HORSMAN -v- BREESE [2000] WASCA 244
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 244 | |
| Case No: | SJA:1173/1999 | 31 JULY 2000 | |
| Coram: | MURRAY J | 31/07/00 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| PDF Version |
| 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
- 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…
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- Horsman v Breese [2000] WASCA 244
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- [2000] WASCA 244
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CaseChat Overview and Summary
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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