Garvey v Bain
[2014] WADC 173
•19 DECEMBER 2014
GARVEY -v- BAIN [2014] WADC 173
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WADC 173 | |
| Case No: | APP:89/2014 | 10 DECEMBER 2014 | |
| Coram: | EATON DCJ | 19/12/14 | |
| PERTH | |||
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | BRIAN JOHN GARVEY BRONWYN LESLIE BAIN |
Catchwords: | Appeal Restraining orders Imposition of a misconduct restraining order Turns on own facts |
Legislation: | Restraining Orders Act 1997 |
Case References: | Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
BRONWYN LESLIE BAIN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE WHEELER
File No : PER 1000 of 2014
Catchwords:
Appeal - Restraining orders - Imposition of a misconduct restraining order - Turns on own facts
Legislation:
Restraining Orders Act 1997
Result:
Appeal dismissed
Representation:
Counsel:
Appellant : In person
Respondent : Mr S D Freitag
Solicitors:
Appellant : Not applicable
Respondent : Jackson McDonald
Case(s) referred to in judgment(s):
Nil
1 EATON DCJ: On 15 April 2014 Bronwyn Leslie Bain, the respondent, having made application to the Magistrates Court at Perth, was granted an interim Violence Restraining Order ('VRO') pursuant to the provisions of the Restraining Orders Act 1997 ('the Act'). Brian John Garvey, the appellant, was the person bound by that order. A copy of the order was served on Mr Garvey by a police officer on the following day. The matter was listed for further hearing in that court on 8 May 2014. On 24 April 2014 Mr Garvey lodged an objection to the order being made final.
2 On 8 May 2014 the hearing of the matter was adjourned on Mr Garvey's application, by consent, to 19 June 2014. On that day the matter was further adjourned, on the opposed application of Ms Bain, to 8 August 2014.
3 On 8 August 2014 his Honour Magistrate Wheeler heard evidence called by both parties to the matter, including from the parties themselves and, having heard submissions from Mr Garvey (who was unrepresented) and counsel for Ms Bain, made a final Misconduct Restraining Order ('MRO') for a period of 12 months, stipulating the terms of that order.
4 On 28 August 2014 Mr Garvey filed a notice of appeal in this court against the making of the MRO and the order that he pay Ms Bain's costs fixed at $5,049.
5 Section 64 of the Act provides that a person aggrieved by the decision of a court in relation to a final order may appeal against it. In Mr Garvey's case the appeal must be made in accordance with pt 7 of the Magistrates Court (Civil Proceedings) Act 2004.
6 Section 40 of that Act provides that such an appeal is to this court, that it cannot be commenced more than 21 days after the date of judgment, unless this court gives leave to do so, that an appeal must be conducted in accordance with rules of this court and that this court must decide the appeal on:
(a) the material and evidence that were before the Magistrates Court; and
(b) any other evidence that it gives leave to be admitted.
7 Leave may only be given in exceptional circumstances.
8 Rule 50 of the rules of this court provides that an appeal to this court must be by way of a reconsideration of the evidence that was before the primary court unless the parties agree otherwise and that, at the hearing of an appeal, a party must not adduce evidence that was not adduced in the primary court except with the leave of the court. The court is not to grant such leave unless satisfied there are special grounds for doing so.
9 In the matter before me, Mr Garvey's appeal was commenced within the time specified. There is no agreement between the parties to the effect that the appeal should proceed other than by way of a consideration of the evidence that was before the magistrate. During the hearing Mr Garvey did make application to adduce further evidence in the form of a lease document or tenancy agreement. That application was opposed and was dismissed by me.
10 Mr Garvey's grounds of appeal are that the learned magistrate erred as follows:
1. by denying him natural justice by preventing him from adducing evidence that he was merely adhering to the terms of a lease agreement dated 29 June 2007 between Mr Garvey as landlord and a company controlled by Ms Bain as tenant, he having attempted to take possession of the leased premises, having lawfully terminated the lease;
2. by denying him natural justice by preventing him from adducing evidence of Ms Bain's unlawful acts;
3. by misdirecting himself in ignoring s 34, s 35, and s 36 of the Act and the continued financial detriment suffered by Mr Garvey by reason of Ms Bain's unlawful acts;
4. by allowing the witness Debra Anne Pearce to give evidence of a 'weird leaking gas container' discovered prior to 14 April 2014 and inferring that there was a danger of an explosion;
5. by preventing him from adducing evidence of matters prior to 14 April 2014, in rebuttal;
6. by allowing Ms Bain to adduce certain documents and by not allowing him to adduce certain diagrams;
7. by preventing him from adducing evidence of medical reports related to the his health and the consequences of a stroke suffered on 3 June 2014 and subsequent treatment;
8. by wrongfully ordering that he pay costs of $5,049;
9. by failing to recognize that Ms Bain had wrongfully applied for a VRO instead of an MRO and failing to order that she bear the costs of that wrongful claim;
10. by imposing an MRO against him in circumstances in which he had no prior knowledge and no opportunity to defend;
11. by hearing evidence from Ms Bain and from Debra Anne Pearce, from him and his wife as to suffering by him by reason of the respondent's unlawful acts.
11 The hearing before the learned magistrate began with opening speeches from both Mr Garvey and counsel for Ms Bain. Mr Garvey told the court of his medical problems. The magistrate indicated that he was aware of Mr Garvey's medical conditions.
12 Ms Bain, having the carriage of the matter, called evidence first. She said that she had been running a business called 'Muzz Buzz' on Great Northern Highway at Bullsbrook since November 2007. The principal object of the business was to provide a drive-in coffee service to motorists. The main entrance to the building comprising the commercial premises occupied by her was a doorway, the outside door being a steel frame and mesh security screen door and the internal door being timber with a key-operated deadlock. The building is served by driveways enabling motorists and pedestrians to come to servery windows for service. Those windows are equipped with roller shutters for security when the premises are unattended. The building is equipped with surveillance cameras for security purposes. In April 2014 the business employed ten staff members, being a manager and nine casual employees.
13 In the course of her evidence it became clear there were then current proceedings in other courts or jurisdictions as between Ms Bain and Mr Garvey, being proceedings in the Joondalup Magistrates Court commenced by Mr Garvey seeking vacant possession of the premises occupied by Ms Bain and proceedings in the State Administrative Tribunal commenced by Ms Bain against Mr Garvey seeking declarations or similar relief to the effect that she was not, as alleged by Mr Garvey, in breach of her lease or tenancy agreement. The former was, and still is, listed for hearing in that court on 27 and 28 January 2015. The latter was, as at 8 August 2014, still in process and subject to mediation.
14 Just before 5.00 pm on 14 April 2014 Ms Bain received a telephone call from her employee, Ms Pearce, who had been, on that day working alone at the Muzz Buzz store. That call caused Ms Bain to telephone police to make a report and to travel immediately to the store; arriving there just after 6.00 pm. Police were already in attendance. Mr Garvey was at the premises but, though she saw him, she did not speak to him. She observed damage to the security screen door.
15 In consequence of what she saw and what she was told about what had happened in the hours prior to her arrival Ms Bain applied for and was granted an interim VRO on the following day.
16 Mr Garvey was afforded the opportunity of cross-examining Ms Bain. He did so, canvassing the history of the tenancy and matters pertinent to it. The learned magistrate, on more than one occasion, attempted to confine questioning to matters relevant to whether or not the restraining order should stand. In doing so he enquired of Mr Garvey as to whether he had ever read the Act. He replied that he had not.
17 Debra Anne Pearce gave evidence to the effect that she was on duty at the Muzz Buzz store on 14 April 2014 working a shift from 2.00 pm to 6.00 pm. She said that, on that day she saw Mr Garvey at the premises at about 5.00 pm. He was knocking on the back door and asking to be let in. She was alone in the store. She opened the wooden door but not the security screen door. Mr Garvey, she said, told her that he wanted her out of the store. She replied that she was not allowed to let anyone in and shut the wooden door. He walked to his utility parked nearby and took an angle grinder from it. She said:
I was in the store when I heard it start up. I then opened up the wooden door. By this stage I was in a state of panic and I was yelling at him and banging on the security door asking him to stop.
18 She was shouting to be heard over the noise of the angle grinder. She said: 'He was using the angle grinder on the actual lock and I was directly on the other side of the door, banging on it with my hand'. She telephoned the police and Ms Bain. Mr Garvey desisted with the angle grinder. Ms Pearce returned to the business of serving customers. She said that she was approached at the servery by both Mr Garvey's son and wife, both of whom asked to be let into the premises. She refused those requests. Mrs Garvey became quite agitated. It appears, on the evidence of Ms Pearce, that Mrs Garvey was attempting to gain access to the premises through the servery windows. Ms Pearce resisted those attempts by closing the roller shutters from time to time.
19 Ms Pearce said that Mr Garvey asked when she would be closing the premises. She replied that she would close at 6.00 pm. He told her that he would give her until 6.00 pm to vacate or else he would start the angle grinder again. There was, said Ms Pearce, an interval of about 25 minutes between her call to police and their arrival at the scene.
20 There was brief cross-examination by Mr Garvey.
21 Following the luncheon adjournment Mr Garvey, then his son Garrick Jeremy Garvey and his wife, Siong Pin Garvey, gave evidence. Each was subject to cross-examination. At the close of his case the learned magistrate invited Mr Garvey to make his final address. He did so. Counsel for Ms Bain made his final address.
22 At the conclusion of addresses the learned magistrate gave extempore reasons for not granting a VRO but granting, instead a MRO. He referred to s 11A of the Act which deals with when a VRO may be made. It provides that a court may make a VRO if it is satisfied that the respondent has committed an act of abuse against a person seeking to be protected and the respondent is likely again to commit such an act against that person and that making a VRO is appropriate in the circumstances. The phrase 'act of abuse' is defined by the Act to mean an act of family and domestic violence or an act of personal violence. Clearly, on the evidence before the learned magistrate, there was no act of family or domestic violence or of personal violence against Ms Bain. Quite correctly, he declined to make a VRO.
23 The learned magistrate, in considering the evidence, found both Ms Bain and Ms Pearce to be truthful witnesses. He found facts based upon their evidence. He referred to the evidence of Garrick Garvey, noting that he tended to confirm the accuracy of the account given by Ms Pearce. In particular he confirmed that when his father was refused entry by Ms Pearce he attempted to gain entry by using an angle grinder on the security screen door.
24 The learned magistrate made reference to s 34 of the Act which deals with the grounds for an MRO. It provides that the court may make an MRO if it is satisfied that:
(a) unless restrained, the respondent is likely to -
(i) behave in a manner that could reasonably be expected to be intimidating or offensive to the person seeking to be protected and that would, in fact, intimidate or offend the person seeking to be protected;
(ii) cause damage to property owned by, or in the possession of, the person seeking to be protected; or
(iii) behave in a manner that is, or is likely to lead to, a breach of the peace;
and
(b) granting an MRO is appropriate in the circumstances.
25 The learned magistrate found that that on 14 April 2014 Mr Garvey both damaged property and caused a breach of the peace. He then addressed the question of whether, unless restrained Mr Garvey was likely to behave in a manner that could reasonably be expected to be intimidating or offensive to Ms Bain and that would, in fact, intimidate or offend her, cause damage to property owned by her, or in her possession, or behave in a manner that is, or is likely to lead to, a breach of the peace.
26 In considering the probabilities in that regard the learned magistrate took into account that the parties were embroiled in proceedings over the tenancy of the Muzz Buzz premises. On the evidence there had been ill-feeling for some considerable time. There were, as at 8 August 2014 proceedings pending in two other courts or tribunals. On the one hand Mr Garvey appeared to be alleging that Ms Bain was in breach of the lease or tenancy agreement and that he was entitled to vacant possession of the premises and, on the other hand Ms Bain was contending that she was not in breach and that she was entitled to peaceably occupy those premises. Those are matters for resolution, in due course, in those other forums.
27 The context giving rise to the behaviour by Mr Garvey and others on 14 April 2014 and giving rise to the proceedings in other forums was still very much the status quo when the matter came before the learned magistrate. Quite clearly, Mr Garvey harbours grievances and a sense of injustice in his dealings with Ms Bain. In fact, both before me and before the learned magistrate, he was at pains to point out that what he did on 14 April 2014 was pursuant to his rights as a matter of law in that context of landlord and tenant. It was the persistence of that context which led the learned magistrate to conclude that, unless restrained, Mr Garvey might again behave in a similar fashion. He said:
I cannot take it any further than that but, in my view, it is necessary to restrain Mr Garvey whilst these other proceedings are still on foot but it will be in the form of a misconduct restraining order not in terms of a violence restraining order.
28 Mr Garvey was invited by the learned magistrate to be heard as to the terms of the proposed MRO. He declined to be heard in that regard.
Ground 1
29 This ground complains of a denial of natural justice by preventing Mr Garvey from adducing evidence that he was acting in accordance with his rights pursuant to a lease agreement. The Act is directed towards providing protection for people from the conduct of others, being conduct which falls into that category of conduct which might give rise to a VRO or that which might give rise to an MRO. The former category comprises acts of abusemeaning an act of family and domestic violence or an act of personal violence and the latter category comprises behaviour in a manner that could reasonably be expected to be intimidating or offensive to the person seeking to be protected and that would, in fact, intimidate or offend that person; or that causes damage to property owned by, or in the possession of, that person or behaviour in a manner that is, or is likely to lead to, a breach of the peace.
30 The learned magistrate was required by the Act to hear evidence as to the events complained of by Ms Bain and the surrounding circumstances and to determine whether Mr Garvey's conduct on the afternoon in question was such that it fell into either or both of those categories and to exercise his discretion, based on his findings, as to whether or not to grant relief to Ms Bain.
31 The learned magistrate was well aware, having heard the evidence, of the background to the events of that afternoon. He said:
There is a background and I accept the background is important for the state of mind of the parties that there is a contentious leasing of part of the property owned by Mr Garvey … and he feels he has a right to recover the property. That is now a matter to be dealt with in a civilized manner through the courts and the State Administrative Tribunal also is dealing with parts of that subset, I suppose, of that matter and that sets the background to what occurred on 14 April 2014.
32 The learned magistrate went on to find that Mr Garvey had damaged Ms Bain's property and that there had been, by reason of his conduct, a breach of the peace. Having made appropriate findings of fact her described Mr Garvey's conduct as being 'right out of order' and 'appalling behaviour'. He then determined to impose a MRO.
33 In the course of the hearing of the appeal Mr Garvey sought leave to tender the lease or tenancy agreement. I refused that application, there being no special grounds or exceptional circumstances for doing so. In my view the terms of whatever contractual arrangement existed between the parties were completely irrelevant. Mr Garvey sought to tender the document in an attempt to convince the court that what he did on the afternoon of 14 April 2014 was authorised, justified or excused by the terms of their agreement. In the context of both the hearing in the Magistrates Court and of the appeal the tender was misguided and irrelevant.
34 In summary, Mr Garvey was not denied natural justice by the learned magistrate who was well aware, by reason of the evidence that he did hear, of the background to the events of 14 April 2014. Ground 1 must fail.
Grounds 2 and 3
35 These grounds arise from the same misconception on Mr Garvey's part. Presumably they reflect his desire to demonstrate that Ms Bain had acted in breach of her lease or tenancy on previous occasions and that, in consequence, he has suffered damage or loss. Such matters are for resolution in other forums. For the same reasons pertinent to ground 1, grounds 2 and 3 must fail because the evidence sought to be adduced was quite irrelevant and because there is no question of the learned magistrate misdirecting himself as alleged.
Grounds 4 and 5
36 Ms Pearce did give evidence, without objection, of an earlier occasion when she was at work and smelt gas. She saw a gas cylinder. In cross-examination of Ms Pearce, Mr Garvey asked a question about the gas cylinder. The learned magistrate made it very clear that he made no findings of facts with respect to the gas cylinder and evidence of other activity at or near the premises prior to 14 April 2014.
37 It is very clear that the learned magistrate based his finding of fact upon the evidence of what occurred on the day in question and as to the background of the tenancy dispute. He deliberately made no findings as to alleged conduct on other occasions. To the extent Mr Garvey may have been prevented from adducing evidence as to those other events, such evidence would have been irrelevant to the issues before the learned magistrate. There is no merit in grounds 4 and 5.
Grounds 6 and 7
38 These grounds complain that the learned magistrate erred by allowing Ms Bain to adduce certain documents and by not allowing Mr Garvey to adduce certain diagrams. Exhibits 1, 2 and 5 were diagrams, plans or maps tendered into evidence by counsel for Ms Bain. There was no objection to the tender. Those documents were clearly relevant to the events of 14 April 2014. There was discussion, during the hearing before the magistrate as to whether Mr Garvey might produce and rely upon documents. Mention was made of medical reports, the lease or tenancy agreement and documents evidencing his allegation that Ms Bain owed him thousands of dollars in utility charges, such as for water consumption. Such documents were, firstly, never tendered and, secondly, were not admissible, having no relevance to the issues before the learned magistrate. Grounds 6 and 7 are dismissed.
Grounds 8 and 9
39 These grounds relate to the order for costs made against Mr Garvey. Section 69 of the Act deals with the matter of costs. It provides that subject to s 69(2) and s 69(3), a court may make such orders as to costs as it considers appropriate. Section 69(2) deals with frivolous or vexatious applications and s 69(3) provides that a court is not to order costs to be paid by an applicant if the applicant is a police officer acting in certain circumstances. Neither of those subsections have application in the matter before me. It follows that the learned magistrate had a broad discretion with respect to costs.
40 Counsel for Ms Bain, at the conclusion of the hearing in the magistrates court, made an application for costs. In particular he applied for costs pursuant to the prevailing civil scale, being a daily rate for counsel and an hourly rate for a junior solicitor in attendance. His Honour indicated that he would not allow the latter. Counsel for Ms Bain explained the basis of his application for costs of counsel's preparation and attendance at the hearing and at the two prior listings, the total being $5,049.
41 Mr Garvey submitted that he, substantially, had won the litigation because Ms Bain 'was unreasonable to start with'. The learned magistrate decided that, notwithstanding that the applicant, Ms Bain, had not succeeded in obtaining the VRO she sought; she had nevertheless been successful in that he had been persuaded on the evidence to put a MRO in place. It follows that he rejected the proposition that Ms Bain had been unreasonable. He reiterated his conclusion that Mr Garvey had acted improperly. I take into account that both before the learned magistrate and in this court, Mr Garvey has maintained his position that he was right to do what he did by reason of his entitlements as a landlord or lessor, by reason of Ms Bain's alleged breaches of the lease or tenancy and his claim that he was entitled to vacant possession. He was, he said giving effect to that entitlement. On his own admission such matters are still subject to resolution in other forums. In all of the circumstance I can discern no basis for interfering with the exercise of the learned magistrate's discretion on the issue of costs.
Ground 10 and 11
42 There is no merit in either of these grounds. It was clearly open to the learned magistrate to make a MRO. Pursuant to s 43 of the Act, at a final order hearing a court may make a final order of the type, and with the terms, the court considers appropriate. It further provides that at a final order hearing, a court may make a final VRO even if the application was for a MRO and may make a final MRO even if the application was for a VRO and even if an interim order is in force.
43 Before me Mr Garvey commented that Ms Bain had a restraining order against him and that he was acting in good faith in accordance with the lease agreement. Mr Garvey has maintained throughout that Ms Bain was in breach of that agreement and that such matters were of relevance to the issues before the learned magistrate. It is clear to me that they were not. These grounds are, similarly, without merit.
44 The appeal is dismissed. I will hear the parties as to costs.
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