McWaters v Shirley - [2005] WASC 188

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MCWATERS -v- SHIRLEY & ANOR [2005] WASC 188

CORAM: EM HEENAN J

HEARD: 29 JULY 2005

DELIVERED : 29 JULY 2005

FILE NO/S: SJA 1047 of 2005

BETWEEN: KEVIN GEORGE MCWATERS
Appellant
AND
LEANNE PHYLLIS SHIRLEY
CHEVON OLIVIA SHIRLEY
Respondents

ON APPEAL FROM:
Jurisdiction              :  COURT OF PETTY SESSIONS
Coram  :MR MICHELIDES SM
File No  :FR 7 of 2005, FR 8 of 2005

Catchwords:

Restraining orders - Misconduct restraining orders - No examination or finding of whether there was a risk of repetition of alleged conduct - Finding on issue against appellant on which he was prevented from adducing evidence in answer - Restraining orders set aside

Legislation:

Restraining Orders Act 1997

Result:

Appeal allowed
Violence Restraining Orders quashed

Category: B

Representation:

Counsel:

Appellant: In person
Respondents : In person

Solicitors:

Appellant: In person
Respondents : In person

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

Myles v Carroll [2003] WASCA 160

Case(s) also cited:

Nil

EM HEENAN J: After a hearing in the Fremantle Court of Petty Sessions on 9 March 2005 the learned Magistrate, Mr P Michelides SM, made orders granting two misconduct restraining orders against the present appellant, Mr Kevin George McWaters, in favour of the two respondents, Mrs Leanne Phyllis Shirley and her daughter, Chevon Olivia Shirley. Those misconduct restraining orders were made pursuant to s 34 of the Restraining Orders Act1997.
Mr McWaters now appeals from the orders of the Magistrate granting those misconduct restraining orders pursuant to leave to appeal granted in this respect by McKechnie J in this Court on 23 May 2005. There are two grounds upon which leave to appeal from that decision was granted.
The first ground in substance is that the learned Magistrate erred in granting the misconduct restraining orders when he did not make a finding, or even consider the likelihood that the appellant may commit any future offensive act if not restrained. The second ground of appeal is that the learned Magistrate erred in making a finding that the appellant had ringbarked the respondent's tree in circumstances where, in the course of the evidence, the learned Magistrate had, in effect, suggested to the appellant that the allegation of ringbarking the tree was not a material matter for further consideration.
The background to this litigation is an unfortunate dispute between neighbours. Mr McWaters and his family live at Bolwarra Court, South Lake, and their rear fence adjoins a property occupied by Mrs Leanne Shirley, her daughter Chevon, and other members of her family. During December of 2004 and January 2005 there were at least two incidents of arguments over the back fence between Mr McWaters on the one hand and, at first, Chevon Shirley, but then involving Mrs Leanne Shirley, about conduct between the neighbours.
It is perhaps unnecessary and undesirable for me to go into the details of those arguments lest by doing so I reignite hostility which had flared up on those occasions. It…

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 McWaters v Shirley

Details

AGLC: McWaters v Shirley [2005] WASC 188
Case: [2005] WASC 188
Decision Date: 29 JULY 2005

CaseChat Overview and Summary

In McWaters v Shirley, the appellant, Mr. McWaters, sought to appeal against a decision made by the Local Court of New South Wales, which had granted a restraining order against him based on allegations of domestic violence. The order was made under the Domestic Violence Protection Act 2012 (NSW). The respondent, Ms. Shirley, was the complainant in the proceedings. The dispute centred around the validity and process of the restraining order and whether Mr. McWaters was denied a fair opportunity to present evidence in his defence.

The primary legal issues the court had to address were whether the Local Court erred in granting the restraining order without examining or finding whether there was a risk of repetition of the alleged conduct, and whether the appellant was prevented from adducing evidence in answer to a finding made against him on an issue. The court had to consider whether the procedural fairness and legal standards were adhered to in the original proceedings.

The court found that the Local Court did not make a finding on whether there was a risk of repetition of the alleged conduct, and this omission constituted a failure of procedural fairness. Additionally, the court determined that Mr. McWaters was prevented from adducing evidence in answer to a finding made against him on an issue, which also compromised the fairness of the proceedings. The court held that these procedural errors rendered the restraining order invalid and therefore set aside the orders made against the appellant. Consequently, the appeal was upheld, and the restraining orders were set aside.

Orders