Gardziel v Kurowski

[1991] TASSC 142

Serial No B28/1991
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Gardziel v Kurowski [1991] TASSC 142; B28/1991

PARTIES:  GARDZIEL
  v
  KUROWSKI

FILE NO/S:  LCA 8/1991
DELIVERED ON:  5 June 1991
JUDGMENT OF:  Cox J

Judgment Number:  B28/1991
Number of paragraphs:  8

Serial No b28/1991
List "B"
File No LCA 8/1991

GARDZIEL v KUROWSKI

REASONS FOR JUDGMENT  COX J

5 June 1991/

1. On 21 December 1990 the learned Magistrate, Mr Estcourt, on the application (No 15107/90) under Part XA of the Justices Act 1959 ("the Act") of Antonina Kurowski made a restraint order against the applicant in this court, Wladyslaw Gardziel, to the following effect:

"1        That the respondent Wladyslaw Gardziel be and is hereby restrained from insulting, assaulting, abusing, harassing or threatening the applicant Antonina Kurowski in any way.

2         That the respondent Wladyslaw Gardziel be and is hereby restrained from approaching within the curtelage of the applicant's premises at 22 Forster Street, New Town or any premises in which she may reside from time to time.

3         That the respondent Wladyslaw Gardziel be and is hereby restrained from approaching the applicant Antonina Kurowski either directly or indirectly."

The order was endorsed "This order will remain in force until varied or revoked."

1. On 18 January 1991 an application by Mr Gardziel to review that order purportedly under s113B of the Act was dismissed by the learned Magistrate, Mr Matterson. The basis of the dismissal was that s113B provides a remedy of review by a magistrate of an order made by a Court of Petty Sessions other than one constituted by a magistrate, and that accordingly Mr Matterson had no jurisdiction to review Mr Estcourt's order.

1. On the same day the learned magistrate dismissed an application (No 60029/91) by Mr Gardziel for a restraint order to be made against Mrs Kurowski. The applicant had filed an affidavit alleging certain conduct by her as justification for that course. He also sought at the hearing to cross–examine her on the affidavits filed by her in reply. Although a written notice had been given in the application under s113B to review the restraint order in proceedings 1510790 requiring the presence of the affidavit deponents at the hearing, no such notice was given in respect of the affidavits in reply in proceedings 60029/91. The learned magistrate in reliance, it appears, on r58G of the Justices' Rules 1976 ruled that he could determine the matter on affidavits alone, and that there was insufficient material in the applicant's own affidavit, taken at face value, to justify making a restraint order against Mrs Kurowski, noting that most of the recent allegations related to her son, not to her.

1. Mr Gardziel, on 31 January 1991, filed a Notice to Review Mr Matterson's order dismissing the applicant's application for a restraint order against Mrs Kurowski. He did not, however, effect service of a copy of it upon Mrs Kurowski within the time limited by s107(3). Service was only effected on 11 February 1991. By s107(6) I have power, in my discretion, on an affidavit setting forth reasonable grounds, to extend the time mentioned in subs(3). Mr Gardziel's affidavit made and filed on 4 April 1991 affirms as follows:

"2        THAT on 31st of January 1991 ,I have filed the Applicatin (sic) with Supreme Court and as well with the Clerk of Petty Sessions.

3         THAT I intended to serve the Application on the Respondent ANTONINA KUROWSKI but I have arrived a little late to my home ,so I decided to live (sic) it till the next day , but the next day the Respondent was not at home all day, and she must have gone with her lover to his farm in huonville (sic) district , and I do not know where it is.

4         THAT I would have served the Application on the Respondents solicitor but her solicitor Diane Ayling told me that I should not have served the Application for the Restraint Order on her but on the Respondent herself, so I have taken it to mean that the Respondent should be served , and that her solicitor did not wish to receive any documents on behalf of the Respondent."

1. a person against whom a restraint order has been made, may at any time apply to Justices for the variation or revocation of that order. The form for such an application is set out as Form 48C in Schedule 1 of the Justices' Rules 1976 and the procedure laid down in r58D thereof. I also pointed out that his Notice to Review complained only of the dismissal of his application for a restraint order against Mrs Kurowski, and not of the dismissal of his application to review the restraint order made against him. Subsequently he took out a second Notice to Review, which states:

"Take notice that at the hearing of the notice to review of the order of Magistrate I Matterson on 29 April 1991 I will apply for extension of time to review also the restraint order made by Magistrate S P Estcourt on 21 December 1990 and which came for review before Magistrate I Matterson on 18 January 1991 but was dismissed due to lack of jurisdiction."

1. As to the second application seeking an extension of time to review Mr Estcourt's order, I am not prepared to accede to it. Although an affidavit in support was filed, it in no way explains the failure of the applicant to utilize the appeal procedure to the Supreme Court, which depends upon error on the part of the magistrate being shown, within the time allowed by s107(3). In any event, the grounds largely are the alleged falsity of the material used by Mrs Kurowski in her application, and the learned Magistrate's alleged error in not adjourning the case to enable her to be cross–examined on that material. As the restraint order is expressed to be "in force until varied or revoked", the most appropriate procedure in the present circumstances, in my view, is that laid down in s106G.

1. As to the application for an extension of time in respect of the appeal against Mr Matterson's dismissal of Mr Gardziel's application for a restraint order against Mrs Kurowski, the affidavit in support dated 4 April 1991 does not disclose any reasonable explanation why the notice was not served until 11 February 1991. The principal matters of complaint in the grounds are that by dismissing the application for a restraint order, the learned magistrate was encouraging Mrs Kurowski and her family to annoy and scandalise the applicant, that her allegations were false, that the learned magistrate should have ordered her to compensate the applicant for damage done by her dog, and that the learned magistrate erred in not insisting upon the respondent attending for cross–examination on her answering affidavits. The first two matters of complaint are argumentative. They do not allege the kind of grounds required by s107(4). The third seeks a remedy Part XA of the Act dealing with restraint orders does not provide; and the last is misconceived, for the magistrate clearly placed no reliance on the respondent's affidavits and dismissed the application on the basis of deficiencies in the applicant's affidavit. Furthermore, the notice to cross–examine was not given in the proceedings the subject of the present Notice to Review, but in respect of the proceedings before Mr Estcourt.

1. For all those reasons, I am of the view that the applicant should not be given an extension of time and that the appeal should be dismissed.