JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: BLENKINSOP -v- HOLLAND [2018] WADC 146
CORAM: GETHING DCJ
HEARD: 25 JULY 2018
DELIVERED : 9 NOVEMBER 2018
FILE NO/S: APP 7 of 2018
BETWEEN: ROSS ALEXANDER BLENKINSOP
Appellant
AND
KIM ROSINA HOLLAND
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE PONTIFEX
File Number : MC/CIV/PER/RO/2106/2014
Catchwords:
Constitutional law - Whether the court has the power to declare a law to be invalid on the basis that it is not for the 'peace, order and good government' of the State
Appeal from Magistrates Court - Restraining orders - Standard of proof - Extent of relevance of provocation - 'Abuse' - 'Emotional abuse' - Exercise of the discretion to make a restraining order
Appeal from Magistrates Court - Effect of error of law as to admissibility or rejection of evidence - Whether the court must order a new trial - Scope of discretion to order a new trial - Adequacy of reasons
Procedural fairness - Adequacy of notice of the case to be met - Adequacy of disclosure of documents prior to trial - Adequacy of opportunity to cross‑examine - Adequacy of opportunity to present evidence‑in‑chief - Whether appellant waived right to object on the ground of bias - Whether actual bias established - Whether apprehended bias established
Evidence - Leading questions - Waiver of jointly held legal professional privilege - Use of material subject to jointly held legal professional privilege as between parties entitled to assert the privilege
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Blenkinsop v Holland [2018] WADC 146
Case
[2018] WADC 146
Decision Date
CaseChat Overview and Summary
The appellant, Blenkinsop, filed an appeal against the decision of the respondent, Holland, in the District Court. Holland had been granted a Final Violence Restraining Order (VRO) against Blenkinsop under the Restraining Orders Act 1997 (WA). The appellant contested the orders, and the matter was heard over seven days between June 2016 and February 2017. The District Court was required to determine whether the Magistrate's decision to grant the Final VRO was legally sound, whether the appeal was appropriately filed out of time, and whether the Magistrate's reasons for the decision were adequate.
The court found that the Magistrate had provided adequate reasons for her decision, in line with the requirements of the Magistrates Court Act 1987 (WA). The court acknowledged that the Magistrate did not canvass all the evidence given in the case or all the factual and legal arguments, but this was permitted under the Act. The court also found that the appeal was appropriately filed out of time, given the short delay and the Christmas holiday period. In terms of the bias allegation, the court found that the appellant had not clearly proven that the Magistrate was actually biased, as required by the relevant legal test.
The District Court dismissed the appeal, affirming the Magistrate's decision to grant the Final VRO. The court found that the Magistrate's reasons were adequate, the appeal was appropriately filed out of time, and the appellant had not established actual bias on the part of the Magistrate. The Final VRO remains in place, and Blenkinsop is restrained from engaging in the specified behaviour towards Holland.
Orders
Orders of the court
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Background
Background to the litigation
Background The respondent applied for an interim violence restraining order by application dated 12 September 2014. In the box headed 'Description of the Respondent's Behaviour', the appellant stated the following:The respondent is my brother. He emails me many times per day and has done for a number of years. I have received many thousands of emails from him. In the past I have blocked his email address. sent his emails to a separate file so that I don't have to read them, however, as we have family trusts, which require meetings I have been told by the chairman (SC Matt Zilko) that I need to receive these emails. His emails are offensive, they intimidate, they are psychologically emotionally abusive. If he is asked to stop emailing this just encourages him to email even more. He also humiliates, threatens attacks me through meeting agendas (ATT 1) (ATT2). He calls me names such as 'rubber stamp' when I vote (ATT 3). He accused me of threatening people, phoning people (ATT 4), making false accusations. These emails arrive on a daily basis – sometimes up to 30+ per day and he includes lawyers and other siblings in the email address bar. I feel exhausted mentally + emotionally + am put into situations such as board meetings where I am humiliated + offended. This behaviour has gone on for many years + is very constant. The respondent appeared before two Justices of the Peace on 12 September 2014 and obtained an interim violence restraining order (Interim VRO).[1] [1] The transcript of this hearing is annexed to the Magistrate's Reasons. On 26 September 2014 the appellant lodged an objection to the Interim VRO. The matter took some considerable time to reach a final order hearing. This took place over 7 hearing days between June 2016 and February 2017.[2] Final submissions were received by 29 September 2017. The Magistrate delivered her decision on 15 December 2017, publishing written reasons (Magistrate's Reasons). The orders were that (Magistrate's Decision):[2] 23 and 24 June 2016, 2, 3 and 4 November 2016, 8 and 9 February 2017. (a)the Interim VRO be made final; and(b)the Final VRO remain in force until midnight on 15 December 2017 (that is, the day on which the Magistrate delivered her decision). As the magistrate observed in her reasons, the Interim VRO ended up remaining in place for over 3 years, longer than it would have been in place for had there been no objection.[3][3] Magistrate's Reasons, par 1. I have extracted various portions of the Magistrate's Reasons below in the context of the ground of appeal challenging that aspect of the reasons. District Court Appeal A decision of a magistrate to make a Final VRO under the Restraining Orders Act 1997 (WA) (ROA) may be the subject of an appeal to the District Court.[4] The appeal is to be made in accordance with Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA) pt 7.[5][4] ROA s 64(1)(b)(ii).[5] ROA s 64(2). By appeal notice filed 12 January 2018 (Appeal Notice) the appellant commenced an appeal from the Magistrate's Decision. The appeal was commenced 28 days after the judgment was given in the Magistrates Court. The time within which the appeal was required to be commenced was 21 days after the date of the Magistrate's Decision.[6] The provisions of Rules of the Supreme Court 1971 (WA) (RSC) which provide for the Christmas holiday period to be excluded when calculating filing deadlines do not apply to a statutory time period.[7] To the extent that there is an equivalent statutory provision, it only excluded the three public holidays.[8] This means that the Appeal Notice was filed four days out of time. The District Court can give leave to file out of time.[9] As the delay was short and encompassed the Christmas holiday period, it is an appropriate exercise of the principles governing the exercise of this discretion[10] for the appellant to be granted leave to file out of time.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The procedures in the MCCPA include MCA s 31:31.Judgments, content of(1)The Court's reasons for a judgment in a case -(a)need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so; and(b)need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so; and(c)need not canvass all the evidence given in the case; and(d)need not canvass all the factual and legal arguments or issues arising in the case.(2)The fact that a judgment is given orally or in accordance with subsection (1) is not of itself a ground for reversing or modifying it on an appeal. The definition of 'case' in MCA s 3 means that this provision applies to both civil and criminal proceedings. In Manonai v Burns Hall J made the following observations about the duty to give adequate reasons in the MCA s 31(1): [308]Although provisions like s 31 of the Magistrates Court Act are comparatively new, it has long been accepted that judicial officers have a duty to deliver reasons that expose the process by which a decision has been reached. This enables the parties to understand the basis for the decision. More importantly perhaps, it enables a losing party to determine whether or not they have any grounds on which to appeal the decision. Should there be an appeal, adequate reasons enable the appellate court to determine whether any errors of fact or law have occurred …[308] Manonai v Burns [2011] WASCA 165 [53] (Hall J, with whom Pullin & Murphy JJA agreed). His Honour went on to make some observations about the realities of work pressure in the Magistrates Court:[309] The realities of pressure of work and limited time in the magistrate's court must be acknowledged. Section 31 of the Magistrates Court Act obviates any need for a magistrate to canvass all of the evidence given in the case or to canvass all the factual and legal arguments or issues arising in the case. These dispensations appear to recognise the summary nature of proceedings in the Magistrates Court. Reasons can be adequate and comply with s 31 of the Magistrates Court Act without having to be unduly long. It is the substantive content of the reasons rather than their length which is important.[309] Manonai [56]; Velez [69]; Mirrabooka/Nollamara Car Transport v Rintoul [2016] WADC 58 [107] (Schoombee DCJ). The Magistrate expressly referred to MCA s 31 in her reasons.[310][310] Magistrate's Reasons, par 6. In my view the Magistrate:(a)adequately identified the facts that she accepted in coming to the decision and gave the reasons for doing so; and(b)adequately identified the law that she applied (and not applied) in coming to the decision and gave the reasons for doing so. To the extent that the Magistrate did not canvass all the evidence given in the case, and did not canvass all the factual and legal arguments or issues arising in the case, in particular those of the appellant, her Honour was permitted to do so pursuant to MCA s 31(1)(c) and (d). Moreover, a large portion of the evidence adduced by the appellant went to the issue of provocation, an issue which the Magistrate correctly found to be irrelevant. There was thus no need to consider this evidence.
Ratio Decidendi
Legal Principle Established
Strickland J went on to quote the following passage from the decision of Kirby J in Minister for Immigration and Multicultural Affairs v Jia Legeng:[283]Until recently it was extremely rare for parties before Australian courts to assume the task of establishing 'actual bias' on the part of a decision-maker. Sometimes, in the heat of disappointment or distress caused by an adverse decision, actual bias was alleged. Usually such allegations were later withdrawn. This was because, as the law of natural justice concerning the right to an impartial decision-maker has developed in Australia, it was ordinarily sufficient for the complainant to establish 'imputed', 'apparent', 'apprehended', 'suspected', 'notional' or 'deemed'bias ('imputed bias'). Although the two kinds of bias obviously overlap, imputed bias does not require the complainant to establish anything about the subjective motives, attitudes, predilections or purposes of the decision-maker. It is enough to show that 'in all the circumstances the parties or the public might entertain a reasonable apprehension that [the decision-maker] might not bring an impartial and unprejudiced mind to the resolution of the question involved in it'. A party would be foolish needlessly to assume a heavier obligation when proof of bias from the perceptions of reasonable observers would suffice to obtain relief.[283] Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507, 541 (Kirby J) (footnotes omitted). Strickland J then observed that '[a]ctual bias is more difficult to establish, there being a subjective, rather than objective test, requiring an examination of the decision maker's subjective state of mind'.[284] [284] Stephens v Stephens [24]. See also: Michael Wilson & Partners v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [33], [67] (Gummow ACJ, Hayne, Crennan & Bell JJ). The test for actual bias was summarised by Newnes JA in Chin v Legal Practice Board of Western Australia:[285] Where a party contends that actual bias exists, the applicant must show that the mind of the decision-maker is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507, 532 [72]. Actual bias will exist where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant: see Jia Legeng [36], [72]. Such an allegation must be 'distinctly made and clearly proved': Jia Legeng [69], [127].[285] Chin v Legal Practice Board of Western Australia [2011] WASCA 110 [5] (Newnes JA). See also: Smart v Albuquerque [2011] WASCA 231 [8] (judgment of the court); MTI v SUL [No 2] [2012] WASCA 87 [13] (judgment of the court). My review of this case has included reviewing the entirety of the transcript of the trial, as well as the 290 page Appellant's MC Submissions. From my review of the case as a whole, the appellant has not satisfied me that the Magistrate was actually biased in the manner way described in Chin. The allegation certainly has not been 'clearly proven'. The appellant has not established the grounds of appeal raising bias in so far as they assert actual bias.