MICHAEL -v- POTGER [2002] WASCA 6

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 6
Case No:	SJA:1154/2001	Heard:	14 DECEMBER 2001
Coram:	HASLUCK J	Delivered:	1/02/02
No of pages:	14	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	SHAWKY MICHAEL RICHARD KELVIN POTGER
Catchwords:	Restraining Orders Act Dispute between neighbours Restraining order granted by Magistrate Issues of procedural fairness Whether hearing should have been adjourned Appeal dismissed Turns on own facts
Legislation:	Justices Act 1902, s 196, s 199 Restraining Orders Act 1997, s 34, s 35, s 36, s 42 Vexatious Proceedings Restriction Act 1930
Case References:	Glennon v The Queen (1992) 179 CLR 1 Anlaby v Praetorius (1888) 20 QBD 764 Cash v Wells (1830) 109 ER 826 Colleoni-Vanotti v Sirna [2001] WASCA 184 Daly v Silley [1960] VR 353 Gamble v Killingsworth & McLean Publishing Co Pty Ltd [1970] VR 161 Garrett v Nicholson (1999) 21 WAR 226 Hughes v Justin [1894] 1 QB 667 Johnsen v Duks [1963] NSWR 730 Kertesz v Kessler [1966] VR 453 McKenzie v Edmondson (1996) 15 WAR 391 Muir v Jenks [1913] 2 KB 412 Pace v Neil (1893) 19 VLR 393 Pacini v Johnson [2001] WASCA 228 Porteous v McNamara [1999] WASCA 123 Sherry v Tristram, unreported; SCt of WA; Library No 980706; 30 November 1998 Vosmaer v Spinks [1964] QWN 36

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : MICHAEL -v- POTGER [2002] WASCA 6 CORAM : HASLUCK J HEARD : 14 DECEMBER 2001 DELIVERED : 1 FEBRUARY 2002 FILE NO/S : SJA 1154 of 2001 BETWEEN : SHAWKY MICHAEL

Appellant

AND

RICHARD KELVIN POTGER

Respondent

Catchwords:

Restraining Orders Act - Dispute between neighbours - Restraining order granted by Magistrate - Issues of procedural fairness - Whether hearing should have been adjourned - Appeal dismissed - Turns on own facts

Legislation:

Justices Act 1902, s 196, s 199

Restraining Orders Act 1997, s 34, s 35, s 36, s 42
Vexatious Proceedings Restriction Act 1930

Result:

Appeal dismissed

(Page 2)

Category: B

Representation:

Counsel:

Appellant : In person

Respondent : Mr K Burgoyne

Solicitors:

Appellant : In person

Respondent : Kevin Burgoyne

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

Glennon v The Queen (1992) 179 CLR 1

Case(s) also cited:

Anlaby v Praetorius (1888) 20 QBD 764
Cash v Wells (1830) 109 ER 826
Colleoni-Vanotti v Sirna [2001] WASCA 184
Daly v Silley [1960] VR 353
Gamble v Killingsworth & McLean Publishing Co Pty Ltd [1970] VR 161
Garrett v Nicholson (1999) 21 WAR 226
Hughes v Justin [1894] 1 QB 667
Johnsen v Duks [1963] NSWR 730
Kertesz v Kessler [1966] VR 453
McKenzie v Edmondson (1996) 15 WAR 391
Muir v Jenks [1913] 2 KB 412
Pace v Neil (1893) 19 VLR 393
Pacini v Johnson [2001] WASCA 228
Porteous v McNamara [1999] WASCA 123
Sherry v Tristram, unreported; SCt of WA; Library No 980706; 30 November 1998
Vosmaer v Spinks [1964] QWN 36

(Page 3)

1 HASLUCK J

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 Potger

Details

AGLC: Michael v Potger [2002] WASCA 6
Case: [2002] WASCA 6
Decision Date: 1 FEBRUARY 2002

CaseChat Overview and Summary

In Michael v Potger, the Supreme Court of New South Wales dealt with an appeal against the grant of a restraining order under the Restraining Orders Act. The applicant, Michael, sought relief from his neighbour Potger, who was alleged to have engaged in a pattern of harassing behaviour. The Local Court Magistrate had granted a restraining order, which Michael appealed on the grounds of procedural fairness, arguing that the hearing should have been adjourned to allow for additional evidence and legal representation.

The court was tasked with determining whether the Local Court Magistrate had erred in denying Michael's request to adjourn the hearing, and if such an error was significant enough to warrant setting aside the restraining order. The appeal hinged on the assessment of procedural fairness and the application of the discretion vested in the Local Court Magistrate under the Act.

The Supreme Court held that the Local Court Magistrate had not erred in denying the adjournment, as the circumstances did not necessitate such a course. The court found that the evidence presented was sufficient to support the grant of the restraining order, and any prejudice to Michael was not significant enough to warrant a fresh hearing. The appeal was thus dismissed, with the restraining order remaining in effect.

Orders

Orders of the court

Appeal dismissed

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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