GOLJAN v Lim
[2002] WASCA 30
•23 JANUARY 2002
GOLJAN -v- LIM [2002] WASCA 30
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 30 | |
| Case No: | SJA:1191/2000 | 23 JANUARY 2002 | |
| Coram: | McKECHNIE J | 23/01/02 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | ADAM WALDEMAR GOLJAN JOSEPHINE LIYUN LIM |
Catchwords: | Restraining orders Turns on own facts No new principles |
Legislation: | Restraining Orders Act 1997 (WA), s 11 |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : GOLJAN -v- LIM [2002] WASCA 30 CORAM : McKECHNIE J HEARD : 23 JANUARY 2002 DELIVERED : 23 JANUARY 2002 FILE NO/S : SJA 1191 of 2000 BETWEEN : ADAM WALDEMAR GOLJAN
- Appellant
AND
JOSEPHINE LIYUN LIM
Respondent
Catchwords:
Restraining orders - Turns on own facts - No new principles
Legislation:
Restraining Orders Act 1997 (WA), s 11
Result:
Appeal dismissed
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Mr B S Hanbury
Respondent : Mr J G Hanly
Solicitors:
Appellant : Beau Hanbury
Respondent : Hotchkin Hanly
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 McKECHNIE J: This is an appeal against a decision of the learned Magistrate confirming a violence restraining order. Events giving rise to the application for the violence restraining order are that Mrs Lim and Mr Goljan were living together as husband and wife. On 25 August 2000 Mrs Lim arrived home very late (2 am). The appellant refused to let her in. She kicked the door. The appellant let her in. The Magistrate found that he grabbed her neck violently, causing red marks which were observed by a police officer to whom she straightaway reported the incident.
2 The appellant gave evidence denying the event but it was open to the Magistrate to accept the respondent's evidence. He found her version was more probably correct. Her credit was attacked in relation to her status with the immigration authorities and the effect that a restraining order might have on her status in Australia. This may have reflected adversely on her credit but the Magistrate declined, on the information before him, to draw an inference adverse to her. This was a decision open to him.
3 There was other material which the Magistrate took into account. The appellant had a prior conviction for breaches of violence restraining orders in respect of other people. There were no details of the nature of the breaches. The Magistrate concluded "it shows an element of disregard for others, both in a necessity to have an order in existence and the breach." Such a comment was permissible and open. He also took into account the breaches of the interim restraining order in respect of the respondent.
4 There was other evidence, to which the Magistrate did not specifically refer, including a hair-pulling incident in April 2000. The appellant admitted the actual event but disagreed with the extent of violence and some of the circumstances.
5 Before the Magistrate could make an order he had to be satisfied under the Restraining Orders Act 1997 s 11. It does not follow that a single act of violence, or even several acts, will necessarily lead to the making of a violence restraining order. An act of violence may trigger an application for a violence restraining order but a Magistrate must nevertheless be satisfied that the granting of a violence restraining order is appropriate in the circumstances. The weight to be attributed to the matters set out in s 12 of the Act, and the appropriateness of an order, are matters for the judgment of the Magistrate.
(Page 4)
6 An appeal that a Magistrate has placed too much or too little weight on any particular factor is unlikely to succeed unless it can be shown that the decision was not reasonably open. It is a test analogous to an appeal on the exercise of judicial discretion. I have read the transcript of the proceedings below and have considered carefully the Magistrate's reasons. They do not demonstrate any error. It was open for the Magistrate to reach the view that a violence restraining order was appropriate in all the circumstances. I dismiss the appeal.
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