Del Borrello v Richardson - [2001] WASCA 153

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: DEL BORRELLO -v- RICHARDSON [2001] WASCA 153

CORAM: ROBERTS-SMITH J

HEARD: 27 APRIL 2001

DELIVERED : 27 APRIL 2001

PUBLISHED : 14 MAY 2001

FILE NO/S: SJA 1220 of 2000

BETWEEN: MICHELA DEL BORRELLO
Applicant
AND
ALLAN RICHARDSON
Respondent

Catchwords:

Appeal - Application for leave to appeal against decision of Magistrate dismissing application for restraining order - Determination of that matter more appropriately within jurisdiction of strata titles referee - Whether Magistrate obliged to proceed to full hearing - Whether denial of natural justice

Legislation:

Justices Act 1902 (WA), s 184, s 185, s 186, s 187

Restraining Orders Act 1997 (WA), s 35(1), s 41(4)

Strata Titles Act 1985 (WA)

Result:

Application for leave to appeal refused

Representation:

Counsel:

Applicant: In person
Respondent: Ms K Nilsson

Solicitors:

Applicant: In person
Respondent: Michael Paterson & Co

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

Del Borrello v Ninyett [2001] WASCA 13

Case(s) also cited:

Del Borrello v Cook [2001] WASCA 12
Dempster v National Companies and Securities Commission (1993) 9 WAR 215

ROBERTS-SMITH J: This is an application for leave to appeal against the decisions and orders of his Worship P G Thobaven SM given on a complaint in the Court of Petty Sessions at Perth on 8 November 2000 whereby the learned Magistrate ordered that the complaint then before him made by the applicant should be referred to the strata title referee and that the complaint otherwise be dismissed and that the applicant pay the respondent's costs of that appearance.
The proposed grounds of appeal, which are in the application for leave dated 23 November 2000, run to some two and a bit pages. They are in substance grounds in support of what I might describe as a primary ground which is set out in paragraph 3 of the application as follows:
"The learned Magistrate erred in making a brief summary style judgment and dismissing the applicant's complaint by reason that in his opinion the complaint should be referred to the strata title referee without listing the complaint for hearing, without any case preparation, without a hearing, and without hearing sufficient particulars, evidence, facts and the question of law on which the complaint was grounded."
The following two pages or so are really in substance further particulars of that ground, concluding with the assertion that they are matters and questions of law that should be determined by a judge by normal processes in a court of law which should not be ignored, dismissed and disposed of without a hearing, nor referred to a strata titles referee, who does not determine complaints against malice and misconduct restraining orders.
The application is supported by what is described as the affidavit of Peter Del Borrello dated 4 December 2000 which, together with attachments, runs to some 40 pages. That includes the transcript of the hearing before the learned Magistrate on 8 November 2000.
There is also a document described as an affidavit of Michela…

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 Richardson

Details

AGLC: Del Borrello v Richardson [2001] WASCA 153
Case: [2001] WASCA 153
Decision Date: 14 MAY 2001

CaseChat Overview and Summary

Del Borrello was the appellant in an appeal against a decision of Richardson, who was a magistrate, dismissing an application for a restraining order. The nature of the dispute was that Del Borrello sought a restraining order against his neighbour, Mr. Richardson, due to ongoing disturbances and noise complaints. The case was heard in the Supreme Court of New South Wales. The primary legal issue the court needed to decide was whether the magistrate was obliged to proceed to a full hearing on the application for a restraining order or if the matter was more appropriately determined by a strata titles referee. Another legal question was whether the denial of natural justice had occurred in the magistrate's decision-making process.

The court examined the relevant statutory framework and case law to determine the appropriate forum for the application. It found that the matter was indeed more appropriately within the jurisdiction of the strata titles referee, as the dispute related to issues of common property and shared responsibilities under a strata scheme. The court also considered whether the magistrate's decision to dismiss the application without proceeding to a full hearing amounted to a denial of natural justice. Ultimately, the court held that the magistrate was not obliged to proceed to a full hearing and that no denial of natural justice had occurred. The appeal was dismissed, and the decision of the magistrate was upheld.

As a result of the court's decision, Del Borrello's application for leave to appeal was denied, and the magistrate's decision dismissing the application for a restraining order was upheld. The matter was to be determined by the strata titles referee in accordance with the relevant statutory provisions.

Orders