MNYIRRINNA -v- McINTOSH [2003] WASCA 305

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 305
Case No:	SJA:1071/2003	Heard:	19 SEPTEMBER 2003
Coram:	BARKER J	Delivered:	9/12/03
No of pages:	22	Judgment Part:	1 of 1
Result:	Application for leave to appeal refused, Application for stay of order for destruction of dog refused
Category:	B
PDF Version

Parties:	SYLVIA M P MORNO YARNDA MNYIRRINNA MICHAEL HENRY McINTOSH
Catchwords:	Appeal Justices Act 1902 (WA) Application for leave to appeal and application for stay Dog Act 1976 (WA) Control of dogs Order for destruction of dog Whether arguable case Turns on own facts
Legislation:	Criminal Code 1913 (WA), s 23, s 24 Dog Act 1976 (WA), s 33A, s 33B, s 33D, s 33E, s 39(1), s 40(1)(b) Justices Act 1902 (WA), s 186(1)(a)(i), s 187(1)
Case References:	City of Canning v Wardle unreported; SCt of WA; Library No 960224; 26 April 1996 Dempster v National Companies and Securities Commission (1993) 9 WAR 215 Lappan v Hughes [2003] WASCA 173 McPherson v Cairn [1977] WAR 28 Pacino v Tilley, unreported; SCt of WA; Library No 960371; 16 July 1996

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : MNYIRRINNA -v- McINTOSH [2003] WASCA 305 CORAM : BARKER J HEARD : 19 SEPTEMBER 2003 DELIVERED : 9 DECEMBER 2003 FILE NO/S : SJA 1071 of 2003 BETWEEN : SYLVIA M P MORNO YARNDA MNYIRRINNA

Applicant

AND

MICHAEL HENRY McINTOSH

Respondent

Catchwords:

Appeal - Justices Act 1902 (WA) - Application for leave to appeal and application for stay - Dog Act 1976 (WA) - Control of dogs - Order for destruction of dog - Whether arguable case - Turns on own facts

Legislation:

Criminal Code 1913 (WA), s 23, s 24

Dog Act 1976 (WA), s 33A, s 33B, s 33D, s 33E, s 39(1), s 40(1)(b)
Justices Act 1902 (WA), s 186(1)(a)(i), s 187(1)

Result:

Application for leave to appeal refused

Application for stay of order for destruction of dog refused

(Page 2)

Category: B

Representation:

Counsel:

Applicant : In person

Respondent : Mr T Houweling

Solicitors:

Applicant : In person

Respondent : Houweling & Associates

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

Attorney-General (NSW) v Wentworth (1988) 14 NSWLR 481
City of Canning v Wardle unreported; SCt of WA; Library No 960224; 26 April 1996
Dempster v National Companies and Securities Commission (1993) 9 WAR 215
Lappan v Hughes [2003] WASCA 173

Case(s) also cited:

McPherson v Cairn [1977] WAR 28
Pacino v Tilley, unreported; SCt of WA; Library No 960371; 16 July 1996

(Page 3)

BARKER J

Introduction

1 Dogs can be loyal and wonderful pets. Their owners can love them dearly. However, their owners can sometimes forget that, like small children, not everyone finds them endearing. If they escape their owner's control, they can be positive nuisances and, on occasion, even do harm.

2 To deal with dogs, particularly those found in residential areas, the Dog Act 1976 (WA) was enacted. Section 33A deals with the control…

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 Mnyirrinna v McIntosh

Details

AGLC: Mnyirrinna v McIntosh [2003] WASCA 305
Case: [2003] WASCA 305
Decision Date: 9 DECEMBER 2003

CaseChat Overview and Summary

The appeal before the court involved Mnyirrinna, who sought leave to appeal against an order for the destruction of a dog, and McIntosh, the respondent who sought a stay of that order. The dispute arose under the provisions of the Dog Act 1976 (WA), specifically concerning the control of dogs. The underlying issue was whether Mnyirrinna had an arguable case for appeal, given that the order for destruction turned on its own facts. The case was heard in the Supreme Court of Western Australia.

The primary legal issue before the court was whether the applicant had demonstrated an arguable case for appeal, as required by section 37(1) of the Justices Act 1902 (WA). This involved assessing whether the applicant had identified a genuine legal issue that, if determined in their favour, would lead to a different outcome. The court needed to consider the specific facts of the case, including the circumstances leading to the order for the dog's destruction, and whether those facts presented a sufficient basis for a potential appeal.

The court found that the applicant had not established an arguable case for appeal. The order for the destruction of the dog was based on specific facts that were not easily contestable. The court emphasised that the applicant needed to demonstrate a stronger legal basis to warrant leave to appeal. Furthermore, the court noted that the application for a stay of the order for destruction was inherently linked to the arguable case for appeal. As the applicant failed to demonstrate an arguable case, the application for a stay was also denied. Consequently, the application for leave to appeal and the application for a stay were both refused.

As a result of the court's decision, the application for leave to appeal was refused, and the application for a stay of the order for destruction of the dog was also refused. This meant that the order for the destruction of the dog would proceed as initially determined.

Orders

Orders of the court

Application for leave to appeal refused, Application for stay of order for destruction of dog refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.