Michael v Maughan - [2002] WASCA 322

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: MICHAEL -v- MAUGHAN [2002] WASCA 322

CORAM: EM HEENAN J

HEARD: 18 NOVEMBER 2002

DELIVERED : 18 NOVEMBER 2002

FILE NO/S: SJA 1123 of 2002

BETWEEN: SHAWKY SHAFEEK MICHAEL
Applicant
AND
WILLIAM ROBERT MAUGHAN
Respondent

Catchwords:

Justices Act - Application for leave to appeal - Violence restraining order - No arguable grounds shown

Legislation:

Justices Act

Restraining Orders Act, s 47

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Applicant: In person
Respondent: No appearance

Solicitors:

Applicant: In person
Respondent: No appearance

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

Nil

Case(s) also cited:

Attorney-General v Michael & Anor [1999] WASCA 181
Brickfield Properties Ltd v Newton [1971] 3 All ER 328
Hughes v Justin [1894] 1 QB 667
MacFoy v United Africa Co Ltd [1962] AC 152
Michael v Potger [2002] WASCA 6
Reynolds v Coleman [1887] 36 Ch D 453
Spurell v De Rechberg (1895) 11 TLR 313
Vine Products Ltd v Green [1966] Ch 484

EM HEENAN J: There is before the Court an application by Dr Shawky Michael brought under the provisions of the Justices Act seeking leave to appeal from a decision of his Worship Mr P Michelides SM in the Court of Petty Sessions at Fremantle. The application for leave to appeal identifies the decision of the Magistrate which is complained about to be a decision of 9 October but in reality it seems that the decision was one of 17 October 2002. Why I say that will emerge in a moment.
The application originally came on for hearing before me on 11 November and I adjourned it for seven days to allow any appearance from the respondent. It has come back before me today and I have been notified that, although the respondent has been served, he does not wish to appear on the application for leave to appeal. I have therefore proceeded to deal with the application for leave to appeal on an ex parte basis having heard submissions from the applicant, Dr Michael himself. Dr Michael has filed, and relies upon, an affidavit which he swore in the proceedings on 8 November and has filed written submissions in support of and in elaboration of his claims made in an affidavit sworn 18 November.
This proposed appeal is part of a longstanding disagreement between Dr Michael on the one hand and his neighbour at Tully Court, Bullcreek, Mr William Maughan. It is the case that an order was made in the Court of Petty Sessions at Fremantle on 30 April 2002 against Mr William Robert Maughan restraining him from communicating with or attempting to communicate with the protected person, being Dr Michael, or of being in possession of a firearm or of behaving towards Dr Michael in an intimidatory, dangerous, offensive or provocative manner or in any manner likely to lead to a breach of the peace. That order has been referred to as a violence restraining order and was made, as…

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 Michael v Maughan

Details

AGLC: Michael v Maughan [2002] WASCA 322
Case: [2002] WASCA 322
Decision Date: 18 NOVEMBER 2002

CaseChat Overview and Summary

The matter of Michael v Maughan came before the court, involving an application for leave to appeal a decision concerning a violence restraining order. The applicant, Michael, sought to appeal against the dismissal of his application for a violence restraining order against Maughan. The decision to dismiss the application was made by a single judge of the Magistrates' Court. The primary legal issue before the court was whether the applicant had shown arguable grounds for an appeal against the decision. The court needed to determine whether there were any reasonable prospects that the appeal would succeed and whether the case involved a question of law of general public importance.

The court considered the evidence and arguments presented by both parties. It was emphasised that an applicant seeking leave to appeal must demonstrate that there are arguable grounds for the appeal. The applicant must show that there are reasonable prospects that the appeal will succeed and that the case involves a question of law of general public importance. The court found that the applicant had not demonstrated any arguable grounds for an appeal. The arguments presented did not establish a sufficient basis for the appeal to proceed, nor did they involve a question of law of general public importance. Consequently, the court dismissed the application for leave to appeal.

In summary, the court found that Michael had not demonstrated arguable grounds for an appeal against the dismissal of his application for a violence restraining order against Maughan. The applicant failed to establish reasonable prospects that the appeal would succeed and did not show that the case involved a question of law of general public importance. The court dismissed the application for leave to appeal.

Orders