JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: BROOKS -v- LATHONG [2019] WADC 24
CORAM: DAVIS DCJ
HEARD: 16 JANUARY 2019
DELIVERED : 26 FEBRUARY 2019
FILE NO/S: APP 63 of 2018
BETWEEN: RICHARD CHARLE BROOKS
Appellant
AND
KUSUMA KHAMHONGSA LATHONG
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATES SHARRATT
File Number : MC/CIV/NAR 20 of 2017
Catchwords:
Appeal from Magistrates Court - Restraining Orders Act 1997 - Conduct agreement - Effect of a conduct agreement and conduct agreement order - Application to set aside conduct agreement - Claim of duress - Whether denial of natural justice
Legislation:
Restraining Orders Act 1997 s 10H
Result:
Appeal dismissed
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr K D Barry |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | Cobalt Legal |
Case(s) referred to in decision(s):
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Avsar v Binning [2009] WASCA 219
Barton v Armstrong [1976] AC 104
Brocklehurst v Wolinski [2015] WADC 36
Butler v Bennett [2007] WADC 107
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194, 203
Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40
Electricity Generation Corporation t/as Verve Energy v Woodside Energy [2013] WASCA 36
Jones v Darkan Hotel [2014] WASCA 133
McKay v National Bank of Australia Ltd [1998] 4 VR 677
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148
Re Attorney‑General (Cth); Ex parte Skyring [1996] HCA 4; (1996) 70 ALJR 321
DAVIS DCJ:
On 31 July 2017 the respondent Ms Lathong obtained, on an ex parte basis (in accordance with the Restraining Orders Act 1997 (WA) (the Act), an interim family violence restraining order (FVRO) against the appellant, Mr Brooks.
Mr Brooks filed an objection and applied to cancel the interim FVRO. After a series of court mentions, the matter was due to proceed to a hearing on 14 February 2018.
On the day of the hearing, Mr Brooks signed a conduct agreement pursuant to s 10H of the Act, which had been prepared by the solicitors for Ms Lathong. That conduct agreement was approved by the Magistrates Court on the same day, 14 February 2018 and a conduct agreement order made.
Very soon afterwards, Mr Brooks regretted signing the conduct agreement. After sending emails to Ms Lathong's solicitors and to the Magistrates Court on 14 February, the next day, 15 February 2018, Mr Brooks filed an application in which he sought, as he described it, a 'reversal of consent orders made 14/02/18'. His application went further to state:
I want to go to trial. Reasons: yesterday, 14/02/18, I was cajoled, bullied and misled into accepting the consent order by G Cleveland (Legal Aid). Further, the magistrate was, in my view, using her position…
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- AGLC
- Brooks v Lathong [2019] WADC 24
- Case
- [2019] WADC 24
- Decision Date
CaseChat Overview and Summary
The court found that mere commercial pressure, even overwhelming pressure, does not necessarily amount to duress. It was noted that the absence of choice does not constitute duress and does not negate consent, as established in Barton v Armstrong and Crescendo Management Pty Ltd v Westpac Banking Corporation. Additionally, the threat of legal proceedings alone does not constitute duress. Although Mr Brooks felt pressured to enter the conduct agreement, there was no evidence to suggest that the pressure exceeded what the law considers legitimate. The court concluded that the principles of natural justice were adhered to as Mr Brooks was given a reasonable opportunity to present his case.
Regarding the claim of procedural unfairness, the court held that while a party must be given a reasonable opportunity to present their case, the court is not required to ensure that a party takes full advantage of the opportunity provided. The court was satisfied that Mr Brooks was allowed to make submissions about the matters in question. Despite Mr Brooks's assertion that he was not allowed to complete his statement, the court found that he was indeed given a reasonable opportunity to be heard.
The court ultimately upheld the original decision of the magistrate, finding no error in fact or law regarding the claims of duress, undue influence, or unfair advantage. The appeal was dismissed, and the conduct agreement remained in place.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Mere commercial pressure, even overwhelming pressure, will not necessarily constitute duress: Crescendo Management Pty Ltd v Westpac Banking Corporation. An absence of choice does not constitute duress and does not negate consent: Barton v Armstrong; Crescendo Management Pty Ltd v Westpac Banking Corporation. A threat to institute legal proceedings or pursue another legal remedy does not constitute duress: McKay v National Bank of Australia Ltd [1998] 4 VR 677, 689; Chin v Thies [67]. While Mr Brooks may well have felt he was under pressure, even strong pressure, to enter into the conduct agreement, there was no evidence before the magistrate that the pressure on Mr Brooks went beyond what the law is prepared to countenance as legitimate. Mr Brooks may have felt that he had no choice in signing the conduct agreement; he obviously had second thoughts very soon after he signed it, but this does not establish that there was any duress at the time he signed it. For these reasons, I am not satisfied that his Honour Magistrate Sharratt made any error, either in fact or law, when he stated that it had not been proven that there was any duress, undue influence, or unfair advantage. The principles of natural justice require procedural fairness to the parties before the court. A person must be given a reasonable opportunity to present his or her case and to be heard: Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148 [57]. However, a court is not required to undertake the 'impossible task' of ensuring that a person takes the best advantage of the opportunity he had to present his case: Rankilor [59]. From reading the transcript of the hearing of 15 May 2018, I am satisfied that Mr Brooks was given a reasonable opportunity to make, and did make, submissions about the matters which are the subject of appeal Grounds 1 and 2. In the hearing of this appeal Mr Brooks submitted that he had prepared what he wanted to say and he was half way through when the magistrate said he had heard enough, and that:[12]He didn’t allow me to read my disclosure, the reasons why I wanted the conduct order dismissed or ripped up and that I should go to trial because the reasons for going to the Magistrates Court in Midland was to pick up and go to trial.[12] Appeal, ts 15. The relevant exchange between Mr Brooks and the magistrate occurred after the statements made by Mr Brooks about the conduct of the lawyer, as I have set out in [38] above, as follows:[13]BROOKS MR: This lawyer broke, I believe, all the guidelines. I reiterate I have never abused this person, physically or emotionally, controlled her financially or otherwise involved her daughter in any violence, as I have never acted in this way. It must be realised that there are ulterior motives that have to be explored through this court. I plead with this court to allow me to go to trial as I am innocent. I believe that this person has gone about her business – – –HIS HONOUR: No. No. I don't want to know any more about that, thanks. It's about setting your judgement aside, not your belief in what she has done. So if you can add any more to application that will be good, but I don't want – – –BROOKS MR: Right, sir.HIS HONOUR: – – – you to use this application to put her down.[13] Hearing 15 May 2018, ts 6.