JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: WALSH -v- BARON [2012] WADC 165
CORAM: STAUDE DCJ
HEARD: 21 SEPTEMBER 2012
DELIVERED : 23 NOVEMBER 2012
FILE NO/S: APP 34 of 2012
BETWEEN: WILLIAM ARTHUR WALSH
Appellant
AND
ALISON FAY BARON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :HOGAN M
File No :FR 75 of 2011
Catchwords:
Appeal - Violence restraining order - Domestic and family relationship - Behaving in an ongoing manner that is intimidating, offensive or emotionally abusive - Whether offensive text messages are acts of abuse - Whether bringing other legal proceedings against protected person is intimidatory - Whether use of interlocutory procedures in the restraining order application is intimidatory - Whether other conduct complained of is intimidatory - Turns on own facts
Appeal - Appeal from grant of extension of time to file respondent's notice of intention - Discretion to extend time
Legislation:
Result:
Interlocutory appeal from deputy registrar dismissed
Substantive appeal allowed
Final violence restraining order set aside
Representation:
Counsel:
Appellant: Mr P Lafferty
Respondent: Ms K P Hill
Solicitors:
Appellant: Philip Lafferty
Respondent: Hartrey Legal
Case(s) referred to in judgment(s):
Allesch v Maunz (2000) 203 CLR 172
Briginshaw v Briginshaw (1938) 60 CLR 336
Butler v Bennett [2007] WADC 107
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
STAUDE DCJ:
Introduction
Following the break‑up on 19 January 2011 of a six‑month romantic relationship, the appellant sent the respondent a number of offensive SMS messages to which she reacted by applying for, on 20 January 2011, and obtaining, on 21 January 2001, an interim violence restraining order (VRO) in the following terms:
This order is made for the benefit of Alison Fay Baron.
This order imposes restraints on the lawful activities and behaviour of William Arthur Walsh.
The duration of this order is interim.
The person who is bound shall not:
1.communicate or attempt to communicate by whatever means with the person protected,
2.enter or remain upon [respondent’s address] or any other premises where the person protected lives or works or be within 100 metres of the nearest external boundary of such premises,
3.approach within 100 metres of the person protected.
Thus began an extraordinary litigation which resulted in extensive interlocutory proceedings and a final VRO hearing which went on for six days, namely, 20 June 2011, 31 October 2011, 1 November 2011, 21 November 2011, 26 March 2012 and 23 April 2012. On the last hearing day the learned magistrate made a final VRO in the terms of the interim order save that the duration of the order was five years. Reasons were published on 21 May 2011. Mr Walsh was ordered to pay costs which the learned magistrate assessed on…
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- AGLC
- Walsh v Baron [2012] WADC 165
- Case
- [2012] WADC 165
- Decision Date
CaseChat Overview and Summary
The appeal raised several issues for determination, including whether the magistrate had erred in finding that the appellant's behaviour justified the imposition of a VRO, whether the imposition of a five-year VRO was excessive and unwarranted, and whether the magistrate had erred in taking certain conduct into consideration when determining whether the appellant was likely again to commit acts of abuse. The appeal also raised issues regarding the magistrate's allowance of evidence relating to other incidents and the use of interlocutory procedures in the restraining order application.
The court found that the appeal was by way of re-hearing and that to disturb the judgment of the court below, error must be shown. The court found that the magistrate had not erred in finding that the appellant's behaviour justified the imposition of a VRO, as the relevant acts of abuse complained of by Ms Baron amounted to ongoing intimidatory, offensive or emotionally abusive behaviour. The court also found that the imposition of a five-year VRO was not excessive or unwarranted, as the magistrate had considered the nature of the proven acts of abuse and the appellant's likelihood of reoffending. The court found that the magistrate had not erred in taking certain conduct into consideration when determining whether the appellant was likely again to commit acts of abuse and that the magistrate's allowance of evidence relating to other incidents and use of interlocutory procedures in the restraining order application was not intimidatory.
The appeal was dismissed, and the orders made by the primary judge were affirmed. The final orders included the grant of a violence restraining order against the appellant for a term of five years, the dismissal of the appellant's application to set aside the interim violence restraining order, and the dismissal of the appellant's application for an extension of time to file a notice of intention to defend.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The appeal is, therefore, by way of re‑hearing. To disturb the judgment of the court below it is not enough that the judge hearing the appeal would have come to a different conclusion; error must be shown: Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 203; Allesch v Maunz (2000) 203 CLR 172, 180; CDJ v VAJ (1998) 197 CLR 172, 201 ‑ 202. As the making of the final VRO was a discretionary decision, the proper approach to this appeal is as Bowden DCJ put it in Butler v Bennett [2007] WADC 107:If her Honour has acted upon a wrong principle or if she has allowed extraneous or irrelevant matters to guide or affect her or if she has made a mistake on the facts or if she does not take into account some material consideration, then her determination should be reviewed and I may then exercise my own discretion to substitute her decision if I have the materials for doing so. If the result reached by her Honour is so unreasonable or plainly unjust, then this court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the grounds that a substantial wrong has in fact occurred: House v R (1936) 55 CLR 499. The grounds of the appeal, as amended at the hearing of the appeal, contend, in summary, as follows:1.The magistrate erred in finding that Mr Walsh's behaviour justified the imposition of a VRO because the relevant acts of abuse complained of by Ms Baron were merely offensive text messages sent between 19 and 22 January 2011 and three voicemail messages left between 20 and 24 January 2011 and did not involve any acts of physical violence.2.The magistrate erred in concluding that Mr Walsh was likely to again commit such acts of abuse.3.The imposition of a five‑year VRO was excessive and unwarranted having regard to the nature of the proven acts of abuse and the absence of any reasons why Mr Walsh's conduct warranted a term longer than the default term of two years.4.The magistrate erred in allowing evidence to be led relating to damage to Ms Baron's motor vehicle, a fire at her property, the theft of her bicycle and suspected visits by Mr Walsh to her property from time to time between February 2011 and July 2011.5.The magistrate erred in finding that Mr Walsh's conduct in commencing civil proceedings against Ms Baron, reporting her to the Australian Health Practitioner Regulatory Authority (AHPRA) and initiating various interlocutory proceedings in respect of the VRO amounted to ongoing acts of abuse.6.Alternatively, the magistrate erred in taking such conduct into consideration in determining whether Mr Walsh was likely again to commit acts of abuse.7.The magistrate erred in finding that Mr Walsh had pursued or was continuing to pursue defamation proceedings and by taking this into account in deciding whether he was likely again to commit acts of abuse against Ms Baron.8.The magistrate erred in finding that Mr Walsh's avoidance of service of the interim VRO, his ongoing disdain for Ms Baron and his lack of appreciation of the impact of his offensive behaviour on her justified a finding that he was likely again to commit acts of abuse.