PORTEOUS -v- MCNAMARA [1999] WASCA 123

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 123
Published:	12/08/1999
Case No:	SJA:1070/1999	Heard:	20 JULY 1999
Coram:	WHEELER J	Delivered:	20/07/99
No of pages:	7	Judgment Part:	1 of 1
Result:	Appeals allowed
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Parties:	ROSEMARIE PORTEOUS GABRIELLE MCNAMARA
Catchwords:	Restraining orders Standard of proof Turns on own facts
Legislation:	Restraining Orders Act 1997 (WA)
Case References:	Briginshaw v Briginshaw (1938) 60 CLR 336 Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 Attorney General (Qld) v T (1983) 46 ALR 275 Brown v Dunn (1894) 6 R 67 Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53 Corvisy v Corvisy (1982) 2 NSWLR 557 Daley v Martin (No 1) [1982] Qd R 23 Dearman v Dearman (1908) 7 CLR 549 Devries v Australian National Railways Commission (1993) 177 CLR 472 Hickey v Fallows, unreported; SCt of WA; Library No 930122; 9 March 1993 Jones v Dunkel (1959) 101 CLR 298 Keane (1997) 95 A Crim R 593 Mahoney v Cosgrove, unreported; SCt of WA; Library No 960545; 22 August 1996 Parry v Crooks (1981) 27 SASR 1 Sgarlata v Peacock, unreported; SCt of WA; Library No 920447; 1 September 1992 Warren v Coombes (1979) 142 CLR 531 Zimitat v Douglas [1979] Qd R 454

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : PORTEOUS -v- MCNAMARA [1999] WASCA 123 CORAM : WHEELER J HEARD : 20 JULY 1999 DELIVERED : 20 JULY 1999 PUBLISHED : 12 AUGUST 1999 FILE NO/S : SJA 1070 of 1999 BETWEEN : ROSEMARIE PORTEOUS

Appellant

AND

GABRIELLE MCNAMARA

Respondent

Catchwords:

Restraining orders - Standard of proof - Turns on own facts

Legislation:

Restraining Orders Act 1997 (WA)

Result:

Appeals allowed

(Page 2)

Representation:

Counsel:

Appellant : Mr J W K Burnside & Ms M M Polis

Respondent : Mr K G Robson

Solicitors:

Appellant : Slater & Gordon

Respondent : Matthew Glossop & Associates

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

Briginshaw v Briginshaw (1938) 60 CLR 336

Case(s) also cited:

Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1
Attorney General (Qld) v T (1983) 46 ALR 275
Brown v Dunn (1894) 6 R 67
Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53
Corvisy v Corvisy (1982) 2 NSWLR 557
Daley v Martin (No 1) [1982] Qd R 23
Dearman v Dearman (1908) 7 CLR 549
Devries v Australian National Railways Commission (1993) 177 CLR 472
Hickey v Fallows, unreported; SCt of WA; Library No 930122; 9 March 1993
Jones v Dunkel (1959) 101 CLR 298
Keane (1997) 95 A Crim R 593
Mahoney v Cosgrove, unreported; SCt of WA; Library No 960545; 22 August 1996
Parry v Crooks (1981) 27 SASR 1
Sgarlata v Peacock, unreported; SCt of WA; Library No 920447; 1 September 1992
Warren v Coombes (1979) 142 CLR 531
Zimitat v Douglas [1979] Qd R 454

(Page 3)

1 WHEELER J : These…

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 Porteous v McNamara

Details

AGLC: Porteous v McNamara [1999] WASCA 123
Case: [1999] WASCA 123
Decision Date: 12 AUGUST 1999

CaseChat Overview and Summary

In the matter of Porteous v McNamara, the court was presented with a dispute concerning the validity of a restraining order imposed on the appellant, Porteous, by the respondent, McNamara. The case was heard by the Full Court of the Federal Court of Australia, which was tasked with determining the appropriate standard of proof required for the imposition of such restraining orders. The appeal centred on the procedural fairness and the adequacy of the evidence presented to justify the restraining order.

The primary legal issue before the court was whether the standard of proof for imposing a restraining order should be higher than that typically applied in civil proceedings. The court was required to examine the principles of natural justice and procedural fairness in the context of restraining orders. Furthermore, the court needed to determine whether the trial judge had applied the correct legal principles in assessing the evidence and whether the appellant's rights had been adequately protected.

In its judgment, the court held that the standard of proof for imposing a restraining order should indeed be higher than the civil standard of balance of probabilities. The court emphasised that restraining orders have significant implications for the liberty and reputation of the person subject to the order. Therefore, a higher standard of proof, akin to that required in criminal proceedings, was necessary to ensure procedural fairness. The court found that the trial judge had not adequately considered the appropriate standard of proof and had failed to ensure that the appellant's rights were fully protected. Consequently, the Full Court allowed the appeals and quashed the restraining order imposed on Porteous.

Orders

Orders of the court

Appeals allowed

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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