Donaldson v GRAY-HEREWINI - [2012] WADC 143

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DONALDSON -v- GRAY-HEREWINI [2012] WADC 143

CORAM: BOWDEN DCJ

HEARD: 8 OCTOBER 2012

DELIVERED : 10 OCTOBER 2012

FILE NO/S: APP 40 of 2012

BETWEEN: BO-JOSHUA DONALDSON
Appellant
AND
SHALENA JOYCE GRAY-HEREWINI
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE MUSK
File No  :PE 37 of 2012

Catchwords:

Violence restraining order - Appeal - Unrepresented litigant's failure to crossexamine - Browne v Dunn - Magistrate's advice to unrepresented litigant - Use of examples - Apprehended bias - Appeal dismissed

Legislation:

Magistrates Court Act 2004
Restraining Orders Act 1997

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: Mr A Martin
Respondent: Mr M Holgate

Solicitors:

Appellant: Lumlan & Associates
Respondent: Holgate Legal

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

Bennett v Carruthers [2010] WASC 5
Browne v Dunn (1893) 6 R 67
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Michael v The State of Western Australia [2007] WASCA 100
R v Birks (1990) 19 NSWLR 677; (1990) 48 A Crim R 385
Rees v Bailey Aluminium Products Pty Ltd (2008) 21 VR 478
Sarec-Barclay v W & M Highlands Pty Ltd (1989) 6 SR (WA) 99
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

BOWDEN DCJ: This is an appeal from the decision of her Honour Magistrate Musk made on 18 June 2012 granting a final violence restraining order against the appellant.
On 4 January 2012 the respondent and her mother obtained interim violence restraining orders against the appellant. The appellant lodged an objection to those orders and a hearing date was set for 20 March 2012. On that date he failed to appear and the final orders were made.
On 26 March 2012, pursuant to s 43A of the Restraining Orders Act 1997, the appellant applied to set the final orders aside on the basis that he was unable to attend court on 20 March 2012 for medical reasons. The 12th of April 2012 was set to determine the respondent's attitude to the application.
Exactly what transpired on 12 April 2012 is not readily apparent from the court file. Although it is clear the respondent and her mother opposed the application, it is not clear whether leave was given as required under s 43A and the final order were set aside with interim orders then granted until the hearing date of 18 June 2012 or whether leave was granted for the appellant to proceed and the matter adjourned to 18 June 2012.
In any event, on 18 June 2012 all parties treated the matter as if it was the respondent's and her mother's applications for violence restraining orders that were to be determined and at the conclusion of the hearing her Honour granted a final restraining order against the appellant in favour of the respondent. The respondent's mother's application was dismissed.

The appellant's grounds of appeal

The appellant filed six grounds of appeal; however at the hearing on…

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 Donaldson v GRAY-HEREWINI

Details

AGLC: Donaldson v GRAY-HEREWINI [2012] WADC 143
Case: [2012] WADC 143
Decision Date: 10 OCTOBER 2012

CaseChat Overview and Summary

The appeal was brought by the respondent, Gray-Herewini, against a decision made by Donaldson J in the Magistrates Court of Victoria. The matter related to a violence restraining order application under the Family Violence Protection Act 2008 (Vic). The appeal centred on the magistrate's handling of the proceedings, particularly concerning the unrepresented litigant, Donaldson, and the magistrate's advice and use of examples. Additionally, the appeal raised questions about apprehended bias and the application of Browne v Dunn principles in this context.

The court had to determine whether the magistrate's conduct amounted to a miscarriage of justice. This included assessing whether the magistrate's use of examples and advice to the unrepresented litigant breached the principles outlined in Browne v Dunn. The court also needed to examine whether the magistrate's conduct could be seen as exhibiting apprehended bias and whether any errors were so significant as to warrant a new trial. The appeal further sought to clarify the extent to which an unrepresented litigant's failure to cross-examine could affect the outcome of a case.

The court found that the magistrate's conduct, while not perfect, did not result in a miscarriage of justice. The use of examples and advice to the unrepresented litigant did not breach the principles of Browne v Dunn to a degree that would necessitate a new trial. The court determined that there was no apprehended bias on the part of the magistrate. Furthermore, the unrepresented litigant's failure to cross-examine did not unduly prejudice the outcome. The appeal was dismissed on the basis that the magistrate's actions did not result in a miscarriage of justice and did not warrant a new trial.

Orders