Brocklehurst v Wolinski

[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 hearing of the respondent's application for the interim VRO to be made final took place before Magistrate Young.  Both the appellant and the respondent were represented at the final order hearing.  The respondent gave evidence and called one witness, a Ms Linda Foreman.  The appellant gave evidence.  His Honour reserved his decision.

3. On 9 April 2014 the magistrate delivered his judgment accompanied by oral reasons for decision.  The appellant appeared in person to receive the judgment.  Pursuant to s 43 of the Act his Honour made the interim VRO final for two years (the VRO).

The appeal

1. On 7 October 2014 the appellant filed his notice of appeal against the magistrate's decision making the VRO.  The notice of appeal was accompanied by an affidavit affirmed by the appellant on 7 October 2014.

2. On 8 January 2015 the appellant, pursuant to an order made by a deputy registrar of this court, filed an 'Amended Appeal Notice' (the amended notice) setting out his amended grounds of appeal.  The amended grounds are in substance little different to the original grounds.

3. On 3 February 2015 the appellant, in response to a further order made by a deputy registrar, filed an affidavit affirmed by him in support of his application, which he made orally at the hearing of the appeal, for an extension of time within which to appeal.

4. The hearing of the appeal took place before me on 16 March 2015.  The parties appeared in person.

5. During the hearing of the appeal I was told by the parties that the appellant's application for a variation of the VRO made to the Magistrates Court pursuant to s 45 of the Act was heard and refused on 3 March 2015.

Statutory provisions governing appeal

1. Under s 64(1)(b) and s 64(2) of the Act, a person aggrieved by the decision of a court 'in relation to a final order' may appeal against the decision in accordance with pt 7 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA). A 'final order', so far as is presently relevant, is an order for a final violence restraining order made under s 43 of the Act: the Act, s 3.

2. Section 40(3) of the MCCPA, which appears within pt 7, provides that an appeal cannot be commenced more than 21 days after the date of judgment unless the court gives leave to do so.  Section 40(4A) of the MCCPA provides that the appeal must be conducted in accordance with the DCR.  Section 40(4) of the MCCPA provides that the court must decide the appeal on the material and the evidence that was before the Magistrates Court and on any other evidence that it gives leave to be admitted.  Section 40(5) provides that leave may only be given under s 40(4) in exceptional circumstances.

3. Rule 50(1) of the DCR provides that an appeal to the court must be by way of reconsideration of the evidence that was before the primary court unless the parties otherwise agree.  Rule 50(2) of the DCR provides that at the hearing of an appeal a party must not adduce evidence that was not adduced in the primary court except with the leave of the court.  Rule 50(3) provides that the court is not to grant such leave unless satisfied that there are special grounds for doing so.  Rule 50(4) provides that the rule is subject to the written law that provides for the appeal to be made to the court.

4. It is clear from s 40(4) of the MCCPA and r 50(1) and r 50(2) of the DCR that an appeal from a decision of a magistrate to the District Court is by way of re‑hearing.  The ability of the District Court to receive and admit new evidence does not render the appeal a hearing de novo: Butler v Bennett [2007] WADC 107 [10]; Hoskins v Armstrong [2008] WADC 168 [3]; Regan v Gibson [2010] WADC 144 [7]. Further, in light of r 50(4), if there is any difference between the 'exceptional circumstances' requirement specified in s 40(5) of the MCCPA and the 'special grounds' requirement specified in r 50(3) - and I doubt that there is – then in light of r 50(4) the exceptional circumstances test must be applied.

5. 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].

6. The orders that the District Court may make on the appeal if error is demonstrated are set out in s 43 of the MCCPA.

Affidavit affirmed 7 October 2014

1. I have already mentioned the affidavit affirmed by the appellant on 7 October 2014 which he filed with his notice of appeal.

2. 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'.

3. 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'.

4. 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.

5. The second of the annexures, the 15-page undated document, is not dissimilar to the appellant's letter to the magistrate.  It also sets out the appellant's account of the history of his relationship with the respondent.  It contains various assertions about the respondent's past conduct and sets out the difficulties which the appellant asserts that the making of the VRO has caused for his financial relationship with the respondent and his financial wellbeing generally.  It sets out the appellant's reasons for seeking a variation of the VRO.

6. In the third of the documents annexed to the affidavit, the appellant provides 'a brief history of the relationship' between himself and the respondent, makes various assertions as to the respondent's malfeasance in managing their jointly owned assets, makes some assertions about the respondent having lied while giving evidence in support of her application for the interim VRO and the VRO, and complains about the impact which the VRO has had on his financial situation.  The document also contains some submissions of a legal nature as to the inappropriateness of the VRO being granted.

7. During the hearing of the appeal the appellant did not make anything other than a passing reference to the content of the affidavit and the annexures.  More specifically, he did not make any application to adduce the affidavit and annexures as evidence on the appeal.  He did not do so despite me telling him that he needed to seek leave to adduce any additional evidence on the appeal, that I was only permitted to allow him to adduce additional evidence on the appeal in exceptional circumstances and that in the absence of any application I would not have regard to 'the two letters that appear to be attached to the affidavit' (ts 11).  My reference to the 'two letters' was a reference to the appellant's letter to the magistrate and the 15-page undated document.  I did not in this context refer expressly to the third of the annexures because that document, at least from page 8 onwards, contains what are in essence the appellant's submissions as to the case law applicable to one of his grounds of appeal.

8. In the circumstances as I have just outlined them, I do not intend to have regard to the affidavit or the annexures in deciding the appeal, save for page 8 onwards of the third of the annexures.

9. I note that even if the appellant had made an application to adduce the affidavit and annexures as evidence on the appeal, I would have refused the application.  The appellant's expressions of belief and various assertions set out in the body of the affidavit are of no material relevance to the determination of the appeal.  The annexures, to the extent that they contain the appellant's untested and unsworn assertions of fact as opposed to legal argument, are in reality not evidence of anything.  Further, even if they are viewed as evidence of the factual assertions made therein, the appellant has failed to demonstrate any 'exceptional circumstances' which would justify the admission of the material as evidence on the appeal.

Timing of appeal

1. I turn now to dealing with the timing of the appeal.

2. The decision which the appellant appeals against was made on 9 April 2014.  The appellant was therefore required by s 40(3) of the MCCPA to commence his appeal on or before 30 April 2014.  The appellant did not file his notice of appeal until 7 October 2014, a little over five months beyond the required date.  It follows that the appellant must obtain the leave of the court under s 40(3) of the MCCPA to commence his appeal out of time.

3. In Simonsen v Legge [2010] WASCA 238 [8], the court set out the principles applicable to determining an application for an extension of time within which to appeal. The principles as stated by the court included the following:

   1.The granting of an extension of time within which to appeal is not axiomatic;

   2.The discretion to extend time is given solely for the purpose of enabling the court to do justice between the parties;

   3.The time limit imposed for the bringing of an appeal must prima facie be obeyed and in order to justify an extension of time there must be some material upon which the court can exercise its discretion;

   4.The four major factors to be considered in dealing with an application to extend time within which to appeal are:

   (a)The length of the delay;

   (b)The reasons for the delay;

   (c)The extent of any prejudice that will be caused to the respondent by the granting of the extension of time; and

   (d)The prospects of the applicant succeeding in the appeal.

4. The principles set out in Simonsen v Legge have been applied in this court in relation to s 40(3) of the MCCPA: Roy Galvin & Co Pty Ltd v Ives[No 2] [2013] WADC 128; Lance v Hogerdyk [2013] WADC 190. In my view it is appropriate to apply the statements of principle made in Simonsenv Legge to an application under s 40(3).  I therefore propose to deal with the appellant's application for an extension of time by reference to each of the above identified four major factors.

Length of delay

1. As I have already said, the appellant filed his notice of appeal a little over five months after the required date.  The appellant's delay in commencing his appeal is therefore relatively lengthy.  The length of the delay is something which militates against the appellant being granted leave to appeal.

Reasons for delay

1. In his affidavit affirmed on 3 February 2015 in support of his application for an extension of time within which to appeal, the appellant deposes to the following:

   1.He was prepared to abide by the terms of the VRO while the dispute between himself and the respondent progressed in the Family Court of Western Australia (par 9);

   2.In July 2014 (so approximately three months after the VRO was made), the respondent began to fail to meet the financial obligations associated with their joint property and business interests (pars 10 ‑ 11);

   3.He is, by reason of the terms of the VRO, unable to properly deal with and address the conduct of the respondent in failing to meet the financial obligations associated with their joint property and business interests.  Consequently his financial situation is being adversely impacted upon (pars 16 ‑ 19);

   4.It was the 'threat' to his relationship with his and the respondent's mortgage provider, the threat to his credit reference and the threat to his 'financial wherewithal generally' that caused him to seek a variation to the VRO on 19 September 2014 (par 12);

   5.At a hearing on 19 September 2014 relating to his application to vary the VRO, the magistrate, who was not Magistrate Young, advised him that 'an avenue of appeal to the District Court existed' (pars 2 and 14);

   6.Prior to being advised by the magistrate of the avenue of appeal he did not know that he could appeal (par 5);

   7.Having been advised of his right to appeal he commenced the appeal to 'seek relief from a situation by which the unintended consequence of [the VRO] is to sideline [him] from [his] own financial affairs – the relationship being entirely financial in nature' (pars 14 ‑ 15).

2. I am not in a position to make an assessment of the accuracy or otherwise of the appellant's assertions as to the conduct of the respondent in relation to their joint property and business interests.  Nor is it necessary for me to do so.  Rather it suffices for me to say that the appellant’s explanation for not commencing his appeal within time, as is apparent from my above summary of the contents of his affidavit is, in substance, that he saw no reason to appeal against the decision until about July 2014 and then did not find out that he could appeal until 19 September 2014.  I do not consider that this explanation provides a basis for granting the requested extension of time.

1. The appeal process is not a mechanism for rectifying the consequences of a decision which were unforeseen by a party and which only became apparent to a party at some later point in time.  Rather, it is a means of correcting errors made by a judicial officer in arriving at the decision the subject of the appeal.  Therefore the fact that the appellant did not on his version suffer any adverse consequences by reason of the magistrate's decision until approximately three months after the decision was made does not of itself provide a basis for granting to him an extension of time within which to appeal.

2. As to the appellant's asserted ignorance of his right to appeal and the time limit for appealing it was, if the appellant was at any point in time aggrieved by the magistrate's decision, up to him to make inquiries about the possibility of appealing and the time limits which would be applicable to the bringing of the appeal.  The appellant was under no special difficulty which might have prevented him from making these inquiries.  To the contrary, it would have been very easy for him to make such inquiries given that all he had to do was ask the lawyer who represented him at the final order hearing about his rights of appeal.  However, the appellant, despite that on his version he first began to feel aggrieved by the magistrate's decision in or around July 2014, made no inquiries of any sort in relation to his right to appeal.

3. Furthermore, the appellant ought to have realised that he had a right to appeal from the time that the magistrate delivered his judgment.  I say this in light of an exchange which occurred in the presence of the appellant between the respondent's counsel and the magistrate immediately after the magistrate had delivered his reasons for decision.  The relevant exchange related to one of the exhibits which had been tendered by the respondent during the course of the final order hearing, namely her mobile phone.  The exchange was as follows (ts 158 ‑ 159):

   HOFMANN, MR: Yes.  And my client's telephone.

   HIS HONOUR: Strictly speaking, it needs to be retained.

   HOFMANN, MR: I know.  28 days.

   HIS HONOUR: - - - for any possible appeal.  So, I'm afraid that – unless there's a way that they can be downloaded which is beyond my capabilities.

   HOFMANN, MR: Well, they can be.  But you will need to be given an IT specialist.  Probably the new JSO.  It's entirely up to you, sir.  But otherwise we'll wait 28 days and hopefully my client can then fetch it.

4. In relation to this issue the appellant informed me from the bar table during the hearing of the appeal that at the time that the above exchange occurred he was 'sitting there contemplating' the ramifications of the magistrate's decision and that he was not too concerned about a telephone (ts 4).  He also said that he only obtained the transcript of the 9 April 2014 hearing several months later (ts 4).

5. I am willing to accept that when the respondent's counsel raised the issue of the respondent's phone the appellant (who was appearing in person) was pre‑occupied with the ramifications of the magistrate's decision and therefore did not take in the reference to the possibility of an appeal.  Nonetheless, it is impossible to avoid the conclusion that by reason of the exchange which occurred between the respondent's counsel and the magistrate the appellant ought to have been alerted to the possibility of appealing against the magistrate's decision.

6. For the reasons I have stated, I do not consider that the appellant's asserted absence of knowledge of his right to appeal provides a satisfactory explanation for his delay in commencing the appeal either from the date of the magistrate's decision or from the date on which the appellant apparently decided that the decision was impacting adversely on him.  In my view to accept the appellant's assertion of lack of knowledge as being a sufficient basis for granting an extension of time within which to appeal would be to give the appellant, by reason of the fact that he was at the time that the magistrate delivered his decision and thereafter unrepresented, an undeserved privileged status over that of the respondent: Tobin v Dodd [2004] WASCA 288 [13] ‑ [18].

7. The absence of a satisfactory explanation for the appellant's delay in commencing his appeal militates against granting his application for an extension of time.

Prejudice to respondent

1. This is not a case in which if the request for an extension of time is granted the respondent will suffer any additional anxiety or stress associated with the litigation over and above that which she may have already experienced as a result of the appeal process generally.  I say this because the application for leave to appeal out of time and the appeal proper have been considered and dealt with at the same time.  Thus if leave is granted the respondent will not be forced to suffer any further delay awaiting the outcome of the appeal.

2. The respondent has not pointed to any other specific prejudice which she will suffer if the extension of time is granted.  In particular the respondent has not suggested that she has altered her position in reliance on the making of the VRO such that if any appeal is allowed she will be prejudiced.

3. In these circumstances I do not consider that the respondent will be materially prejudiced if an extension of time within which to appeal is granted.

Prospects of success of the appeal

1. It follows from the views that I have expressed about the length of the delay in commencing the appeal and the unsatisfactory nature of the explanations for that delay, that whether or not leave should be granted in this case will turn upon the prospects of the appeal succeeding.  What that really means in the context of the present case, where the application to extend time and the appeal are being considered at the same time, is that the appellant must make out one of his grounds of appeal and demonstrate that if the appeal is not allowed on that ground there will be a miscarriage of justice.  I therefore turn to dealing with the appellant's individual grounds of appeal.

Grounds of appeal

1. The amended notice contains 11 numbered paragraphs, 10 of which purport to contain a ground of appeal.  I do not propose to set out the grounds of appeal herein.  I have, however, attached a copy of the amended notice to this judgment.

2. With respect to the appellant, a number of the grounds of appeal as expressed are discursive.  It is not always easy to discern from the ground as expressed the asserted error.  This situation was not clarified by the appellant in the submissions he made during the hearing of the appeal because he did not, in making his submissions, directly address the individual grounds of appeal.  Accordingly, what follows reflects my best attempt to extract from the grounds as pleaded the asserted error or errors.

3. I note that par 1 of the amended notice is not a ground of appeal at all but rather a paragraph of an introductory nature.  Accordingly, the below references to grounds 1 to 10 are references to pars 2 to 11 of the amended notice respectively.

Missing exhibits

1. Prior to the hearing of the appeal, and in order to prepare for the hearing, I reviewed the transcript of the final order hearing which forms part of the provided Magistrates Court file.  I did not, prior to the hearing of the appeal, review in any detail the balance of the material that had been provided by the Magistrates Court.

2. After the hearing of the appeal, and on my further review of the material that had been provided by the Magistrates Court, I realised that the file provided by the Magistrates Court did not, save for one exception, contain the exhibits, or copies of the exhibits, tendered during the final order hearing.  The one exception was exhibit 2 which was the transcript of the hearing of the respondent's application for the interim VRO.  I therefore arranged for my associate to contact the Magistrates Court and to ask for the exhibits or copies of the exhibits to be provided to the court in accordance with r 52(3).  In response to the request made by my associate on my behalf, an officer of the Magistrates Court provided to my associate copies of the following exhibits tendered during the final order hearing:

   1.Exhibit 4 – emails exchanged between the appellant and the respondent on 14 January 2014 tendered by the respondent;

   2.Exhibit 5 – letter from the appellant's solicitors to the respondent dated 14 March 2014 tendered by the appellant; and

   3.Exhibit 6 – sample of emails exchanged between the appellant and the respondent during the period 8 July 2013 to 16 January 2014 tendered by the appellant.

3. The Magistrates Court officer informed my associate that the Magistrates Court was not able to provide to the court the remaining two exhibits which were tendered at the final order hearing, namely exhibits 1 and 3, because they had been returned by the Magistrates Court to the respondent on an unknown date.  Exhibit 1 was a bundle of emails exchanged between the appellant and the respondent which was tendered by the respondent.  Exhibit 3 was the respondent's mobile phone which was tendered by the respondent because it contained a significant number of text messages upon which the respondent placed reliance in support of her application for the VRO.

4. I assume that the unknown date on which exhibits 1 and 3 were returned to the respondent was after the 28‑day period referred to in the above cited exchange between the magistrate and the respondent's counsel in relation to the respondent's mobile phone.

5. The respondent did not seek to produce on the hearing of the appeal either exhibit 1 or exhibit 3.  The respondent may have assumed that the court was in possession of a copy of exhibit 1, although she must have known that the court was not in possession of exhibit 3.

6. I have given consideration to asking the respondent to provide exhibits 1 and 3 to the court (even though, assuming the respondent is still in possession of the mobile phone, it seems to me unlikely that the relevant text messages would still be on the phone).  However, for reasons that are apparent from what I say below in dealing with the appellant's individual grounds of appeal I have decided that it is not necessary for me to attempt to gain access to exhibits 1 and 3 in order to deal with the appeal.

   Ground 1

7. In this ground the appellant asserts that the magistrate made an error in granting the VRO when it was pointed out to him 'at length and in writing' that the respondent had made and/or tendered false statements in obtaining the interim VRO and the VRO.

8. The reference in this ground to it having been pointed out to the magistrate 'at length and in writing' that the respondent had made and/or tendered false statements is clearly a reference to the previously referred to letter which is the first of the annexures to the affidavit sworn on 7 October 2014.  The letter was not part of the evidence that was before the magistrate at the final order hearing.  His Honour was correct to disregard its contents in arriving at his decision.  Accordingly, his Honour did not err in making the VRO despite the assertions contained in the letter to the effect that the respondent had made and/or tendered false statements.  I dismiss this ground of appeal.

   Ground 2

9. In this ground the appellant makes, in substance, two allegations of error.  First, he asserts that the magistrate made an error in permitting the respondent to tender 'without notice' as part of her case at the final order hearing her mobile phone on which text messages upon which she relied in support of her application were contained.  Second, the appellant contends that the magistrate did not give him the opportunity to review the material on the telephone.

10. The first of the appellant's complaints is misconceived.  While early disclosure of material may facilitate the efficient conduct of litigation in the Magistrates Court, there is no general requirement under either the Act or the MCCPA that the evidence which a person intends to give or adduce at a final order hearing under the Act must be disclosed to the other party at some point prior to the hearing: the Act, s 72.  Accordingly, the magistrate did not err in permitting the respondent to adduce the phone in evidence despite the fact that the content of the messages on the phone had not previously been disclosed.

11. As to the second of the complaints made in this ground, it is simply not correct to assert that the magistrate did not give the appellant the opportunity to review the messages on the phone.  At the time that the phone was tendered the magistrate made the point that the appellant's counsel, Mr Gunning, had a right to 'have a look' at the text messages (ts 52).  The respondent's counsel, Mr Hofmann, not surprisingly agreed with this proposition (ts 53).  Then a little later in the hearing, when the appellant's counsel was called upon to cross‑examine the respondent, which was approximately half an hour before the scheduled lunch break, the appellant's counsel asked the magistrate if it was possible to take an early lunch so that he could 'look at some of the exhibits' (ts 70).  A discussion then ensued between the magistrate and the appellant's counsel in relation to counsel being given access to the respondent's mobile phone (which had already been tendered) during the lunchbreak.  It was ultimately agreed that counsel would be permitted to have access to the phone in the presence of the magistrate's judicial support officer from 1.15 pm until such time as counsel was ready to resume (ts 70 ‑ 72).

12. During the discussion between the magistrate and the appellant's counsel the magistrate did raise with counsel that there were a significant number of messages in the phone and that it might take counsel some time to go through them (ts 70).  In response the appellant's counsel said (ts 70):

    I'm sure I'm not going to be required to go – well, I don't propose to go through.  I merely need to take instructions of a general nature so that I can – sufficient for cross-examination purposes.

13. A few minutes later the appellant's counsel, in response to the magistrate's question as to how long he would need after 1.15 pm to go through the material on the phone because it was 'quite extensive', said (ts 72):

    Well, your Honour, hopefully not long.  I – what I – the purpose of it is seeing what the – what changes and what the context is in relation to perhaps a colourful text or email as opposed to a – just a mundane text.

14. The magistrate concluded the discussion by saying that the court would adjourn for lunch until 1.15 pm 'and then it will be in Mr Gunning's hands after as to when we're able to resume' (ts 72).

15. At 1.52 pm the hearing resumed.  Counsel for the appellant cross‑examined the respondent without indicating that he needed more time to review the messages on the phone.

16. The appellant was represented by experienced counsel.  One can reasonably expect that if counsel considered he needed more time to review the messages he would have requested more time.  He did not make any such request.  In these circumstances there is no merit in the contention that the magistrate did not give the appellant the opportunity to review the material on the respondent's phone.

17. I dismiss this ground of appeal.

    Ground 3

18. By this ground the appellant appears to make two complaints.  First, the appellant asserts that the magistrate made an error by 'ensuring' that the proceedings at the final order hearing were 'less than transparent and more akin to procedural ambush'.  Second, the appellant asserts that the magistrate erred by preventing the appellant's counsel from presenting a 'sensible and organised rebuttal' of the evidence given by the respondent as to the communications which the magistrate took into account in making the VRO.

19. There is no substance in the appellant's contention that the magistrate 'ensured' that the proceedings were not transparent.  A review of the transcript of the final order hearing reveals that the proceedings were conducted in an entirely transparent fashion.  Further, and as I have already stated, there was no 'procedural ambush' because there is no general requirement for any pre‑hearing disclosure.

20. As to the second complaint, it is well established that a party to litigation must be given a reasonable opportunity of presenting his or her case: Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 589; Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1 [4]; Re Burton; Ex parte Lowe [2003] WASCA 306 [63]. What amounts to a reasonable opportunity to present a case depends on the circumstances of the case including the nature of the jurisdiction, the subject matter that is being dealt with and the statutory provisions governing the power or jurisdiction being exercised: National Companies & Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296 [19]; Kioa v West [1985] HCA 81; (1985) 159 CLR 550 [17]; Re Burton[64].

21. The entitlement of a litigant to a reasonable opportunity to present his or her case extends to the right to rebut or qualify by further information, and comment by way of submission upon, adverse material from other sources which is put before the decision maker: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576, [303]; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 [22].

22. In my opinion a review of the transcript of the hearing reveals that the magistrate did not in any way prevent the appellant from presenting his case fully and properly.  More specifically, the magistrate did not in my view prevent the appellant or his counsel from rebutting the respondent's evidence in relation to communications between her and the appellant in a 'sensible and organised' fashion.  To the contrary, the magistrate on two occasions in effect made clear to the appellant when he was giving his evidence (once in examination‑in‑chief and once in cross‑examination), that he was entitled to put before the court any emails or messages which he considered were of relevance to the magistrate's assessment of the nature of the communications relied upon by the respondent or which would otherwise support his case (ts 110, 127).  Further, the appellant did tender (exhibit 6) what he referred to as a 'representative sample' of emails between himself and Linda Foreman, and himself and the respondent, during the period 1 November 2013 to 14 January 2014 (ts 110, 117).

23. For the reasons stated I dismiss this ground of appeal.

    Ground 4

24. This ground alleges, in substance, that the respondent had 'disconnected' the appellant from the network on which he would be able to obtain his emails and by reference to which he would have been able to demonstrate that the communications relied upon by the respondent in support of her application for the VRO were an 'aberration'.  This is not an allegation of any error by the magistrate.  The ground is dismissed.

    Ground 5

25. In this ground the appellant asserts that the magistrate erred by not specifying the date and time of the 'e‑communications' which he found to be sufficient to justify the granting of the VRO.  I will treat this assertion as an allegation that the magistrate erred by failing to provide adequate reasons for his decision.  I take the reference to 'e‑communications' in this ground to be a reference to the text messages that were on the respondent's mobile phone and the emails that were sent by the appellant to the respondent.

26. It is the case that his Honour did not, in his reasons, specify in respect of each text message or email that he referred to and relied upon the precise date and time on which the message or email was sent by the appellant and received by the respondent.  However, what his Honour did do, subject to one exception, was to identify the time periods during which the groups of texts and emails which he referred to and relied upon were sent by the appellant.  Thus his Honour, as he made clear, had regard to texts and emails sent during the period 11 September 2012 to 23 October 2012 (ts 146 ‑ 149), during the period October and November 2013 (ts 149 ‑ 152), and on 14 January 2014 (ts 152).  The one exception to his Honour's approach in this regard related to some messages about which the respondent had given evidence at the hearing of her application for the interim VRO (exhibit 2, pages 5 – 7).  At the final order hearing the respondent gave evidence that these messages had been inadvertently deleted from her iPad since she had read them out at the hearing of her application for the interim VRO (ts 48).  Given that the respondent had read the messages out at the interim VRO hearing his Honour, without objection and as he was permitted to do under s 42(4) and s 42(5)(a) of the Act, received into evidence as exhibit 2 the transcript of the hearing of the respondent's interim VRO application (exhibit 2, pages 5 – 7; ts 151).  However the respondent, when she read the messages out at the interim VRO hearing did not specify the dates of the messages (ts 151).  The result was that his Honour, when he referred to the messages in his reasons for decision, was unable to specify the dates on which the messages were sent to the respondent.  His Honour did, however, find from the context of the messages that they were 'recent' (ts 151).

1. In my opinion the approach which the magistrate took to identifying when the text messages and emails to which he was referring were sent was in the circumstances entirely sufficient.  His Honour's failure to specify, to the extent that the evidence permitted him to do so, the precise date on which the individual communications were sent did not render his reasons inadequate.  This ground of appeal is dismissed.

   Ground 6

2. In this ground the appellant asserts, in substance, that the magistrate erred by failing to have regard to both the 'amicable' dealings which the appellant and respondent had had with each other in relation to their joint business venture since they had separated in 2010, and the 'amicable' contacts which the appellant had had with the respondent on 3 December 2013, 22 December 2013 and 6 January 2014.

3. It is simply not correct to say that the magistrate failed to take account of the amicable dealings and communications which did take place between the appellant and the respondent.  In his reasons his Honour expressly referred to the fact that of the 260 text messages sent by the appellant to the respondent during the period 11 September 2012 to 23 October 2012, the last 140 or so were innocuous and related mainly to financial interests, and that some of them were affectionate with the use of pet names (ts 146, 149).  His Honour also expressly referred to, and apparently accepted, the respondent's evidence that the appellant's behaviour was cyclical; that is, that the appellant would 'go through periods where his behaviour was reasonable, but then something upset him and he responded badly' (ts 149).  His Honour found that this evidence of the respondent was borne out by the messages (ts 149).  His Honour expressly referred to the fact that he appreciated that not all of the appellant's messages were unpleasant, and that the appellant had handed up a number of emails from 2014 (exhibit 6) which were 'businesslike', and some of which were 'fond, affectionate, and pleasant' (ts 154).

4. In short, the magistrate did not fail to have regard to the amicable communications.  His Honour had express regard to them.  However, his Honour took the view, which was entirely consistent with the evidence presented to him, that the amicable communications were indicative of the appellant's cyclical conduct and found that when the appellant '[perceived] things [were] going well he's pleasant enough and wants a part of it, but is unable to control himself when things aren't going to his liking' (ts 151).

5. It is true that in his reasons for decision the magistrate did not refer to the appellant's apparently amicable contact with the respondent on 3 December 2013, 22 December 2013 and 6 January 2014, about which the respondent (and not the appellant) gave evidence in cross‑examination (ts 79 ‑ 80).  However, in light of his Honour's express findings to which I have just referred to the effect that the appellant's behaviour was cyclical and that the appellant would go through periods during which his behaviour was reasonable, his Honour's failure to refer expressly to these three incidents of amicable contact does not provide a basis for concluding that his Honour did not have regard to the appellant's amicable communications and contact with the respondent generally.

6. I dismiss this ground of appeal.

   Ground 7

7. In this ground the appellant asserts, in essence, that the magistrate erred in finding that the appellant, by sending the relevant text messages and emails, committed an 'act of abuse' and was likely to again commit such an act, within the meaning of s 11A(a) of the Act.

8. The argument advanced by the appellant in support of this ground was, in essence, that when one has regard to the evidence given before the magistrate as to the history and nature of his relationship with the respondent, the respondent's conduct in relation to their joint property and business interests, and his state of emotional turmoil and distress at the time that he sent the texts and emails, the sending of the texts and emails, despite the language used in them, did not amount to an act of abuse.  The appellant contended that the various texts should have been viewed by the magistrate as little more than emotional outbursts.  He further argued that the magistrate focussed inappropriately on the bad language used by him in the texts and treated this bad language as 'prima facie offensive'.

9. I note that having listened to the appellant's oral submissions at the hearing of the appeal, it is clear to me that it is this ground of appeal that encapsulates his principal ground of complaint about the magistrate's decision.

   Relevant legislative provisions

10. Section 11A(a) of the Act 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;

    …

    and that making a violence restraining order is appropriate in the circumstances.

11. An 'act of abuse' is defined in s 3 of the Act to include an act of family and domestic violence.

12. The expression 'act of family and domestic violence' is relevantly defined in s 6(1)(d) of the Act as follows:

    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; …

13. Section 6(4) of the Act relevantly provides that 'intimidate' has the same meaning as in s 338D of the Criminal Code (WA) (the Code).

14. The word 'offensive' and the terms 'emotionally abusive' and 'ongoing manner' are not defined in the Act.  They should therefore be given their ordinary natural meaning.  Accordingly, I will take the word 'offensive' to mean hurtful, harmful, injurious or insulting and the word 'ongoing' to mean continuous, current or in progress:  The New Shorter Oxford English Dictionary, 4th ed, 1993, pages 1983, 1999; The Australian Concise Oxford Dictionary, 4th ed, 2004, pages 973, 980.

15. As to the term 'emotionally abusive' an emotion is a strong mental or instinctive feeling: The New Shorter Oxford English Dictionary, page 808; The Australian Concise Oxford Dictionary, page 454.  To abuse a person is to insult or injure or maltreat a person: The New Shorter Oxford English Dictionary, page 10; The Australian Concise Oxford Dictionary, page 7.  Therefore, and so far as is relevant in the present context, to behave in a manner that is emotionally abusive towards another is to behave in a way which injures or insults the strong mental or instinctive feelings of that other person.

16. The statutory expression 'behaving in an ongoing manner that is intimidating, offensive or emotionally abusive towards the person' in s 6(1)(d) of the Act focuses on the conduct of the s 11A respondent and is an objective standard: Baron v Walsh [2014] WASCA 124 [20]. It requires conduct that is objectively capable of intimidating, offending or emotionally abusing an ordinary person in the position of the person seeking protection: Baron v Walsh [20]. It does not require proof on the part of the s 11A respondent of an intent to intimidate, to offend or to emotionally abuse, or proof that the person seeking protection has in fact been intimidated, offended or emotionally abused: Baron v Walsh [20]. However, the effect of the behaviour on the person claiming protection is a relevant consideration in determining whether the making of a violence restraining order is appropriate in the circumstances: Baron v Walsh [20].

17. 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

18. 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); and

    11.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).

19. In making the above referred to finding that the appellant subjected the respondent to verbal abuse, his Honour accepted the evidence given to this effect by the respondent because it was 'inconceivable that [the appellant] could be capable of such gross behaviour in written form but behave differently face to face' (ts 153).  His Honour's finding in relation to the telephone calls was also based on evidence given by the respondent which was not disputed.

20. His Honour also found that the respondent was likely to again commit an act of abuse against the respondent (ts 157).  Indeed, his Honour identified this to be the real issue for his determination (ts 155).  This is perhaps not surprising given that the appellant's counsel during the course of his brief closing submissions conceded that he thought that the magistrate 'had sufficient texts to come to the conclusion' that the appellant had engaged in ongoing behaviour that was intimidating, offensive or emotionally abusive (ts 137).

21. It is apparent from reading his Honour's reasons that his decision that the respondent was likely to again commit an act of abuse against the respondent was based upon the following:

    1.The appellant's evidence as to his precarious financial position (ts 155);

    2.His finding, based on the terms of some of the text messages sent by the appellant to the respondent, that any Family Court settlement of the appellant's and respondent's joint business and property interests would be unlikely to be quick and amicable (ts 155);

    3.The appellant's evidence as to his belief that he was still entitled to be involved in, and to take a share of, the profits of the business originally established by him and the respondent jointly (ts 155, 156);

    4.The appellant's evidence as to his belief that he was essential to the successful running of the business (ts 157);

    5.The appellant's evidence as to his belief that he was entitled to take possession of one of the residential properties (the Bohemia Street property) that he owned jointly with the respondent and in which the respondent had been living since she and the appellant had separated in September 2010 (ts 31, 105, 157) (ts 157);

    6.His finding that the appellant blamed the respondent for his asserted poor financial position and believed that she had an obligation to compensate him (ts 157); and

    7. The nature and frequency of the appellant's communications with the respondent during the approximate 12‑month period leading up to the respondent's application for the interim VRO (ts 156, 157).

22. The magistrate summarised his view of the matter in relation to the likelihood of the appellant again committing an act of abuse in these terms (ts 157):

    And I'm satisfied that with matters concerning property settlement, and again noting the depth of [the appellant's] feelings about his entitlement to the Bohemia Street property, and dissolution of business interests still to be resolved, that [the appellant] is likely to continue to contact [the respondent] unless restrained.  And I'm satisfied that if things do not go to his liking his behaviour is again likely to disintegrate into abuse and controlling behaviour.

    Analysis

23. In the course of his judgment his Honour quoted from, on my count, 21 text messages or emails sent by the appellant to the respondent.  Moreover, his Honour made clear that the communications to which he was making express reference were merely representative of a much larger number of communications which were in a similar vein (ts 146 ‑ 149).

24. I do not propose to recite herein each of the communications to which the magistrate made express reference in his reasons.  It is not necessary for me to do so.  It suffices for me to set out just a few of the communications which the magistrate quoted (unfortunately with the bad language included), in order to provide an indication of the nature of the communications which ultimately led his Honour to conclude that the appellant had behaved in an ongoing manner that was offensive or emotionally abusive towards the respondent.

25. In relation to the period 11 September 2012 to 23 October 2012, one of the text messages which was quoted by the magistrate (ts 146) was in the following terms:

    Make sure I have unrestricted access and keep your boyfriend away from my home from now on.  Get to work you cunt.

26. The appellant's reference in the above message (and in those referred to below) to his home was a reference to the Bohemia Street property.

27. Another of the text messages sent during the period 11 September 2012 to 23 October 2012 which was quoted by the magistrate (ts 147) was as follows:

    I do not wish to be in business with someone who is unreliable, erratic and dishonest and lies to me and treats me with contempt.  Let's close the doors tonight, sell it and pay back Westpac.  Get a job and eat shit like me, cunt.

28. Another of the text messages from this period quoted by the magistrate (ts 147) was as follows:

    When you want to fuck your Balga bourbon-swilling bum from now on you go to Balga.  Keep him out of my home.  I'll be coming and going from now on without reference to you.

29. The appellant's reference to the 'Balga bourbon-swilling bum' was a reference to the respondent's then boyfriend.

30. Another of the messages quoted by the magistrate (ts 148) which the appellant sent to the respondent during the period 11 September 2012 to 23 October 2012 was in the following terms:

    I financed the entire relationship you thoughtless, user, asshole, cunt.  If I hear from that pig, you are in the street within 30 minutes as I will take you by the ear and kick your fat ass out the door.  He threatened to cause shit at my work.  The next one to threaten me dies.

31. Another of the quoted messages (ts 148) sent during the same period read:

    You fucking cunt, die you fuck.

32. Finally, by way of example of the messages from the period 11 September 2012 to 23 October 2012 which were quoted by the magistrate (ts 149), is the following:

    I hope you and your shit daughter dies.  Close the business today.

33. As to the period October 2013 to November 2013, one of the emails sent by the appellant to the respondent which the magistrate quoted (ts 150) was in the following terms:

    If you do not demonstrate good faith in this matter, which I insist upon, I shall sell this firm without further reference to you and/or just send everybody home and close the doors as an initial step toward eliminating you from my life.  Get a job, you useless, bum, cunt.  Who is laughing now, fucko.  You are scraping the bottom of the barrel, Lorraine.  But perhaps that's where your comfort zone is.  Being unintelligent these people impress you.

34. Another of the quoted emails (ts 150) sent by the appellant to the respondent during October and November 2013, which the magistrate did actually say was dated 16 November 2013 (ts 150), was as follows:

    Ms Foreman's possession be removed from my home in Bohemia Street.  This may or may not result in the removal of you from my home.  It may result in the sale of my home.  This is not a point for further discussions.  Try me, you piece of shit.  I am prepared in the event of your non compliance to move into Bohemia forthwith and without further reference to you and secure the removal of Linda Foreman's shit.  I will pull the whole fucking thing down, Lorraine, Westpac, business everything.  You have gone way to far this time, you fucking idiot.

35. In relation to the messages which the respondent had read out during the interim VRO hearing and which the magistrate found were recent, one of the messages that the magistrate quoted (exhibit 2, page 5; ts 152) was in part in the following terms:

    You want to laugh at me, you cock sucking, fucking whore.  See how you go tomorrow.  … you are influenced by scum and you are mentally weak.  Seriously thinking of coming tonight to move that cunt's shit.  Why should I be inconvenienced by a psycho? … Go to the bum's house tonight.  I'm coming tonight to move that shit.  Go to your boyfriend's place …

    Get out of my home today while I come to shift her shit.  It might take all night and I am shitty.  If you don't have a face full of cock, call me.  You think it's okay for everyone to threaten me all the time, don't you.  You think I will wimp out, ay …  I'm coming to move in tonight and the very least enter the garage from her study.  Fuck you. …

36. The reference in this message to 'her study' was apparently a reference to a room in the Bohemia Street property in which the respondent had allowed Ms Foreman to store some of her property.

37. Another one of the 'recent' messages which the respondent had read out during the interim violence restraining order hearing and which the magistrate quoted (exhibit 2, page 6; ts 152) was in part as follows:

    … In any event it reinforces my conviction that your judgment is hopelessly flawed, that you're a doormat, a cock sucking and otherwise you're still a doormat and determines me to get this psycho shit out of my home within 36 hours or by midnight Sunday.  Watch me. … I am very, very angry tonight and probably will not sleep.  When I'm done here I'm coming there to move her shit into the garage.  Fuck off and suck cock somewhere else.  You created a mess with enormous potential grief.  Clear it up now and get that bum out of my home.

1. His Honour also referred to the messages exchanged between the appellant and the respondent on 14 January 2014 (ts 152).  His Honour noted that these messages, copies of which comprised exhibit 4 and formed part of exhibit 6, all related to the appellant going to the Bohemia Street property and changing some of the locks at the house.  This was something the appellant did in fact do on that date.  It was this conduct of the appellant that finally prompted the respondent to make her application for the interim violence restraining order on the following day.

2. In his reasons, his Honour did not make express reference to the text and email communications exchanged between the appellant and the respondent in December 2013 through to 12 January 2014 which form part of exhibit 6.  I have, however, reviewed these communications.  They reveal that during this period the appellant did not engage in the extremely vulgar abuse that he had inflicted on the respondent in September and October 2012 and in October and November 2013.  However, these communications also reveal, in my view, that the appellant was, in his dealings with the respondent, inconsistent, insulting and abusive.  Thus whilst he would in some messages or emails state that he still loved or care for or supported the respondent and that he wanted to work with her in relation to their joint business and property interests, in other communications he would make derogatory comments about the respondent's lifestyle, personality, intelligence or mental health.  Indeed, on some occasions these sorts of contradictory sentiments were expressed by the appellant in the one communication.  For example, in a lengthy email sent by the appellant to the respondent at 8.30 pm on 23 November 2013 the appellant said, among other things, the following:

   Hello Lorraine

   Given recent events and your generally exhibited behaviours toward me over the past three years or so, it has been obvious to me that your feelings toward me whatever they once may have been are extant and, to that extent I, while I have lived the last three years in the hope that we could get together again, now realise that the best option for me going forward is, for the first time in 25 years, to put my interests and welfare ahead of yours, and to progress the unravelling of our financial relationship in a collaborative and cooperative manner which delivers equitability to us both and delivers some semblance of financial security to us both over time – though it must be said that the sum of the two residual portions will never equal the whole or deliver the same potential …

   In the event that you do seek to obtain legal representation then you may, or may not, force me into a reciprocal arrangement by which I will obtain the best legal minds in the country at whatever expense and I shall litigate until the state is exhausted at which time I am sure the lawyers will inform us it is time to settle.  I do hope, therefore, we can do the negotiations in an amicable way …

   You do not want to be with me, and you have stated that you have 'built a new life'.  In truth you have built a lie.  When you appeared sporting an engagement ring you said it was a birthday present.  There was no need to lie, I was hurt but so what.  The lie hurts more.

   You didn't build anything you just lived in my home, deceived me, lied to me and allowed me to subsidise your lifestyle with your fiancé while refusing to live with him thereby allowing me back into my home.  Without me there is no car, no home, no business but I propose a gradual winding back of our relations consistent with our mutual best interests. 

   All the best

   Tom

3. Then at 8.52 pm on the same evening, that is, approximately 20 minutes after sending the above referred to email, the appellant sent the following email to the respondent:

   Come and have a coffee with me tomorrow J

   I love sitting with you

   It makes my heart sing

4. On 25 November 2013 the appellant sent to the respondent an email with the subject heading 'be intelligent, not discourteous' in the following terms:

   I explained to you on Sunday that your failure to return my calls was a major source of aggravation and frustration

   Be intelligent, learn and make an effort and lets go forward

   Please call me it will save me having to call you.

5. On 4 January 2014 the appellant sent an email to the respondent at 8.52 pm.  He commenced the email with the words 'Hi Poop, we need to have a rational discussion around Bohemia'.  He stated at length what he considered to be the relevant facts and what he considered he and the respondent needed to do in order to resolve the dispute between them relating to their jointly owned business and property interests.  He concluded the email in the following terms:

   If its over, just get the fuck out of my house, stop inconveniencing me and bumming off me, you had your turn since 06/09/10, leave it as it is as far as my possession go and go and build a new life with your bum.  As i say, good luck.  I'll pay it off and I'll renovate it

   Now, I'm inviting you to think seriously about where we are at because no one is more important to me than YOU and I have subjugated my desires to yours for 25 years. 

   Your always 1st with me and that is why I am at my mothers and not home, NOW J

6. 'Poop' was apparently a pet name which the appellant used for the respondent.

7. On 12 January 2014 at 11.45 am the appellant sent an email to the respondent with the subject heading 'You traumatise me' which was in the following terms:

   My dear sweet loveable Lorraine

   It was you my dear, not I, who fucked up with beckton …

   We should be a team

   I do think your judgment is flawed

   I do think your behaviour is erratic

   I do think you are easily manipulated

   I do think you are being influenced by someone

   In the final analysis you may just be unintelligent

   Having said that, maybe on Friday I was wrong but the aggravation you continue to cause comes from your inability to communicate like an adult

   You frighten me and traumatise me

   Have you not caused enough catastrophic dislocation

   You want to get a lawyer?

   You really want to waste what I have managed to save post Beckton on lawyers – because WE will lose and the lawyers will get a share of our collective estate.  Are you deranged?

   …

8. At 12.16 pm on 12 January 2014 the appellant sent an email to the respondent the subject heading of which was 'You fucked up with beckton' which was in the following terms:

   I stood by you, supported you, negotiated with Kott Gunning, saw you into the business, gave you an opportunity to succeed, supported you in the business, supported you in getting your licence, supported you in the numerous cases brought against you to protect your professional reputation, paid out all my money for 4 years to support you and to preserve your credit reference, put a roof over your head at no cost to you for 4 years while deferring to your desire for me not to visit or access my own property and possession, i paid for your car for 3 years

   You

   Refuse to return me calls

   Are nasty

   Use me

   And YOU want to get a lawyer

   Your a fool

9. Approximately 50 minutes later the appellant followed up his above email with an email the subject heading of which was 'Your a doll' and which was in the following terms:

   Your a good person Lorraine

   The best I ever met

   The tragedy of you is that all the crap u caused – and u caused a lot of crap – is totally unnecessary

   I mean you no harm Lorraine

   I love u very much

   You are 1st with me

   Talk to me x

10. The above quoted emails do not by any means reflect the entirety of the communications that occurred between the appellant and the respondent in late December 2013 through to 13 January 2014.  However, they do reflect the tenor of the appellant's messages to the respondent during this time.

11. Against the background of the above referred to communications I turn to deal directly with the question that this ground of appeal gives rise to, namely did the magistrate err by concluding that the appellant, by communicating with the respondent in the way that he did, behave in an ongoing manner that was offensive or emotionally abusive towards the respondent?

12. Given the lapse in time between the first set of communications expressly referred to by his Honour (those which occurred in September and October 2012), and the communications which occurred from October 2013 onwards, I do not think that it can be said that the appellant engaged in ongoing offensive or emotionally abusive behaviour towards the respondent from September 2012 through to January 2014.  However, I am satisfied that the appellant did engage in ongoing offensive or emotionally abusive behaviour (in the sense that I have interpreted these terms) towards the respondent from October 2013 onwards.  In my view this is the only conclusion which can reasonably be drawn from:

    1.The terms of the messages quoted by the magistrate which were sent by the appellant to the respondent in October and November 2013;

    2.The terms of the 'recent' messages which were referred to by the respondent during the hearing of her application for the interim violence restraining order, including but not limited to those quoted by the magistrate;

    3.The terms of a number of the emails which the appellant sent to the respondent during December 2013 and up until 12 January 2014, including but not limited to those which I have quoted;

    4.The conduct engaged in by the appellant on 14 January 2014;

    5.The magistrate's finding that there were many other communications of a similar nature to those which he quoted; and

    6.The magistrate's finding that the appellant had verbally abused the respondent in similar terms to those which he had used in the electronic communications.

13. I do not accept, given the nature and number of the communications, that the communications were nothing more than emotional outbursts which were not objectively capable of offending or emotionally abusing an ordinary person in the respondent's position.  Nor do I accept that a reading of his Honour's reasons reveals that he treated the bad language used by the appellant in the communications as 'prima facie offensive'.  The language used by the appellant is impossible to ignore and to a significant extent is what renders some of the relevant communications offensive and/or emotionally abusive.  However, there is nothing in his Honour's reasons to support the suggestion that his Honour placed an undue amount of emphasis on the appellant's bad language, or failed to take account of the context in which the bad language was used, and thereby lost sight of the need to determine whether the communications were offensive or emotionally abusive as opposed to merely displeasing or unpleasant.

14. It follows that I am satisfied that the magistrate did not err in finding that the appellant had committed an act of abuse against the respondent within the meaning of s 11A(a) of the Act.

15. I am also of the opinion that the above identified evidence and findings relied upon by the magistrate for his conclusion that the appellant was likely again to commit an act of abuse provided a proper and sound basis for that conclusion.

16. For the reasons stated I dismiss this ground of appeal.

    Ground 8

17. In the first paragraph of this ground of appeal the appellant asserts, in substance, that the magistrate erred by treating as irrelevant his alleged joint ownership and right to be involved in the business which he had established with the respondent.

18. In my view there is no merit in this complaint.  His Honour did refrain from making a finding as to whether or not the appellant was still entitled to be involved in, and take a share of the profits of, the business (ts 155, 156).  His Honour also refrained from making a finding as to whether the appellant's asserted parlous financial position was due to the respondent's mismanagement of their joint financial interests (ts 155).  However, in my opinion his Honour did not in the circumstances of the case before him make an error in refraining from making findings of fact as to these matters.

19. Whether or not the appellant was actually still entitled to be involved in the business, or whether he was in a difficult financial position caused by the respondent's conduct, were not matters that were relevant to the question whether or not the appellant had committed an act of abuse within the meaning of s 11A of the Act.  What was, however, relevant was the appellant's belief in relation to these matters.  The appellant's belief in relation to these matters went directly to the issue of whether or not the appellant was likely again to commit an act of abuse.  In this regard his Honour clearly accepted that the appellant believed that he was still entitled to be involved in, and to take a share of the profits of, the business and believed that his difficult financial position was due to the conduct of the respondent (ts 155, 156).  Furthermore, his Honour clearly took the appellant's beliefs in relation to these matters into account in deciding whether the respondent had proved that the appellant was likely again to commit an act of abuse against her.

20. Before making the VRO the magistrate had to be satisfied that making the order was 'appropriate in the circumstances': the Act, s 11A.  Moreover, in deciding whether or not it was appropriate in the circumstances to make the VRO, the magistrate was required to have regard to the matters specified in s 12 of the Act.  One of those specified matters was the hardship that may be caused to the appellant if the VRO was made: the Act, s 12(c).  Accordingly, the magistrate was, in my view, required in deciding whether it was appropriate in the circumstances to make the VRO, to take into account the appellant's alleged right to be involved in the business and his asserted parlous financial position.

21. In my opinion, contrary to the appellant's contention in this regard, his Honour, despite refraining from making any definite findings of fact as to the appellant's right to be involved in the business and his financial position, did treat these matters as relevant to, and did take them into account in deciding, the question whether it was in the circumstances appropriate to make the VRO.  In this regard his Honour said (ts 156 ‑ 157):

    Now, in terms of prejudice, in my view there's no prejudice that has really been pointed to, or at least nothing that can't be overcome by other means.  Section 12 of the [Act] sets out a number of considerations.  The primary considerations are the need to ensure that the person seeking to be protected is protected.  It does encompass consideration of hardship that may be caused to the respondent and to any other current legal proceedings involving the parties.

    I appreciate that they may well be going through some settlement proceedings and there's an expectation at least upon them that they will do so in accordance with court orders and in an orderly fashion.  However, I am satisfied [the appellant] would attempt to have the settlement largely on his terms through similar intimidating means if given the opportunity.  In terms of hardship, if there's a hardship occasioned by being unable to be involved in the business there are civil remedies for that if he has been improperly removed as a director.

    If funds are being misappropriated, there are civil and/or criminal remedies for that …

    …

    If indeed, as [the appellant] says he wishes to simply liquidate all assets, pay debts and start again, that means the restraining order will be moot and won't cause any possible prejudice …

22. Furthermore, in light of the evidence that was before his Honour, I am not persuaded that his Honour erred in arriving at the conclusion that it was, despite the difficulties which might be caused for the appellant in relation to his business and his financial position, in the circumstances appropriate to make the VRO.

23. In the second paragraph of this ground of appeal (which is particularly difficult to make sense of), the appellant's complaint appears to be that the magistrate made an error in finding that there was:

    … hypocrisy in the sense of [the appellant] threatening repeatedly to close the business down and sever ties and now portraying himself as essential to the running of the business and that the business is likely to be successful and rectify their financial woes. (ts 157)

24. His Honour's finding of 'hypocrisy' was in my view justified given the terms of a number of the appellant's text and email communications as compared with the evidence he gave in relation to the business.  However, nothing turns on the issue.  It is readily apparent from reading his Honour's reasons that his finding of hypocrisy on the part of the appellant played no material role in his decision that the appellant had engaged in an act of abuse and was likely to again commit such an act against the respondent.

25. For the reasons I have stated, I dismiss this ground of appeal.

    Ground 9

26. In this ground the appellant asserts, in essence, that the magistrate made an error by failing to consider the 'unintended consequences' of making the VRO when his decision was 'premised upon a mere 11 electronic communications'.  I take the reference in this ground to the 'unintended consequences' to be a reference to the financial hardship and difficulties which the appellant now asserts he is suffering as a result of the granting of the VRO.

27. As is apparent from what I have said in dealing with ground 7, it is simply incorrect to assert that the magistrate's decision was premised on only 11 electronic communications.  His Honour took into account all of the communications that were put before him.

28. As to the second limb of this ground of appeal I am not, for the reasons I have stated in dealing with ground 8, persuaded that the magistrate failed to take into account any hardship which the making of the VRO may cause the appellant financially and generally as a result of any property or business interests which the appellant owns, or allegedly owns, jointly with the respondent.

29. I dismiss this ground of appeal.

    Ground 10

30. In this ground the appellant once again asserts that the magistrate erred by failing to take into consideration 'the potential commercial impacts' upon him of granting a final violence restraining order.  For the reasons I have stated in dealing with grounds 8 and 9 I dismiss this ground of appeal.

Conclusion

1. The appellant has not made out any of his grounds of appeal.  Accordingly, his application for an extension of time within which to appeal is dismissed and the appeal is dismissed.

Attachment