Brocklehurst v Wolinski

Case [2015] WADC 36

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   BROCKLEHURST -v- WOLINSKI [2015] WADC 36

CORAM:   DERRICK DCJ

HEARD:   16 MARCH 2015

DELIVERED          :   9 APRIL 2015

FILE NO/S:   APP 98 of 2014

BETWEEN:   THOMAS WILFRED BROCKLEHURST

Appellant

AND

LORRAINE WOLINSKI
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE YOUNG

Citation  :PE RO 129 OF 2014

Catchwords:

Application for leave to appeal out of time - Principles to be applied in determining application for leave to appeal out of time

Appeal - Violence restraining orders - Act of abuse - Turns on own facts

Legislation:

Criminal Code (WA)
District Court Rules 2005 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Restraining Orders Act 1997 (WA)

Result:

Application for extension of time to appeal dismissed
Appeal dismissed

Representation:

Counsel:

Appellant:     In person

Respondent:     In person

Solicitors:

Appellant:     Not applicable

Respondent:     Not applicable

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

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172

Baron v Walsh [2014] WASCA 124

Butler v Bennett [2007] WADC 107

Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571

Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576

Hoskins v Armstrong [2008] WADC 168

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Lance v Hogerdyk [2013] WADC 190

National Companies & Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296

Re Burton; Ex parte Lowe [2003] WASCA 306

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212

Regan v Gibson [2010] WADC 144

Roy Galvin & Co Pty Ltd v Ives [No 2] [2013] WADC 128

Simonsen v Legge [2010] WASCA 238

Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1

Tobin v Dodd [2004] WASCA 288

Walsh v Baron [2012] WADC 165

  1. DERRICK DCJ:  The appellant appeals against the decision of his Honour Magistrate Young to make a final violence restraining order against him for the benefit of the respondent.

  2. In order to deal with the appeal I have, as is provided for under the District Court Rules 2005 (WA) (the DCR), had access to a copy of the relevant Magistrates Court file. The copy of the Magistrates Court file was provided to this court by the Magistrates Court pursuant to r 52(3) of the DCR.

Background to decision under appeal

  1. On 15 January 2014 the respondent made an application under s 25 of the Restraining Orders Act 1997 (WA) (the Act) for a violence restraining order to be made against the appellant. On the same date the Magistrates Court made an interim violence restraining order (the interim VRO) against the appellant for the respondent's benefit pursuant to s 29(1)(a) of the Act.

  2. On 27 March 2014 the…

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Brocklehurst v Wolinski [2015] WADC 36
Case
[2015] WADC 36
Decision Date

CaseChat Overview and Summary

The case of Brocklehurst v Wolinski involves an application by the appellant, Mr Brocklehurst, for leave to appeal out of time from a decision of the Magistrates' Court of Western Australia, which granted a final Violence Restraining Order (VRO) in favour of the respondent, Ms Wolinski. The dispute centred on the nature of the relationship between the parties, the conduct of the appellant towards the respondent, and the appropriateness of the VRO granted by the magistrate.

The legal issues before the court included whether the appellant's conduct amounted to an act of abuse as defined in the relevant legislation and whether the magistrate erred in granting the VRO. The court had to consider the principles governing the grant of VROs, the onus of proof on the respondent, and the seriousness of restraining orders which impinge upon a person's liberty and freedom of movement.

The court found that the appellant's conduct, which involved sending numerous offensive and abusive messages and emails to the respondent, constituted an act of abuse. The magistrate's decision was based on the repetitive and deliberate nature of the appellant's behaviour, which was deemed to be hurtful, harmful, or injurious. The court emphasised that restraining orders are serious matters and should not be granted lightly. The appellant's arguments regarding the inappropriateness of the VRO were dismissed as the court found that the appellant's conduct clearly demonstrated a pattern of deliberate abuse.

The court concluded that the appellant had not demonstrated any legal, factual, or discretionary error in the magistrate's decision. Therefore, the application for leave to appeal out of time was dismissed, and the final VRO remained in place. The court's reasoning was grounded in the evidence presented during the proceedings, which showed that the appellant's behaviour was both abusive and likely to be repeated.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the present case it is not in dispute that the appellant and the respondent were at the relevant time in a 'family and domestic relationship' as defined in s 4(1) of the Act.The magistrate's reasoning and decision The magistrate found that the appellant's conduct in messaging and emailing the respondent in the way that he did amounted to ongoing behaviour that was offensive or emotionally abusive towards the respondent (ts 146, 154, 157). In arriving at this conclusion his Honour made the following points and findings:1.'Offensive' means hurtful, harmful or injurious as distinct from displeasing, annoying or insulting: Walsh v Baron [2012] WADC 165 [17] (ts 144);2.A communication which might be merely insulting in isolation or, if infrequent, can come to be regarded as hurtful, harmful or injurious if sufficiently repetitive (ts 144);3.It may well be that ongoing offensive behaviour is in the context of a family relationship also emotionally abusive behaviour (ts 144);4.The onus was on the respondent to satisfy the court on the balance of probabilities that the behaviour satisfied the description of an 'act of abuse' and was likely again to be committed (ts 145);5.It has been recognised in a number of cases that restraining orders are to be regarded as serious matters, that they do 'at least in theory' impinge upon a person's liberty and freedom of movement, and that there are consequences for breaching restraining orders (ts 145). Therefore the granting of a restraining order must be regarded as a serious matter (ts 145);6.A restraining order is not to be granted on the basis of general convenience or in the notion that parties who have some hostile relationship are better kept apart (ts 145);7.Almost all of the first 120 of the total 260 messages sent by the appellant to the respondent between 11 September 2012 and 23 October 2012 were offensive and abusive (ts 146, 149);8.The appellant subjected the respondent to verbal abuse in similar terms to the text messages (ts 153);9.The appellant made a large number of phone calls to the respondent, 76 calls in October 2013, 129 in November 2013, 161 in December 2013 and 54 over the weekend prior to the respondent seeking and obtaining the interim VRO (ts 153);10.Even leaving aside what happened during the relationship of the appellant and the respondent, and even if he was to focus solely on the material presented during the course of the hearing, the material spans well over 12 months (ts 154). It seems that the appellant becomes obsessed at certain points, 'gets on a roll', sends a barrage of messages, all devoted to a similar subject matter, and then 'backs off' (ts 154); and11.It was facile of the appellant to say that he did not mean what he said and that it was just exasperation and frustration (ts 154). This assertion is rejected (ts 154). The communications were not verbal abuse where the words came out spontaneously before the appellant had time to 'bite them back' (ts 154). The appellant sat down, composed the messages one after the other, pressed the send button, and did this over and over again (ts 154). The conduct was clearly 'deliberate, calculated to insult, offend, intimidate and demean' the respondent (ts 155).

Ratio Decidendi

Legal Principle Established

Given that the appeal is by way of a re-hearing it is necessary for the appellant to demonstrate error in the court below: Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [14]. Thus the appellate powers of the District Court are only exercisable if the appellant demonstrates that the decision made by the magistrate the subject of the appeal was the result of some legal, factual or discretionary error: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23]. The orders that the District Court may make on the appeal if error is demonstrated are set out in s 43 of the MCCPA. I have already mentioned the affidavit affirmed by the appellant on 7 October 2014 which he filed with his notice of appeal. In the body of the affidavit the appellant expresses his belief as to the respondent's motivation for obtaining the VRO, asserts why in his view it was unnecessary for the magistrate to make the VRO (namely, that the matter was not about 'safety and intimidation' but rather 'commercial gain'), and refers to the difficulties which the VRO is causing for him in a financial sense. The appellant concludes his affidavit by stating that 'all these matters are more properly canvassed by way of annexure'. There are three annexures to the appellant's affidavit. The first of the annexures is a 26‑page letter written by the appellant to Magistrate Young dated 7 April 2014. The second annexure is a 15‑page undated document prepared by the appellant for provision to the Magistrates Court in support of his application for a variation of the VRO. The third annexure is a 16‑page document prepared by the appellant dated 19 September 2014 which is headed 'An Application to Vary Violence Restraining Order Leave Granted to Apply 25 August 2014'. It is apparent from reading the transcript of the proceedings which took place before Magistrate Young on 9 April 2014 that the 26-page letter written to his Honour by the respondent was provided to his Honour after the final order hearing and a day or two before his Honour was due to deliver his judgment. In the letter the appellant sets out, among other things, his account of the history and nature of his relationship with the respondent, his account of the history and nature of his relationship with Ms Linda Foreman, his contentions that the respondent gave false evidence at the final order hearing and his contentions as to why a final VRO should not be made against him in the respondent's favour. With respect to the letter the magistrate, before delivering his judgment on the respondent's application for the VRO, said the following (ts 142 ‑ 143):I should indicate that – I don't know if Mr Hofmann is aware, but I received a letter from Mr Brocklehurst late yesterday. Unfortunately I read the letter on the assumption that it had been provided to Mr Hofmann and upon reading just about the last line on the last page, Mr Brocklehurst said it hadn't been provided to the other party. So plainly, it was certainly inappropriate to communicate with the court in that fashion.I appreciate Mr Brocklehurst, seemingly by choice at this stage of proceedings, does not have legal assistance but I would have thought it would be evident to someone of his evident intelligence and education that that sort of procedure is not appropriate. And for what it's worth, I will simply say the letter was of little assistance in any event. And I will say that I give no weight at all to the issues that were raised about internet pornography or arranging sexual liaisons by way of email and so on.I give very little weight to events which occurred within the course of the marriage. That was really given by way of background evidence. But the focus during the course of the trial was on the communications since separation, and more particularly, in the last couple of years and obviously the context is very different. There was little said in any event about any actual violence in the course of the relationship and the focus was primarily on and my decision will be based almost exclusively on the nature of the communication between the parties since separation and whether it amounts to ongoing offensive behaviour and whether it is likely to be repeated.The letter seems to suggest that the trial did not adequately present Mr Brocklehurst's case, and he has gone into some new matters as well as reiterating and expanding on matters that were raised, such as his view that Ms Wolinski is solely to blame for Mr Brocklehurst's parlous financial state and that the restraining order was motivated by ulterior financial motives. Certainly raising new issues is inappropriate.Mr Brocklehurst is bound by the way the case was run at trial and cannot now seek to introduce new evidence at this stage of proceedings. And indeed I must say that counsel focused appropriately, in my view, on the issue of whether the behaviour is likely to be repeated and whether the restraining order would be appropriate, because it's certainly my view that the messages sent by Mr Brocklehurst, their nature, their frequency, are indefensible under any circumstances and I will expand on that in due course.