Kamath v Lakshman - [2018] WASCA 80

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   KAMATH -v- LAKSHMAN [2018] WASCA 80
CORAM:   MURPHY JA
MITCHELL JA

HEARD:   18 MAY 2018
DELIVERED          :   18 MAY 2018
PUBLISHED           :   18 MAY 2018
FILE NO/S:   CACV 34 of 2018
BETWEEN:   RAGHAVENDRA SHIMOGA DAMODARA KAMATH
Appellant
AND
NEETHA LAKSHMAN
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   WAGER DCJ
Citation: KAMATH -v- LAKSHMAN [2018] WADC 34
File Number             :   APP 74 of 2017

Catchwords:

Appeal - Whether reasonable prospects of success -Violence Restraining Order - Turns on own facts

Legislation:

Restraining Orders Act 1997 (WA) s 11A

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	In Person

Solicitors:

Appellant	:	In Person
Respondent	:	In Person

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

JUDGMENT OF THE COURT:

These are our reasons for making the order dismissing the appellant's appeal at the hearing on 18 May 2017.
On 28 June 2017, the Magistrates Court made a final violence restraining order (VRO) in favour of the respondent against the appellant. The order was made under s 11A of the Restraining Orders Act 1997 (WA), which provides:
A court may make a VRO if it is satisfied that:
(a)the respondent has committed personal violence against a person seeking to be protected and the respondent is likely again to commit personal violence against that person; or
(b)a person seeking to be protected, or a person who has applied for the order on behalf of that person, has reasonable grounds to apprehend that the respondent will commit an personal violence against the person seeking to be protected,
and that making a VRO is appropriate in the circumstances.
The magistrate accepted evidence given by the respondent to the effect that the appellant inflicted physical, sexual and emotional abuse of the respondent, who is his wife, over a sustained period. That abuse included acts of physical and sexual violence. The magistrate was satisfied that a final VRO should be made.
The appellant then appealed against the grant of the final VRO to the District Court of Western Australia. The primary judge dismissed that appeal and gave written reasons for that decision: Kamath v Lakshman [2018] WADC 34 (Primary Decision). The appellant now appeals to this court against the dismissal of his appeal to the District Court. The appellant advances 12 grounds of appeal in this court.
Grounds 1 - 6 seek to raise a number of procedural matters concerning the filing and service of a notice of intention to appear by the respondent, additional notices of appeal in letter form which the appellant sought to file in the District Court by eLodgement and the respondent's filing of a written outline of submissions in the District Court. None of those procedural matters go to the merits of the appeal to the District Court, and none of the matters raised by those grounds arguably justify setting aside the primary's judge's decision. In any event, the procedural matters were properly dealt with by the primary judge at [3] - [8] of her Honour's reasons.
Ground 7 concerns the jurisdiction of the District Court to hear the appeal. Under s 64(1)(b)(i) of the Restraining Orders Act, a person aggrieved by the decision of a court to make a final order may appeal against that decision in accordance with that section. Under s 64(2), subject to a presently immaterial exception, an appeal against a decision of the Magistrates Court is to be made in accordance with Part 7 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (Civil Proceedings Act).
Ground 7 complains of the following passage of the primary judge's reasons:
The appeal is brought pursuant to s 40(1)(a) of the [Civil Proceedings Act]. Section 40(4) of the Act provides that the District Court must decide the appeal on the material and the evidence before the Magistrates Court and any other evidence it gives leave to admit. Leave may only be given in exceptional circumstances pursuant to s 50(5). [9]
The reference to s 50(5) is clearly a typographical error, intended to refer to s 40(5) of the Civil Proceedings Act. While the primary judge did not refer to s 64 of the Restraining Orders Act, the incorporation of Part 7 of the Civil Proceedings Act by s 64(2) means that the primary judge correctly identified the power to grant leave to admit additional evidence in the appeal. Further, the primary judge was correct to refuse leave to admit the additional evidence which the appellant sought to adduce, as that evidence was not relevant to the issues to be determined before either the Magistrates Court or the District Court (see [10] - [14] of the Primary Decision). There is no merit in ground 7.
Ground 8 is difficult to follow, but relates to the additional evidence which the appellant sought to adduce in the District Court, which the primary judge correctly rejected as irrelevant to the issues her Honour was required to determine. The appellant refers the magistrate's ruling that medical reports sought to be tendered by the appellant were inadmissible hearsay in the absence of the authors being called as witnesses (trial ts 49 - 50, 53). The magistrate's ruling was plainly correct. Nothing said in support of ground 8 provides any basis for impugning the either magistrate's or the primary judge's decision to refuse to receive the evidence.
Ground 9 complains that the primary judge did not refer to the fact that the appellant had issued a summons to a police officer to produce a document and video recording. There was no need for the primary judge to refer to the issue of summonses by the parties, and the fact her Honour did not do so does not reveal any legal error.
Ground 10 complains in substance that the primary judge did not consider a written outline of submissions which the appellant had filed in the District Court. There is no merit in that complaint. The primary judge dealt with the matters raised in each ground of appeal to the District Court, and explained her reasons for rejecting each ground in the District Court. The fact that the primary judge did not expressly refer to the appellant's written submissions does not give rise to an inference that her Honour did not read and consider those written submissions.
Ground 11(a) - (c) complains of various events that occurred subsequent to the making of the final VRO. Those matters are incapable of impugning the magistrate's decision to make the final VRO.
Ground 11(d) contends that there was a requirement for the respondent to file an 'Affidavit in Support of Application for National Recognition of Restraining Order' before the Magistrates Court could make a final VRO. We can see no arguable basis in the Restraining Orders Act for contending that the power of the Magistrate's Court to make a final VRO was conditioned by the filing of an affidavit.
Ground 11(e) is difficult to follow, but appears to contend that the primary judge erred in failing to identify errors of law said to have been made by the magistrate. As we have noted, the primary judge dealt with each of the appellant's grounds of appeal in the District Court. Nothing in the appellant's grounds of appeal or supporting submissions provides any reason for doubting the correctness of the primary judge's decision to dismiss the appeal to the District Court or the magistrate's decision to grant a final VRO.
Ground 12 concerns the appellant's unsuccessful attempts to obtain legal aid, and does not disclose any basis for disturbing the orders made by the courts below.
At the hearing of the appeal, the appellant indicated that he wished to add four additional grounds of appeal.
Three of those grounds concern applications to vary the VRO, which post-date the magistrate's decision. Those subsequent events are incapable of calling into question the correctness of the decision made by the magistrate on 28 June 2017 to make a final VRO.
Despite being given a number of opportunities to do so, the appellant was unable to coherently explain the proposed fourth additional ground. His complaint appears to concern the transcript of the magistrate's reasons for decision on 28 June 2017. Nothing advanced by the appellant provides any reason to doubt the correctness of the magistrate's decision.
For these reasons, we were satisfied that none of the appellant's grounds of appeal have any reasonable prospect of succeeding. The appeal was therefore dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
RESEARCH ASSOCIATE/ORDERLY TO THE HONOURABLE JUSTICE MITCHELL
18 MAY 2018