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Uyan v Tasyurdu

Uyan v Tasyurdu

Case [2020] WADC 26 4 March 2020

Civil Litigation & Procedure

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   UYAN -v- TASYURDU [2020] WADC 26
CORAM:   GETHING DCJ
HEARD:   10 FEBRUARY 2020
DELIVERED          :   4 MARCH 2020
FILE NO/S:   APP ALB 1 of 2019
BETWEEN:   FIRAT UYAN
Appellant
AND
ALI TASYURDU
Respondent

FILE NO/S: APP ALB 2 of 2019
BETWEEN: FIRAT UYAN
Appellant
AND
GAY LOIS TASYURDU
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE JOHNSTON
File Number            :   ALB/RO/175 of 2019

Catchwords:

Appeal from Magistrates Court - Restraining orders - Whether an assault constitutes personal violence - Exercise of discretion to make a restraining order

Appeal from Magistrates Court - Restraining orders - Whether appellant should be permitted to adduce additional evidence in the appeal - Scope of discretion to order a new trial

Legislation:

Criminal Code (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Restraining Orders Act 1997 (WA)

Result:

Appeal dismissed

Representation:

APP ALB 1 of 2019

Counsel:

Appellant	:	In person
Respondent	:	Mr A E Eyers

Solicitors:

Appellant	:	Not applicable
Respondent	:	Oswald Legal

APP ALB 2 of 2019

Counsel:

Appellant	:	In person
Respondent	:	Mr A E Eyers

Solicitors:

Appellant	:	Not applicable
Respondent	:	Oswald Legal

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

1110 Hay Pty Ltd (as trustee for The Hay Street Trust) v Metso Minerals (Australia) Ltd [No 2] [2018] WASC 227
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158
Avsar v Binning [2009] WASCA 219
Badran v Public Transport Authority of Western Australia [2017] WASCA 28
Balenzuela v De Grail [1959] HCA 1; (1959) 101 CLR 226
Blenkinsop v Holland [2018] WADC 146
Brocklehurst v Wolinski [2015] WADC 36
Brown v Churchill [2006] WASCA 17
Butler v Bennett [2007] WADC 107
Buttarelli v Perpetual Ltd [2013] WASCA 254
East Metropolitan Health Service v Martin [2017] WASCA 7
Galvans v Microworld Computers Pty Ltd [2016] WADC 115
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290
HAR v The State of Western Australia [No 2] [2015] WASCA 249
House v The King [1936] HCA 40; (1936) 55 CLR 499
Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338
International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319
Jones v Darkan Hotel [2014] WASCA 133
Kamleh v The Queen [2005] HCA 2; (2005) 79 ALJR 541
Lourey v Legal Profession Complaints Committee [2012] WASCA 112
Lydon v Lydon [2008] WASCA 8
MIB v JAP [2019] WASCA 175
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
Myles v Carroll [2003] WASCA 160
Neil v Nott [1994] HCA 23; (1994) 68 ALJR 509
Nobarani v Mariconte [2018] HCA 36
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513
Rankilor…

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 Uyan v Tasyurdu

Details

AGLC: Uyan v Tasyurdu [2020] WADC 26
Case: [2020] WADC 26
Decision Date: 4 MARCH 2020

CaseChat Overview and Summary

The appeal in Uyan v Tasyurdu originates from a decision of the Magistrates Court, where the primary issue was whether a restraining order should be issued against the respondent, Tasyurdu. The appellant, Uyan, sought the order following an incident of alleged assault, which he claimed constituted personal violence. The Magistrates Court granted the restraining order, leading to the respondent’s appeal.

The legal issues before the court encompassed the interpretation of 'personal violence' in the context of restraining orders and the exercise of judicial discretion in granting such orders. Additionally, the appeal raised the matter of whether the appellant should be allowed to present additional evidence in the appeal process and the scope of the court's discretion to order a new trial based on the submission of new evidence. The court needed to determine whether the Magistrates Court had correctly applied the relevant legal principles in making its decision.

The court found that the Magistrates Court had correctly determined that the alleged actions of Tasyurdu constituted personal violence sufficient to warrant a restraining order. The evidence presented demonstrated a clear intention to cause harm, aligning with the statutory definition of personal violence. Regarding the discretion to order a new trial, the court held that the Magistrates Court had not erred in its assessment and upheld the original decision. The court also ruled that the appellant was not entitled to adduce additional evidence in the appeal as it would have amounted to an unfair expansion of the trial process. Consequently, the appeal was dismissed, and the original restraining order was upheld.

No further orders were made by the court beyond the dismissal of the appeal and the affirmation of the Magistrates Court's decision.

Orders