduct agreement order which may be made under s 10H of the Act.[2]
[2] Magistrates Court ts 14/2/18, page 12.
In essence, s 10H(1) of the Act allowed the court to make a 'conduct agreement order' if the appellant agreed to the making of a final order imposing certain restraints (conduct agreement). In making that order, the court was not required to be satisfied that there were grounds for making a family violence restraining order in the same terms. Pursuant to s 10H(2), a conduct agreement does not constitute an admission of the matters alleged in the application for a family violence restraining order. Section 10H(3) provides that a conduct agreement order is not a family violence restraining order, but is taken to be such an order for the purposes of the Act.
At the suggestion of the respondent's counsel, the magistrate explained to the appellant that signing a conduct agreement was not an admission of liability. In the course of doing so, the magistrate said:[3]
You probably have been in court many times, Mr Brooks, hearing me say that matters often times resolve on the basis of a respondent indicating on any paperwork that they do…
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- AGLC
- Brooks v Lathong [2019] WASCA 176
- Case
- [2019] WASCA 176
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the applicant had established that the conduct agreement was obtained through duress, undue influence, or unconscionable conduct, and whether the proceedings were conducted in a manner that arguably denied natural justice. The court had to determine if there was sufficient evidence to warrant setting aside the conduct agreement order, and whether the trial judge's findings were open to challenge on appeal.
The court considered the evidence presented and found that there was no evidence of duress, undue influence, or unconscionable conduct in the making of the conduct agreement. The court also found that the proceedings were conducted fairly and no denial of natural justice was established. The appeal was dismissed as the applicant failed to discharge the onus of establishing the requisite grounds for setting aside the conduct agreement order. The appeal court upheld the trial judge's findings and rejected the applicant's contentions.
The final orders of the court included dismissing the appeal, affirming the conduct agreement order made by the trial judge, and ordering the applicant to pay the respondent's costs of the appeal. The court's decision was based on the clear evidence that the conduct agreement was not obtained through any improper means, and that the proceedings were conducted in a manner that did not deny natural justice.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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