Davey v Davey - [2002] WASCA 303

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: DAVEY -v- DAVEY [2002] WASCA 303

CORAM: EM HEENAN J

HEARD: 18 OCTOBER 2002

DELIVERED : 18 OCTOBER 2002

FILE NO/S: SJA 1025 of 2002

BETWEEN: MAXWELL PERCY DAVEY
Appellant
AND
SUSANN ADELINE DAVEY
Respondent

Catchwords:

Appeal - Justices Act (1902) - Restraining order - Decision rests upon findings of credibility - No basis for showing Magistrate had misused his advantage of assessing witnesses - Appeal dismissed

Legislation:

Justices Act (1902)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr N P Goiran

Solicitors:

Appellant: In person
Respondent: Bruce Havilah & Associates

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

Devries v Australian National Railways Commission (1993) 177 CLR 472
Rosenberg v Percival (2001) 205 CLR 434
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 73 ALJR 306

Case(s) also cited:

Nil

EM HEENAN J: On 7 January in Kalgoorlie before the Court of Petty Sessions, there was a matter brought on by Susann Davey, Kylie McWhirter and Tenille Bellamy when each of those three ladies sought a violence restraining order against the respondent Mr Maxwell Davey. There is a short transcript of initial submissions on that application, indicating that the matter did not proceed to any final hearing on its merits.
Instead, after some initial matters were investigated, the applications were adjourned and transmitted to the Court of Petty Sessions at Perth. It appears to be the case that the reason for the adjournment was to allow one of the applicants, or perhaps other parties as well, an opportunity to subpoena certain witnesses, including police officers, and to produce certain documents.
Be that as it may, the proceedings in Kalgoorlie were adjourned on 7 January without having been embarked upon in any determinated sense. The applications then came on for hearing before the Court of Petty Sessions in Perth on 29 January. They came before his Worship Mr Lawrence SM. The applicant, the present respondent, Susann Adeline Davey appeared in person and the respondent, the present appellant, Maxwell Percy Davey, also appeared in person.
The proceedings commenced with Ms Susann Davey giving sworn evidence in support of her application and being cross‑examined by the present applicant, her former husband. Then another witness, Ms Tenille Bellamy, was called on behalf of Ms Susann Davey and she too gave sworn evidence in support of the application and was cross‑examined. Those were the only witnesses who were called for the applicants and, contrary to the expectation that there may be police evidence of documentary evidence adduced in support of the proceedings, none of that was led or sought to be led.
Mr Maxwell Percy Davey then decided that he wished to give evidence on his own behalf and went into the witness box and was sworn. He gave evidence and was cross‑examined by the applicant. At the conclusion of his evidence, he did not take steps to call any other witnesses. That being the completion of the evidence, the learned Magistrate then went on to give his decision. He gave short written reasons for his decision which are to be found at page 51 of the appeal book.
The decision was that the Magistrate was not satisfied that there was sufficient evidence to establish that Mr Davey had behaved in recent times towards Ms Bellamy or Ms McWhirter in a manner which would cause them to fear that he would commit a violent personal offence against them, and for that reason he dismissed the applications for restraining orders concerning those two ladies.
Further, in relation to the application for a restraining order in respect of Ms Susann Davey, the learned Magistrate decided that he was satisfied that there was cause to make an order and he made an order against the present appellant accordingly. His reasons for that decision occupy only one paragraph of the transcript but are nevertheless comprehensive. The learned Magistrate says:
"In relation to Ms Bellamy [that is one of the witnesses who gave evidence in support of the respondent], I found her to be a convincing witness. She supported the evidence given by Ms Davey in relation to an alleged conversation that took place between the respondent and the applicant in approximately November of last year, during which the respondent threatened to get the applicant. And on that evidence, having regard to the past conduct in relation to the respondent against the applicant which I accept has occurred, in refusing to accept his evidence and rejecting his evidence totally, because of the manner and his demeanour in the witness box. I am satisfied to the required degree that he has caused or has acted in such a manner that any reasonable person would fear that he will commit a violent personal offence, having regard for his past behaviour and his past conduct towards the applicant. And particularly in the last comments that he made to her on that occasion. And accordingly that order will be made a final order. Both of the other applications are dismissed."
The reference by the learned Magistrate to accepting the evidence of Ms Susan Davey and the evidence of Ms Bellamy must be regarded as a reference to the sworn evidence which each of those witnesses gave at the hearing. The relevant passages in the evidence of Ms Davey are to be found at pages 30 to 34 of the appeal book.
I shall not attempt to summarise them except to say that the respondent gave evidence that in the past there had been actual violence done to her by Mr Davey and that there had been telephone calls at the end of October and early November which had caused her to fear her former husband. The details of those calls and the basis for the apprehension which Ms Davey said they generated can be found readily enough in the transcript.
Ms Davey was cross‑examined on those matters by the applicant but she maintained the substance of her evidence. I will come back to some features of that cross‑examination in a moment. Similarly, when Tenille Bellamy gave evidence, (her testimony being found at pages 37 to 40 as evidence‑in‑chief in the appeal book), she corroborated the evidence of the respondent. She confirmed that there had been a history of violence in the past and that there was a fear about the respondent's future behaviour which had been generated by his conduct in or about November of last year. Again, Mr Davey cross‑examined Ms Bellamy in an attempt to refute the evidence which she had given but, by and large, she maintained the substance of the testimony which she had given.
Mr Davey, as I have already said, then gave evidence himself. His testimony, both examination and cross‑examination, is to be found at pages 41 to 50 of the appeal papers. This involved a denial of threatening violence to Ms Davey and other contradictions of much of her evidence. In the process there was reference to a history of litigation between Mr Davey and Ms Susann Davey, culminating in a variety of matrimonial proceedings, but essentially Mr Davey's evidence involved the contradiction and a rejection of the evidence which had been put against him by the respondent and by Ms Bellamy.
I mentioned that I would come back to some features of the cross‑examination. It was a recurring theme in the cross‑examination by Mr Davey of the respondent, in his own evidence, and in the submissions which have been made by Mr Davey today, that despite the opportunity afforded by the adjournment of the proceedings from Kalgoorlie to Perth in order to subpoena documents or adduce other evidence, Ms Susann Davey did not in fact attempt to produce documents or call other witnesses. It is not precisely clear just what documents were being referred to but Mr Davey, on more than one occasion, demanded that the respondent should produce the documents which she said she possessed or which she said she would obtain. By those demands and by later submissions he made it plain enough that, because of her inability or refusal to do so, her conduct was inconsistent and that she was not able to make out her case.
As far as I can see from an examination of the transcript the documents which were the subject of this discussion were a report or reports of a Dr Groves and perhaps other doctors in Kalgoorlie who had at one or more times in the past treated Mr Davey; the report or reports of some police officers or other police records; and, perhaps, additionally, the report or reports of certain security firms.
However, as I have already explained, no attempt was made to lead that evidence and no reliance, as far as I can see, was placed by Ms Davey on what might have been the content of such documents. After the decision of his Worship Mr Lawrence SM in Perth on 29 January was made, Mr Davey applied to this Court for leave to appeal against the decision pursuant to the provisions of Justices Act.
An affidavit in support of the application for leave to appeal was sworn by him and has been filed in the proceedings. The copy in the appeal book is not clearly dated but it appears to have been sworn in or about April or perhaps March of this year. It outlines a variety of challenges to the learned Magistrate's decision which can be found at pages 5 to 6 followed by a two‑page summary at pages 7 and 8 of the current appeal book.
Essentially, those grounds of appeal seek to re‑agitate issues of fact and findings of credibility which were made by the Magistrate and which I am obliged to say appear to have had very little prospects of success, having regard to the established rules which apply when dealing with findings of fact made where credibility is in issue. This seems to have been recognised because when the order granting leave to appeal was made by the Hon White AuJ on 23 April this year, the grounds of appeal were much more narrowly defined.
The only ground of appeal in the order granting leave is to be found at page 3B of the appeal book, and it is, and I quote:
"The applicant have leave to appeal from the decision of His Worship Mr Lawrence S.M. given on complaint No's K.A. 4088‑4090‑01 in the Court of Petty Sessions at Perth whereby the learned Magistrate upheld the Violence Restraining Order, on the grounds that the learned Magistrate erred in admitting the complainants [sic] secondary evidence of the contents of documents which were not produced."
And then there are particulars:
1.reports to the police; and
2.a psychiatric report.
In the context of that hearing this ground of appeal should, I consider, be treated as a complaint that notwithstanding that the written reports alluded to in evidence were not adduced and no effort was made on either side to call their authors, secondary oral evidence as to their contents was received by the learned Magistrate and acted upon in coming to his conclusion.
If that could be shown, I consider that there would be grounds to review the decision of the learned Magistrate but my examination of the transcript and the reasons for decision of the learned Magistrate and the helpful explanation of the course of the proceedings given by Mr Davey in the course of his submissions here today have demonstrated that that did not occur.
The learned Magistrate made his decision upon the evidence which was before him and without regard to any reports or their supposed contents. Accordingly, I do not see any basis upon which the only ground of appeal in respect of which leave was granted can be made out. I have to say, however, that this attention to the ground of appeal only developed late in the course of this hearing and that before then Mr Davey ranged freely in his complaints about the course of the proceedings and made a variety of criticisms about the procedure, the finding of the learned Magistrate, alleged inconsistencies in evidence given by Ms Susann Davey and Ms Bellamy and proceeded to deal with events, both before and after the hearing of this application in January this year, which were not before the Magistrate.
In these circumstances it was necessary for me to point out to Mr Davey, and I must say that he gracefully accepted my ruling, that only the evidence before the Magistrate in the court on 29 January could be reconsidered on this appeal.
Having heard the submissions which, as I say, ranged well beyond the only ground of appeal in respect of which leave was granted, it became apparent that Mr Davey considered that the learned Magistrate was wrong in accepting the evidence of Ms Susann Davey and the evidence of Ms Bellamy in preference to his own testimony. He made a series of submissions which, if accepted, would suggest that his own testimony was more reliable and credible than that of the respondents.
All of these criticisms raised questions about the credibility, reliability and cogency of the testimony of the three witnesses who had given evidence before his Worship Mr Lawrence SM which he assessed when coming to his decision. As I have already said, it was the learned Magistrate's decision to believe the witnesses for the respondent and to reject the testimony of the present appellant.
That poses a very considerable legal difficulty for Mr Davey in relation to this appeal. There have been a series of cases recently in the High Court of Australia which have authoritatively laid down the principles which must be applied by any Appeal Court asked to reconsider findings of fact by a lower court. These principles are very well known. They are referred to in the decision of the High Court of Australia in Devries v Australian National Railways Commission (1993) 177 CLR 472. They were very comprehensively reviewed again by the High Court of Australia in February 1999 in the case of State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 73 ALJR 306, and again in April 2001 by the High Court in the case of Rosenberg v Percival (2001) 205 CLR 434.
In Rosenberg v Percival there is a passage in the judgment of McHugh J, with whom the other Justices agreed, in the following terms addressing the principles which apply to challenges in an Appeal Court of findings of fact made by a Judge or Magistrate in a court below and I quote from page 447:
"As Brennan and Gaudron JJ and I said in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 477, 'the trial Judge had the advantage, which was denied to the judges of the Full Court, of being able to judge the true character and intelligence of the plaintiff'. In addition, as I have pointed out above, there were many objective matters that supported the trial Judge's finding ... ."
His Honour then went on to say:
"Wherever the boundary of review lay, in the circumstances of this case, the Full Court could not set aside the trial judge's finding on the bare ground that he did not give sufficient weight to matters that the judges of the Full Court thought assisted the patient's case. In Devries at 479, Brennan and Gaudron JJ and I also said:
'More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his advantage" or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable".' "
There are further passages in Rosenberg's case to the same effect. As I have already explained, in the present case there was evidence both for and against the case being put up by Ms Susann Davey in the Court of Petty Sessions at Perth. If the evidence of Ms Davey and Ms Bellamy were accepted, then one can understand how the learned Magistrate would proceed to make a restraining order.
If the evidence of Mr Davey were accepted or regarded as sufficient to throw a reasonable doubt about the matters raised by the applicant, that would also cause the Magistrate to dismiss the application for a restraining order. But if, after hearing all the evidence, the learned Magistrate was satisfied that the evidence of Ms Davey and Ms Bellamy was truthful and cogent he was in my view justified in acting on it and in making the orders which he did. It all depended upon his assessment of the witnesses.
I have not seen the witnesses. An appeal of this kind is not a hearing de novo in which evidence is given afresh. I am restricted by law to an examination of the transcript to ascertain whether any error of law or principle has been made by the learned Magistrate or when there is a challenge to his finding of fact involving issues of credibility, whether he has made any irrefutably established error or palpably misused the advantage which he possessed from being present and assessing the credibility of the witnesses.
In this case I am not satisfied that any such ground could be, or has been, made out. The learned Magistrate was the judicial officer appointed by law to decide this case. In reviewing this appeal I am bound by the authorities of the High Court of Australia which I have mentioned to scrutinise the matter by reference to those principles.
I do not consider that Mr Davey has made out a case that there was any error of law or misuse of his position by the learned Magistrate. For those reasons I have no alternative but to dismiss this appeal.