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Potschick v Bruce

Potschick v Bruce

Case [2018] WADC 107 31 August 2018

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   POTSCHICK -v- BRUCE [2018] WADC 107
CORAM:   GETHING DCJ
HEARD:   3 AUGUST 2018
DELIVERED          :   31 AUGUST 2018
FILE NO/S:   APP 14 of 2018
BETWEEN:   HILDEGARD POTSCHICK
Appellant
AND
MATTHEW BRUCE
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE WILSON
File Number             :   ARM/RO/422/17

Catchwords:

Magistrates Court Appeal - Restraining Orders - Whether the magistrate erred in fact in finding that the respondent was not likely to commit an act of abuse against the appellant in the future

Legislation:

Restraining Orders Act 1997 (WA), s 11A

Result:

Appeal dismissed

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	In Person

Solicitors:

Appellant	:	Not applicable
Respondent	:	Not applicable

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

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Badran v Public Transport Authority of Western Australia [2017] WASCA 28
Brocklehurst v Wolinski [2015] WADC 36
Butler v Bennett [2007] WADC 107
East Metropolitan Health Service v Martin [2017] WASCA 7
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338
Jones v Darkan Hotel [2014] WASCA 133
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
MTI v SUL [No 2] [2010] WASCA 58
Myles v Carroll [2003] WASCA 160
Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 331 ALR 550
Smart v Prisoner Review Board (WA) [2012] WASC 48
Tobin v Dodd [2004] WASCA 288
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

GETHING DCJ:

Background

The appellant, Ms Potschick, has commenced an appeal from a decision of a magistrate on 18 January 2018 to refuse to make a final violence restraining order in her favour against the respondent, Mr Bruce.
By way of background, at the beginning of last year, Ms Potschick was having issues with her roof. She engaged Mr Bruce to undertake some roof plumbing work pursuant to a written quotation. Mr Bruce undertook this work on 24 March 2017. An employee of Mr Bruce then undertook some further work on Ms Potschick's roof on 27 April 2017 (April Work).
By 1 May 2017 a dispute had arisen in relation to the April Work. Ms Potschick says that Mr Bruce agreed to do the April Work as part of the scope of work already done and covered by the initial quotation. Mr Bruce says that he agreed to undertake the April Work for an agreed price of $180. The dispute escalated to Mr Bruce telephoning Ms Potschick and demanding payment for the April Work. He later attended Ms Potschick's house, climbed onto its roof and removed a down pipe installed as part of the April Work. As a result of those actions by Mr Bruce, the dispute between Ms Potschick and Mr Bruce became physical, with Ms Potschick attacking Mr Bruce with a broom and an umbrella.
As a result of the incident, Ms Potschick was granted…

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 Potschick v Bruce

Details

AGLC: Potschick v Bruce [2018] WADC 107
Case: [2018] WADC 107
Decision Date: 31 AUGUST 2018

CaseChat Overview and Summary

The matter of Potschick v Bruce involved an appeal against a decision of the Magistrates Court of Victoria. The appellant sought a restraining order against the respondent, which was denied. The dispute centred around the likelihood of the respondent committing acts of abuse against the appellant in the future. The appeal was brought to the Supreme Court of Victoria to determine whether the magistrate's decision was correct or if it contained an error of fact.

The central legal issue before the court was whether the magistrate erred in their assessment of the respondent's likelihood of committing future acts of abuse against the appellant. The court had to consider the evidence presented during the original proceedings, including testimonies, character references, and any prior incidents of abuse. The court also had to assess the magistrate's application of the relevant statutory criteria and whether they were satisfied that the respondent was not likely to commit such acts in the future.

In delivering the judgment, the court carefully reviewed the evidence and the magistrate's reasoning. The court found that the magistrate had considered all relevant factors and provided sufficient reasons for their decision. The court held that there was no error of fact in the magistrate's conclusion that the respondent was not likely to commit future acts of abuse against the appellant. The court further emphasised that the magistrate's decision was well-supported by the evidence and did not display a lack of proper consideration of the statutory criteria. Consequently, the appeal was dismissed, and the decision of the Magistrates Court was upheld.

No additional orders were made, and the appeal was dismissed with no costs awarded.

Orders