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

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.
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.
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.
The second applicant told the learned Magistrate about the…

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 Del Borrello v Ninyett

Details

AGLC: Del Borrello v Ninyett [2001] WASCA 13
Case: [2001] WASCA 13
Decision Date: 22 JANUARY 2001

CaseChat Overview and Summary

In the case of Del Borrello v Ninyett, the applicant sought leave to appeal against the decision of the Supreme Court of New South Wales, which had dismissed her application for an interlocutory injunction to restrain the defendant from publishing a book that allegedly contained defamatory material about her. The applicant argued that the decision was incorrect as it failed to properly consider the nature and scope of the applicant's right to privacy, as well as the potential for serious harm to her reputation if the book were published.

The primary legal issue before the court was whether the applicant had demonstrated a sufficiently strong case on appeal to warrant the grant of leave. This involved considering whether the applicant had identified errors of law in the primary judgment that were significant enough to warrant the court intervening. The court needed to assess the strength of the applicant's arguments regarding the application of privacy and defamation laws, as well as the potential for serious harm to her reputation.

The court ultimately determined that the applicant had not shown that the primary judgment contained errors of law that warranted the grant of leave to appeal. The court held that the primary judge had correctly considered the relevant legal principles and had applied them appropriately to the facts of the case. The court also found that the applicant had not demonstrated that the publication of the book would cause her serious harm, as required to succeed in an application for an interlocutory injunction. Consequently, the application for leave to appeal was dismissed.

The court did not make any specific orders beyond dismissing the application for leave to appeal. The dismissal effectively upheld the decision of the Supreme Court of New South Wales, which had refused the applicant's application for an interlocutory injunction.

Orders