Del Borrello v Ninyett

[2001] WASCA 13

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   DEL BORRELLO & ANOR -v- NINYETT [2001] WASCA 13

CORAM:   STEYTLER J

HEARD:   22 JANUARY 2001

DELIVERED          :   22 JANUARY 2001

FILE NO/S:   SJA 1226 of 2000

BETWEEN:   MICHELA DEL BORRELLO

First Applicant

PETER DEL BORRELLO

Second Applicant

AND

MARK NINYETT

Respondent

Catchwords:

Appeal - Application for leave to appeal - Turns on own facts

Legislation:

Justices Act 1902, s 187(1)

Restraining Orders Act 1997, s 34, s 38

Strata Titles Act 1985, Pt VI

Result:

Application for leave to appeal dismissed

Representation:

Counsel:

First Applicant              :     No appearance

Second Applicant          :     In person

Respondent:     In person

Solicitors:

First Applicant              :     No appearance

Second Applicant          :     In person

Respondent:     In person

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

Nil

Case(s) also cited:

Nil

1. STEYTLER J  :  This is an application brought by the second applicant who seeks to bring the application both on behalf of himself and on behalf of his mother, the first applicant.  The application is one for leave to appeal under the Justices Act 1902.  The applicant seeks leave to appeal from the whole of the decision of a Magistrate given in the Court of Petty Sessions at Perth on 8 November 2000 in the course of which the learned Magistrate refused to make various restraining orders under the Restraining Orders Act 1997.

2. The grounds upon which the applicant seeks leave to appeal against the decision of the Magistrate are lengthy.  Without quoting from them, and without intending to summarise them, the principal points which are sought to be made are that the applicant was not given a sufficient opportunity to present his and his mother's case to the Magistrate and that the Magistrate was wrong in his conclusion that the matters sought to be raised by the second applicant were not matters which should result in the grant of restraining orders but should instead be dealt with by a Strata Titles Referee under the Strata Titles Act 1985.

3. At the hearing before the learned Magistrate the second applicant, who sought then also to appear on his own and his mother's behalf, was asked by his Worship to identify the persons against whom he and his mother had taken proceedings and in each case to say what was the background to the proceedings proposed to be taken and what were the grounds upon which they were to be taken.  The learned Magistrate said that his purpose in doing so was in order to inform the various defendants of the case sought to be made against each of them and to consider whether or not an adjournment was appropriate, but it is apparent from a reading of the transcript that he thereafter raised with the second applicant the question whether the proceedings for misconduct restraining orders were appropriate at all and whether the dispute might not be better dealt with by a Strata Titles Referee.

4. The second applicant told the learned Magistrate about the proceedings which he wished to bring against each respondent and identified, in each case, the grounds upon which he relied.  Having heard the applicant out in respect of those matters the learned Magistrate said:

   "These are misconduct restraining orders which the applicant has initiated and before any misconduct restraining order can be made, the court has to be satisfied that -

   'Unless restrained the respondent is likely to behave in a manner that could reasonably be expected to be intimidating, or offensive to the applicant and that would in fact intimidate or offend the applicant, cause damage to property owned by or in the possession of the applicant or behave in a manner that is or is likely to lead to a breach of the peace and that granting a misconduct restraining order is appropriate in the circumstances.' "

5. His Worship was quoting the effect of s 34 of the Restraining Act.  Having done so, his Worship went on to say that all of the matters which had  been referred to by the second applicant came "under the operations of the Strata Title regime" and that it seemed to him that that was the appropriate place for those matters to be dealt with.

6. He consequently dismissed each of the applications and made an order for costs against the applicant totalling some $417.50.

7. Notwithstanding that I have given careful consideration to the lengthy amended grounds which have been raised by Mr Del Borrello on behalf of himself and his mother, and notwithstanding my examination of the transcript, the other exhibits and the provisions of the legislation relied upon by Mr Del Borrello, it seems to me that the grounds of appeal advanced by the applicants do not disclose an arguable case and that leave to appeal should consequently be refused under s 187(1) of the Justices Act.

8. As to the principal points sought to be made by the applicant it seems to me that the learned Magistrate afforded to the applicant an adequate opportunity to outline the nature of, and grounds for, the case sought to be made by him and that it was patently within his Worship's discretion to find, in the circumstances outlined to him (which essentially revolved around a dispute between the first applicant and the body corporate of the strata titled development in which she lived) that the dispute should more appropriately be dealt with by a Strata Titles Referee under Part VI of the Strata Titles Act.

9. I should add that the applicants also sought leave to appeal against the order for costs which was made by the learned Magistrate upon the grounds that they were excessive and, in any event, improperly awarded.  However it seems to me that there is no arguable case in that respect also.  I am unable to see how it could be said that the learned Magistrate erred in the exercise of his discretion to award costs in favour of the respondent, who had appeared by counsel, or in the exercise of his discretion as regards the amount thereof.

10. I should add, as Mr Del Borrello himself acknowledged, that, under s 38 of the Restraining Orders Act, only certain persons are able to bring an application for a misconduct restraining order and there is a substantial question whether the applicant was able to do so on behalf of his mother.  However, that was not a ground relied upon by the learned Magistrate below and I need say no more about it.

11. It follows in all of the circumstances that I propose to dismiss the application for leave to appeal.