HORVATH -v- SHARPLES [2018] WASC 315 (17 October 2018)

Part B. YOU WILL NOT BREACH THE ORDERS IN PART A IF YOU:

communicate with the Person Protected through an Australian legal practitioner as defined in the Legal Profession Act 2008 or through an accountant appointed to solve outstanding business matters

1. On 27 April 2017 at 3.59 pm Ms Kendall sent an email to Mr Hinkley. It contained the subject line 'Re Forward onto d hinkley' (sic), and contained the following content:

Hi David

Below is the email sent to me to forward from Vic. I am now on leave, but understand I am the only person now to send correspondence as lawyers are no longer appointed? I can't guarantee when I will have email access (currently in Austria).

All writing in red is Vic's words.

Regards. Joanna

Sent from my iPad.

Begin forwarded message:

From: "vic707"

Date: 25 April 2017 at 3:59:28pm GMT+2

To:

Subject: Forward onto d hinkley

David

1. Please sign and return the Macquarie leasing direct debit form that is attached

2. Approve the 2 payments pending at Bankwest

-1 is for the cleaning of the office

-2 is for Vic's equal share of labour (to match your payment of labour to yourself from the Lawyers trust account)

Can you also finish removing your items you wish to keep from a) upstairs and b) your cubicle as these are hindering the sale of the premises or nominate which items can be disposed of.

Nominate how and where you wish for the Priority One documents to be stored.

Nominate wether you are going to keep and therefore pay for the Priority One owned Van and the Dmax you have in your possession, or return them to the company premises, or authorise that they can be collected from your premises for disposal.

Will you voluntarily withdraw your VRO from Yourself and Dahn that you have had served on Vic.

1. All the words below 'Begin forwarded message' appeared in red, and it is agreed that they represent a complete copy of the email that the Appellant intended to be forwarded to Mr Hinkley.
2. The prosecution case was that the appellant breached the VRO by sending the email to Ms Kendall with a request that it be forwarded to Mr Hinkley. It was alleged that this was a prohibited communication because it was made indirectly to the protected person and did not fall within the exception provided because, although it was made through an accountant appointed to solve business matters, the last sentence did not relate to those business matters.
3. The sole issue at the hearing was whether the email fell within the terms of the exception. The magistrate concluded that it did not. She was of the view that the words of the exception should be interpreted as meaning that communications to the protected person through the accountant were only permitted if they related to outstanding business matters. She found that the last sentence of the email did not relate to such matters and, consequently, was in breach of the order.

1. The appellant submits that the magistrate was correct in stating that the court should look at the ordinary meaning of the words of the order, but erred in the construction of Part B of the VRO. Reference is made to Sturt v Ball[1] and the need for a restraining order to clearly identify the conduct that is restrained.
2. The appellant says that the ordinary meaning of the VRO is that communication was permitted through 'an accountant appointed to solve outstanding business matters' and, because at the relevant time the only such accountant was Ms Kendall, the VRO should be read as permitting communication through her.
3. The appellant says that it is apparent that the VRO does not contain clear language that limits the purpose of the communication to outstanding business matters only.

1. The respondent agrees that the words of the VRO should be construed in accordance their plain and ordinary meaning, with any arguable ambiguity resolved in favour of the accused.
2. The respondent submits that there is nothing in the second part of the exception in Part B that suggests that the kinds of communication that could be made through that accountant were different to those that could be made through the lawyer, or were to be limited by subject matter.
3. The respondent says that construing the exception to limit permitted communications made through an accountant to those related to business matters, but to not so limit permitted communications made through a legal practitioner, would be inconsistent and illogical, and does not accord with the plain English meaning of the order.
4. For these reasons the respondent concedes that the appeal should be allowed on this ground.

1. It does not appear that principles relating to the construction of restraining orders have been considered by the Court of Appeal. I agree with the approach taken by Beech J in Sturt v Ball:

Breach of a restraining order is an offence rendering a person liable to up to 2 years imprisonment under s 61(1). Consequently, a restraining order, like an injunction, must clearly identify the conduct that is restrained. In that framework, a court will be, to say the least, cautious to imply additional restraints into the terms of a restraint order [18].

1. Given that a breach of the order may give rise to imprisonment, and in order to promote certainty as to the prohibited conduct, courts should interpret restraining orders according to their plain and ordinary meaning and should be slow to imply additional words or restraints into the orders.
2. In the present case, the ordinary meaning of the exception in Part B of the VRO is that communication was permitted through an Australian legal practitioner or through an accountant who had been appointed to solve outstanding business matters. The reference to business matters in the exception is in the description of the accountant. Those words serve the purpose of identifying the accountant through whom communication can be made. They do not, on their plain meaning or grammatical construction, refer to the subject matter of any communication. To require that any such communication be limited to business matters would be to imply additional words into the order. Such an implication is not necessary to make sense of the words of the order.
3. Further, as submitted by the respondent, it would be illogical to read the order as requiring communication made through an accountant to be limited to business matters when no such restriction is placed on communication made through a legal practitioner. There is no basis in the text of the order for such a restriction in relation to communication through a legal practitioner. Indeed, it is apparent that on any view a communication of the type impugned could have been made through a legal practitioner.
4. The magistrate's construction of the words of the order was in error. The order did not prohibit a communication of a non-business nature made thorough Ms Kendall. The email communication that was the subject of the charge was made through an accountant appointed to solve outstanding business matters and was therefore not in breach of the VRO.
5. For these reasons ground 1 of the appeal must succeed. The consequence is that the conviction, order for costs and spent conviction order should be set aside. A verdict of acquittal should be substituted
6. It is unnecessary to consider the remaining grounds of appeal.

1. The orders are as follows:
   1. Leave to appeal is granted.
   2. The appeal is allowed.
   3. The conviction on charge PE 32480/2017 is set aside, together with the spent conviction order and costs order made by the Magistrates Court.
   4. In lieu thereof a verdict of acquittal of the charge is substituted.
   5. The appellant is entitled to costs fixed in the sum of $ 13,573.63 (pursuant to s 5(4) of the Official Prosecutions (Accused's Costs) Act 1973).

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Sturt v Ball [2013] WASC 343 [16] - [18].