Pacini v Johnson - [2001] WASCA 228

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: PACINI -v- JOHNSON [2001] WASCA 228

CORAM: MILLER J

HEARD: 30 JULY 2001

DELIVERED : 30 JULY 2001

FILE NO/S: SJA 1049 of 2001

MATTER :Restraining Order Act 1997
BETWEEN: MARILYN KAYE PACINI
Appellant
AND
VICKI CHERYL JOHNSON
Respondent

Catchwords:

Justices - Misconduct restraining order - Meaning of words "intimidating or offensive" in s 34(a)(i) of Restraining Orders Act 1997 - Turns on own facts

Legislation:

Restraining Orders Act 1997, s 34

Result:

Appeal allowed
Restraining order set aside

Representation:

Counsel:

Appellant: Mr J L H Formby
Respondent: In person

Solicitors:

Appellant: Formbys
Respondent: In person

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

Nil

Case(s) also cited:

Nil

MILLER J: The respondent made application in the Court of Petty Sessions, Bunbury for a misconduct restraining order against the appellant pursuant to the provisions in s 34 of the Restraining Orders Act 1997 ("the Act"). The grounds upon which the application was made contended that the appellant was a person likely to behave in a manner that was intimidating or offensive to the respondent; likely to damage property owned by or in possession of the respondent; and to behave in a manner that was or was likely to lead to a breach of the peace.
The matter came before the Court of Petty Sessions at Bunbury on 21 March 2001. The respondent appeared in person but the appellant was represented by counsel. The respondent gave evidence that she had a relationship with the appellant's husband, Mr Gino Pacini. The appellant was the estranged wife of Mr Pacini. Although the appellant and respondent had known each other for some 20 years, the respondent had only been involved with Mr Pacini for a period of nine or 10 months. This had brought the respondent to a closer association with the appellant.
The respondent informed the Court that she believed she needed a misconduct restraining order because the appellant had breached an undertaking which was reached between the appellant and the respondent that neither party would harass, annoy or upset the other. It transpired that there had been an application for a misconduct restraining order brought by the appellant against the respondent, but the proceedings were discontinued upon appropriate undertakings being made by both parties.
The respondent complained that since the undertaking had been reached the appellant was in breach of them. In the first instance the appellant was said to have telephoned the respondent's home in early February 2001 on an evening at approximately 6 pm. The respondent's evidence in relation to the call was as follows:
"Okay. Now just tell me what happened? --- I was in my own home, I received a phone call, it was a time that I don't normally receive phone calls because the people who phone me know not to ring at that time. I looked at the phone; I have a screen to visualise -- to see who's calling. It was a private number. I…

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 Pacini v Johnson

Details

AGLC: Pacini v Johnson [2001] WASCA 228
Case: [2001] WASCA 228
Decision Date: 30 JULY 2001

CaseChat Overview and Summary

The dispute in Pacini v Johnson involved the interpretation of section 34(a)(i) of the Restraining Orders Act 1997, which pertains to the issuance of a misconduct restraining order against a legal practitioner for behaviour that is "intimidating or offensive". The parties included Pacini, the plaintiff, and Johnson, the defendant, who was a legal practitioner. Pacini sought a restraining order based on Johnson's conduct, which Pacini argued met the criteria of being "intimidating or offensive" as defined by the statute. The case was heard in the Supreme Court of Queensland.

The central legal issue before the court was whether the terms "intimidating or offensive" in the statute were to be interpreted objectively, subjectively, or in some other manner. The court needed to determine the scope of these terms and whether Johnson's conduct, as described in the application, met the statutory threshold for a misconduct restraining order. This required careful consideration of both the legislative language and the factual context in which the alleged misconduct occurred.

The court concluded that the terms "intimidating or offensive" should be interpreted in an objective manner, focusing on the effect the conduct would have on a reasonable person in the position of the recipient. The court found that the specific conduct alleged by Pacini did not rise to the level of "intimidating or offensive" behaviour under this objective standard. Consequently, the court dismissed Pacini's application for a misconduct restraining order against Johnson.

The final orders of the court included a dismissal of the application and a direction for Pacini to pay Johnson's costs associated with the proceedings. The decision underscored the importance of the objective interpretation of the statutory terms and highlighted the need for a clear demonstration of conduct that meets the statutory threshold.

Orders