Appeal - Application to review decision of single judge of appeal - Appellant convicted by magistrate of breaching a restraining order - Whether single judge erred in striking out grounds of appeal on the basis they had no reasonable prospect of success - Whether single judge erred in dismissing applications to adduce additional evidence and some subpoenas - Turns on own facts
BUSS JA: On 23 April 2008, McKechnie J heard and determined two applications by the appellant for leave to appeal. See Cuijpers v Thompson[2008] WASC 95.
In SJA 1008 of 2008, the appellant sought leave to appeal against the making of a misconduct restraining order in respect of him. The restraining order was made on 15 September 2003 on the application of the appellant's former girlfriend (AB 194). I will refer to his former girlfriend as JCK. On 24 October 2003, the restraining order was served on the appellant personally (AB 279). It took effect on that date (AB 312). Later, after events which occurred on 8 October 2004, an extension of the restraining order was granted by Magistrate…
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.
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AGLC
Cuijpers v Sander [No 2] [2009] WASCA 84
Case
[2009] WASCA 84
Decision Date
CaseChat Overview and Summary
The appellant, Cuijpers, appealed against the decision of a single judge of the court of appeal who had struck out his grounds of appeal and dismissed his applications to adduce additional evidence and subpoenas. The appellant had been convicted by a magistrate of breaching a restraining order. The single judge held that the grounds of appeal had no reasonable prospect of success and dismissed the appellant's applications on the basis that they were an abuse of process. The appellant contended that the single judge erred in striking out the grounds of appeal and in dismissing the applications to adduce additional evidence and subpoenas. The court held that the appeal should be dismissed, finding that the single judge was correct in holding that the grounds of appeal had no reasonable prospect of success and that the applications to adduce additional evidence and subpoenas were an abuse of process.
The court held that the single judge was correct in striking out the grounds of appeal on the basis that they had no reasonable prospect of success. The court found that the appellant's grounds of appeal were based on arguments that were either not supported by the evidence or that had already been considered and rejected by the primary judge. The court held that the single judge was correct in dismissing the applications to adduce additional evidence and subpoenas on the basis that they were an abuse of process. The court found that the appellant had not shown any good reason for not adduced the evidence at the original hearing and that the applications were an attempt to relitigate issues that had already been decided. The court held that the single judge's decision was correct and that the appeal should be dismissed.
The appeal was dismissed. The court found that the single judge was correct in striking out the grounds of appeal and in dismissing the applications to adduce additional evidence and subpoenas. The court held that the appellant had not shown any good reason for not adduced the evidence at the original hearing and that the applications were an abuse of process. The court found that the single judge's decision was correct and that the appeal should be dismissed. The court further held that the appellant should pay the respondent's costs of the appeal.