Brooks v Lathong
[2019] WASCA 176
•6 NOVEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BROOKS -v- LATHONG [2019] WASCA 176
CORAM: MURPHY JA
MITCHELL JA
HEARD: 6 NOVEMBER 2019
DELIVERED : 6 NOVEMBER 2019
PUBLISHED : 6 NOVEMBER 2019
FILE NO/S: CACV 56 of 2019
BETWEEN: RICHARD CHARLES BROOKS
Appellant
AND
KUSUMA KHAMHONGSA LATHONG
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: DAVIS DCJ
Citation: BROOKS -v- LATHONG [2019] WADC 24
File Number : APP 63 of 2018
Catchwords:
Restraining orders - Appeal from an application to set aside a conduct agreement order - Whether duress, undue influence or unconscionable conduct arguably established - Whether denial of natural justice arguably established - Turns on own facts
Legislation:
Restraining Orders Act 1997 (WA), s 10H
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Ms E Jance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Moana Chambers |
Case(s) referred to in decision(s):
Defendi v Szigligeti [2019] WASCA 115
Thorne v Kennedy [2017] HCA 49; (2017) 263 CLR 85
REASONS OF THE COURT:
At the conclusion of the hearing on 6 November 2019, we ordered that this appeal be dismissed. These are our reasons for dismissing the appeal.
Background
On 31 July 2017, the respondent obtained an ex parte interim violence restraining order against the appellant, under the Restraining Orders Act 1997 (WA) (Act). A trial of the application for a final order was listed to commence on 14 February 2018.[1]
Conduct agreement order
[1] Brooks v Lathong [2019] WADC 24 (Primary decision) [1] - [2].
When the matter was first called on by the magistrate on 14 February 2018, counsel for the respondent indicated that the parties were close to reaching agreement as to a conduct agreement order which may be made under s 10H of the Act.[2]
[2] Magistrates Court ts 14/2/18, page 12.
In essence, s 10H(1) of the Act allowed the court to make a 'conduct agreement order' if the appellant agreed to the making of a final order imposing certain restraints (conduct agreement). In making that order, the court was not required to be satisfied that there were grounds for making a family violence restraining order in the same terms. Pursuant to s 10H(2), a conduct agreement does not constitute an admission of the matters alleged in the application for a family violence restraining order. Section 10H(3) provides that a conduct agreement order is not a family violence restraining order, but is taken to be such an order for the purposes of the Act.
At the suggestion of the respondent's counsel, the magistrate explained to the appellant that signing a conduct agreement was not an admission of liability. In the course of doing so, the magistrate said:[3]
You probably have been in court many times, Mr Brooks, hearing me say that matters often times resolve on the basis of a respondent indicating on any paperwork that they do not accept liability; that any resolution is without admission of liability. So it's there recorded for the world to see that you don't accept the basis upon which the order was granted. (emphasis added)
[3] Magistrates Court ts 14/2/18, page 13.
The magistrate also explained the risk as to costs which the appellant faced if he failed in a contested hearing, indicating:[4]
I can tell you - and this is what I tell many people when they take matters to trial unrepresented, and this is a real situation, Mr Brooks, that last year, the registrar of the Midland Magistrates Court, on a dividing fences matter that took half a day, taxed costs or assessed costs against the losing party at $40,000, Mr Brooks.
That is the reality of costs. Unfortunately I have - I tell people that on many occasions so that they understand the real risk that they face. I don't say that to frighten you. I just say that so that you're aware of the parameters in which you find yourself today, Mr Brooks.
[4] Magistrates Court ts 14/2/18, page 13.
The matter was stood down for further discussion between the parties, during which the appellant signed a conduct agreement prepared by the respondent's solicitors. The conduct agreement, which was expressed to be made without any admissions of guilt or liability, generally reflected the terms of the interim restraining order and operated for 2 years from the date of the agreement. The magistrate made orders by consent dismissing the application for a family violence restraining order and making a conduct agreement order pursuant to s 10H(1) of the Act.[5]
Application to set aside conduct agreement order
[5] Magistrates Court ts 14/2/18, page 15.
On 15 February 2018, the appellant filed an application in the Magistrates Court, which sought:[6]
Reversal of consent orders made 14/02/18. I want to go to trial. Reasons: yesterday, 14/02/18 I was cajoled, bullied and misled into accepting this consent order by [the respondent's solicitor]. Further the magistrate was, in my v[ie]w 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'[.]
[6] Primary decision [4].
The application, which was treated as an application to set aside the conduct agreement order, was heard by a different magistrate on 15 May 2018. An affidavit sworn by the appellant in support of the application did not depose to any substantive matters. The appellant did not adduce any relevant evidence at that hearing, but gave the following account from the bar table. The respondent's lawyer had approached him outside court and:[7]
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 thousand dollars.
[7] Magistrates Court ts 15/5/18, page 5.
The appellant then made the following submissions to the magistrate:[8]
[8] Magistrates Court ts 15/5/18, pages 5 - 6.
[The respondent's solicitor] went into the court and after a few minutes, asked me to follow him in. I stood before the magistrate. She implied … that not to sign could bring a heavy court cost and … mentioned a matter of a dispute over a fence that cost the respondent $40,000. The magistrate also made what I thought was inappropriate remarks; one being I had been before her … 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 Practitioners Complaints Committee Guidelines, of which I have a copy … 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. 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 judgment aside, not your belief in what she has done. So if you can add anymore to your 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.
BROOKS, MR: I've got an email from a constable … who has gone into my … police records - and apparently I have a VRO still against my name.
HIS HONOUR: Yes. I could have told you that. Thank you. Yes.
BROOKS, MR: Thank you, sir.
The respondent's counsel made very brief submissions of a kind which did not call for a response by the appellant. The magistrate then delivered an ex tempore decision.
The magistrate accepted what the appellant said as 'being a truthful account of what happened from his point of view'. His Honour found that the lawyer who approached the appellant was correct to say that the Act allowed a finalisation without any admission of guilt. As to the representations about legal costs, the magistrate said:[9]
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 6000 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] Magistrates Court ts 15/5/18, pages 8 - 9.
The magistrate noted that the conduct agreement signed by the appellant made it clear that there was no finding or admission of guilt. The magistrate said:[10]
Nothing … 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's 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 that any duress, any undue influence or any unfair advantage was brought to play on that day.
[10] Magistrates Court ts 15/5/18, page 9.
The magistrate concluded that, while he doubted that he had the power to set aside the conduct agreement order, he did not need to come to a final decision on that question. The application to set aside the conduct agreement order was dismissed.[11]
The appeal to the District Court
[11] Magistrates Court ts 15/5/18, page 9.
By appeal notice dated 11 June 2018, the appellant appealed to the District Court of Western Australia against the dismissal of his application to set aside the conduct agreement order. The sole ground of appeal was that:
I am innocent and matter dismissed by misinformation and bullying[.]
The appeal was heard by the primary judge on 16 January 2019. On 26 February 2019, her Honour dismissed the appeal for written reasons which she then published. The primary judge found, and it is not in dispute, that the appeal was by way of rehearing requiring the demonstration of error by the magistrate.
The primary judge identified three grounds of appeal which emerged from the appellant's written and oral submissions:[12]
(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 the appellant when he signed the conduct agreement.
(3)The appellant was denied natural justice in the course of the hearing before the magistrate.
[12] Primary decision [22].
As to the first ground, the primary judge found that the magistrate 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 the appellant has done anything wrong.[13]
[13] Primary decision [35].
As to the second ground, the primary judge held that, while the appellant 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 the appellant went beyond what the law is prepared to countenance as legitimate.[14] The primary judge held that the magistrate did not err in fact or law when he stated that it had not been proven that there was any duress, undue influence or unfair advantage.[15]
[14] Primary decision [55].
[15] Primary decision [57].
As to the third ground, the primary judge was not satisfied that the appellant 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 order should be set aside.[16] The submissions he was stopped from making concerned alleged conduct by the respondent, which was not relevant to the application to set aside the conduct agreement order.[17]
[16] Primary decision [69].
[17] Primary decision [64]; [66].
The primary judge therefore found that there was no merit in any of the appellant's appeal grounds or submissions, and dismissed the appeal to the District Court.[18] Her Honour summarised her reasons for concluding that there was no merit in any of the appellant's appeal grounds or arguments in the following terms:[19]
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.
[18] Primary decision [70], [74].
[19] Primary decision [71] - [73].
The appeal to this court
On 7 May 2019, the appellant filed an appeal notice in this court. After there were some issues with service of the respondent, the respondent filed a notice of her intention to take part in the appeal on 8 August 2019.
The appellant filed his appellant's case on 21 August 2019. His grounds of appeal are expressed in the following terms:
1) Denial of Natural Justice Rule 79
2) Denial of reply Magistrates Court Midland
3) Misleading directions District Court Appeal 63/18 email: 2018 @ 12.18 p.m.
4) Inappropriate comments made by the presiding Magistrate Northam Court 14 February 2017 Case MC/Civil/NG RO 32 of 2017
5)Transcript dated 14 February 2017 reveals that the [respondent's solicitor] misled the court by knowingly making untrue statements in order to proceed with a conduct order. Transcript page 2.
6)Affidavit sworn in the Narrogin Court 31 July 2017; Case number MC/Civil/NG RO 32 of 2017 untrue; perjury
7)Affidavit family Court dated 31 March 2018 untrue; perjury
8)Unlawful, unprofessional conduct by [the respondent's solicitor] and Ms. Mortimer towards a self represented person
9)Denial of full disclosure my [sic] the presiding magistrate Midland Magistrates Court 15 May 2018
On 23 August 2019, the registrar issued a notice to attend on 13 September 2019 for the appellant to show cause why the appeal should not be dismissed.
On 9 September 2019, the appellant applied to, amongst other things, vacate the hearing listed for 13 September 2019 on the ground that he was required to undergo a medical procedure on that day. The hearing was vacated, and relisted on 6 November 2019 (which was a date that the appellant indicated he was able to appear). Other aspects of the appellant's application in an appeal filed on 9 September 2019, which it is unnecessary to set out in these reasons, were also listed on 6 November 2019.
On 10 October 2019, the appellant filed an application in an appeal for leave to issue a subpoena 'to obtain a court document showing the court attendance on the 14 February 2018'. That application in an appeal was also referred to the hearing on 6 November 2019.
Merits of the appellant's grounds of appeal to this court
For the following reasons, none of the appellant's grounds of appeal to this court have any reasonable prospect of succeeding.
Grounds 1, 2 and 9: fairness of the hearing on 15 May 2018
Grounds 1, 2 and 9 all allege, in substance, that the appellant was denied a reasonable opportunity to present his case for setting aside the conduct agreement order at the hearing on 15 May 2018.
Having reviewed the transcript of that hearing, we see no basis for concluding that the appellant was denied an opportunity to present his case or that the hearing on 15 May 2018 was otherwise unfair.[20] The appellant was allowed to make submissions in support of his application, and was only constrained by the magistrate when he began making submissions as to the respondent's conduct. As the primary judge correctly held, that was not a matter relevant to the application to set aside the conduct agreement order. Nothing in the very limited submissions advanced by the respondent's counsel at the hearing on 15 May 2018 called for a response by the appellant.
Grounds 4, 5 and 8: conduct of the magistrate and respondent's lawyer on 14 February 2018
[20] For a recent summary of the principles relating to the hearing rule, see Defendi v Szigligeti [2019] WASCA 115 [45] - [48].
Grounds 4, 5 and 8 all concern the conduct of the magistrate and the respondent's solicitor on 14 February 2018, being the date that the appellant signed the conduct agreement.
The statements made by the appellant from the bar table on 15 May 2018 did no more, in substance, than contend that the magistrate on 14 February 2018 and the respondent's solicitor identified the potential costs consequences for the appellant if he unsuccessfully defended the restraining order application. It was not inappropriate for the appellant to be advised of the potential adverse financial consequences of proceeding to a contested hearing of the respondent's application for a family violence restraining order. This could not form a basis for contending that the appellant's agreement was vitiated by duress, undue influence or unconscionable conduct,[21] or otherwise provide a basis for setting aside the conduct agreement order. While the statements about legal costs emphasised the potential financial risks in the appellant proceeding to a contested hearing, they did not arguably amount to the application of illegitimate pressure or unconscionable conduct. The primary judge was clearly correct to so hold.
[21] As to which, see Thorne v Kennedy [2017] HCA 49; (2017) 263 CLR 85 [26] - [40].
It is not clear from the material before us why the magistrate observed, in the sentence emphasised in the passage quoted at [5] above, that the appellant 'probably ha[s] been in court many times'. However, we see no basis on which that comment could justify setting aside the conduct agreement order.
The appellant's submissions assert that, on 14 February 2018, the respondent's solicitor falsely stated to the court that he had sent the appellant numerous drafts of a conduct agreement.[22] There is no evidence before this court, and there was no material before the magistrate on 15 May 2018, supporting that assertion. In any event, irrespective of whether drafts were previously exchanged, the appellant signed the conduct agreement on 14 February 2018. Whether or not drafts were previously provided to the appellant is irrelevant to the question of whether the conduct agreement order ought to have been set aside.
Grounds 6 and 7: alleged perjury
[22] Appellant's Submissions, par 2, apparently by reference to Magistrates Court ts 14/2/18, page 12.
Grounds 6 and 7 in effect contend that the respondent lied in an affidavit sworn in support of her application for a family violence restraining order and in an affidavit filed in the Family Court. There is no evidentiary basis in the material before us for that very serious allegation. In any event, such lies, if established, would not provide a basis for setting aside the conduct agreement order in a context where the Magistrates Court was not required to be satisfied of any matter other than the existence of the conduct agreement before making the conduct agreement order. There is no basis for apprehending that the court relied on an affidavit sworn by the respondent on 31 July 2017 in making the conduct agreement order. The affidavit sworn in the Family Court, which is not before us and was allegedly dated 31 March 2018 (after the conduct agreement order was made) could not provide a basis for impugning the conduct agreement order. There is nothing before us to indicate that the affidavits to which the appellant refers could justify setting aside of the conduct agreement order, which was made on the basis of the conduct agreement.
Ground 3: alleged misleading directions
Ground 3 appears to relate to the following email, annexed to the appellant's affidavit in support of his application for an extension of time within which to appeal:
From: District Court Civil <[email protected]>
Sent: Friday, 14 December 2018 12:18 PM
To: Verify Team
Subject: RE: Appeal 63/2018
Dear Mr Brooks,
Your email was referred to Registrar Kubacz.
The Registrar has advised that both your Appeal filed 14 June 2018, and the Application in the Appeal filed on 15 October 2018 [in which the respondent sought certain procedural directions], are both being heard by a Judge on 16 January 2019.
Kind Regards
[Signature]
The email chain indicates that the appellant responded as follows at 12.46 pm that day:
Dear Case Manager, thank you for confirming that my appeals are being heard as per my applications.
Kind regards Richard Brooks
The appellant submits that the court's email 'clearly stat[es] both appeals will be heard. The Appeal I filed originally was to go to trial on the evidence I had available'.[23]
[23] Appellant's Submissions, par 1.
This email correspondence does not provide any arguable basis for setting aside the primary judge's decision. The appellant's appeal was heard on 16 January 2019, as foreshadowed by the court's email. Contrary to the suggestion in the appellant's submissions to this court, the hearing before the primary judge did not involve a 'trial'. Rather, the hearing was by way of an appeal in respect of which there is no dispute that the appellant was required to demonstrate material error in the magistrate's decision to dismiss the appellant's application to set aside the conduct agreement order.
In his oral submissions before this court, the appellant said, in effect, that he did not appreciate that the appeal to the District Court was going to deal with the correctness of the conduct agreement order, and was unprepared for the hearing.
The appellant also referred to a letter that he sent to the primary judge's associate dated 17 January 2018,[24] while judgment was reserved. The letter is also attached to the appellant's affidavit in support of his application for an extension of time within which to appeal. The letter asserts that the appellant 'attended court totally unprepared for the dismissal of the conduct order but prepared for trial'. It then essentially reiterates submissions referred to above.
[24] Although the letter is dated '17 January 2018', we infer that the year is intended to be '2019'.
The appellant has not filed an affidavit in which he deposes as to his misapprehension about the nature of the District Court appeal. The assertions to that effect in oral submissions to this court and the letter dated 17 January 2018 appear inconsistent with the transcript of proceedings before the primary judge. At the outset of the hearing before the primary judge, the appellant indicated that he was ready to proceed.[25] When, at an early stage of the hearing, the primary judge referred to the conduct agreement, the appellant said:[26]
That's what I am here to overturn, ma'am.
[25] District Court ts 4.
[26] District Court ts 8.
The appellant then advanced submissions in support of his contention that the conduct agreement order should be set aside.[27] During the appellant's submissions, the primary judge indicated that the appeal was from the magistrate's refusal to set aside that conduct agreement, and that it was for the appellant to demonstrate that the magistrate made some errors. The primary judge then articulated the three grounds referred to at [17] above. The appellant confirmed that these were his three grounds, and indicated that there was nothing else he wanted to say at that point in time.[28] The appellant was given a right of reply after the primary judge heard submissions from the respondent's counsel.[29]
[27] District Court ts 9 - 27.
[28] District Court ts 27 - 28.
[29] District Court ts 35 - 36.
The appellant did not make an application for the adjournment of the hearing before the primary judge.
Further, the appellant has not identified any evidence or submissions of which he was deprived of the opportunity of advancing before the primary judge that might have affected the outcome. To the extent that the appellant relies on submissions contained in his letter dated 17 January 2018, none of those matters were new or, for the reasons explained above, could have justified setting aside the conduct agreement order.
The material before this court does not arguably establish that the appellant was deprived of a reasonable opportunity of presenting any evidence or submissions which might have affected the orders made by the primary judge. There is no factual basis for any allegation that the hearing before the primary judge was procedurally unfair.
For the above reasons, nothing advanced by the appellant in support of ground 3 could arguably justify this court in setting aside the primary judge's order dismissing the appeal to the District Court.
Orders
For those reasons, we were satisfied that the appeal should be dismissed on the basis that none of the appellant's grounds of appeal had any reasonable prospect of succeeding. It was unnecessary to deal with the appellant's applications in the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
Associate to the Honourable Justice Mitchell6 NOVEMBER 2019
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