Brooks v Lathong
[2019] WADC 24
•26 FEBRUARY 2019
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
Chin v Thies [2008] WADC 71
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
Tobin v Dodd [2004] WASCA 288
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 to threaten and sow a seed of failure which is, in itself, contra to good practice. The magistrate inappropriately said, 'You have been before me many times.'
Mr Brooks' application was heard by his Honour Magistrate Sharratt on 15 May 2018, who treated it as an application to set aside the conduct agreement and dismissed the application, giving oral reasons for doing so. Those reasons have been transcribed.
Mr Brooks brings this appeal from Magistrate Sharratt's decision. For the reasons set out in this judgment, I must dismiss Mr Brooks' appeal.
The nature of this appeal hearing
Section 64 of the Act provides (relevantly):
(1) A person aggrieved by the decision of a court -
(a) under section 21(1)(b) or 29(1)(b) to dismiss an application; or
(b) to do any of the following -
(i) make, vary or cancel a final order;
(ii) refuse to make, vary or cancel a final order;
(iii) make any other order in relation to a final order;
may appeal against that decision in accordance with this section.
A 'final order' is defined by s 3(a) of the Act to include a conduct agreement order.
I am satisfied that the application brought by Mr Brooks in the Magistrates Court was, in effect, to set aside the conduct agreement and cancel the conduct agreement order which followed.
Pursuant to s 45 of the Act, an application to vary or cancel a final order can be brought by a person bound by the order.
During the course of his reasons, Magistrate Sharratt stated that he doubted that he had the power to set aside the agreement, but made no final decision on that.[1] His Honour's reservation was well placed, given that one of the reasons Mr Brooks wanted to set aside the conduct agreement was on the ground of duress. There is authority that an application to set aside a consent judgment or order on the ground of duress is beyond the jurisdiction of the Magistrates Court: Chin v Thies [2008] WADC 71 [56].
[1] Hearing 15 May 2018, ts 9.
However, there has been no issue raised in this appeal about the power of a magistrate pursuant to the Act to set aside a conduct agreement and cancel a conduct agreement order.
I therefore proceed on the basis that Mr Brooks had the right to bring the application to set aside the conduct agreement order (and the magistrate had the power to set it aside), and I also proceed on the basis that Mr Brooks had the right to bring this appeal.
Section 64(2) provides that the appeal is to be made in accordance with pt 7 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA).
Section 40 of the MCCPA provides that the appeal shall be conducted in accordance with the rules of court made by the District Court: s 40(3)(b). The appeal is by way of a 'reconsideration of the evidence' that was before the Magistrates Court: District Court Rules 2005 (WA) (DCR) r 50(1).
An appeal from a decision of a magistrate involving a reconsideration of the evidence is in the nature of a rehearing: Brocklehurst v Wolinski [2015] WADC 36 [14]; Butler v Bennett [2007] WADC 107 [5] ‑ [10].
When hearing an appeal by way of a rehearing the District Court can exercise its appellate powers only if satisfied there was some legal, factual or discretionary error on the part of the magistrate: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23]; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 [14]; (2000) 203 CLR 194, 203; Butler v Bennett.
Mr Brooks is obviously disappointed and unhappy with the dismissal of his application to set aside the conduct agreement. Mr Brooks also stated, both in letters to this court and in the course of the appeal hearing, that he has been affected by the conduct agreement order including that he has been unable to get work, he has had his mail thrown at him and a neighbour has made adverse comments to him.[2] None of these matters mean that this court on appeal can intervene. In order to succeed in his appeal, Mr Brooks must demonstrate that there has been some error by the magistrate which falls to be corrected and entitles him to the order or relief that he seeks: Avsar v Binning [2009] WASCA 219 [37] (Owen J) (Miller and Newnes JJA concurring); Allesch v Maunz; Jones v Darkan Hotel [2014] WASCA 133 [31].
[2] Letter of 5 September 2018 first page, final paragraph and the middle of the second page; appeal hearing ts 9, 14, 36.
Self-represented appellant
Mr Brooks represented himself in this appeal.
In dealing with the appeal, I approached the matter bearing in mind the well established principles that litigants in person should be afforded some latitude and the documents in which such a litigant articulates his or her case should be approached with some flexibility. The court needs to be careful to ensure that if the appellant has a case, it is not denied because of a poorly expressed document or submission. At the same time, the court must ensure that any latitude given does not work an injustice to the other party: Tobin v Dodd [2004] WASCA 288 [13] – [16]; Re Attorney‑General (Cth); Ex parte Skyring [1996] HCA 4; (1996) 70 ALJR 321; Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51].
The appeal ground
The only ground of appeal set out in the appeal notice filed by Mr Brooks was, 'I am innocent and matter dismissed by misinformation and bullying'.
Mr Brooks attempted to expand on his appeal grounds by a document dated 4 September 2018. This was not particularly helpful in determining how it was said by Mr Brooks that Magistrate Sharratt had made an error of fact or law or in the exercise of his discretion. However, after reading this document and hearing from Mr Brooks, I established that there are three grounds for this appeal:
1.The magistrate made an error when he said that there was no admission or finding of guilt in the conduct agreement.
2.The magistrate made an error when he found that there was no proven undue influence, duress or unfair advantage to Mr Brooks when he signed the conduct agreement. (This appeal ground arose from Mr Brooks' complaint about the conduct of Ms Lathong's lawyer before he signed the conduct agreement.)
3.Mr Brooks was denied natural justice in the course of the hearing before the magistrate.
Appeal Ground 1 – no admission or finding of guilt by the conduct agreement
In his reasons for refusing to set aside the conduct agreement and dismissing Mr Brooks' application, Magistrate Sharratt observed:[3]
The minute of conduct agreement signed by the parties on 14 February is similar to a deed. It makes it clear that the benefit for Mr Brooks is that there’s no admission or finding of guilt. This stops any court or any other person from implying or inferring from the conduct agreement that Mr Brooks has done anything wrong. In return for that, Mr Brooks agreed to be bound by a conduct order. The terms of these orders that he agreed to be bound by are clearly set out in the document, the document that was signed by the applicant, Mr Brooks.
[3] Hearing 15 May 2018, ts 9.
Mr Brooks argued that the magistrate had erred when he stated that 'there's no admission or finding of guilt'.
During the hearing of this appeal Mr Brooks continually submitted that 'I am innocent', and it became apparent that the main basis for his appeal was his belief that there had been a finding against him.
Mr Brooks stated that he wanted 'to have both the conduct order dismissed and my case to have my - the VRO and the accusations made against me heard in court, so I can walk away vindicated'.[4]He described the allegations which had been made by Ms Lathong against him in the proceedings for the FVRO as 'vile and horrendous accusations' and maintained that he was not guilty of them.[5]
[4] Appeal ts 10.
[5] Appeal ts 14, 22.
Mr Brooks' appeal based on this ground is misconceived, for the following reasons.
Section 10H of the Act provides as follows:
10H. Conduct agreement
(1)If, at any stage of proceedings under this Act relating to an FVRO, the respondent agrees (a conduct agreement) to the making of a final order imposing restraints of the kind referred to in section 10G (a conduct agreement order), the court may make the order without being satisfied there are grounds for making an FVRO in the same terms.
(2)A conduct agreement does not constitute an admission by the respondent of all or any of the matters alleged in the application for the relevant FVRO.
(3)A conduct agreement order is not an FVRO but is taken to be an FVRO for the purposes of this Act.
(4)The registrar must cause a conduct agreement order to be prepared and served on the respondent.
The legislation is clear that a conduct agreement does not constitute an admission by the respondent of any conduct alleged by an applicant for an FVRO: s 10H(2).
In addition, when a conduct agreement order is made, there is no need for the court to be satisfied that there are grounds for making an FVRO in the same terms as the conduct agreement: s 10H(1).
In my view, having regard to the purpose of the Act and the specific provisions of s 10H, the reason for having the court make a conduct agreement order, and treating that order to be an FVRO (as provided for in s 10H(3)), is to ensure that the restraints which are agreed to in the conduct agreement are recorded and can be enforced, if necessary.
The conduct agreement which Mr Brooks signed specifically stated that he agreed to the terms without any admission of guilt, which is consistent with s 10H(2). The restraints which he agreed to were similar to those set out in the interim FVRO which had been earlier obtained on an ex parte basis by Ms Lathong.
The terms of the conduct agreement order which was made by the Magistrates Court on 14 February 2018 also specified that:
1.While agreeing to the conduct agreement, Mr Brooks did so without an admission of guilt (Part A, par 1).
2.Ms Lathong agreed to withdraw the FVRO and Mr Brooks agreed to sign a 'without admissions' conduct agreement as per s10H of the Act (Part A par 2).
3.The conduct agreement order was 'without admission of liability as to need' (Part B).
Contrary to Mr Brooks' submissions, he does not have to prove that he is innocent of anything. He has made no admission to any of the allegations made by Ms Lathong which formed the basis of the interim FVRO she obtained against him, and there has been no finding of guilt against him in respect of any of her allegations.
As a matter of both fact and law, his Honour Magistrate Sharratt was correct when he said that the conduct agreement made it clear that there was no admission or finding of guilt, and that this prevents the court or any other person from implying or inferring that Mr Brooks has done anything wrong.
Appeal Ground 2 –duress
Mr Brooks argued, both before the magistrate and in this appeal, that he was 'bullied and cajoled', 'misled' and 'railroaded' into signing the conduct agreement, and that he did not willingly sign it.[6] In essence, his argument was that he signed the conduct agreement under duress.
[6] Appeal ts 18, 36.
The only evidence which was filed in support of Mr Brooks' application to set aside the conduct agreement was an affidavit sworn 14 March 2018 which stated only that:
1.I am the defendant … in this case.
2.Form 23 Application for Claimant to submit as requested.
During the hearing before Magistrate Sharratt, however, Mr Brooks made a statement from the bar table. He explained what occurred before he signed the conduct agreement. The court was busy and he waited one and a half hours before anything happened and then he was approached by Ms Lathong's lawyer:[7]
… He introduced himself as the applicant's lawyer, nominated by Legal Aid. He explained that a new legislation had been introduced to finalise issues by consent. The trial could be stopped, I could plead without guilt and walk away. The alternative, he threatened, were court costs. He pondered whether he wanted six or $10,000.
…
He went into the court and after a few minutes asked me to follow him in. I stood before the magistrate. She implied that not – she implied that not to sign could bring a heavy court cost and related to a matter over a dispute….
And mentioned a matter of a dispute over offence that cost the respondent $40,000. The magistrate also made what I thought was inappropriate remarks; one being I had been before her several – on several occasions, and I believe the lawyer picked this up. I mentioned previously that I was now – this was now the fourth time I had been in court for this matter. Again, outside, I was cajoled and bullied, not by one lawyer but by two lawyers acting for the applicant, told the benefits of signing and the costs and the problems I would face if I did not. This is contrary to good practice as outlined in the legal practitioner's complaints committee guidelines, of which I have a copy. Legal – and it says:
Legal practitioners must exercise great care when communicating with unrepresented parties. They must avoid any suggestion of undue influence, duress or the use of unfair advantage.
This lawyer broke, I believe, all the guidelines.
[7] Hearing 15 May 2018, ts 5 ‑ 6.
Mr Brooks gave a similar explanation in his letter of 4 September 2018 and in his oral submissions in the course of the appeal hearing.[8]
[8] Appeal, ts 12.
Magistrate Sharratt addressed what he was told by Mr Brooks in his reasons, and found as follows:[9]
Now, when the lawyer approached him and said this is the new legislation which allows a finalisation without any admission as to guilt, he was right. It is new legislation which allows finalisation of matters without admission of guilt. That is the purpose of a conduct agreement order made under section 10H of the Restraining Orders Act. It's appropriate for a lawyer who represents someone to talk to an unrepresented litigant about how much the costs could be if that unrepresented litigant loses the trial.
In a civil trial, such as a violence restraining order trial, going for a full day, costs of 6,000 and above are commonly awarded against a respondent. Should a trial exceed a day and go into a second or a third day, costs of 14,000 may also be an appropriate sum. What the lawyer said and what the magistrate said – it's all true. If an unrepresented litigant goes into a trial thinking that there will be no costs disadvantage should he lose, that would be unfair. A magistrate would be wrong in not alerting a litigant to an adverse costs consequence.
[9] Hearing 15 May 2018, ts 8.
After stating the fact that there was no admission or finding of guilt by the conduct agreement, his Honour continued:[10]
Nothing of – that's contained within the affidavit or nothing that came out of Mr Brooks' speech today is suggestive of undue influence, duress or unfair advantage. Except for Mr Brooks assertion that the lawyer broke all the guidelines, there is no evidence whatsoever of any of those things. If I had the power to set the agreement aside, I wouldn't exercise it because it hasn't been proven by Mr Brooks at any duress, any undue influence or any unfair advantage was brought to play on that day.
[10] Hearing 15 May 2018, ts 9.
Mr Brooks has argued that the magistrate made an error when he stated that it had not been proven that there was any duress, undue influence, or unfair advantage.
I am not able to accept Mr Brooks' arguments and submissions, and I consider that there is no merit in this ground of appeal, for the following reasons.
First, and foremost, for the reasons I have given in discussing appeal Ground 1, his Honour Magistrate Sharratt was correct when he stated that when the lawyer approached Mr Brooks and said 'this is the new legislation which allows a finalisation without any admission as to guilt, he was right'. His Honour was also correct when he stated that this was the purpose of a conduct agreement made under s 10H of the Act.
In the appeal hearing Mr Brooks submitted that what the lawyer told him about the nature of the conduct agreement order was misleading.[11] In my view, it was not misleading and it is consistent with the provisions of s 10H as I have already discussed in relation to appeal Ground 1.
[11] Appeal, ts 35.
Secondly, I consider there was no error by his Honour in finding that,
It's appropriate for a lawyer who represents someone to talk to an unrepresented litigant about how much the costs could be if that unrepresented litigant loses the trial.
In my view, there is nothing wrong with a lawyer who represents one party approaching the other party, who is unrepresented, to discuss settlement of the case and the issue of costs.
Thirdly, his Honour was clearly not satisfied that there was anything inappropriate or unfair said by Ms Lathong's lawyer (or indeed by the magistrate on the day of the hearing of 14 February 2018) about the costs of proceedings in the event that Mr Brooks proceeded to trial and was ultimately unsuccessful. Section 69(1) of the Act provides that the court can make any such cost orders it considers appropriate. His Honour Magistrate Sharratt is experienced and knew both that costs orders are regularly made against an unsuccessful party, and the amount for which such an order for costs might be made.
Fourthly, so far as the duress asserted by Mr Brooks arose from economic duress in the circumstances of a foreshadowed costs order, the applicable law, following Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40, 45 - 46 and Electricity Generation Corporation t/as Verve Energy v Woodside Energy [2013] WASCA 36 [24], is that proof of duress requires proof of two elements:
(a)that pressure was applied to Mr Brooks and this was one of the reasons he entered into the agreement; and
(b)that the pressure was illegitimate, so as to negate his consent.
The types of pressure which the courts consider to be illegitimate are unlawful threats or conduct which amounts to unconscionable conduct, fraud, abuse of confidence, undue influence, duress or coercion: Crescendo Management Pty Ltd v Westpac Banking Corporation; Barton v Armstrong [1976] AC 104, 121.
As expressed by Herron DCJ in Chin v Thies [64], the concern of the law of duress is with identifying those forms of pressure which the law regards as illegitimate, rather than improper and unacceptable.
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.
Appeal Ground 3 – denial of natural justice
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.
His Honour subsequently explained that he needed to narrow the issues down just to Mr Brooks' application to set aside.[14]
[14] Hearing 15 May 2018, ts 6.
During the appeal hearing Mr Brooks admitted that the other submissions he had planned to make to the magistrate related to why Ms Lathong's allegations were false, why he was innocent and why he wanted a trial. The reason that he wanted a trial was, of course, to prove that he was not guilty of anything.[15]
[15] Appeal hearing, ts 15, 21, 22, 28.
In my view, it was appropriate for the Magistrate Sharratt to prevent Mr Brooks from continuing with these submissions.
As I explained to Mr Brooks, and as I believe from the discussions I had with him during the appeal hearing he now understands,[16] it was not necessary for Magistrate Sharratt to hear any submissions from Mr Brooks about Ms Lathong's allegations. None of this was relevant to Mr Brooks' application to set aside the conduct agreement. It was only relevant if and when he was successful in setting aside the conduct agreement and then a trial took place.
[16] Appeal hearing, ts 25, 27.
The only issue before his Honour was whether Mr Brooks could set aside the conduct agreement (and consequently the conduct agreement order) and proceed to a trial. In order to go to trial there had to be a basis for setting aside that conduct agreement, and that was what the hearing concerned.
For the reasons I have already given when discussing appeal Ground 1, Magistrate Sharratt did not have to decide whether or not Mr Brooks was guilty of anything and/or hear from Mr Brooks about Ms Lathong's allegations.
I am not satisfied that Mr Brooks was denied natural justice at the hearing on 15 May 2018. He was given a reasonable opportunity to make relevant submissions as to why the conduct agreement should be set aside. Indeed, I am of the view that Magistrate Sharratt was both generous and fair in taking into account what Mr Brooks said from the bar table, when there was no affidavit or other sworn evidence from Mr Brooks.
Conclusion
For the reasons I have given there is no merit in any of Mr Brooks' appeal grounds or arguments.
There is no basis for Mr Brooks' belief that he needs to set aside the conduct agreement in order to prove that he is innocent. There was no admission by Mr Brooks in the conduct agreement, there has been no finding of guilt against him and Magistrate Sharratt made no error of fact or law in stating this when he dismissed Mr Brooks' application to set aside the conduct agreement.
I am not satisfied that Magistrate Sharratt made any error of fact or law when he determined that it had not been proven by Mr Brooks that there was any duress, any undue influence or any unfair advantage when he signed the conduct agreement.
I am also not satisfied that there was any denial of natural justice in the hearing before Magistrate Sharratt.
The appeal must be dismissed. I will hear from the respondent's counsel regarding what orders should be made, including any order for costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DC
Associate to Judge Davis25 FEBRUARY 2019
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