McDonagh v Roots - [2007] NTSC 17

McDonagh v Roots [2007] NTSC 17
PARTIES:McDONAGH, Matthew

v
ROOTS, Gary

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA 39 of 2005 (20511056)
DELIVERED:  26 February 2007
HEARING DATE:  1 August 2006
JUDGMENT OF:  SOUTHWOOD J
CATCHWORDS:

DOMESTIC VIOLENCE ACT – Justices Appeal – appeal against restraining order – appeal on grounds of existence of reasonable apprehension of bias – existence of domestic relationship – finding of threats of assault – appeal dismissed
Domestic Violence Act

Campbell v Australian Mutual Provident Society (1906) 7 SR (NSW) 99; Grassby v R (1989) 168 CLR 1; Humphrey v Wills [1989] VR 439; Livesey v New South Wales Bar Association (1983) 151 CLR 288; Rendulic v Bevan [1971] SASR 340; Ruffles v Chilman (1997) 17 WAR 1; Vakauta v Kelly (1989) 167 CLR 568; R v Watson, Ex parte Armstrong (1976) 136 CLR 248, cited
REPRESENTATION:
Counsel:
Appellant:Self represented
Respondent:  P Maley
Solicitors:
Appellant:Self represented
Respondent:  P Maley
Judgment category classification:    B
Judgment ID Number:  Sou0743
Number of pages:  21

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
McDonagh v Roots [2007] NTSC 17

No JA 39 of 2005 (20511056)
IN THE MATTER OF the Domestic Violence Act

AND IN THE MATTER OF an appeal under the Justices Act

BETWEEN:

MATTHEW McDONAGH

Appellant:

AND:

GARY ROOTS

Respondent:

CORAM: SOUTHWOOD J
REASONS FOR JUDGMENT
(Delivered 26 February 2007)
Introduction

This is an appeal pursuant to s 163 of the Justices Act. The notice of appeal was filed on 12 August 2005. The appellant appeals against a restraining order for domestic violence that was made by the Court of Summary Jurisdiction under the Domestic Violence Act on 3 August 2005.
The appeal was first mentioned in this court on 14 September 2005. There were then a number of adjournments. The appeal first came before me on 1 June 2006. On that day the appellant appeared in person. Mr Maley appeared on behalf of the respondent. The appellant sought an adjournment. He told the court that he had sought assistance from the Northern Territory Legal Aid Commission but he had been told belatedly that legal aid had been withdrawn and he would not be provided with any assistance. He felt unable to conduct his appeal in person. He said that he had consulted a lawyer in private practice who had drafted the notice of appeal for him. The adjournment was opposed by the respondent on the basis that the appellant had been engaging in delaying activities. I allowed an adjournment of 21 days to enable the appellant to appeal against the decision to withdraw legal aid and to make other arrangements if that appeal was unsuccessful. The appellant was advised that if he was unable to obtain representation he should be in a position to argue the appeal himself on 22 June 2006.
On 22 June 2006 the appellant again appeared in person. Mr…

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 McDonagh v Roots

Details

AGLC: McDonagh v Roots [2007] NTSC 17
Case: [2007] NTSC 17
Decision Date: 26 February 2007

CaseChat Overview and Summary

In the case of McDonagh v Roots, the appellant contested the validity of a restraining order granted to the respondent under the Domestic Violence Act. The appellant argued that the restraining order was improperly issued due to alleged bias in the magistrate, improper determination of a domestic relationship, inadequate consideration of the evidence, and incorrect findings of threats of assault. The Court of Appeal was tasked with reviewing the magistrate's decision and determining whether the appeal should be upheld or dismissed.

The central legal issues before the court were whether the magistrate had exhibited any form of bias that would necessitate disqualification, if a domestic relationship existed between the parties, whether the evidence was appropriately considered, and whether the magistrate correctly assessed the threats of assault made by the appellant. The court needed to examine the grounds of appeal and the evidence presented to ascertain the validity of the restraining order.

Upon examining the grounds of appeal, the court found that the appellant had not substantiated any claim of bias on the part of the magistrate. The evidence provided did not indicate any circumstances that would reasonably give rise to an apprehension of bias. Furthermore, the court found that there was sufficient evidence to establish a domestic relationship between the parties, which was a necessary component for the application of the Domestic Violence Act. The court also determined that the magistrate had adequately considered the evidence and correctly assessed the threats of assault made by the appellant. Given these findings, the appeal was dismissed.

The court's final order was that the appeal against the restraining order granted to the respondent was dismissed. The restraining order remained in effect, and the appellant was still bound by its terms. The court upheld the magistrate's decision, affirming the validity of the restraining order.

Orders

Orders of the court

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Background

Background to the litigation

The grounds of appeal pleaded in the notice of appeal dated 12 August 2005 are that the learned magistrate erred: in failing to disqualify himself from the proceeding; in finding that there had been a domestic relationship upon which to ground the order; in failing to properly consider the evidence; and, in finding that the appellant had threatened to assault or cause personal injury to the respondent and that the appellant unless restrained was likely to again make such a threat.The background to the appeal The background to the appeal is as follows. On 28 April 2005 Mr Maley, who acted on behalf of the respondent, filed an application for a restraining order in the Court of Summary Jurisdiction. The respondent pleaded the following grounds for seeking the restraining order for domestic violence and claimed the following relief:1. Details of the [respondent’s] relationship to the [appellant]:Former de facto partner of the [appellant’s] current de facto partner.2.The [appellant] has threatened to assault or cause personal injury to the [respondent] and is unless restrained likely again to make such a threat or carry out such a threat.3.The [appellant] has damaged property in the possession of the [respondent] and is likely unless restrained to again cause damage to property in the possession of the [respondent].4.The [appellant] threatened to damage property in the possession of the [respondent] and unless restrained is likely again to make such a threat or carry out that threat.5.The [appellant] has behaved in a provocative or offensive manner towards the [respondent]; the behaviour is such as is likely to lead to a breach of the peace, including but not limited to, behaviour that may cause the [respondent] to reasonably fear violence or harassment from the [appellant] and the [appellant] is, unless restrained, likely again to behave in the same or similar manner.RESTRAINING ORDERS THAT YOU WANT THE COURT TO MAKEThe [Appellant]:1.Not approach or remain at any place where the [respondent] is living, staying or working;2.Not approach the [respondent] directly or indirectly;3.Not contact the [respondent] directly or indirectly;4.Not assault or threaten to assault the [respondent] directly or indirectly;5.Not damage or threaten to damage property in the possession of the [respondent]; and6.Not act in an offensive or provocative manner towards the [respondent]. The respondent provided details of the appellant’s conduct, which was the subject of his complaint, in three statements that were attached to the application for restraining order that Mr Maley filed in the Court of Summary Jurisdiction. The contents of the three statements is summarised as follows. The respondent used to work for the Salvation Army as a truck driver. Danielle Day used to work at the Berrimah Family Stores. While the respondent and Ms Day worked for the Salvation Army, they separated from their respective life partners and they came to know each other. The respondent separated from Jeanette Roots and Ms Day separated from the appellant. The respondent and Ms Day started seeing each other and Ms Day started to stay at the respondent’s home at Woodcote Crescent, Humpty Doo. The appellant became jealous of the relationship that developed between the respondent and Ms Day. As a result the appellant telephoned the respondent numerous times; told the respondent on the telephone, “You can not stop me. I will use a shotty, you fucken dickhead”; said to the respondent on the telephone while the appellant was in the presence of Ms Day, “Go on tell him, tell him that he took my virgin wife and turned her into a slut, no you can not because you are too busy crying”; said to the respondent on the telephone, “I changed my mind fuckwit! I am going to kill you for fucking my wife”; left a message on the respondent’s answering service, “Yeah, Jeanette Ryan? Do you want to know about the bast…, the woman your husband has been sleeping with? Give me a call”; slashed the tyres of the respondent’s BMW motorcycle; made insulting comments to the respondent at a shopping centre; stole the respondent’s walking stick; drove his car towards the respondent in a car park; and made death threats to the respondent on several occasions. Details were provided of some of the occasions that death threats were said to have been made by the appellant to the respondent.

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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