Blomfield v Court - [2000] WASCA 323

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: BLOMFIELD -v- COURT [2000] WASCA 323

CORAM: HEENAN J

HEARD: 22 JUNE 2000

DELIVERED : 22 JUNE 2000

FILE NO/S: SJA 1054 of 2000

BETWEEN: LUKE BLOMFIELD
Appellant
AND
WAYNE ANTHONY COURT
Respondent

FILE NO/S :SJA 1058 of 2000

BETWEEN :KELVYN FREDERICK BLOMFIELD
Appellant
AND
WAYNE ANTHONY COURT
Respondent

Catchwords:

Appeal - Misconduct restraining orders - Neighbours - Oral testimony in place of uncertified audio tape - Insufficient evidence - Turns on own facts

Legislation:

Restraining Orders Act 1997

Result:

Appeals allowed

Representation:

SJA 1054 of 2000

Counsel:

Appellant: Mr W J Chestnutt
Respondent: No appearance

Solicitors:

Appellant: Gibson Tovey Mills
Respondent: No appearance

SJA 1058 of 2000

Counsel:

Appellant: Mr W J Chestnutt
Respondent: No appearance

Solicitors:

Appellant: Gibson Tovey Mills
Respondent: No appearance

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

HEENAN J: These two appeals relate to orders made in the Court of Petty Sessions in Rockingham on 3 March last in response to complaints made or applications brought under the Restraining Orders Act 1997. The applications were lodged following events which took place, it seems, on the nights of Saturday, 29 January and Sunday, 30 January last.
Three of the applications were brought on behalf of the Blomfield family and two on behalf of the respondent Wayne Anthony Court. In each case the application was for the making of a violence restraining order. All five applications came on for hearing before the learned Magistrate on the date which I have mentioned. Two of them were dismissed. Those that were dismissed were made by Kelvyn Frederick Blomfield, one of the appellants, on behalf of each of his two younger children.
The other three applications were granted, at least to the extent that an order was made in favour of each of the applicants. The result was that although her Worship did not make any violence restraining order, she made a misconduct restraining order under Part III of the Act in relation to each of three applications.
One of the applications, that made by the appellant Kelvyn Frederick Blomfield was granted against the respondent, and when I say "granted" I mean granted to that extent, and the two applications made by the respondent, one in relation to each of the appellants, were granted. Now the appellants appeal against the making of the misconduct restraining orders in relation to each of them.
The appellant Kelvyn Frederick Blomfield is the father of the appellant Luke Blomfield and the two other children on behalf of whom he filed the applications which were dismissed. His family lives next door to the respondent in Yanrey Street, Golden Bay. As her Worship found, the appellants and the respondent dislike each other. The dislike is long‑standing and in this particular case it seems that about two years before the incidents the subject of the court proceedings there was an event which involved Mr Blomfield's daughter, who is his second child, and the respondent.
On the night of Saturday, 29 January there was a party in the respondent's backyard. It began during the afternoon quietly, but as time went past it became, at least according to the evidence of the appellants, quite boisterous and it was marked by lewd comments and loutish behaviour by some of those present. Because of what was happening it seems that Mr Blomfield arranged for Mr Mark Dentice to visit his house for the purpose of observing and perhaps recording misbehaviour next door. Mr Dentice was at the Blomfield home for much of the later part of the evening. He arrived, it seems, at about 10 o'clock. He took a video-recorder with him and although it did not make a satisfactory visual recording of what happened, the audio-recording was more successful.
At the hearing of the various applications a request was made that her Worship hear what was recorded on a copy of the original tape which had been used in the video-recorder. Her Worship refused that request, taking the view, apparently, that only a certified copy of the audiotape should be accepted in evidence. However, Mr Dentice gave oral testimony as to what he saw and heard while he was at the appellant's home that night referring, among other things, to the throwing of cans of beer, some of them either full or close to full, over the fence from the respondent's backyard and the use, as he described it, I believe, of a flame-thrower which scorched or even lit some of the foliage in the appellant's backyard. He spoke also of the nature of the language and of some disgraceful comments said to have been made not only about Mr Blomfield but also about his daughter.
The learned Magistrate heard evidence also from Mr Blomfield himself and from the respondent and witnesses called on behalf of the latter.
The case for the respondent was to the effect that there had been no misbehaviour at the party, no language of the type described by the appellant and Mr Dentice and that very little beer had been consumed. As part of the evidence presented on behalf of the respondent, it was said that during the party Mr Blomfield had shone particularly bright lights into the backyard of the respondent and had taken photographs over the fence. The former of course interfered with the comfort of those attending the party and the latter breached their privacy.
In the end her Worship expressed her belief that she had not had the truth from either side in its entirety, adding that "It would appear to me that the truth lies somewhere down the middle." Her Worship went on to say:
"I am not prepared to accept Mr Blomfield and the witness he called as giving me the total and complete truth of this matter, nor am I prepared to accept Mr Court's witnesses and himself of what occurred on this particular evening. Believe it or not, you gentlemen at the back, the court may look like a cabbage to you but we are not green. We have sat here too long and can take in a whole lot more than you know."
Her Worship added:
"I am satisfied that there was a party; I am satisfied that there were unpalatable things done by guests at that party. I am not satisfied that Mr Court was the perpetrator or instigator of these events. I am satisfied of some things happening on both sides which require the court to issue a misconduct order. I do not accept that a violence restraining order is applicable either for Mr Court against Mr Blomfield senior or against Luke and nor do I accept that Mr Blomfield should have a violence restraining order against Mr Court. The totality of the evidence does not convince the court."
Her Worship then made the order to which I have referred and concluded by suggesting:
"Security lights can be quite easily adjusted so that they do not shine into other people's particular personal areas and this should be done in this case."
It seems from her remarks that her Worship took the view that the lights, which it seems quite clearly were security lights, on the appellant's premises had shone into the respondent's premises in a way that could have been avoided. However, her Worship did not make any other specific findings of misconduct or misbehaviour on the part of the appellants or other members of their family.
In the course of presenting his case the respondent had led evidence to the effect that on the Sunday evening some rocks had been thrown on his roof and that footsteps had been heard running to the rear of the appellant's house, suggesting that the appellants or another member of the family had thrown the rocks. Her Worship made no specific finding as to that matter.
The grounds upon which Mr Blomfield relies in this appeal are four in number and they appear at page 4 of the appeal book relating to his appeal. Two of the grounds relate to the refusal of the learned Magistrate to hear evidence of the sound-recording made by Mr Dentice and her refusal to accept into evidence photographs which he had taken at the time of the party.
Some of those photographs have been lodged with the court for use on this appeal and although they tend to some extent to support the evidence of Mr Blomfield and Mr Dentice they are not direct evidence of misbehaviour, lewd conduct or other matters which might justify the making of an order against the respondent. Their value it seems is limited to tending to show that the evidence of the respondent was not entirely credible and therefore should have provided her Worship with a further reason for not accepting his account but, rather, preferring the version of the appellants.
As to those grounds, I think it is sufficient to say that in my opinion the audiotape was admissible, as were the photographs, because each was verifiable by Mr Dentice and perhaps to a lesser extent by Mr Blomfield himself. The absence of certification in my view was neither here nor there.
A further ground on which the appellant relies is that her Worship took into account matters which were not placed before the court as evidence. In my opinion there is little merit on that ground. It is based, as I understand it, upon the remarks of her Worship following reference to the courts looking like a cabbage, but in my opinion those remarks do not suggest more than the fact that her Worship was saying that, like members of the jury, she was entitled to rely upon the ordinary experience of life. It does not suggest that she used knowledge specifically relating to the persons or the events in this case as opposed to general knowledge which one can safely assume is possessed by every judicial officer.
The main ground, however, is the third ground upon which Mr Blomfield and his son rely, and that is either the absence of evidence or the insufficiency of the evidence available of conduct on behalf of either of them which would justify the making of such an order.
In my opinion that ground is made out. Even if the evidence of the respondent and his witnesses were accepted in full the only real complaint which might be sheeted home to either of the appellants was the use of the bright lights. As her Worship commented in the course of the trial such lights, security lights, are commonly used and although perhaps these could have and should have been adjusted to limit their field, that conduct falls far short of the conduct required to justify the making of an order under the Act.
It is appropriate also I think to comment that her Worship made no finding of fact, general or specific, to support the making of an order against the appellants. Without some such specific findings and reasons going far beyond the statement that the truth lies somewhere down the middle, the decision against the appellants cannot be justified. In those circumstances I would allow each of the appeals.