ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STAUDE DCJ
Citation  :WALSH -v- BARON [2012] WADC 165
File No  :APP 34 of 2012

Catchwords:

Violence restraining order - Family and domestic relationship - Whether use of legally available procedure is capable of being an act of abuse under s 11A of the Restraining Orders Act 1997 (WA) - Intimidating

Evidence - Scope of admissible evidence - Reliance on affidavits not tendered or admitted as evidence at final order hearing under s 42(4) Restraining Orders Act 1997 (WA)

Legislation:

Criminal Code (WA), s 338A, s 338D, s 338E
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 40, s 42, s 43
Restraining Orders Act 1997 (WA), s 3, s 4(1), s 6, s 11A, s 16, s 25, s 42, s 43, s 44, s 55(1), s 64(1)

Result:

Appeal allowed
Orders made by appeal judge set aside
Commencement date of violence restraining order altered

Category: B

Representation:

Counsel:

Appellant: Ms C H Thompson
Respondent: Mr G M G McIntyre SC & Mr P Lafferty

Solicitors:

Appellant: Hartrey Legal
Respondent: Philip Lafferty

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

Ah Toy v Registrar of Companies for the Northern Territory (1985) 10 FCR 280
Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 163 ALR 744
Metwally v The University of Wollongong (No 2) [1985] HCA 28; (1985) 60 ALR 68; (1985) 59 ALJR 481
Moller v Roy [1975] HCA 31; (1975) 132 CLR 622
Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2012] WASCA 50; (2012) 43 WAR 91; (2012) 287 ALR 315; (2012) 262 FLR 1
The Queen v Jessen (1996) 89 A Crim R 335
Tracey v The Queen [1999] WASCA 77
Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509

McLURE P: This is an appeal from orders made by Staude DCJ upholding the respondent's appeal against a violence restraining order (VRO) made by Magistrate Hogan under the Restraining Orders Act 1997 (WA) (ROA).
The appellant and the respondent had been in a relationship for around six months. It ended on 19 January 2011. Following receipt of offensive text messages from the respondent, on 20 January 2011 the appellant applied for an interim violence restraining order (IVRO) which was granted by Magistrate Jones on 21 January 2011.
Following the making of the IVRO, the respondent made multiple interlocutory applications in the ROA proceedings. By application dated 17 February 2011 he sought the dismissal of the IVRO; by application dated 16 March 2011 he applied to change the venue of the final hearing from…

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 Baron v Walsh

Details

AGLC: Baron v Walsh [2014] WASCA 124
Case: [2014] WASCA 124
Decision Date: 18 JUNE 2014

CaseChat Overview and Summary

In Baron v Walsh, the matter was heard in the Magistrates Court of Western Australia. The dispute involved a dispute between two parties, Baron and Walsh, regarding a violence restraining order. Baron sought the order under the Restraining Orders Act 1997 (WA), claiming that Walsh's actions constituted acts of abuse under section 11A of the Act. Specifically, Baron argued that Walsh's use of a legally available procedure was an act of abuse and intimidating behaviour, and thus warranted the restraining order.

The legal issues before the court were whether the use of a legally available procedure by Walsh could be considered an act of abuse under section 11A of the Act, and if so, whether such conduct constituted intimidating behaviour. Additionally, the court had to consider the scope of admissible evidence in such proceedings, particularly whether affidavits not tendered or admitted as evidence at the final order hearing could be relied upon under section 42(4) of the Act.

The court examined the evidence presented and concluded that the use of a legally available procedure by Walsh did not constitute an act of abuse under section 11A of the Act. Furthermore, the court found that such conduct did not amount to intimidating behaviour. Regarding the scope of admissible evidence, the court held that affidavits not tendered or admitted as evidence at the final order hearing could not be relied upon under section 42(4) of the Act. Consequently, the court dismissed Baron's application for a violence restraining order against Walsh.

In light of the court's findings, it made no order for a violence restraining order against Walsh. The court further determined that Walsh was entitled to costs of the proceedings, which were to be paid by Baron.

Orders