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 wasn't sure whether my partner was trying to contact me. He would be the only one that may ring at the time of night. I answered the phone. I recognised the voice, Kaye did not identify herself. She rang --
What was said? --- Kaye said, 'Vicki, is Gino there?'
Sorry? --- 'Vicki, is Gino there?'
Mm hm. Right? --- To which I said, 'No, Kaye,' and I hung up."
The only other complaint that the respondent had was that the appellant had been sending harassing messages on computer printouts. It transpired that the appellant and her estranged husband were share traders. They operated in partnership in share trading. Their accounts were computerised and accessible on a computer in the former matrimonial home which Mr Pacini had left. As he had no access to the home computer he had given to the respondent the password to access the computer details of the share trading account.
The respondent's evidence in relation to the "harassing messages" on the computer printouts was as follows:
"Okay. What's the next thing that happened? --- I have permission or have been asked by my partner, as he's been evicted from his marital home where the business computer is -- I have been asked by him to give him print outs on a daily basis of his Comsec account or their joint --- sorry, the business joint account, and every time I went in there to the computer to print these out there were harassing messages; messages that I believe were of a harassment nature on these printouts. And when I'd set up a printout for Gino with the business portfolio in business order, it would be tampered with or changed to, I believe, test me out or provoke me into some kind of reaction."
In cross‑examination the respondent conceded that the share portfolio of Mr Pacini and the appellant was a joint portfolio which belonged to both of them. She agreed that there was no restriction upon the appellant's access to the service and that she (the respondent) accessed it simply to print details out for Mr Pacini.
The various computer printouts were tendered in evidence before the Court. They contained details of share transactions in relation to a wide variety of shares and showed share prices at certain times on certain days during January‑February 2001. On the printouts were various cryptic messages. Examples from Monday 12 February 2001 are as follows:
"Gino you don't do this.
Does Vicki do it for you????
Or maybe it somebody else???
Maybe!! But I reckon I know who!"
A number of messages simply suggest that certain shares are worth looking at. There are other innocuous messages such as (24 January 2001) "Happy new year".
On 25 January 2001 the following two messages appear:
"WHO DID DUN DIS?
I LUB U 2.
U R SOOOO FUNNY."
On 29 January there appeared the following messages:
"Stop and smell the roses.
But you can look!!!!
Yeah, Shit and Others."
Mr Pacini gave evidence at the hearing. He described the messages in the following terms:
"The messages in there are not only harassing and having a go at my partner, Vicki, but at myself as well."
When cross‑examined Mr Pacini conceded that he had not obtained the appellant's approval to the release of the password to the respondent.
The appellant gave evidence at the hearing and said in relation to the various messages on the computer:
"Who were those comments intended for? --- Basically, Gino and I are the only ones who should be using the account, so it -- the comments, some of them were intended as messages to Gino, but basically they were just meant as a comment in a way that I had periodically changed them over the years before."
At the conclusion of the evidence counsel for the appellant submitted to the learned Magistrate that the application for a misconduct restraining order must fail. He contended that it could not be said that the appellant had behaved in a manner that could reasonably be expected to be intimidating or offensive or that would in fact intimidate or offend the respondent. He made reference to the telephone call in relation to which there had been no suggestion that anything said was intimidating or offensive and contended that the comments on the computer printouts could not, by any test, be said to be intimidatory or offensive.
The learned Magistrate proceeded to give judgment in the matter. He reviewed the history of the marital breakup of the appellant and her husband and the circumstances in which there had been mutual undertakings between the appellant and the respondent in relation to avoiding conduct which might otherwise justify a misconduct restraining order.
His Worship then turned to the provisions of s 34 of the Act and said:
"Now, self‑evidently, what is in the mind of the legislature there is both a subjective and an objective test and it deals with necessarily intimidating and offensive behaviour which, I would have thought is now well settled, is to be measured both in time, place and circumstances, and circumstances necessarily, in my respectful view, imports history."
After reviewing the evidence in relation to the computer material, the learned Magistrate came to the following conclusion:
"It's implicit or to be inferred from the evidence of Mrs Pacini that until recent times - that is, about the 6th of March - she was unaware that Mr Pacini had given Ms Johnson authority to access that information. With respect and self‑evidently from the information that's before the court, the conduct of Mrs Pacini in respect of that information, the alteration and comments that are attached to the information denies the suggestion made by her that she was unaware of Ms Johnson accessing that information at the request of Mr Pacini. Self‑evidently, she was acutely aware of it. And to that extent, on her becoming aware of it, clearly took umbrage, no doubt, in the circumstance to her involvement and clearly, in my respectful view, the tampering and messages that were left within that facility were clearly designed for the benefit of either Ms Johnson or, necessarily, Mr Pacini. And certainly whilst they of themselves will not in any sense generate and be of a quality of being offensive or intimidating, it is necessarily, certainly when one comes to import within it the historical implications and the affront to which self‑evidently is present and evidence in Mrs Pacini's attitude towards Ms Johnson, clearly designed for the specific purpose at a subjective level to intimidate and offend her.
Clearly and self‑evidently, both subjectively and objectively it has reached that qualification as required by the Act to trigger the grounds for the making of a restraining order, and given in the circumstances the manner of her presentation in court today, the sense of grievance that continues and the avoidance of any responsibility by her as to inappropriate conduct, I am not persuaded that a misconduct restraining order is not now necessary. Self‑evidently, a restraining order, given the persistence of that behaviour, is appropriate and I propose to make such an order."
The order made by the learned Magistrate was one for a period of 12 months and (inter alia) it precluded the appellant from communicating directly or indirectly with the respondent; prevented her from entering upon premises where the respondent lived or worked; and precluded her from being within 100 metres of nearest external boundary of the residence of the respondent.
On 14 May 2000 Pidgeon J granted the appellant leave to appeal the decision of the learned Magistrate on the following grounds:
"2.1The learned Magistrate erred in law in finding the test to be applied by him in relation to the words 'and that would, in fact, intimidate or offend the applicant' in Section 34(a)(i) of the Act expanded the circumstances in which he could make an order instead of finding it restricted the ambit of the test set out in the part of the subsection immediately preceding the words just quoted.
2.2The evidence adduced by the respondent did not establish any grounds on which, as a matter of fact or law, an order restraining the applicant as ordered by the learned Magistrate could be made under Section 34 of the Restraining Orders Act."
In my view the second of these grounds is clearly made out. It is unnecessary to deal with the first.
The second ground upon which leave to appeal was granted is, in my view, made out because it could not be said on the evidence adduced before the learned Magistrate that unless restrained, the appellant was likely to "behave in a manner that could reasonably be expected to be intimidating or offensive to the respondent and that would, in fact, intimidate or offend the respondent".
The evidence established only that there had been one telephone call of an innocuous nature and a number of comments on computer printouts which do not appear by any means to be addressed to the respondent. To the contrary, they appear to be addressed to the appellant's estranged husband.
In any event, the computer records relate to the share trading business of the appellant and her husband. They have nothing to do with the respondent save that Mr Pacini has chosen to give her the right to access those records. Whether he was entitled to do this in circumstances where they were the records of himself and the appellant is another question and one which I do not need to determine. However, whichever way one looks at it, it cannot be said that the various comments made by the appellant, some of which I have reproduced, were intimidatory or offensive to the respondent. The comments were not even made to her. They were made on computer records to which she had access. Her right to have access to the records is questionable. If the respondent chooses to access them and chooses to read what the appellant has entered within those records, she does so of her own volition. Further, and in any event, I am satisfied that the messages are messages to Mr Pacini, not to the respondent. Many of them are relevant to share movements and share prices. They are therefore entirely justifiable and part and parcel of the ordinary course of the share trading business conducted between the appellant and her husband.
In the circumstances I cannot accept that any of the computer messages or the single telephone call could be said objectively to be reasonably expected to be intimidating or offensive to the respondent or (subjectively) in fact intimadatory or offensive to her. In my view the learned Magistrate's conclusions were wrong and there was no basis upon which a misconduct restraining order could have been made against the appellant. For these reasons I would allow the appeal and set aside the misconduct restraining order.