Baron v Walsh

[2014] WASCA 124

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Restraining Orders
2. › Violence restraining order
3. › Act of abuse
4. › Family and domestic violence
5. › Intimidating behaviour
6. › Whether use of legally available procedures capable of constituting act of abuse
7. › Improper collateral purpose
8. › Restraining Orders Act 1997 (WA), ss 3, 6(1)(d), 11A
1. Evidence
2. › Scope of admissible evidence on appeal
3. › Affidavits not tendered at final order hearing
4. › Whether appeal court may rely on material from court file not admitted as evidence below
5. › Procedural fairness
6. › Restraining Orders Act 1997 (WA), s 42(4)
7. › Magistrates Court (Civil Proceedings) Act 2004 (WA), s 40(4)
1. Appeal
2. › Competency of appeal
3. › Whether final order made
4. › Whether written reasons constituted final order at final order hearing
5. › Restraining Orders Act 1997 (WA), ss 3, 43, 64(1)(b)
1. Appeal
2. › New point on appeal
3. › Whether party should be permitted to raise jurisdictional point not raised below
4. › Very exceptional circumstances

Quick Take

The use of legally available procedures — including complaints to regulatory bodies, commencement of court proceedings, interlocutory applications, and police complaints — can constitute intimidating behaviour and an act of abuse under s 11A of the Restraining Orders Act 1997 (WA) where the procedures are threatened or used for an improper collateral purpose, such as pressuring a person to withdraw restraining order proceedings. An appeal court conducting a rehearing under s 64(1) of the ROA is confined to the evidence admitted at the final order hearing and cannot trawl through the Magistrates Court file to rely on affidavits not tendered or admitted below.