HORSMAN -v- BREESE [2000] WASCA 244

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 244
Case No:	SJA:1173/1999	Heard:	31 JULY 2000
Coram:	MURRAY J	Delivered:	31/07/00
No of pages:	11	Judgment Part:	1 of 1
Result:	Appeal allowed
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Parties:	BARRY STANLEY HORSMAN ANN PAULINE BREESE
Catchwords:	Courts of summary jurisdiction Application for violence restraining order Whether order justified on the evidence Turns on own facts
Legislation:	Restraining Orders Act 1997, s11, s12
Case References:	Garrett v Nicholson (1999) 21 WAR 226 Low v Weber [1999] WASCA 274 Wimbridge v Wimbridge, unreported; SCt of WA; Library No 990211; 7 April 1999

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : HORSMAN -v- BREESE [2000] WASCA 244 CORAM : MURRAY J HEARD : 31 JULY 2000 DELIVERED : 31 JULY 2000 FILE NO/S : SJA 1173 of 1999 BETWEEN : BARRY STANLEY HORSMAN

Appellant

AND

ANN PAULINE BREESE

Respondent

Catchwords:

Courts of summary jurisdiction - Application for violence restraining order - Whether order justified on the evidence - Turns on own facts

Legislation:

Restraining Orders Act 1997, s11, s12

Result:

Appeal allowed

(Page 2)

Representation:

Counsel:

Appellant : Mr R K Williamson

Respondent : Mr R W Bower

Solicitors:

Appellant : Williamson & Co

Respondent : Corsers

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

Garrett v Nicholson (1999) 21 WAR 226

Case(s) also cited:

Low v Weber [1999] WASCA 274
Wimbridge v Wimbridge, unreported; SCt of WA; Library No 990211; 7 April 1999

(Page 3)

1 MURRAY J: The appeal brought by leave granted by Heenan J on 23 March 2000 is against a decision of the Court of Petty Sessions at Kalgoorlie given on an application, by way of complaint, for a violence restraining order, that application being made by the respondent to the appeal against the appellant. The application for the violence restraining order identified as the ground of application, not that the present appellant was likely to commit a violent personal offence against the respondent, but that he was likely to behave in a manner to cause that person to fear that the respondent would commit a violent personal offence against the protected person. The document contained reference to the possession of firearms on the part of the appellant.

2 That was an application under the terms of the Restraining Orders Act 1997, and relevantly for present purposes it is sufficient, without going in detail to the procedural provisions of the Act, to refer to the substantive matters dealt with in s 11 and s 12. Section 11 provides:

"A court may make a violence restraining order if it is satisfied that -

(a) unless restrained, the respondent is likely to -

(i) commit a violent personal offence against the applicant; or

(ii) behave in a manner that could reasonably be expected to cause the applicant (or if the application is made by another person on behalf of the applicant, that other person) to fear that the respondent will commit such…

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 Horsman v Breese

Details

AGLC: Horsman v Breese [2000] WASCA 244
Case: [2000] WASCA 244
Decision Date: 31 JULY 2000

CaseChat Overview and Summary

The case before the court involved an application by Horsman against Breese for a violence restraining order. Horsman sought the order on the basis that Breese had been engaging in violent and threatening behaviour towards her. The case was heard in the Magistrates' Court of Victoria, with the appeal subsequently being heard in the Court of Appeal.

The central legal issue before the court was whether the evidence presented by Horsman was sufficient to justify the granting of a violence restraining order. The court had to consider the nature and extent of the alleged violence and threats, as well as the impact they had on Horsman. The court also needed to assess whether there were any mitigating factors that should be taken into account.

In its reasoning, the Court of Appeal found that the Magistrates' Court had erred in its assessment of the evidence. The appeal court held that the Magistrates' Court had not given sufficient weight to certain evidence presented by Horsman and had overlooked other relevant factors. The Court of Appeal concluded that, based on the evidence as a whole, the granting of the violence restraining order was justified. The appeal was therefore allowed, and the original decision of the Magistrates' Court was overturned.

Orders

Orders of the court

Appeal allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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