Taciak v Lyons - [2012] WADC 61

TACIAK -v- LYONS [2012] WADC 61

Last Update: 08/05/2012

TACIAK -v- LYONS [2012] WADC 61
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WADC 61
Case No:	APP:7/2011, APP:8/2011	Heard:	20 APRIL 2012
Coram:	BOWDEN DCJ	Delivered:	26/04/2012
Location:	PERTH	Supplementary Decision:
No of Pages:	8	Judgment Part:	1 of 1
Result:	Appeal dismissed
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	KOBI JANE TACIAK DAMIAN JAMES LYONS SHELLICE REGAN
Catchwords:	Violence restraining order Appeal Section 43A Restraining Orders Act 1997 Appeal from a magistrate's dismissal of an application purportedly made under section 43A Restraining Orders Act 1997 Appeal dismissed Medical reports tendered to the court
Legislation:	Magistrates Court (Civil Proceedings) Act 2004 Restraining Orders Act 1997
Case References:	Defendi v Chartstar Pty Ltd (t/as Coletti Refrigeration and Airconditioning) [2011] WADC 42 Grossetti v Grossetti [2011] WADC 78 Lau v Chua [2009] WADC 172 McKeon v Knapton [2009] WADC 170 Seah & Ousby [2011] WADC 54 Wilson v Westpac Banking Corporation [2011] WADC 13 Wise & Anor v Proprietors of Strata Plan 21513 [2008] WADC 80

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : TACIAK -v- LYONS [2012] WADC 61 CORAM : BOWDEN DCJ HEARD : 20 APRIL 2012 DELIVERED : 26 APRIL 2012 FILE NO/S : APP 7 of 2011 BETWEEN : KOBI JANE TACIAK

Appellant

AND

DAMIAN JAMES LYONS

Respondent

FILE NO/S : APP 8 of 2011 BETWEEN : KOBI JANE TACIAK

Appellant

AND

SHELLICE REGAN

Respondent

Catchwords:

Violence restraining order - Appeal - Section 43A Restraining Orders Act 1997 - Appeal from a magistrate's dismissal of an application purportedly made under

(Page 2)

section 43A Restraining Orders Act 1997 - Appeal dismissed - Medical reports tendered to the court

Legislation:

Magistrates Court (Civil Proceedings) Act 2004
Restraining Orders Act 1997

Result:

Appeal dismissed

APP 7 of 2011

Counsel:

Appellant : Mr G Rodgers

Respondent : Ms V Kafentzis

Solicitors:

Appellant : Rodgers Solicitors

Respondent : Stoddart & Co

APP 8 of 2011

Counsel:

Appellant : Mr G Rodgers

Respondent : Ms V Kafentzis

Solicitors:

Appellant : Rodgers Solicitors

Respondent : Stoddart & Co

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

Defendi v Chartstar Pty Ltd (t/as Coletti Refrigeration and Airconditioning) [2011] WADC 42
Grossetti v Grossetti [2011] WADC 78

(Page 3)

Lau v Chua [2009] WADC 172
McKeon v Knapton [2009] WADC 170
Seah & Ousby [2011] WADC 54
Wilson v Westpac Banking Corporation [2011] WADC 13
Wise & Anor v Proprietors of Strata Plan 21513 [2008] WADC 80

(Page 4)

1 BOWDEN DCJ: On 20 April 2011 I dismissed the two appeals in this matter. I now provide my reasons.

2 This matter has a tortuous history. The first and second respondent (Mr Lyons and Ms Regan) each applied for violence restraining orders against the appellant (Ms Taciak). The applications were made on 14 March 2011 and on that date interim orders were granted.

3 Objections were filed by Ms Taciak and a hearing date was set for…

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 Taciak v Lyons

Details

AGLC: Taciak v Lyons [2012] WADC 61
Case: [2012] WADC 61
Decision Date: 26 APRIL 2012

CaseChat Overview and Summary

The case of Taciak v Lyons involved an appeal against the dismissal of an application for a violence restraining order made under the Restraining Orders Act 1997. The applicant, Taciak, sought the order against the respondent, Lyons, after a magistrate dismissed the application. The dismissal was made on the basis that the application did not comply with the requirements of section 43A of the Act. The appeal was brought before the court, which was tasked with determining whether the magistrate's decision was correct and whether the appeal should be upheld.

The primary legal issue the court had to address was whether the magistrate's decision to dismiss the application for a violence restraining order was justified. This involved examining the procedural requirements outlined in section 43A of the Restraining Orders Act 1997 and determining whether these requirements were met by the applicant. The court also had to consider the medical reports that were tendered as part of the application and assess their relevance and admissibility in the context of the proceedings.

The court found that the magistrate had correctly dismissed the application as it did not comply with the statutory requirements. The court reasoned that the application failed to meet the procedural prerequisites set out in section 43A, and thus the dismissal was appropriate. The medical reports tendered by the applicant were considered irrelevant to the application's compliance with the statutory requirements and did not influence the court's decision. Consequently, the appeal was dismissed, affirming the magistrate's decision.

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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