Baron v Walsh
[2014] WASCA 124
•18 JUNE 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BARON -v- WALSH [2014] WASCA 124
CORAM: McLURE P
MAZZA JA
CHANEY J
HEARD: 17 FEBRUARY 2014
DELIVERED : 18 JUNE 2014
FILE NO/S: CACV 146 of 2012
BETWEEN: ALISON FAYE BARON
Appellant
AND
WILLIAM ARTHUR WALSH
Respondent
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 Fremantle to Perth; by application dated 28 March 2011 he sought discovery of documents; by application dated 28 March 2011 he sought to strike out the IVRO; and by application dated 5 May 2011 he applied to strike out the proceedings for failure to comply with a discovery order.
The appellant was employed as a hospital nurse. By notification dated 21 January 2011, the respondent advised the Australian Health Practitioner Regulation Agency (AHPRA) that the appellant had illegally supplied drugs (Pariet) without a script.
By letter dated 28 January 2011, the respondent advised AHPRA that the appellant had stolen surgical cloths from the hospital where she worked.
On 17 February 2011 the respondent commenced Magistrates Court proceedings against the appellant for the sum of $225 (the minor claim proceedings).
On 17 May 2011 the respondent reported to police that the appellant had committed perjury and sent him a shirt of his that had been cut up.
The final hearing for the VRO occupied six days over the period 20 June 2011 to 24 April 2012. Both parties were legally represented at the final hearing. Immediately prior to the conclusion of the hearing on 24 April 2012, the magistrate informed the parties that she would in due course make a final VRO in the same terms as the IVRO but that she had not at that stage decided on the duration of the final order. She reserved her decision for the preparation of written reasons.
In written reasons delivered on 21 May 2012, which were forwarded by post to the parties, the magistrate said, 'It is appropriate in all the circumstances to make the interim order a final order … I consider the appropriate term to be five years from the date of these reasons' [48]. On 26 June 2012, the magistrate published her costs determination in which she ordered the respondent to pay costs assessed at $33,606.65.
A person aggrieved by a final order made by the Magistrates Court has a right of appeal: ROA, s 64(1). The appeal is to be made in accordance with pt 7 (s 40) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCA) and is an appeal to a single judge of the District Court. There is also a right of appeal to this court against the District Court's judgment on the appeal: MCA, s 42.
The respondent appealed to the District Court against the VRO. The appeal was successful and the VRO was set aside.
The primary issue in the appeal to this court is whether the use of a legally available procedure is capable of being an act of abuse under s 11A of the ROA.
The statutory framework
The appellant sought an order under s 11A(a) of the ROA. Section 11A provides:
A court may make a violence restraining order if it is satisfied that ‑
(a)the respondent has committed an act of abuse against a person seeking to be protected and the respondent is likely again to commit such an act against that person; or
(b)a person seeking to be protected, or a person who has applied for the order on behalf of that person, reasonably fears that the respondent will commit an act of abuse against the person seeking to be protected,
and that making a violence restraining order is appropriate in the circumstances.
An 'act of abuse' is defined (in s 3) to include an act of family and domestic violence.
The expression 'act of family and domestic violence' is defined in s 6 of the ROA. The appellant relied on s 6(1)(d) which provides:
act of family and domestic violence means one of the following acts that a person commits against another person with whom he or she is in a family and domestic relationship ‑
…
(d)behaving in an ongoing manner that is intimidating, offensive or emotionally abusive towards the person[.]
Section 6(4) relevantly provides that 'intimidate' has the same meaning as in s 338D of the Criminal Code (WA) (Code). Section 338D defines terms for the purpose of the offence of 'stalking' in s 338E of the Code. A person commits the offence of stalking if they pursue another person with intent to intimidate that person or if they pursue another person in a manner that could reasonably be expected to intimidate and does in fact intimidate that person.
The Code offence of stalking is an act of family and domestic violence under s 6(1)(e) of the ROA.
The s 338D Code definition of intimidate is as follows:
intimidate, in relation to a person, includes ‑
(a)to cause physical or mental harm to the person;
(b)to cause apprehension or fear in the person;
(c)to prevent the person from doing an act that the person is lawfully entitled to do, or to hinder the person in doing such an act;
(d)to compel the person to do an act that the person is lawfully entitled to abstain from doing[.]
The word 'pursue' for the offence of stalking and under s 6(1)(e) of the ROA includes to repeatedly communicate with the person, follow the person, cause the person to receive unsolicited items and to watch or beset the place where the person lives or works or happens to be.
The statutory expression 'behaving in an ongoing manner that is intimidating … towards the person' in s 6(1)(d) of the ROA focuses on the conduct of the s 11A respondent and is an objective standard; it requires conduct that is objectively capable of having one or more of the effects in par (a) ‑ (d) of s 338D on an ordinary person in the position of the person seeking protection (the claimant). It does not require proof of an intent to intimidate or proof that the claimant has in fact been intimidated. However, the effect of the behaviour on the claimant is a relevant consideration in determining whether the making of a VRO is appropriate in the circumstances.
It was accepted by the parties that at the relevant times they were in a family and domestic relationship, as defined in s 4(1) of the ROA, and that s 6(1) of the ROA applied.
The magistrate's findings
Magistrate Hogan found that the respondent had committed acts of abuse by behaving in an ongoing manner that was intimidating and offensive towards the appellant. She also found that the respondent was likely again to commit such acts of abuse against the appellant [43]. The facts on which these findings are based are as follows.
For the reasons explained in the judgment, the magistrate took a very dim view of the respondent's credibility. She accepted the evidence of the appellant where it conflicted with that of the respondent. There was no challenge to the credibility findings in the District Court appeal
On and from 19 January 2011 the respondent sent text and voice messages to the appellant. The magistrate found that the content of many of the text messages was abusive, threatening and intimidating [15].
The initial text is indeed both offensive and intimidating. It is unnecessary to set it out in full. The text suggests that the respondent proposed to disparage the appellant's reputation in similar offensive terms 'all over town'. The respondent became aware of the appellant's intention to apply for a VRO. The magistrate returned to the text messages later in her reasons in the context of her finding that the acts of abuse were ongoing. I will follow the same course.
The respondent also left voice messages on the appellant's work telephone on 20 January 2011 at 2.14 pm and on 24 January 2011. The message on 20 January 2011 was in the following terms:
Just to let you know I've taken out a VRO in the city, so two can play that game.
You call me and tell me that you will call a truce and leave me alone and I'll do the same. Otherwise, it's all out war and I'll keep going to get even with you.
…
I'll drop you in it for everything that I think you've done. If you stop, I'll stop. Then I don't want to hear from you again. You're just garbage.
Ten minutes after that voice message the respondent sent a text to the appellant referring to a misconduct restraining order (MRO) and attaching a copy of what appeared to be part of an application for an MRO. The respondent had not sought or obtained a VRO or an MRO. The magistrate concluded that '[t]he untruth contained in the relevant text advising that such an order had been obtained is another form of intimidation from [the respondent] towards [the appellant]' [25].
The voice message on 24 January 2011 included the following:
What's wrong, can't speak to me anymore. Well, they haven't served me with a VRO that you took out, and guess what ‑ they won't!
This message goes on to refer to the appellant as 'garbage', a 'horrible slag' and a 'filthy stinking animal'. It also refers to the appellant getting hers 'one day ‑ not violence nothing from me just karma, as a way of evening things up' [18].
The magistrate found that the respondent had actively avoided service of the IVRO and taunted the appellant with that avoidance [21]. The IVRO was finally served on the respondent on 16 February 2011.
Prior to leaving the voice message on 24 January 2011 the respondent had, in a letter dated 20 January 2011 and in other messages, apologised to the appellant for the offensive texts. The magistrate did not regard the apologies as significant, noting that they were followed by further abuse and that the appellant continued to assert that the offensive texts were not without foundation [16].
As to the complaints made by the respondent to AHPRA, the magistrate found that the respondent had sent a copy of the first complaint to the appellant with a sticky note attached stating, 'Just the beginning!'. She rejected the respondent's evidence that the appellant had supplied the drug Pariet to him and his evidence relating to the allegedly stolen surgical cloths. The magistrate accepted the appellant's denial of both allegations of misconduct and found that the respondent made the complaints to AHPRA for the purpose of 'getting even' [23].
On 16 February 2011 damage was caused to the appellant's car when it was parked at her workplace. The respondent knew where the appellant parked her car at work. However, the magistrate declined to make a finding that the respondent or someone acting on his behalf had caused the damage [27].
The magistrate found that the respondent followed through with his threat to sue the appellant if she did not withdraw the IVRO by commencing the minor claim proceedings. That claim went to trial on 2 February 2012 and was dismissed. The magistrate concluded that the minor claim was used as a bargaining chip with respect to the IVRO and was another form of intimidation [28].
On 5 April 2011 a fire started in bushland near the rear of the appellant's property, damaging her fence. There was no evidence that it was started by the respondent. However, the magistrate found that on 9 April 2011 the respondent left in the appellant's letterbox a newspaper article about the fire which had attached to it a dictionary definition of 'karma'. The magistrate concluded:
Even if [the respondent] did not cause the fire, he certainly used it as a means to intimidate [the appellant] by leaving the article marked 'karma' in her letterbox [29].
On the day of the delivery of the newspaper article, pot plants at the rear of the appellant's house had been moved. Further, the magistrate found that a bicycle was stolen from the appellant's premises in about early June and replaced with a pot plant moved from the other side of the appellant's house. Rear access had been gained through a gate. Only a small number of people, including the respondent, knew the workings of the lock to the gate. The magistrate found, on the balance of probabilities, that the respondent was responsible for these events [30] ‑ [31].
On 17 May 2011, the respondent lodged a complaint with police that the appellant had perjured herself in her affidavit in support of the IVRO in stating that the respondent had been a member of the Victorian Police Force and had been diagnosed with a bipolar condition. The magistrate accepted the appellant's evidence, denied by the respondent, that he had provided that information to the appellant [34].
The evidence also established that on 23 March 2011 three calls were made from the respondent's mobile telephone to what had been the appellant's work extension number before it was changed after the commencement of the abuse. There were also calls to that extension from a number registered to the respondent's business on 17 March 2011 (2), 19 March 2011 (2) and 4 June 2011 (1) [35]. It is implicit in the magistrate's reasons that she found that the respondent was responsible for these calls [35].
The magistrate found that the respondent's intimidation of the appellant was ongoing after the initial text message referred to above, noting as follows:
At 18:43 on 19 January 2011 'u will regret crossing me … send back what u owe me … or I will call in at Murdoch to collect in full u cunt'. At 19:05 'last message ever hope your final days are as horrible as you really are low life piece of scum'. At 20:05 [the respondent] apologises for going off but this is followed by 'I meant what I said'. At 20:55 'let me know your intentions or do u want me to come to Murdoch? Your choice'.
The following day [20 January] at 14:24 'reporting u for theft illegal supply of drugs … to all the relevant boards … u stop and will request to stop … ' … On 24 January 2011 at 10:07 he texted 'now I will lodge all the stuff I had on you and it will include everything to everyone … '. On 24 January 2011 [the appellant] received a copy of a complaint [the respondent] had made to AHPRA regarding alleged supply of drugs. The complaint had attached a sticky note 'Just the beginning! xx'. It was alleged that [the appellant] took this note from something [the respondent] had given her during the relationship. I accept [the appellant's] denial that it had been given to her in another context particularly given the similar sentiments (just the beginning) expressed in the preceding texts and phone messages.
On 3 February 2011 'about to pick up a copy of the interim order wish to know if you intend on withdrawing before I do this if not I will issue a summons for the recovery of monies that you owe me plus all costs I will also file for a dismissal of the order on the grounds of vexatious litigation with malice a forethought you will have to attend court on several accounts … '. It should be noted that the IVRO was served on 16 February 2011. On 17 February 2011 [the respondent] lodged an application to cancel the [IVRO] plus the minor case claim. On 16 March 2011 [the respondent] lodged an application for change of venue to the Perth court. He also lodged an application for discovery (25 March 2011) and for the application to be struck out (28 March 2011). On 19 May 2011 he lodged a further application to cancel the IVRO. On 13 May he had unsuccessfully attempted to settle the VRO application by way of mutual undertakings and offering to withdraw the minor case claim if [the appellant] discontinued the VRO. On 17 May 2011 [the respondent] made a report to police that [the appellant] had committed perjury and that she had in February sent him a cut up shirt [39] ‑ [41].
It is apparent from this extract that the magistrate found that the respondent's threats and actions relating to the complaints to AHPRA, the interlocutory applications in the ROA proceedings, the minor claim proceedings and the complaint to police were for the purpose of pressuring the appellant into bringing the ROA proceedings to an end.
This is confirmed in the magistrate's reasons for her finding that the respondent was likely again to commit such acts of abuse [43]. In addition to the nature and extent of the acts of abuse, the magistrate relied on the respondent's obvious ongoing disdain for the appellant, his lack of appreciation of the impact his extremely offensive behaviour had on her and his ongoing pursuit of the allegation of alleged supply of stolen drugs and defamation.
Grounds of District Court appeal
The respondent's grounds in the District Court appeal (DC appeal) were, in summary, that the magistrate erred:
(1)in concluding that the text and voicemail messages justified the grant of a VRO;
(2)in concluding that the respondent was likely again to commit acts of abuse;
(3)in fixing a term of 5 years for the VRO;
(4)in permitting evidence to be led about the damage to the appellant's car, the fire at her property, the theft of her bicycle and suspected visits to her property by the respondent from February 2011;
(5)in finding that the respondent's reports to AHPRA, the minor claim proceedings and his interlocutory applications in the ROA proceedings were ongoing acts of abuse;
(6)alternatively, if the matters in ground 5 were acts of abuse, they were irrelevant to whether the respondent was likely again to commit acts of abuse; and
(7)in finding that the respondent had pursued or was continuing to pursue defamation proceedings.
The approach and outcome in DC appeal
Staude DCJ (the appeal judge) concluded that the transcripts of all interlocutory hearings and all affidavits filed in support of the interlocutory applications could be treated as evidence for the purpose of determining the DC appeal.
Having reached that view, the appeal judge reviewed all of the material on the Magistrates Court file and took into account, inter alia, the appellant's affidavit in support of her application for an IVRO, the appellant's oral evidence before the magistrate who made the IVRO, an affidavit sworn by the respondent in support of his application dated 17 February 2011 to dismiss the IVRO and an affidavit sworn by the respondent on 14 March 2011 which included, in Annexure E, a table setting out transcriptions by the respondent of text messages from the appellant to him during their relationship.
As to ground 1 in the DC appeal, the appeal judge concluded that the only text messages capable of constituting an act of abuse were four texts sent by the respondent on 19 January 2011. He said that none of the subsequent text and voice messages were acts of abuse [91] ‑ [92]. The explanation for this conclusion is as follows:
None of the messages contain any threat of harm or damage. Rather, they indicate that [the respondent's] reaction to being told by [the appellant] of her intention to obtain a VRO was to attempt to deter her from doing so by purporting to obtain a similar order against her, reporting her to AHPRA and bringing a claim against her for a debt. Initially, immediately following the break up on 19 January 2011, he had responded angrily and in a hurtful manner by sending offensive texts. He apologised for that conduct by letter the next day. It was not repeated. His subsequent conduct can be clearly seen, on the evidence, to be focused on the merits of [the appellant's] application for a VRO. By promising to play tit for tat he tried to deter [the appellant] from obtaining an order to which he objected; later, he tried to persuade her to withdraw it. His actions by this stage were retaliatory, rather than offensive or intimidating [101].
It is clear from the above, when read with the appeal judge's reasons in relation to ground 2, that he concluded that the subsequent text and voice messages were not acts of abuse because threats to take, and/or the actual pursuit of, 'legally available procedures' were incapable of constituting acts of abuse under s 11A(a) of the ROA [119].
Although the DC appeal was confined to the VRO made at the final order hearing, the appeal judge's review of the Magistrates Court file led him to conclude that Magistrate Jones had erred in making an IVRO [105].
The appeal judge concluded that Magistrate Hogan had erred in finding that any of the post 19 January 2011 text and voice messages were intimidating and ongoing. However, ground 1 failed because the VRO was not based solely on that material.
In considering whether the magistrate erred in concluding that the respondent was likely again to commit such acts of abuse (ground 2), the appeal judge addressed all of the remaining acts of abuse found by the magistrate. He considered the findings in three categories. The first category covered the respondent's reports about the appellant to AHPRA, his minor claim proceedings, his use of interlocutory procedures in the ROA proceedings, his complaints of perjury and a threat of defamation proceedings against the appellant. The appeal judge said:
These acts, irrespective of their merits, fall into the category of lawful action in which a citizen has a right to engage. They invoke processes by which claims and complaints are capable of being determined in an orderly manner on their merits [117].
He held that the magistrate erred in finding that the acts in the first category were intimidating on the basis that recourse to legally available procedures cannot be so regarded [119]. The appeal judge returned to that subject:
The learned magistrate erred in coming to the conclusion, based on her assessment of the merits of [the respondent's] claims, which were not before her Honour for adjudication, that they were intimidating and therefore constituted acts of abuse. I do not accept the submission that it was open to the learned magistrate to come to the conclusion, based on her own view of the merits of those disputes, that they were made to intimidate [the appellant] in the sense of preventing her from, or hindering her in, doing something she was entitled to do. These forms of recourse by [the respondent] were not, as a matter of law, acts of family and domestic violence. They are not by their nature acts from which [the appellant] can be protected by a restraining order [122].
The second category identified by the appeal judge included the respondent's misrepresentation that he had obtained a VRO or MRO against the appellant, his leaving at the appellant's residence a copy of the newspaper article about the fire with the 'karma' definition attached to it, his attendance at the appellant's house during her absence and rearranging her pots, and the theft of her bicycle.
The appeal judge concluded that in pretending to have obtained a VRO (or MRO), the respondent was no more intimidating than the appellant had been in actually getting one and that it was an error to treat it as an act of abuse [125]; that the delivery of the newspaper article and attached definition of karma was not intimidating conduct; at worst it expressed spite towards the appellant [132]; that the evidence was incapable of supporting the finding that the respondent had stolen the appellant's bicycle [135]; and that none of the acts in the second category were acts of family or domestic violence capable of grounding a VRO [136].
In the third category is the magistrate's finding that the respondent taunted the appellant with the fact that the police were unable to serve the IVRO on him. The appeal judge concluded that this conduct had no probative value on the issues of whether the respondent was likely again to commit acts of abuse or the appropriateness of making a VRO [139] ‑ [140].
In the appeal judge's opinion, the only acts of abuse for the purpose of s 11A(a) were the four offensive text messages sent by the respondent to the appellant on 19 January 2011. On that basis, the appeal judge concluded that the evidence was incapable of supporting the magistrate's finding that the respondent 'is likely again to commit such an act against that person' and thus the requirements of s 11A(a) were not met.
The appeal judge went further. He concluded that even if the magistrate was correct in her identification of the acts of abuse, she erred in concluding as a matter of fact that the respondent was likely to commit such acts again [141]. He said:
Her Honour stated in her reasons at [8] that [the respondent's] disdain for [the appellant] was 'palpable', based on his repeated descriptions of [the appellant's] evidence as 'puerile crap'. It would be very unusual if litigation of this kind did not engender a degree of disdain by one party towards the other. In any event [the respondent] admitted that he was hurt and angered by the way in which [the appellant] had seen fit to end their relationship. He also indicated very clearly his dissatisfaction with the proceedings which were prolonged and no doubt expensive, and through all of which [the respondent] was being treated for cancer. His proposal before trial to resolve the proceedings on the basis of mutual undertakings was rebuffed. In this context, disdain was given undue weight.
It was also said that [the respondent] lacked appreciation of the impact of his 'extremely offensive behaviour' on [the appellant]. That conclusion overlooks the letter of apology sent to [the appellant] on 20 January 2011 [142] ‑ [143].
In view of the appeal judge's conclusions on grounds 1 and 2, he dealt with ground 3 on a provisional basis. He concluded that even if the magistrate was correct in her identification of the acts of abuse, she erred in imposing a term of 5 years instead of the default period of 2 years. The remaining grounds of appeal were upheld in the course of the appeal judge's reasoning on grounds 1 and 2.
The CA grounds of appeal
The appellant appeals against the appeal judge's decision in the DC appeal on the grounds that the judge erred in law and fact:
(1)in finding that recourse by the respondent to legally available procedures could not be regarded as intimidation and thereby could not constitute an act of abuse under the ROA;
(2)in breaching the rules of procedural fairness by admitting into evidence in the DC appeal and relying on affidavits of the respondent sworn in support of his applications dated 17 February 2011 and 14 March 2011;
(3)in failing to find that the respondent was emotionally abusive to the appellant, so as to constitute an act of abuse within the meaning of s 11A of the ROA; and
(4)in failing to make a violence restraining order under s 11A(b) of the ROA in circumstances where the admissible evidence demonstrated that the appellant had a reasonable fear that the respondent would commit an act of abuse against her.
At the commencement of the hearing of this appeal, the appellant sought leave to add ground 5 which was in terms that the appeal judge in the DC appeal 'lacked the jurisdiction to hear the appeal as the Magistrates Court did not make final orders at a final order hearing as required by the [ROA], so that section 64 of the [ROA] conferred no right of appeal to the District Court'.
There is no notice of contention or cross‑appeal.
Legally available procedures (ground 1)
The specific 'legally available procedures' the subject of ground 1 relate to the respondent's:
1)complaints to AHPRA;
2)commencement of the minor claim proceedings;
3)multiple interlocutory applications in the ROA proceedings; and
4)perjury complaint to police.
Related to each of these matters, but separate therefrom, are the threats which preceded the specified conduct in 1, 2 and 3. There was also a threat of defamation proceedings.
The magistrate did not err in finding that the respondent's conduct in relation to each of the above matters was an act of abuse for the purpose of s 11A of the ROA. It is the appeal judge who is in error. As is starkly plain in [101] of his reasons (set out above), the error occurred because the appeal judge failed to appreciate the impropriety of the respondent's conduct as a whole.
It can be assumed for present purposes that recourse to legally available procedures without more will not ordinarily constitute an act of abuse under s 11A of the ROA. However, the intent or purpose with which legally available procedures are threatened or used can result in the commission of a tort (malicious prosecution, abuse of process) or a criminal offence. For example, a threat made with intent to cause or compel a person to settle an action is a criminal offence under s 338A of the Code: Tracey v The Queen [1999] WASCA 77 [11] ‑ [16]. See also The Queen v Jessen (1996) 89 A Crim R 335. Further, the commencement or maintenance of legal proceedings for an improper collateral purpose is a tort: Williams v Spautz (1992) 174 CLR 509; Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 163 ALR 744. A knowingly frivolous and vexatious claim is also an abuse of process.
The magistrate found in effect that all of the respondent's actions listed above were undertaken for an improper collateral purpose, namely to bring the ROA proceedings to a premature end, either by the appellant's unilateral action or by settlement. Moreover, the threats of action to bring about that outcome bring s 338A of the Code into play.
To threaten and/or take detrimental action against a person to achieve a collateral outcome is improper (at least) and is to behave in a manner that is intimidating, even if the action involves a person availing himself of legally available procedures. I do not intend to suggest that this is an exhaustive statement of behaviour that is intimidating.
The magistrate did not err in finding that the respondent's behaviour the subject of this ground was intimidating and that it was ongoing.
Moreover, the appeal judge's erroneous approach to and conclusion about the respondent's use of 'legally available procedures' directly informed and resulted in other erroneous conclusions; in particular, that (1) none of the text and voice messages sent after 19 January 2011 were capable of constituting an act of abuse, and (2) that the evidence did not establish that the respondent was likely again to commit the relevant acts of abuse.
The excuses given by the appeal judge for the respondent's behaviour in [142] underscore the failure to recognise the impropriety of the respondent's conduct. I would uphold ground 1.
Scope of admissible evidence (ground 2)
The magistrate ruled at the commencement of the final order hearing that, subject to a contrary ruling or the agreement of the parties, the evidence‑in‑chief of the witnesses would be by viva voce evidence in the usual way. That is, affidavits of witnesses would not stand as their evidence‑in‑chief (ts 10 ‑ 12, 20/06/11). Witnesses could of course be cross‑examined by reference to sworn affidavits, whether filed in the ROA proceedings or otherwise.
The appeal judge held, correctly, that the DC appeal was by way of rehearing and that the respondent had to establish that the magistrate had made an appealable error [9]. However, he trawled through the Magistrates Court file to locate and rely on 'evidence' that he regarded as relevant to the task of conducting the appeal under s 64(1)(b) of the ROA. In taking this course, the appeal judge relied on s 43(2) of the MCA and s 42(4) of the ROA.
Section 40(4) of the MCA provides:
The District Court must decide the appeal on ‑
(a)the material and evidence that were before the Magistrates Court; and
(b)any other evidence that it gives leave to be admitted.
Under s 43(2) of the MCA, the appeal court may ascertain what material or evidence was before the lower court in any manner that it considers sufficient.
Section 42(4) of the ROA relevantly provides:
At a final order hearing ‑
…
(b)attended by both the applicant and the respondent,
a court is to admit as evidence any record of evidence given (including any affidavit filed) at a prior hearing in relation to the application that is relevant to the application.
Under s 42(5), a court is not to admit as evidence a record of evidence referred to in s 42(4) unless the person who gave the evidence is available to be cross‑examined on that evidence; or the laws of evidence allow the record to be admitted; or each party at the hearing consents.
There was no ground in the DC appeal that the magistrate erred in failing to admit as evidence (and take into account) in the final order hearing any evidence, oral or by way of affidavit, given at a prior hearing in the ROA proceedings. Such a ground would have required the respondent to identify all of the relevant transcripts of evidence and affidavits falling within the statutory description; the content thereof that was relevant to the issues in dispute between the parties in the final order hearing; and address the issues of statutory construction that arise for determination.
The first issue of construction of s 42(4) of the ROA is whether the trial court must, or alternatively may, admit as evidence in the final order hearing any record of relevant evidence given at a prior hearing. The phrase 'the application' means, relevantly in this case, an application for a violence restraining order under s 25 of the ROA. If the court has a duty not a discretion, the second issue is what are the legal consequences of a failure to comply with the duty.
The focus of ground 2 is on the respondent's affidavit of 14 March 2011 (the March affidavit); in particular, the respondent's version of the content of text messages from the appellant to the respondent during their relationship in Annexure E. The March affidavit was not tendered in evidence at the final order hearing and the appellant was not cross‑examined on it.
The appeal judge relied on the texts in Annexure E to characterise the parties' relationship [68] and what the appellant could reasonably have expected from the break up [156], and concluded that the purpose of s 11A was not to protect a person from the fallout of a failed relationship [157]. In fact, the purpose of s 11A(a) is to protect people from acts of abuse in appropriate circumstances whether or not they occur in the fallout of a failed relationship.
The appeal judge treated the March affidavit as evidence in the final order hearing notwithstanding that (1) it was not adduced or tendered by the parties at the final order hearing or admitted as evidence by the magistrate; (2) its content was not substantially litigated by the parties at that hearing; and (3) there was no evidence before the appeal judge that the conditions enlivening the duty or power in s 42(4) were satisfied.
Indeed, there is a conflict of evidence in this appeal as to whether the March affidavit was even served on the appellant prior to the final order hearing. The appellant says it was not. The respondent says it was. This court cannot resolve that conflict in these proceedings.
It is not necessary for the resolution of this ground to determine whether s 42(4) of the ROA imposes a duty or confers a discretion. Section 42(4) relates to a final order hearing in the Magistrates Court not an appeal under s 64 of the ROA. An appellate court's role in a rehearing under s 64(1) is to determine the grounds of appealable error raised, expressly or impliedly, by the parties. The respondent did not claim in his grounds of appeal that the magistrate erred in failing to admit the March affidavit. Further, the evidence before the appeal judge (and this court) did not permit a conclusion that any s 42(4) duty or power had been enlivened. The appeal judge went on a frolic of his own and in doing so ignored the appellant's right to procedural fairness.
It is clear that the information in Annexure E played a significant role in the appeal judge's approach to the assessment of whether the respondent's behaviour was offensive or intimidating. The appeal judge erred in using the evidence at all and erred in using it in the way he did. The error undermines all of his evaluative conclusions as to what constitutes an act of abuse.
Ground 3
In view of the outcome on grounds 1 and 2 it is unnecessary to determine whether the respondent's offensive and intimidatory conduct can also be characterised as emotionally abusive. On the facts in this case, if the respondent's behaviour was neither offensive nor intimidatory it would not be emotionally abusive.
Ground 4
In this ground the appellant seeks to rely on s 11A(b) of the ROA which was not litigated in the final order hearing or the DC appeal. Relevant factual findings were not made. The appeal judge did not make an error in failing to address an issue that was not litigated in the Magistrates Court or the DC appeal. It is now far too late to change course. In any event, if (contrary to my conclusion) the acts of abuse are confined to the four offensive text messages sent on 19 January 2011 as found by the appeal judge, there is no reasonable factual foundation for a finding some three years later by an appellate court that the appellant reasonably fears that the respondent will commit an act of abuse. I would dismiss ground 4.
Ground 5
After the delivery of the magistrate's written reasons on 21 May 2012, the VRO (the final order) was not extracted until 27 September 2013, well after the commencement of the DC appeal on 11 June 2012. The order was extracted by a deputy registrar of the Magistrates Court and is stated to have been made on 21 May 2012. The date of extraction does not determine the date of the order.
The appellant contends that the magistrate did not make final orders on 23 April 2012; the magistrate's reasons for decision foreshadow the final order but no order was actually recorded on or around the date of delivery of the reasons; and as a result the appeal to the District Court was not competent and the appellant is entitled as of right to have the orders made in the DC appeal set aside as a nullity.
An appeal under s 64(1)(b) must be from a final order not simply the magistrate's reasons for decision: Moller v Roy (1975) 132 CLR 622, 625; Ah Toy v Registrar ofCompanies for the Northern Territory (1985) 10 FCR 280.
Section 43(1) of the ROA provides that subject to s 42 (which is not presently relevant) at a final order hearing a court may make a final order of the type, and with the terms, the court considers appropriate.
The registrar is to prepare and serve a final order made at a final order hearing: ROA, s 44.
The term 'final order' is defined in s 3 to mean, relevantly, a restraining order made at a final order hearing. In this context, the expression 'final order hearing' means the hearing conducted by Magistrate Hogan under pt 4 div 2 of the ROA.
The appellant takes an unduly narrow construction of the expression 'final order hearing'. Section 43(1) does not require that a final order be made in the course of an oral hearing in the presence of the parties. A final order hearing continues until the disposal of the relevant application by a final order either dismissing the application or granting the VRO. The order extracted by the deputy registrar reflects precisely what was intended by the magistrate both in terms of the content of the VRO and its date of commencement, which is correctly stated to be 21 May 2012. I am satisfied that the extracted order is valid. Accordingly, the DC appeal was competent. I would grant leave to add ground 5 but dismiss it.
Conclusion
I would uphold grounds of appeal 1 and 2. The errors the subject of those grounds undermine all of the appeal judge's evaluative assessments as to what constituted an act of abuse by the respondent. As a result, the appeal judge erred in setting aside the VRO made by the magistrate and dismissing the appellant's application for a final violence restraining order.
Accordingly, the appeal should be allowed and the orders made by the appeal judge on 23 November 2012 set aside. In the absence of any contrary order (and any successful cross‑appeal or notice of contention), that would have the effect of reviving the final violence restraining order made by the magistrate with effect from 21 May 2012. However, at the appeal hearing, counsel for the appellant informed the court that the extracted order had still not been served by police on the respondent.
A final violence restraining order remains in force for the period specified in the order from the date on which the final order came into force: ROA, s 16(5). A violence restraining order comes into force when it is served on the person who is bound by the order: s 16(1). Under s 55(1) a restraining order is to be served personally unless otherwise provided for under that section. Further, a final order lapses if it is not served on the respondent within two years, or any shorter period specified in the order, of the order being made: s 16(3A).
This court has wide powers under s 43(7) of the MCA, including the power to confirm, vary or set aside all or a part of the lower court's judgment and give any judgment and make any order that the Magistrates Court could have given or made.
As the time for service of the final order has elapsed, I would vary the commencement date of the final order from 21 May 2012 to 30 June 2012. I would also give the appellant liberty to apply to further extend the commencement date if the respondent has not been served personally by that date. In view of the delay in the extraction and service
of the final order, I would hear from the parties on the question whether the duration of the final order should be reduced.
MAZZA JA: I respectfully agree with McLure P that this appeal must be allowed.
Grounds 1 and 2 are the central grounds of the appeal. I agree with McLure P, generally for the reasons that she gives, that both those grounds should be upheld. With great respect to the appeal judge:
(a)the respondent's recourse to legally available procedures was, in the circumstances of this case, intimidation and therefore an act of abuse under the Restraining Orders Act 1997 (WA) (ROA); and
(b)he did not accord procedural fairness to the appellant in his use of the affidavits sworn in support of the respondent's applications dated 17 February 2011 and 14 March 2011.
I also agree with McLure P for the reasons she gives that it is unnecessary to decide ground 3 in the light of the outcome on grounds 1 and 2, and that the appeal judge did not err as alleged in ground 4.
Like McLure P, I would dismiss ground 5. My reasons for doing so are as follows.
Ground 5 contends that the respondent's appeal to the District Court was incompetent and that the appeal judge had no jurisdiction to determine it.
On 23 April 2012, after hearing counsel's closing submissions, the learned magistrate said that she had decided that a final order should be made, but that she had not yet determined how long the order should be: ts 76, 23 April 2012. The learned magistrate went on to say:
[a]lthough I've indicated what my decision is, I'm not making the decision today because the whole decision needs to include the length of the order. … but I just wanted to give that indication because I am very much persuaded that there needs to be a final order made (ts 77, 23 April 2012).
The sealed court order issued by the Magistrates Court dated 23 April 2012 reads:
Before the Court on 23rd April 2011
The Court orders that:
1.Application is adjourned sine die for decision.
2.Applicant to provide submissions as to costs by the 14th May 2012.
3.Respondent to provide response within 14 days thereafter.
On 21 May 2012, the learned magistrate delivered her written reasons for decision. They were simply transmitted to the parties' legal representatives and not delivered in open court. The learned magistrate's conclusion is expressed in this way:
It is appropriate in all the circumstances to make the interim order a final order. The default period for a VRO is two years. Counsel for Ms Baron has sought an indefinite VRO. Taking into account the principles referred to in Butler (supra) I consider that inappropriate Although I have concerns about Mr Walsh's behaviour, a permanent order must be reserved for the most serious cases. Here there has been a disproportionate response to the break down of a six month relationship. Mr Walsh has been unable to let go of his extremely negative feelings towards Ms Baron. I consider the appropriate term to be five years from the date of these reasons (par 48, the learned magistrate's reasons).
For reasons which are unclear, the final order was not prepared by the registrar until 27 September 2013: see blue AB 55. The final order prepared by the registrar states that the order was made on 21 May 2012.
The respondent's appeal to the District Court was filed on 11 June 2012.
The respondent's right to appeal against the decision of the learned magistrate arose under s 64(1)(b) of the ROA which provides that an appeal may be made in relation to a final order.
The appellant submits that when the respondent commenced his appeal to the District Court on 11 June 2012, no final order had been made. The appellant contends that the final order was made on 27 September 2013. Accordingly, the appeal to the District Court was incompetent, the learned appeal judge had no jurisdiction to determine it, the proceedings in that court were a nullity and the order should be set aside.
It is an 'elementary proposition' that a party is bound by the conduct of its case. Except in the most exceptional circumstances, it would be
contrary to principle to allow a party in civil proceedings (which the present proceedings were), after a case had been decided against him or her, to raise a new argument which was not put in the proceedings below when that party had the opportunity to do so: Metwally v The University of Wollongong (No 2) [1985] HCA 28; (1985) 60 ALR 68; (1985) 59 ALJR 481, 483.
The principles relating to when a party should be permitted to raise a new point on appeal were discussed by Martin CJ (with whom Buss JA agreed) in 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, who said:
It is significant to note that the High Court has twice described the circumstances in which a party will be allowed to raise a new point on appeal as 'very exceptional'. Such a course will only be permitted if two requirements are met. First, the interests of justice must require determination of the new point. Second, there must be no prejudice to the party against whom the new point is taken [52].
In my opinion, this is not one of those 'very exceptional' cases where the appellant should be allowed to raise a new point on appeal. The point could have and should have been raised in the proceedings in the District Court. Further, in light of the appellant's success on grounds 1 and 2, no injustice will be done to the appellant if ground 5 is not decided. Finally, I am not persuaded that no final order was made until 27 September 2013. It is, to my mind, clear that the learned magistrate made a final order as defined in the ROA in the concluding paragraph of her written reasons and that the delivery of those reasons comprised part of and represented the conclusion of the final order hearing.
In the circumstances, leave to appeal in relation to ground 5 should not be given and the ground should be dismissed.
CHANEY J: I agree with McLure P.
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