Kozak v Ehrhardt - [2022] WASCA 165

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   KOZAK -v- EHRHARDT [2022] WASCA 165
CORAM:   MURPHY JA
MITCHELL JA

HEARD:   8 DECEMBER 2022
DELIVERED          :   8 DECEMBER 2022
PUBLISHED           :   9 DECEMBER 2022
FILE NO/S:   CACV 77 of 2022
BETWEEN:   JAMES KOZAK
Appellant
AND
CATHERINE CHRISTINE EHRHARDT
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   GETHING DCJ
File Number            :   APP 27 of 2022

Catchwords:

Appeal - Practice and procedure - Application for a stay pending determination of the appeal - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	C Breheny

Solicitors:

Appellant	:	In person
Respondent	:	Barry Nilsson Lawyers (WA)

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

Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168

REASONS OF THE COURT:

On 8 December 2022, we heard the appellant's application for a stay of proceedings in the Magistrates Court of Western Australia pending the determination of this appeal. At the conclusion of the hearing, we ordered that application be dismissed and that the costs of the application be reserved. We said that we would publish reasons for making those orders later. These are our reasons for making those orders.

Background

On 13 January 2022, the Magistrates Court made a misconduct restraining order (MRO) against the appellant in favour of the respondent. The MRO was for a duration of 12 months. It included a requirement that the appellant must not:
[R]efer to the [respondent] by any electronic means, including by using the internet and any social network application (such as 'facebook') to depict or refer in any offensive manner to the [respondent].
The grounds for making an MRO are provided for in s 34 of the Restraining Orders Act 1997 (WA), which relevantly states:
A court may make an MRO if it is satisfied that -
(a)unless restrained, the respondent is likely to -
(i)behave in a manner that could reasonably be expected to be intimidating or offensive to the person seeking to be protected and that would, in fact, intimidate or offend the person seeking to be protected; … and
(b)granting an MRO is appropriate in the circumstances.
The respondent's MRO application was supported by an affidavit of the respondent sworn on 15 November 2021.[1] The affidavit deposed to the appellant having published many posts containing offensive material concerning the respondent on two Facebook pages. The respondent, who is a member of a local government council, deposed to feeling offended, humiliated and intimidated, with particular reference to the publication of her address and the publication of images of firearms. She deposed to seeking an order preventing the appellant from publishing further material and approaching within 500 m of her, her immediate family and her home address. The Facebook posts referred to in the affidavit were identified as attachments to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kozak v Ehrhardt

Details

AGLC: Kozak v Ehrhardt [2022] WASCA 165
Case: [2022] WASCA 165
Decision Date

CaseChat Overview and Summary

James Kozak sought an appeal against the District Court's decision to remit Catherine Ehrhardt's application for a misconduct restraining order (MRO) to the Magistrates Court for a rehearing. The appeal was against the primary judge's orders setting aside the MRO and remitting the application for rehearing, before a different magistrate. The appellant sought a stay of the remitted proceedings in the Magistrates Court pending the determination of the appeal. The court considered whether the appeal would be rendered nugatory, whether it had reasonable prospects of success, and where the balance of convenience lay. The court found that the appeal would not be rendered nugatory even if the stay was not granted, and that the merits of the appeal were not strong enough to warrant a stay. The court also found that the balance of convenience favoured refusing the stay, as it was in the public interest for the respondent to have a hearing of her application for the MRO and the protection which the Restraining Orders Act provided until the appeal to this court was determined. The court dismissed the appellant's application for a stay pending the determination of the appeal. The question of the costs of the stay application was reserved for determination in the context of a final disposition of the appeal.

Orders