Brooks v Lathong - [2019] WASCA 176

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):

Defendi v Szigligeti [2019] WASCA 115
Thorne v Kennedy [2017] HCA 49; (2017) 263 CLR 85

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…

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 Brooks v Lathong

Details

AGLC: Brooks v Lathong [2019] WASCA 176
Case: [2019] WASCA 176
Decision Date: 6 NOVEMBER 2019

CaseChat Overview and Summary

Brooks v Lathong involved an appeal by the applicant, Lathong, against the respondent Brooks' application to set aside a conduct agreement order made under section 474A of the Crimes (Domestic and Personal Violence) Act 2007. The application to set aside was predicated on the contention that the original conduct agreement was obtained through duress, undue influence, or unconscionable conduct, or that the proceedings were conducted in a manner that arguably denied natural justice. The matter was heard in the Supreme Court of Queensland, with the Court of Appeal considering the merits of the appeal.

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