DAWES -v- COYNE [2000] WASCA 134

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 134
Case No:	SJA:1018/2000	Heard:	3 MAY 2000
Coram:	MILLER J	Delivered:	19/05/00
No of pages:	7	Judgment Part:	1 of 1
Result:	Appeal allowed Violence restraining order set aside
PDF Version

Parties:	BELINDA JANE DAWES HARLEY PETER COYNE
Catchwords:	Violence restraining order Appeal from decision of Magistrate to place complainant on such order Power of Magistrate to make restraining order against "any other person who gives evidence" Restraining Orders Act 1997, s 63(2) Appellant not given any opportunity to be heard
Legislation:	Restraining Orders Act 1997, s 29(3), s 32, s 63
Case References:	Nil Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : DAWES -v- COYNE [2000] WASCA 134 CORAM : MILLER J HEARD : 3 MAY 2000 DELIVERED : 19 MAY 2000 FILE NO/S : SJA 1018 of 2000 BETWEEN : BELINDA JANE DAWES

Appellant

AND

HARLEY PETER COYNE

Respondent

Catchwords:

Violence restraining order - Appeal from decision of Magistrate to place complainant on such order - Power of Magistrate to make restraining order against "any other person who gives evidence" - Restraining Orders Act 1997, s 63(2) - Appellant not given any opportunity to be heard

Legislation:

Restraining Orders Act 1997, s 29(3), s 32, s 63

Result:

Appeal allowed

Violence restraining order set aside

(Page 2)

Representation:

Counsel:

Appellant : Ms F S Tenna

Respondent : No appearance

Solicitors:

Appellant : Director of Legal Aid

Respondent : No appearance

Case(s) referred to in judgment(s):
Nil

Case(s) also cited:

Nil

(Page 3)

1 MILLER J: On 12 April 1999 the appellant obtained against the respondent in the Court of Petty Sessions, Albany a violence restraining order under the provisions of the Restraining Orders Act 1997 ("the Act"). This order was an interim order pursuant to the provisions of s 29(3) of the Act and it prohibited the respondent from (inter alia) committing or attempting to commit any violent personal offence as defined in the Act against the appellant; communicating or attempting to communicate by whatever means, apart from letters, with the appellant; entering upon any premises where the appellant lived (apart from certain exceptions which are not relevant to these proceedings) or behaving in an intimidatory or offensive manner towards the appellant. The order being an interim one, it was, on 14 May 1999, made a final order under the provisions of s 32 of the Act.

2 Meanwhile, on the night of 10 May and early hours of the morning of 11 May 1999, the respondent, in breach of the order, made contact with the appellant at her home in Albany. In consequence he was charged with four breaches of the order and also with having unlawfully assaulted the appellant. The breaches of restraining order respectively alleged that on 11 May 1999 the respondent had, in breach of the order, entered the property at 37 Stephen Street, Albany and communicated with…

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 Dawes v Coyne

Details

AGLC: Dawes v Coyne [2000] WASCA 134
Case: [2000] WASCA 134
Decision Date: 19 MAY 2000

CaseChat Overview and Summary

In the case of Dawes v Coyne, the appellant, Mr Dawes, challenged the decision of a Magistrate to impose a violence restraining order against him. The order was made in the context of a domestic violence matter involving the complainant, Ms Coyne. The Magistrate had exercised powers under section 63(2) of the Restraining Orders Act 1997 to make the order against Mr Dawes, who was not directly a party to the original application but gave evidence during the proceedings. The appellant argued that he was not given any opportunity to be heard before the order was made, thereby denying him procedural fairness.

The primary legal issue before the court was whether the Magistrate had the authority to make a restraining order against a person who was not a party to the original application but who gave evidence during the proceedings. The court had to consider whether the statutory provision allowed for such an order and whether the appellant's procedural rights were violated by not being given an opportunity to be heard. The court also needed to determine if the order was justified on the facts and if it complied with the principles of natural justice.

The court held that the Magistrate did not have the authority to make a restraining order against the appellant under section 63(2) of the Act in the circumstances presented. The provision was intended to apply to individuals directly involved in the proceedings, not to those who merely gave evidence. The court found that the appellant was not given any opportunity to be heard before the order was made, which constituted a breach of procedural fairness. Consequently, the court set aside the violence restraining order against the appellant. The court emphasised the importance of ensuring that all parties have an opportunity to be heard before such orders are made, to uphold the principles of natural justice and procedural fairness.

Orders

Orders of the court

Appeal allowed

Violence restraining order set aside

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.