Pettitt v Dunkley [1971] 1 NSWLR 376

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8

1 WHEELER J: It seems to me that it was plainly open to his Worship to decide in favour of Ms Weber and to issue a restraining order. The appellant and her husband, Mr Low, are long-standing practitioners of the martial art Tae Kwon Do, both operating through a club and teaching Tae Kwon Do. The appellant and her husband separated in early 1997. Their relations by 1998, or the latter part of it at least, appear to have been cordial at the level of financial arrangements, contact with the children and access by Mr Low to the appellant's house. In mid-1998 he formed a relationship with the respondent.

2 I do not think it is necessary for me to set out the whole of the background. The appellant said in evidence that she first approached the respondent at a dinner and that at that dinner she said four things to the respondent. They were, "Keep away from my home. Keep out of my children's beds. Keep away from my children" and "Please don't tell my black belts what they should and shouldn't be doing." The respondent said that on that occasion the appellant assaulted her.

3 What was odd about the appellant's evidence here seems to me to be that, as the respondent points out, there was no evidence that the respondent was doing anything in relation to the appellant's children. Further, in relation to telling the black belts what to do, the witness called by the appellant did not bear out the suggestion that the respondent had attempted to do so. So in relation to that incident his Worship might at least have had reservations about the evidence of the appellant.

4 It is certainly fairly clear from his reasons that he did form a view adverse to the appellant based on her demeanour. He found her evasive, as was clearly open to him to do. It is also fairly clear that the evidence of the completely independent witness as to her tone and language when speaking to Ms Weber in a cinema led his Worship to not accept evidence given by the appellant and by others about the appellant's calmness and capacity for self-control, which was an important factor in the appellant's case.

5 It seems to me it was not necessary for his Worship to deal either with the evidence of Justin Low, which was peripheral, or with that relating to the alleged incident in a food hall which, based on the evidence of the parties, seems to me to be open to a number of interpretations.

6 However, the incident which his Worship regarded as critical occurred at a cinema. The appellant called a witness who substantially supported the appellant's version of events in a significant respect. The witness allegedly heard the appellant telling the respondent to keep her hands off her, or words to that effect. It would have been open to his Worship to reject that evidence, of course, on the grounds of partisanship or demeanour or mistake or some other reason, but he did not deal with it, it seems to me, at all.

7 That failure to deal with significant evidence, however briefly, may well have been an error. It is not necessary for me finally to determine that, though, because it seems to me that his Worship did make one error which fatally flawed his reasons. He said, "It's not for me, of course, to determine whether or not there has been assaults on the occasions as outlined by the applicant" (the applicant being the present respondent).

8 However, apart from those assaults there was no other material open upon which his Worship could have formed the view that unless restrained the appellant was either likely to commit a violent personal offence or was likely to behave in a manner that could reasonably be expected to cause Ms Weber to fear that she would commit such an offence. It is true the respondent was engaged in a relationship with the husband of the appellant from whom the appellant had been separated for some time, but that is not of itself sufficient to ground any such belief.

9 I would note at this point that I have noticed in reasons which have come to my attention in one way or another in respect of a number of applications of this type, being reasons of a number of different magistrates, certain observations which might tend to suggest that it is enough to ground such an order that people dislike each other or that there are reasons for animosity to exist or that it would be prudent if certain people did not meet or did not speak to each other. I do not suggest that his Worship took such a view, but the lack of any relevant finding of fact made it, unfortunately, impossible to ascertain how he could have been satisfied that the statutory criteria were met.

10 It must steadily be borne in mind in relation to these applications that the court can only make an order if the conditions set out in s 11 of the Restraining Orders Act 1997 are satisfied. It is not, of course, always necessary to find violent conduct in the past to be so satisfied. For example, the character of the respondent to an application and the circumstances of the relationship may be enough. However, it is necessary to find and, because of the court's obligation to give reasons, to set out (albeit briefly) what material facts do ground the satisfaction which the court has reached. For those reasons it seems to me the appeal must succeed and I think the matter should go back to his Worship.