LOW -v- WEBER [1999] WASCA 274

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 274
Case No:	SJA:1146/1999	Heard:	18 NOVEMBER 1999
Coram:	WHEELER J	Delivered:	18/11/99
No of pages:	4	Judgment Part:	1 of 1
Result:	Appeal allowed
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Parties:	LINDA LOW CATHERINE CONNIE WEBER
Catchwords:	Restraining order Duty to make findings of fact
Legislation:	Restraining Order Act 1997, s11
Case References:	Nil Fleming v The Queen [1998] HCA 68 Pettitt v Dunkley [1971] 1 NSWLR 376 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Sun Alliance Insurance Ltd v Massoud [1989] VR 8

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : LOW -v- WEBER [1999] WASCA 274 CORAM : WHEELER J HEARD : 18 NOVEMBER 1999 DELIVERED : 18 NOVEMBER 1999 FILE NO/S : SJA 1146 of 1999 BETWEEN : LINDA LOW

Appellant

AND

CATHERINE CONNIE WEBER

Respondent

Catchwords:

Restraining order - Duty to make findings of fact

Legislation:

Restraining Order Act 1997, s11

Result:

Appeal allowed

Representation:

Counsel:

Appellant : Mr A J Lloyd

Respondent : In person

(Page 2)

Solicitors:

Appellant : Peter Ward

Respondent : In person

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

Case(s) also cited:

Fleming v The Queen [1998] HCA 68
Pettitt v Dunkley [1971] 1 NSWLR 376
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Sun Alliance Insurance Ltd v Massoud [1989] VR 8

(Page 3)

1 WHEELER J: It seems to me that it was plainly open to his Worship to decide in favour of Ms Weber and to issue a restraining order. The appellant and her husband, Mr Low, are long-standing practitioners of the martial art Tae Kwon Do, both operating through a club and teaching Tae Kwon Do. The appellant and her husband separated in early 1997. Their relations by 1998, or the latter part of it at least, appear to have been cordial at the level of financial arrangements, contact with the children and access by Mr Low to the appellant's house. In mid-1998 he formed a relationship with the respondent.

2 I do not think it is necessary for me to set out the whole of the background. The appellant said in evidence that she first approached the respondent at a dinner and that at that dinner she said four things to the respondent. They were, "Keep away from my home. Keep out of my children's beds. Keep away from my children" and "Please don't tell my black belts what they should and shouldn't be doing." The respondent said that on that occasion the appellant assaulted her.

3 What was odd about the appellant's evidence here seems to me to be that, as the respondent points out, there was no evidence that the respondent was doing anything in relation to the appellant's children. Further, in relation to telling the black belts what to do, the witness called by the appellant did not bear out the suggestion that the respondent had attempted to do so. So…

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 Low v Weber

Details

AGLC: Low v Weber [1999] WASCA 274
Case: [1999] WASCA 274
Decision Date: 18 NOVEMBER 1999

CaseChat Overview and Summary

The case of Low v Weber involved a dispute between two individuals, Low and Weber. The nature of the disagreement was centred around a restraining order which Low sought against Weber. This legal matter was heard and determined by the relevant Australian court, whose name is not specified in the text. The crux of the case revolved around the court's duty to make findings of fact in relation to the application for a restraining order.

The central legal issue before the court was whether the judge had correctly discharged his duty to make specific findings of fact in relation to the application for a restraining order. The court was required to examine the procedural fairness and the necessity of such findings in the context of the law. This involved considering whether the judge had adequately justified the reasons for granting or refusing the restraining order, and whether these reasons were sufficiently documented to allow for proper review.

The court concluded that the judge had not appropriately discharged his duty to make findings of fact, as the reasons provided were insufficient to satisfy the requirements of procedural fairness. The decision was influenced by the principle that a judge must ensure that there is a reasoned basis for the decision, which includes clearly articulating the findings of fact. The court found that the lack of specific findings meant that the decision-making process was not transparent and did not allow for effective review. Consequently, the appeal was allowed, leading to the quashing of the restraining order granted by the lower court.

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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