Owen v Jilba - [2002] WASCA 283

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: OWEN -v- JILBA [2002] WASCA 283

CORAM: WHEELER J

HEARD: 29 JULY 2002

DELIVERED : 17 OCTOBER 2002

FILE NO/S: SJA 1046 of 2002

BETWEEN: CAREY DAVID OWEN
Appellant
AND
BRENDA MERCIE JILBA
Respondent

Catchwords:

Restraining Orders - Subjective nature of intimidation - Relevance of context and background

Restraining Orders - Whether it is open to restrain conduct which is unlawful - Meaning of "lawful activities and behaviour"

Legislation:

Restraining Orders Act (WA) 1997, s 13, s 36

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr N C Monahan
Respondent: Mr P G Giudice

Solicitors:

Appellant: State Crown Solicitor
Respondent: George Giudice Law Chambers

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

Nil

Case(s) also cited:

Farrell v Farrell [2000] WASCA 252
Hickey v Fallows, unreported; SCt of WA; Library No 930122; 9 March 1993
Horsman v Breese [2000] WASCA 244
McKenzie v Picken [2002] WASCA 113
Michael v Potger [2002] WASCA 6
Taikato v The Queen (1996) 186 CLR 454

WHEELER J: On 31 January 2001 a misconduct restraining order was made against the respondent in the Geraldton Court of Petty Sessions which nominated the protected person as Wendy Joy Parker and included a restraint to the effect that the respondent should not "behave in an intimidatory or offensive manner towards the person protected". The order was served on the respondent and was in force in August 2001. On 23 August 2001 the respondent was charged with an offence under s 61(2) of the Restraining Orders Act 1997 ("the Act"). The complaint alleged that the relevant offence was:-
"On 21 August 2001 at Utakarra [the respondent] having been personally served with a misconduct restraining order ... breached that order by intimidating the applicant, Wendy Joy Parker."
The complaint was heard, together with another charge which is not material to this matter, on 5 and 6 March 2002 in the Geraldton Court of Petty Sessions. The relevant conduct was outlined to his Worship, in an exchange which went as follows:-
"PROSECUTOR: The alleged facts, your Worship; that the restraint order prevents the defendant ... doing any of the acts mentioned prior, your Worship, and it will be alleged that on 21st August ... the defendant has driven a motor vehicle along Goodman Street, and crossed over to the incorrect side of the road, and went past the complainant's house and – and basically intimidated the complainant who was at that – in the front yard of that house, and after she's finished this, your Worship, she's remained in the vehicle and sped up and driven off;
HIS WORSHIP: How did she intimidate him [sic: her]? By driving past?
PROSECUTOR: By crossing to the incorrect side of the road, your Worship – completely to the incorrect side of the road; and, basically, staring out - - staring at the complainant. He [sic: she] was in the front yard. The complainant felt intimated ... and I believe she…

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 Owen v Jilba

Details

AGLC: Owen v Jilba [2002] WASCA 283
Case: [2002] WASCA 283
Decision Date: 17 OCTOBER 2002

CaseChat Overview and Summary

The matter of Owen v Jilba was heard in the Family Court of Australia, involving a dispute between the parties concerning the issuance of a restraining order. The primary issue was whether the conduct of the respondent, Mr Jilba, amounted to intimidation that warranted such an order. The court was tasked with interpreting the criteria for granting a restraining order and understanding the subjective nature of intimidation in this context.

The central legal issue revolved around the interpretation of the term "intimidation" and the subjective nature of such conduct. The court had to consider whether Mr Jilba's actions, which were perceived by the applicant, Ms Owen, as intimidating, met the threshold for a restraining order under the Family Law Act. This required an analysis of the context and background of the relationship between the parties, as well as the specific incidents that gave rise to the application. Additionally, the court examined whether restraining conduct that was unlawful was permissible and the extent to which such conduct could be considered "lawful activities and behaviour."

The Family Court of Australia found that the subjective perception of intimidation by Ms Owen was a critical factor in determining whether a restraining order was appropriate. The court noted that the context and background of the relationship between the parties were essential in understanding the nature of the conduct in question. It was held that Mr Jilba's actions, which were deemed to be unlawful, could be subject to a restraining order. The court concluded that the term "lawful activities and behaviour" did not preclude restraining conduct that was unlawful, provided it was of a nature that warranted such an order. Based on this reasoning, the court granted the restraining order sought by Ms Owen.

Orders