Del Borrello v Richardson
[2001] WASCA 153
•14 MAY 2001
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: DEL BORRELLO -v- RICHARDSON [2001] WASCA 153
CORAM: ROBERTS-SMITH J
HEARD: 27 APRIL 2001
DELIVERED : 27 APRIL 2001
PUBLISHED : 14 MAY 2001
FILE NO/S: SJA 1220 of 2000
BETWEEN: MICHELA DEL BORRELLO
Applicant
AND
ALLAN RICHARDSON
Respondent
Catchwords:
Appeal - Application for leave to appeal against decision of Magistrate dismissing application for restraining order - Determination of that matter more appropriately within jurisdiction of strata titles referee - Whether Magistrate obliged to proceed to full hearing - Whether denial of natural justice
Legislation:
Justices Act 1902 (WA), s 184, s 185, s 186, s 187
Restraining Orders Act 1997 (WA), s 35(1), s 41(4)
Strata Titles Act 1985 (WA)
Result:
Application for leave to appeal refused
Representation:
Counsel:
Applicant: In person
Respondent: Ms K Nilsson
Solicitors:
Applicant: In person
Respondent: Michael Paterson & Co
Case(s) referred to in judgment(s):
Del Borrello v Ninyett [2001] WASCA 13
Case(s) also cited:
Del Borrello v Cook [2001] WASCA 12
Dempster v National Companies and Securities Commission (1993) 9 WAR 215
ROBERTS-SMITH J: This is an application for leave to appeal against the decisions and orders of his Worship P G Thobaven SM given on a complaint in the Court of Petty Sessions at Perth on 8 November 2000 whereby the learned Magistrate ordered that the complaint then before him made by the applicant should be referred to the strata title referee and that the complaint otherwise be dismissed and that the applicant pay the respondent's costs of that appearance.
The proposed grounds of appeal, which are in the application for leave dated 23 November 2000, run to some two and a bit pages. They are in substance grounds in support of what I might describe as a primary ground which is set out in paragraph 3 of the application as follows:
"The learned Magistrate erred in making a brief summary style judgment and dismissing the applicant's complaint by reason that in his opinion the complaint should be referred to the strata title referee without listing the complaint for hearing, without any case preparation, without a hearing, and without hearing sufficient particulars, evidence, facts and the question of law on which the complaint was grounded."
The following two pages or so are really in substance further particulars of that ground, concluding with the assertion that they are matters and questions of law that should be determined by a judge by normal processes in a court of law which should not be ignored, dismissed and disposed of without a hearing, nor referred to a strata titles referee, who does not determine complaints against malice and misconduct restraining orders.
The application is supported by what is described as the affidavit of Peter Del Borrello dated 4 December 2000 which, together with attachments, runs to some 40 pages. That includes the transcript of the hearing before the learned Magistrate on 8 November 2000.
There is also a document described as an affidavit of Michela Del Borrello, the applicant, but which also is unsworn although bearing a signature in the name of Michela Del Borrello together with that of a witness. These documents are not in proper form for affidavits but for the purposes of the present application I am prepared to have regard to them as indicating the factual matters and circumstances which the applicant wishes to raise.
The applicant is Michela Del Borrello. She is represented in these proceedings by Peter Del Borrello, who is her son. He is apparently the donee of an enduring power of attorney for the applicant dated 15 February 1996.
The application first came before me on 15 December 2000. I adjourned it then to a special appointment with a view to having Mr Del Borrello serve on the respondent the materials which had then been filed in Court and to give the respondent an opportunity to appear.
On 9 February 2001 the applicant filed a minute of amended application for leave to appeal, and on 14 March 2001, together with a 14-page supporting affidavit of Peter Del Borrello, a 20-page affidavit of the applicant. The minute of amended application for leave to appeal extensively expands on the previous grounds of appeal. It is difficult to distil from the lengthy and complicated wording exactly what it is of which the appellant complains but in substance it could be said to be a complaint as against his Worship, that the learned Magistrate failed to follow statutory procedure to proceed to a hearing, failed to hear the appellant's evidence and submissions on the substantive issues and dismissed the application without considering it on its merits.
Much of the content of the amended application and documents in support canvass allegations and matters of fact ranging over many years and a broad spectrum of complaints, including intimidation of the applicant by the respondent, the strata title company manager, and by other strata title owners of the premises in which the 86-year-old appellant resides, trespass, unlawful removal of the appellant's letterbox so that postal articles were lost, wrongfully preventing the appellant growing fruit trees and vegetables, discriminating against her son in not allowing him to be her proxy at strata title management committee meetings, causing the appellant's front fence to be unlawfully removed, painting the adjacent neighbour's fence a different colour and "arrogantly attempted to provoke violence in front of the elderly applicant," and numerous other things which it would take too long and is unnecessary to set out now. Suffice to say these factual allegations all concerned relationships and contacts between the applicant and her fellow strata title owners and management committee representatives and alleged actions of the latter towards or affecting the applicant.
The matter was listed before me again for 20 April and on 11 April the applicant filed submissions in support of the application. On 18 April the respondent filed an affidavit sworn that day, together with submissions opposing the application. At the hearing on 20 April Mr Del Borrello protested that he had been given insufficient time to respond to this material and sought an adjournment of the hearing to today. I acceded to that application.
Finally, there is a further affidavit of Mr Peter Del Borrello sworn and filed on 26 April 2001 in reply to the affidavit of the respondent sworn on 18 April.
It is, I think, important that I make the observation at this point that on this application it is not for me to consider nor to deal with the factual allegations made and which underpin the application for the restraining order.
The application is made under s 184, s 185, s 186 and s 187 of the Justices Act 1902 (WA). Section 187(1) provides that on an application for leave to appeal a decision of a Magistrate in these circumstances:
"The Judge shall grant leave to appeal unless he considers that the appeal is frivolous or vexatious or that the grounds of appeal advanced do not disclose an arguable case."
The application arose out of a series of complaints made apparently by Mr Del Borrello on behalf of his mother against a number of the other strata title owners and Mr Richardson representing the strata title management company. He of course is the present respondent. One of the other strata owners is a Ms Sandra Cook. On 28 November 2000 the applicant, in proceedings SJA 1225 of 2000, filed an application for leave to appeal naming Ms Cook as respondent.
Also on 28 November 2000 in proceedings SJA 1226 of 2000, the applicant made a similar application for leave to appeal against the decision of the Magistrate made on 8 November 2000 dismissing the applicant's complaint against another strata title owner, Mr Mark Ninyett.
Those applications were heard by Steytler J on 22 January 2001 and both were dismissed. Each of those matters concerned the same proceedings before the same Magistrate on the same day in respect of the same issues.
His Honour's reasons given in SJA 1226 of 2000, an unreported decision, Del Borrello v Ninyett [2001] WASCA 13, were relatively short and it is, I think, appropriate that I set them out largely here. Having recited the circumstances of the application before him, Steytler J continued:
"At the hearing before the learned Magistrate the second applicant, who sought then also to appear on his own and his mother's behalf, was asked by his Worship to identify the persons against whom he and his mother had taken proceedings and in each case to say what was the background to the proceedings proposed to be taken and what were the grounds upon which they were to be taken. The learned Magistrate said that his purpose in doing so was in order to inform the various defendants of the case sought to be made against each of them and to consider whether or not an adjournment was appropriate, but it is apparent from a reading of the transcript that he thereafter raised with the second applicant the question whether the proceedings for misconduct restraining orders were appropriate at all and whether the dispute might not be better dealt with by a Strata Titles Referee.
The second applicant told the learned Magistrate about the proceedings which he wished to bring against each respondent and identified, in each case, the grounds upon which he relied. Having heard the applicant out in respect of those matters the learned Magistrate said:
'These are misconduct restraining orders which the applicant has initiated and before any misconduct restraining order can be made, the court has to be satisfied that -
"Unless restrained the respondent is likely to behave in a manner that could reasonably be expected to be intimidating, or offensive to the applicant and that would in fact intimidate or offend the applicant, cause damage to property owned by or in the possession of the applicant or behave in a manner that is or is likely to lead to a breach of the peace and that granting a misconduct restraining order is appropriate in the circumstances."'
His Worship was quoting the effect of s 34 of the Restraining Orders Act 1997 (WA). Having done so, his Worship went on to say that all of the matters which had been referred to by the second applicant came "under the operations of the Strata Title regime" and that it seemed to him that that was the appropriate place for those matters to be dealt with.
He consequently dismissed each of the applications and made an order for costs against the applicant totalling some $417.50.
Notwithstanding that I have given careful consideration to the lengthy amended grounds which have been raised by Mr Del Borrello on behalf of himself and his mother, and notwithstanding my examination of the transcript, the other exhibits and the provisions of the legislation relied upon by Mr Del Borrello, it seems to me that the grounds of appeal advanced by the applicants do not disclose an arguable case and that leave to appeal should consequently be refused under s 187(1) of the Justices Act.
As to the principal points sought to be made by the applicant it seems to me that the learned Magistrate afforded to the applicant an adequate opportunity to outline the nature of, and grounds for, the case sought to be made by him and that it was patently within his Worship's discretion to find, in the circumstances outlined to him (which essentially revolved around a dispute between the first applicant and the body corporate of the strata titled development in which she lived) that the dispute should more appropriately be dealt with by a Strata Titles Referee under Part VI of the Strata Titles Act."
His Honour continued:
"I should add that the applicants also sought leave to appeal against the order for costs which was made by the learned Magistrate upon the grounds that they were excessive and in any event improperly awarded. However, it seems to me there is no arguable case in that respect also. I am unable to see how it could be said that the learned Magistrate erred in the exercise of his discretion to award costs in favour of the respondent who had appeared by counsel or in the exercise of his discretion as regards the amount thereof."
There was some further point taken in passing before his Honour as to the standing of Mr Del Borrello to make the application for the misconduct restraining order on behalf of his mother within the constraints of the Restraining Orders Act 1997 (WA), but his Honour felt it unnecessary to deal with that and so do I.
Ms Nilsson, who appears on behalf of the respondent, relies upon those two previous decisions in closely related matters by Steytler J.
She does not put it on the basis of res judicata or issue estoppel, but simply advances the proposition that the facts and circumstances are so closely and, indeed, so intimately related, that it would be inappropriate for there to be conflicting decisions of this Court in respect of separate appeals arising out of those proceedings.
She also makes the submission that the application for appeal is frivolous or vexatious, and in that regard advances some factual material, including the suggestion that the affidavit in support of that application for leave dated 4 December 2000 discloses that it appears that the primary motivation for Mr Del Borrello applying for the misconduct restraining order was a similar application made against him by an owner of a unit within the strata property.
She also adverts to matters which go to whether or not the applicant voted on behalf of his mother in favour of certain resolutions of the strata title management corporation, and there are competing factual assertions or allegations or claims made by Mr Del Borrello in his affidavit. It seems to me unnecessary for me to resolve these matters, nor indeed even to deal with them in any particularly specific way. I accept Mr Del Borrello's submission that the application for leave, which is all I am concerned with here, is not frivolous nor is it vexatious, and I will return to that briefly in a moment.
In the present exceptional circumstances it may be a nice question whether the principles of issue estoppel or res judicata apply to preclude the applicant advancing the same, or essentially the same, grounds of appeal against the same individuals arising out of the same circumstances heard by the same Magistrate on the same occasion, although on separate complaints. Be that as it may, Ms Nilsson, as I have observed, does not advance that and they are therefore not issues it is necessary for me to address and I do not do so.
In substance, the grounds which the applicant wishes to ventilate on appeal are that the learned Magistrate erred in law and/or fact in that he -
(1) failed to comply with s 41(4) of the Restraining Orders Act 1997 (WA) which required him in the absence of consent to an order being made at the mention hearing to direct the clerk of court to fix a hearing and summons the respondent to attend the hearing; and
(2) failed to hear the applicant's evidence and submissions on the substance of the complaints; and
(3) dismissed the applicant's complaint without considering it on its merits.
Subsection (4) of s 41 of the Restraining Orders Act 1997 (WA) cannot be considered in isolation. It has to be considered as part of s 41 itself and, indeed, in the context of the part of the Act in which it appears. Section 41 is in Division 1 of Part IV of the Act. Part IV contains provisions prescribing the procedure to be followed at hearings. The provisions in Division 1 relate to mention hearings as defined in s 3 of the Act which, broadly, covers the first hearing before the Court at which a respondent is summonsed to appear, and those in Division 2 relate to final order hearings defined in s 3 and again broadly, meaning a hearing at which the evidence is heard and the application is determined by the Court.
The scheme of s 40 covers proceedings to be adopted when either the applicant or the respondent does not attend the mention hearing. By s 40(3), when hearing the matter in the absence of a respondent a court may make a restraining order or dismiss the application or direct the clerk of court to fix a hearing and summons the respondent to attend or adjourn the mention hearing. Section 41 is in the following terms.
"41 Consent order or final order hearing to be fixed
(1)If, at a mention hearing, the respondent consents to a final order being made, the court may make the order by consent without being satisfied there are grounds for making the order.
(2)If a respondent consents to a final order being made, the consent does not constitute an admission by the respondent of all or any of the matters alleged in the application.
(3)The clerk is to prepare and serve a final order made by consent under subsection (1).
(4)Subject to section 40, at a mention hearing at which a consent order is not made, the court is to direct the clerk to fix a hearing and summons the respondent to attend the hearing."
It is to be noted that subs (4) of 41 is expressly made subject to s 40. It seems to me clear beyond argument that if under s 40(3) a Court may dismiss the application at a mention hearing in the absence of the respondent and there is ex hypothesi no consent order, that necessarily implies it may do so if the respondent appears. That, I think, is the short answer to the applicant's proposed grounds of appeal to the extent they are founded on alleged noncompliance with s 41(4).
There is, in my view, no reasonably arguable case that the Magistrate did not have power to dismiss the application at the mention hearing but in the absence of a consent order was compelled by s 41(4) to set the matter down for a fully defended hearing.
That brings me to the other proposed grounds which I take in substance to be claims that the applicant was denied natural justice in that he was not given a fair hearing, and that the learned Magistrate failed to determine the application on its merits or without having regard to proper considerations.
It is in respect of these aspects that I have experienced the greatest difficulty. I want to say at once that I accept Mr Del Borrello's submission that this matter is not frivolous, neither in a technical legal sense in which that word is used in s 187 of the Justices Act nor in any other sense. It is absolutely clear that the matters he wishes to raise are serious to him and to his mother, the applicant, and I do not undervalue that for one moment.
The question for me though is not whether there is substance to the factual claims underlying the application for the restraining order but whether the proposed grounds of appeal against the decision of the Magistrate are reasonably arguable; that is, whether there is some prospect they could succeed were there to be an appeal. As I have already observed, these aspects were considered by Steytler J on the related applications before him. As to them, I respectfully agree with his Honour's reasons and conclusions and I adopt them.
I understand what Mr Del Borrello says when he explains he was not expecting and was not ready to present the cases on five complaints before the Magistrate on that day, but the case was not dealt with by his Worship in that way on that day. In effect his Worship approached the matter on the assumption that the applicant's allegations could or might be proved. His approach was that even if they were shown to be true, it was not a case in which a restraining order was the appropriate remedy. That conclusion was open to his Worship, having regard to the considerations set out in s 35 of the Restraining Orders Act 1997 (WA), being the matters to which the Court is required to direct its attention.
It is sufficient to note in passing that they include, for example, s 35(1)(f), "other current legal proceedings involving the respondent or the applicant"; s 35(1)(i), "other matters the Court considers relevant", and a range of other considerations which are expressed in inclusive terms.
It is sufficient, I think, to observe that the section clearly gives the Magistrate a very broad discretion. It was clearly open to him to conclude here, as he did, that given the nature of the factual allegations made, a restraining order would not be appropriate even if the applicant's factual allegations were shown to be correct but the issues would be more appropriately resolved by a referee under the Strata Titles Act.
The learned Magistrate gave the applicant adequate opportunity to explain the nature and basis of his complaints and the applicant did so. The fact that the applicant was not prepared to lead evidence or to argue the substance of the case in the circumstances as I have just described them seems to me not to militate against the position as the Magistrate found it on this occasion. Nor does it lend support to the applicant's proposed grounds of appeal.
It was, as I say, well open to his Worship to conclude that the issues sought to be relied upon by the applicant were not issues properly going to an application for a restraining order but should properly be the subject of determination by the strata title referee, and that accordingly it would be inappropriate to make a misconduct restraining order.
I am reinforced in that conclusion by the factual assertions and complaints raised in the affidavit material filed here on behalf of the applicant and in particular the affidavit of Mr Peter Del Borrello filed yesterday. It cannot be said that having formed the conclusion he did about that the learned Magistrate was wrong to dismiss the complaint and order the applicant to pay the respondent's costs.
In my view, the applicant does not put forward any arguable ground of appeal and the application for leave to appeal must accordingly be refused. The application will be dismissed.