Uyan v Tasyurdu

Case [2020] WADC 26


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…

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Uyan v Tasyurdu [2020] WADC 26
Case
[2020] WADC 26
Decision Date

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

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