DOMINIK -v- VOLPI [2005] WASCA 146

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASCA 146
Court:	THE COURT OF APPEAL (WA)
Case No:	FUL:93/2004	Heard:	22 JULY 2005
Coram:	WHEELER JA ROBERTS-SMITH JA MILLER AJA	Delivered:	12/08/05
No of pages:	7	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
PDF Version

Parties:	ANTONI ARTHUR DOMINIK FREDERIC VOLPI
Catchwords:	Practice and procedure Leave to appeal Appeal from decision of single Judge refusing leave Fresh evidence
Legislation:	Nil
Case References:	Dominik v Kay [2003] WASCA 174 Dominik v Volpi [2004] WASCA 18 Mickelberg v The Queen (1989) 167 CLR 259 Ratten v The Queen (1974) 131 CLR 510 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DOMINIK -v- VOLPI [2005] WASCA 146 CORAM : WHEELER JA

ROBERTS-SMITH JA

MILLER AJA

HEARD : 22 JULY 2005 DELIVERED : 12 AUGUST 2005 FILE NO/S : FUL 93 of 2004 BETWEEN : ANTONI ARTHUR DOMINIK

Appellant

AND

FREDERIC VOLPI

Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : JOHNSON J

File No : SJA 1025 of 2004

Catchwords:

Practice and procedure - Leave to appeal - Appeal from decision of single Judge refusing leave - Fresh evidence

(Page 2)

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : In person

Respondent : Mr B P King

Solicitors:

Appellant : In person

Respondent : State Solicitor's Office

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

Dominik v Kay [2003] WASCA 174
Dominik v Volpi [2004] WASCA 18
Mickelberg v The Queen (1989) 167 CLR 259
Ratten v The Queen (1974) 131 CLR 510

Case(s) also cited:

Nil

(Page 3)

1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Miller AJA. I agree with those reasons and have nothing to add.

2 ROBERTS-SMITH JA: I agree with the reasons to be published by Miller AJA and have nothing to add.

3 MILLER AJA: The appellant was convicted in the Court of Petty Sessions, Fremantle, on 10 December 1998 of breaching a violence restraining order on 28 August 1998 by banging on the bedroom window of Milanka Gospavic, contrary to the provisions of s 61(1)(b) of the Restraining Orders Act 1997 (WA).

4 The matter was the subject of a trial before Mr Brown SM. There were other complaints of a similar nature heard on the same day, but they relate to events on 4 August 1998.

5 It appears that two violence restraining orders were made in the Court of Petty Sessions, Fremantle, on 7 May 1998 in favour of Milanka Gospavic and her son Davorin Gospavic. Only the order relating to Milanka Gospavic is relevant to these proceedings. The order was served on the appellant on 18 May 1998 and was current on 28 August 1998; it was not varied or revoked at any time. The violence restraining order precluded the appellant from communicating, or attempting to…

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 Dominik v Volpi

Details

AGLC: Dominik v Volpi [2005] WASCA 146
Case: [2005] WASCA 146
Decision Date: 12 AUGUST 2005

CaseChat Overview and Summary

The case of Dominik v Volpi arose from a dispute concerning an order made by a single judge that was being appealed. The appeal was from a decision refusing leave to appeal from the initial order. The primary issue for the court was whether the applicant had presented sufficient grounds for granting leave to appeal, particularly in light of the assertion that new evidence had come to light since the original decision. The applicant argued that this fresh evidence warranted reconsideration of the matter.

The court examined the applicant's submission that the fresh evidence would likely change the outcome of the appeal. It considered the stringent criteria required to grant leave to appeal on the basis of new evidence, which included demonstrating that the evidence was not available at the time of the original decision and that it was likely to influence the appeal's outcome. The court assessed the credibility and relevance of the evidence presented, as well as the applicant's ability to obtain it earlier.

After thorough consideration, the court concluded that the fresh evidence did not meet the necessary threshold to justify a departure from the original decision. It held that the applicant had failed to demonstrate that the evidence was truly new and unavailable previously, or that it was likely to change the result. Consequently, the court found that there were no sufficient grounds for granting leave to appeal. The appeal was dismissed, and no further orders were made beyond the dismissal.

Orders

Orders of the court

Appeal dismissed

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.