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VROs: Court of Appeal sets aside narrow definition of “Intimidation”

VRO Decision

In a unanimous decision* on 18 June 2014 the Western Australian Supreme Court of Appeal set aside the District Court decision in Walsh v Baron.**

In the District Court decision Staude DCJ held that the use of legally available procedures such as:

  • Making multiple interlocutory applications in VRO proceedings
  • Complaining about the Applicant (the person protected by the VRO) to a professional complaints body
  • Commencing minor claims proceedings against the Applicant; and
  • Making a perjury complaint to police about the Applicant

was not capable of constituting “An Act of abuse” [intimidation] under section 11 of the Restraining Orders Act 1997 (WA). The Court of Appeal rejected the Staude DCJ’s conclusion and stated as follows:

To threaten and/or take detrimental action against a person to achieve a collateral outcome is improper (at least) and is to behave in a manner that is intimidating, even if the action involves a person availing himself of legally available procedures.

… recourse to legally available procedures without more will not ordinarily constitute an act of abuse under s 11A of the ROA. However, the intent or purpose with which legally available procedures are threatened or used can result in the commission of a tort (malicious prosecution, abuse of process)or a criminal offence… Further, the commencement or maintenance of legal proceedings for improper collateral purpose is a tort… A knowingly frivolous and vexatious claim is also an abuse of process. ***

The Court of Appeal decision, in the writer’s view broadens (or perhaps restores) the definition of acts that could constitute intimidation under the Restraining Orders Act. The decision further puts the conduct of a respondent ( the person bound by a VRO/MRO) into the spotlight if that person for example takes out a tit-for-tat VRO/MRO; tries to sue the Applicant or complains the Applicant’s employer/professional body for ulterior purposes. In future, the Magistrates Court is likely to focus more on the intention behind the fact of bringing a legal action against an Applicant.

*Baron v Walsh [2014] WASCA 124
** Walsh v Baron[2012] WADC 165
*** McLure P at pars 65 and 65.