Hassan v Kuzich
[2003] WASCA 256
•24 OCTOBER 2003
HASSAN -v- KUZICH [2003] WASCA 256
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 256 | |
| Case No: | SJA:1019/2003 | 22 APRIL, 14 MAY & 25 JUNE 2003 | |
| Coram: | BARKER J | 24/10/03 | |
| 26 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | GHALI HASSAN PETER JAMES KUZICH |
Catchwords: | Appeal Justices Act 1902 (WA) Violence restraining order Appeal against decision that interim violence restraining order should be made final Whether evidence "concocted" after interim violence restraining order obtained Further evidence Whether final violence restraining order should be dismissed |
Legislation: | Justices Act 1902 (WA), s 196(1)(b) Restraining Orders Act 1997 (WA), s 11, s 26(1)(a), s 33 |
Case References: | Canale v Bayens [2001] WASCA 383 Jag Demolition Pty Ltd v Partridge [2002] WASCA 272 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
PETER JAMES KUZICH
Respondent
Catchwords:
Appeal - Justices Act 1902 (WA) - Violence restraining order - Appeal against decision that interim violence restraining order should be made final - Whether evidence "concocted" after interim violence restraining order obtained - Further evidence - Whether final violence restraining order should be dismissed
Legislation:
Justices Act 1902 (WA), s 196(1)(b)
Restraining Orders Act 1997 (WA), s 11, s 26(1)(a), s 33
Result:
Appeal allowed
(Page 2)
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance on 22 April 2003;
In person 14 May & 25 June 2003
Solicitors:
Appellant : In person
Respondent : No appearance on 22 April 2003;
In person 14 May & 25 June 2003
Case(s) referred to in judgment(s):
Canale v Bayens [2001] WASCA 383
Jag Demolition Pty Ltd v Partridge [2002] WASCA 272
Case(s) also cited:
Nil
(Page 3)
- BARKER J:
Introduction
1 This is an appeal by the appellant (Mr Hassan) against the grant of a violence restraining order.
2 On 21 January 2003, Mr Cullen SM in the Local Court at Perth granted an interim violence restraining order on the application of the respondent (Mr Kuzich), after conducting a hearing in the absence of Mr Hassan, pursuant to s 26(1)(a) of the Restraining Orders Act 1997 (WA).
3 The interim order provided, amongst other things, that Mr Hassan should not enter upon 117 Westminster Street, East Victoria Park, or other premises where Mr Kuzich lives or works, or approach within 20 metres of Mr Kuzich.
4 By virtue of Div 4 of Pt 2 of the Restraining Orders Act, upon being served with an interim order, the person affected must indicate whether he or she objects to the interim order becoming final. If objection is taken, a further hearing must be held to determine whether or not a final order should be made: s 33.
5 In this case, when he was served with the interim order, Mr Hassan indicated that he objected to the interim order becoming final and a further hearing was conducted by Ms P Hogan SM in the Local Court at Perth on 11 February 2003 to decide if the order should be made final. The learned Magistrate, after hearing Mr Hassan and Mr Kuzich and receiving other evidence, determined that the interim order should be made final. Mr Hassan now appeals against the order of the learned Magistrate making the interim order final.
Grounds of appeal
6 The appeal is made under the Justices Act 1902 (WA). By order granting leave to appeal made 14 March 2003, Roberts-Smith J granted leave to appeal from the whole of the decision of the learned Magistrate on the following grounds:
(a) That the learned Magistrate erred in fact and contrary to the evidence in concluding that [Mr Hassan's] letter dated 18 January 2003 was concocted after [Mr Kuzich] had obtained an interim violence restraining order on 21 January 2003.
(Page 4)
- (b) The learned Magistrate erred in law in making findings against [Mr Hassan] on the basis he had not put his assertions in respect of them to [Mr Kuzich] in cross-examination (transcript 69) when the applicant was acting in person and English is not his first language.
(c) There was miscarriage of justice such as to constitute a reason sufficient to justify a review of the decision in that the findings and orders of the learned Magistrate were unreasonable and cannot be supported by the evidence.
The hearing of the appeal
7 The order granting leave to appeal required, amongst other things, that a copy of the application for leave to appeal, the affidavit filed in support of it and a copy of the order granting leave to appeal be served on the respondent within 14 days of the order granting leave to appeal.
8 At the hearing of the appeal on 22 April 2003, Mr Hassan appeared in person. Mr Kuzich did not appear. There was some question as to whether or not Mr Kuzich had been served as required. It appeared, though this was by way of information provided by Mr Hassan from the bar table, that the relevant papers had been delivered to the workplace of Mr Kuzich by a courier. No affidavit confirming service had been filed at the time of the hearing of the appeal. However, on the court file there appeared correspondence that included a facsimile letter dated 7 April 2003 from Mr Kuzich to Mr Truglio, the Court's Listing Co-Ordinator, concerning the suitability of the date set for the hearing, namely, 22 April 2003 at 11.30 am. Mr Kuzich had indicated that that date was not suitable to him "due to unavoidable work commitments". The facsimile corroborated what the Court was advised from the bar table by Mr Hassan to the effect that Mr Kuzich indeed had received the relevant papers.
9 The Listing Supervisor of the court, by letter dated 10 April 2003, responded to the facsimile of Mr Kuzich of 7 April advising that:
"Under all the circumstances I am unable to reschedule the hearing and as I previously indicated, it will be necessary for you to make a formal application to vacate if you wish to pursue this further.
The application is to made [sic] by Chamber Summons supported by an Affidavit. The application can be listed before a Judge in chambers and is required to be served on Mr Hassan."
(Page 5)
- The letter of the Listing Supervisor was forwarded to 117 Westminster Street, East Victoria Park, being the postal address of Mr Kuzich disclosed on his facsimile of 7 April 2003. At no time at or prior to the hearing of 22 April 2003 did Mr Kuzich make any application to vacate the hearing date.
10 In all of these circumstances, the Court considered that Mr Kuzich had been given appropriate notice of the hearing of the appeal and had received the relevant papers concerning the appeal and that the Court should proceed to hear the appeal. However, after hearing the submissions of Mr Hassan, the Court decided to relist the appeal for further hearing and caused notice of this further hearing to be given to Mr Kuzich. At the further hearings on 14 May and 25 June 2003, both Mr Hassan and Mr Kuzich appeared in person.
First ground of appeal - finding that Mr Hassan's letter dated
18 January 2003 was concocted
11 The first ground of the appeal is that the learned Magistrate in making the interim order final erred in fact and contrary to the evidence in concluding that Mr Hassan's letter dated 18 January 2003 was concocted after Mr Kuzich had obtained the interim violence restraining order on 21 January 2003. In order to understand this ground of appeal, and what significance, if any, it has for the final order made by the learned Magistrate, it is necessary to have some regard to the factual allegations, background and evidence relating to the decision appealed against.
12 Mr Hassan describes himself as a "PhD scholar". On or about 8 December 2002, he became a lodger at premises at 117 Westminster Street, East Victoria Park, owned by Mr Kuzich. Mr Kuzich had advertised in The West Australian newspaper for a lodger a few days earlier. Mr Hassan responded to that advertisement. Mr Hassan paid Mr Kuzich a rental bond and rent in advance, and the two men agreed that a tenancy agreement would be signed by them in due course. However, within a matter of weeks, the parties appear to have found it difficult to live harmoniously under the same roof. As a result of the events which then transpired between them - about which there was dispute before the learned Magistrate - Mr Kuzich obtained the interim violence restraining order and Mr Hassan was obliged by its terms to vacate his rooms. In effect, it was an interim eviction order.
13 Mr Kuzich told the learned Magistrate that, as a result of the granting of the interim violence restraining order, Mr Hassan had left the premises,
(Page 6)
- but that he wished the violence restraining order to be made final because of earlier threats made by Mr Hassan against him.
14 Mr Kuzich, an "exercise specialist" (or gym instructor), told the learned Magistrate that, after Mr Hassan took up his rooms, he became progressively hostile and abusive towards him and also to other members of his family who would visit; for example, his mother, who visited him on or about 13 and 14 January 2003. Mr Kuzich complained that, on 17 January 2003, there was an incident with a knife and that, on 19 January, he was physically assaulted by Mr Hassan. He then made a complaint to the police. On 21 January, he obtained the interim order.
15 Mr Kuzich told the learned Magistrate that, on or about 8 January, when he had come home from work a little earlier than usual and was hanging out his washing and doing a bit of sweeping in his bedroom, Mr Hassan "sort of came flying out of his room basically, yeah, abusing me, saying I was making, you know, loud sounds and … and, you know, deliberately sort of trying to upset me, which wasn't the case - yeah - and I felt very threatened and … ".
16 Mr Kuzich gave further evidence of an incident involving Mr Hassan and Mr Kuzich's mother on or about 13 and/or 14 January. He told the learned Magistrate that his mother had just moved from Queensland and stayed with him for a few days. As a result of what his mother had said to him, he had decided to ask Mr Hassan to vacate his rooms.
17 Mr Kuzich said that, on 17 January, he had come home from work at his usual time of about 9 pm, put his bag down and made himself a sandwich. Mr Hassan was chopping up some vegetables in the kitchen. He said to Mr Hassan that he had obtained legal advice that it was in order for him to ask Mr Hassan to vacate his rooms on the following weekend. He said that, on being told this, Mr Hassan had become very upset and angry, and said he was going to knock Mr Kuzich's head off if he were to try and kick him out of the house. According to Mr Kuzich, Mr Hassan became very aggressive as he spoke while "waving it [the knife] in front of me. Mr Kuzich added: "He sort of walked towards me. At this point I basically felt very threatened and just sort of bolted out the front door and called triple zero, the emergency line … ". Mr Kuzich telephoned the police, who later attended at the premises.
18 Mr Kuzich told her Worship that, at about 2.45 pm, on Sunday, 19 January 2003, he handed Mr Hassan a letter which stated that he was to
(Page 7)
- leave the premises. Mr Kuzich told the learned Magistrate that Mr Hassan:
" … read the letter in front of me and just started sort of ranting and raving and saying, you know … well, I can't exactly remember what he was saying; was getting very hostile, you know, in my face; basically pushed me … or stepped towards me and pushed me with two hands. I sort of, like, fell backwards and I felt, you know, really threatened at this time and I sort of just turned. I thought I'm, you know, getting … getting the hell out of here. So I just bolted into my room, and he was outside. I sort of leant up against the door. I thought, oh … you know, I thought he was going to come in, and he was sort of yelling abuse and … and ranting and raving outside my room. Basically, as soon as I had an opportunity to … I basically went straight out the front, down to the pay phone and … made a call to the police in regards to the matter. I then basically went … from there I went over to my sister's house after that."
20 On 21 January, prior to the hearing before Mr Cullen SM, Mr Kuzich said he returned to his house in order to shower and dress for the court hearing. He said that, when he did this and was having his shower, Mr Hassan began banging on the shower door and calling out, "Get out. Get out. I want a shower. I want it … I want it now. I have to go to work". According to Mr Kuzich, Mr Hassan had a towel around him and was running in and out of the house. Mr Kuzich said that he then overheard Mr Hassan speaking on the pay phone and say, "No, no, no, no, not now, not now. We'll do that. We'll fix him up when … when I leave." Mr Kuzich said, "He was talking about me being in the bathroom" and that he had heard Mr Hassan say, "He won't let me in the bathroom. You know, I need to go to work." As a result of that, Mr Kuzich believed that conversation referred to him.
21 So far as the tenancy arrangements were concerned, Mr Kuzich told the learned Magistrate that he and Mr Hassan had initially made a verbal agreement and that each could give the other two weeks' notice of termination. Mr Kuzich said that Mr Hassan told him on 17 January that he had contacted the Department of Consumer and Employment
(Page 8)
- Protection and had been advised to the effect that he had the right to stay for 60 days.
22 Mr Kuzich said that, on 19 January, he had asked Mr Hassan to sign the letter he presented. The letter was received into evidence.
23 Mr Kuzich was then cross-examined by Mr Hassan. Mr Hassan, at the direction of the learned Magistrate, attempted to frame a number of questions that challenged Mr Kuzich's evidence that he (Mr Hassan) had threatened Mr Kuzich with a knife on or about 17 January. Mr Kuzich responded by saying: "I didn't say that you came at me with the knife. I didn't say that at all. What I said was, was you were cutting vegetables and we were having this conversation." The substance of the propositions Mr Hassan put to Mr Kuzich was that the incident did not happen at all, because at 9 pm or later Mr Hassan had already eaten and would not have been chopping vegetables. Mr Hassan put it to Mr Kuzich that they had not had a conversation on 17 January, but did have a conversation on the 15th and then on the 19th. Mr Kuzich responded by saying that he had got away earlier than 9 pm on that particular night and reiterated his evidence that Mr Hassan was cutting vegetables up at the time and was waving a knife, and they did have a conversation to the effect he had previously recounted.
24 One only has to read the transcript of the proceedings before her Worship to appreciate that the proceedings were not conducted according to usual procedures. Neither of the parties was legally represented. Neither displayed any prior knowledge of usual court procedures or the rules of evidence. The learned Magistrate did her best, at particular times, to assist the parties to formulate questions the answers to which might be of assistance to her in determining the application before her. She also recognised that Mr Hassan was not familiar with the legal system of this State and country. For example, she responded (at transcript 19) to a suggestion by Mr Hassan that he should, rather than cross-examine, give his evidence, to which she replied:
"But we are following the procedure here. I know it's difficult for anyone. Whether you're from another legal system or not, it's difficult for every person that comes in this room without a lawyer to understand the process. But it's an important part of the process that each witness be questioned by the other party in terms of what it is that's actually in dispute."
(Page 9)
- Her Worship explained that this was to permit the Magistrate to "watch both people and … because I'm the one at the end of the day that's got to make a decision as to who's telling the truth about all this … ".
25 The Magistrate then suggested to Mr Hassan that he should ask questions about the alleged incident of 8 January, to which Mr Hassan replied that he could not really recall that. She then prompted him about the alleged incident of 17 January.
26 Mr Hassan then made the point that he had never seen the letter that Mr Kuzich produced in evidence and which he (Mr Kuzich) had said had been put to Mr Hassan on 19 January with a request that he sign it. Mr Kuzich reiterated his earlier evidence that he did hand the letter to Mr Hassan at approximately 2.45 pm on that day - a Sunday - and that Mr Hassan had read the letter in front of him, and had said something to the effect of "You're a effing arsehole and I'm going to 'sort of,' 'knock your head off'." He reiterated that Mr Hassan stepped towards him and pushed him and he fell backwards and went into his room. He repeated that Mr Hassan banged on his door and that he (Mr Kuzich) eventually telephoned the police.
27 Mr Hassan challenged this evidence of Mr Kuzich on the basis that Mr Kuzich was a gymnasium instructor and that he, Mr Hassan, a much smaller man, could not successfully have pushed him and could not have pushed him so that he fell. Mr Hassan then suggested to Mr Kuzich that what had happened was that, at about 4 pm, Mr Kuzich had knocked on his door and he had said "I'd like you to … to sign this letter", to which he had answered that he did not want to deal with him. Mr Kuzich denied having been into the room of Mr Hassan and the account of events given by Mr Hassan. Mr Hassan further suggested to Mr Kuzich that Mr Kuzich had threatened him with the letter and had said, "If you don't take the letter" he would put his "stuff" outside the house. Mr Kuzich denied that had been said.
28 The learned Magistrate eventually asked Mr Hassan whether he had any further questions by way of cross-examination of Mr Kuzich, to which he replied, "Not at the moment … ".
29 Further evidence was given to the learned Magistrate by Constable Belinda Jose. She said that, on 22 January at about 8.20 pm, she served the interim violence restraining order on Mr Hassan at the premises. She says that she explained to Mr Hassan that, by reason of the terms of the order, he would need to vacate the premises. She said that Mr Hassan was not comfortable with leaving his personal property in the
(Page 10)
- house and the police agreed that he could pack up all of his belongings in his room and they would assist him in conveying the property to a place where he wanted to leave it. She says that, during the service of the restraining order, Mr Hassan was very aggressive in his nature and his behaviour, and was constantly abusive to both the police and Mr Kuzich, and that he was warned a couple of times. Constable Jose told the learned Magistrate that, when serving such orders, respondents' emotions are often quite high and they are defensive. She considered Mr Hassan to be more aggressive than persons usually are when receiving such orders. She said that Mr Hassan had said that the restraining order was being served simply because his skin was dark in colour.
30 Constable Jose was cross-examined, in a manner of speaking, by Mr Hassan. Mr Hassan suggested to Constable Jose that he was originally pressured by her during a telephone call to attend at the Kensington Police Station to be served and that if he did not attend, he would be arrested the next morning. Constable Jose denied that she had said that.
31 Constable Jose also initially denied a suggestion by Mr Hassan that five police officers attended at the house to serve the interim order and said that there were only three police officers. However, the constable later agreed that three police officers initially attended, and later two others attended to convey his personal property to the police van.
32 In re-examination by Mr Kuzich, Constable Jose said that she witnessed Mr Kuzich trying to give Mr Hassan his bond money back and Mr Hassan refusing to accept the bond money.
33 Mr Hassan then gave evidence to the learned Magistrate. When Mr Hassan was asked to give his residential address, he was reluctant to do so because he did not want Mr Kuzich to have the address. When pressed by the learned Magistrate to provide his current address, the transcript shows he asked her: "Do you mind, your Honour, so … do you mind to adjourn the session to a different date?" This question seems to have passed unheard or unremarked by the learned Magistrate, as she continued to press Mr Hassan to write his address down for her.
34 Mr Hassan then proceeded to tell her his story. He said that, on 4 December 2002, he responded to the advertisement in the newspaper because as a student he was looking for shared accommodation. He moved in on Sunday, 8 December. He agreed to pay two weeks' rental bond and two weeks' rent, and says that it was agreed that a tenancy agreement would be signed in due course. He said it was agreed that two
(Page 11)
- weeks' notice could be given by the other to terminate the agreement. He paid $340 to Mr Kuzich.
35 Mr Hassan explained to the learned Magistrate that, because Mr Kuzich was a gym instructor, he tended to come in late of an evening, around 9 pm or 10 pm. Mr Hassan said that he (Mr Hassan) went to the university of a morning and usually came home in the afternoon when Mr Kuzich was not at home. Mr Hassan said that it was very rare for him to see Mr Kuzich.
36 Mr Hassan told the learned Magistrate that, at some time after Christmas, Mr Kuzich's mother stayed at the house. She had a dog with her. He says that he didn't expect that he would have to live in the house with a dog. He says that Mr Kuzich's mother said to him: "Well, you can come in. If you don't like it, just move yourself off and go away." After this exchange, Mr Hassan says that Mr Kuzich telephoned him later that night and asked about the exchange with his mother and said that she was entitled to be in the house. Mr Hassan says he replied by saying, "That's fine, but I didn't know. I mean, I don't live with you; share accommodation for, you know, one person."
37 Mr Hassan says that the next night, 15 January, Mr Kuzich came home a little earlier and advised Mr Hassan that he wanted him to move out the following Sunday, to which he had replied, "No. Look, if I find a place I will move out. If I don't find a place … I have to find a place to move out. You know I don't know anybody in Perth, and, you know, I … ". He said Mr Kuzich replied, "No, I don't want you to stay here. I don't like it," to which he said, "I'm sorry about all this, you know, taking stuff from next door and things like this, and your mum, but I will move out." Mr Hassan then alleged that Mr Kuzich went to his room and "pulled a baseball bat in his room" and said, "If you don't move out, I'd … I basically … I wrote it here exactly: 'I will send your body to the hospital if you don't move out by this Sunday'." In giving this evidence, it appears that Mr Hassan refreshed his memory from a note. Mr Hassan says that, as a result of this threat, he went to the phone box and called the Cannington Police Station and explained the situation to them.
38 Mr Hassan says that at 9 am the next day - 16 January 2003 - he went to the Department of Consumer and Employment Protection and filed an "application" with a lady, whose name was Claire, and a man, whose name was Ben O'Rourke. He told the Magistrate he was advised (by one or other of these officers of the department) not to move out of the house. At this point, the learned Magistrate told Mr Hassan, in effect, that she
(Page 12)
- could not entertain hearsay evidence and did not want to hear what other people may have told him.
39 Mr Hassan then told the learned Magistrate that, on the following weekend Mr Kuzich disconnected the stove in the kitchen, so that he could not cook any more. He then told the learned Magistrate that, on the Sunday (that is, 19 January), at about 3.30, he entered his room to find that his personal property had been packed. He said that, at about 4 pm, Mr Kuzich knocked on the door and the following exchange took place:
"He said, 'Ghali, I'd like you to sign this letter'. I said, 'I have no letter to sign. There's nothing to sign.' He said, "Your stuff will be put on the street today if you don't move out.' I said, 'Well you can do anything you want'. He knocked on the door. I said 'Don't open it'. The door was sort of fixed. I locked it from behind. I sort of became worried that if I … I actually had to go that Sunday a bit out, and I felt worried that he might actually go and do things, that is, put my stuff outside. So when I've heard the house go quiet I think he left. I went to the phone box and called the police, and spoke to Constable Stuart, and explained to him the situation."
40 Mr Hassan told the learned Magistrate that on Monday, 20 January, he consulted a lawyer about taking a restraining order against his "stuff". Mr Hassan said that, by the time he got home that evening, the police were there to evict him.
41 Mr Hassan said that he attempted to obtain a restraining order - an interim violence restraining order, it seems. The learned Magistrate pointed out to him there was no record on the Court's system of him having made such an application. He insisted that there must be a record "downstairs, your Honour".
42 Mr Hassan says that he stayed in his room while five or six police officers packed his personal property. He said he asked about his bond and there was some money on the table. He gave further evidence about the removal of his property from the house.
43 The learned Magistrate asked whether there was anything else Mr Hassan wished to bring to her attention, to which Mr Hassan replied that there was not.
44 Following an adjournment for lunch, the learned Magistrate produced and showed the parties a number of documents that the judicial
(Page 13)
- support officer had located during the adjournment and brought them to the attention of the parties. Among these documents was an application that Mr Hassan had apparently made for a violence restraining order. Another document was identified by Mr Hassan as "the same document that Mr Kuzich had left on his kitchen table". Another document was described by Mr Kuzich as a document that he had received after the restraining order had been made and another that he said he received on 22 January. In respect of a document dated 18 January 2003, Mr Hassan told the Magistrate that "Mr Kuzich received that on 18 January". Some other documents were also identified. The learned Magistrate then told Mr Hassan that he had not asked Mr Kuzich anything about any of these particular documents when he was questioning him, to which Mr Hassan replied, "He got the documents, your Honour I'm not … ". The learned Magistrate advised Mr Hassan in the following terms:
"No. Well, at the beginning I explained to you that anything that you are wishing to assert in your case, before you get in the witness box you need to have given the witness the opportunity to talk about them. Okay? Now, you've handed these up, but you didn't ask him about them while he was in the witness box, which makes it difficult."
Mr Hassan observed that the documents merely substantiated what he had said and there was nothing different in the documents from what he had said.
45 The learned Magistrate then observed that Mr Hassan had not directly questioned Mr Kuzich concerning his allegation that, on 18 January, he had given him a letter of that date. The learned Magistrate observed: "Okay. Well, I'll have to get you to give more evidence, Mr Kuzich. This hasn't been done properly." Her Worship then received into evidence a number of documents as follows: letter written by Mr Hassan dated 18 January 2003 (exhibit 2); Form 20A notice concerning Mr Hassan dated 17 January 2003 (exhibit 3); advertisement dated 7 December 2002 produced by Mr Hassan (exhibit 4); advertisement dated 18 January 2003 produced by Mr Hassan (exhibit 5); letter from Mr Hassan to Mr Kuzich dated 22 January 2003 (exhibit 6); bundle of receipts held by Mr Hassan (exhibit 7).
46 Exhibit 2, the letter from Mr Hassan dated 18 January 2003, was a letter addressed to Mr Kuzich concerning the "Tenancy Agreement". It is typewritten in the following terms:
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- "Based on our verbal agreement of 05th December 2002, at the time I paid my rent and bond to share the above premises with you, you agreed to provide me with tenancy agreement and to provide me in writing regarding my tenancy. I am confident that you have breached our agreement when you informed me on 15th January 2003 to vacate the premises by Sunday 19th January 2003. This occurred because I objected to the unannounced presence of your mother and her dog in the house, and your unacceptable actions to take large quantity of building materials from the nearby building site.
I am taking your threat seriously, when on Friday night you threatened me with a baseball bat. You aggressively said: 'I will send your body to Hospital if you do not move out by this Sunday'. I have received legal advice regarding my rights and obligations. I paid you bond ($170) and rent ($170 fortnightly) accordingly, and I will vacate the premises as soon as I will find suitable accommodation, and as soon as you will return my money.
I am also concerned that you keep going into my room uninvited, you have disconnected the cooking stove, and you deliberately making loud and unbearable noise to disrupt me from my study. I wish you stopped this interference in my comfort and privacy."
- At the foot of the letter the following typewritten words appear:
"Cc Department of Consumers & Employment Protection
Perth Magistrate Court."
(Page 15)
48 Mr Hassan was then cross-examined by Mr Kuzich. Mr Hassan denied that his evidence about Mr Kuzich's threatening behaviour with a baseball bat on Wednesday, 15 January, was a falsity. Mr Hassan said that he telephoned the police following that incident. He also says that, the very next day, he went to the Department of Consumer Affairs and spoke to Mr O'Rourke, who gave him advice concerning his entitlements as a tenant.
49 Mr Hassan confirmed that he went to the court to obtain a restraining order against Mr Kuzich after Mr Kuzich threatened him on the Sunday that he would put his personal property outside the house. Mr Hassan also stated his belief that stolen goods were kept by Mr Kuzich underneath the house.
50 As to the letter dated 18 January 2003 (exhibit 2), Mr Kuzich put it to Mr Hassan that Mr Hassan could not have given him the letter on the day it is dated (Mr Kuzich referred to the 17th at transcript 53) on the basis, as I understand it, that the letter stated "that you have breached our agreement", when that did not happen until later. Mr Kuzich put it to Mr Hassan that he (Mr Kuzich) only received that letter after the interim order was served, together with another letter in which it was stated that he had breached the agreement. In short, Mr Kuzich said that he only received the letter dated 18 January after Mr Hassan had already left the premises.
51 In light of the additional evidence, including the reception into evidence of the various documents, the learned Magistrate provided Mr Kuzich with the opportunity to give further evidence. Mr Kuzich confirmed his comments in cross-examination that the letter of 18 January 2003 was received after Mr Hassan had vacated the premises. He was confirmed in that view because of the terms of the letter that he says states "obviously you have breached the agreement by evicting me". It might be noted, however, that the letter of 18 January (exhibit 2) does not expressly state that, but makes reference to Mr Kuzich informing Mr Hassan on 15 January "to vacate the premises by Sunday 19 January 2003".
52 However, it soon became evident to the learned Magistrate that Mr Kuzich was referring to a different document when he gave evidence concerning this matter. Mr Kuzich not only had his own copy of the letter of 18 January 2003 (which had earlier gone into evidence through Mr Hassan as exhibit 2), but also had a copy of exhibit 3, a "Notice of Breach of Agreement" signed by Mr Hassan and dated 17 January 2003, being a Form 20A of the Residential Tenancies Act 1987. This Notice of
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- Breach of Agreement document had also gone into evidence through Mr Hassan and had become exhibit 3. However, Mr Kuzich's evidence was that he received the letter dated 18 January and the Notice of Breach of Agreement as one document stapled together. At least, he had copies of those two documents in his possession in the witness box and they were stapled together. It soon became apparent that the original of the Notice of Breach of Agreement which he held contained only three matters said to comprise the breach of agreement. Exhibit 3, however, contained four such matters, the fourth being: "locked me out of the shower and toilet". That fourth point had obviously been added at some stage. Mr Kuzich told the learned Magistrate that he received his copy of the Notice of Breach of Agreement with the letter dated 18 January 2003 attached to it after Mr Hassan had vacated the premises.
53 In further cross-examination of Mr Kuzich by Mr Hassan, it was put to Mr Kuzich that all of the papers that he had produced and that had gone into evidence as exhibits 1-7, except the extract from the newspaper, were received by Mr Kuzich on the dates shown on them and that they were sitting on the table in the house. Mr Hassan suggested to Mr Kuzich that the documents were sitting there for over a week and that he read them several times. Mr Kuzich admitted receiving one document by mail, or at least finding it in his mail box. The following exchange then took place (at transcript 60-61):
"MR HASSAN: You received them before the police arrived. You received them several days before the police there?---Okay. So I received them and left them - -
You had the documents. You had been reading them for one week?---I received them and just left them on the table there, did I?
Can you tell me who sent you the documents the other documents?---I assumed you, because it's signed your - - your name's signed on it.
MR HASSAN: I sent you the document?---Yes. That's the document. Bar the fourth point, that's the document that I have.
I'm sorry. You're not telling - - you haven't told the truth to this court and you swear in this courthouse?---Okay.
You never - -
(Page 17)
- HER WORSHIP: Okay. Any other questions about this?
MR HASSAN: I can verify this document that he received them by the Department of Consumer Affairs. They know them. They received them and they told me themselves to give it to him.
HER WORSHIP: Okay. Have you got any other questions you want to ask the witness?
MR HASSAN: No. That's all."
54 The learned Magistrate then took into evidence Mr Kuzich's copy of the letter of 18 January 2003 and his copy of the Form 20A Residential Tenancies Act 1987 Notice of Breach of Agreement dated 17 January 2003 that were apparently stapled together, and together they became exhibit 8.
55 The case of each of these parties was then closed before the learned Magistrate and each party was invited to sum up their position. In short, Mr Hassan complained that Mr Kuzich, by taking out the violence restraining order, was seeking to bypass the Residential Tenancies Act and the provision it makes for termination of a tenancy, and that there was no proper basis for making the interim order final.
56 Mr Kuzich submitted that, even though Mr Hassan was no longer living with him, he was still worried about his safety on the basis of what he had heard Mr Hassan say "in regards to coming back and, you know, fixing me up when he's left the premises". He added, "I'm worried about my own safety, because I do live alone, and, yes, I'm worried that, you know, if someone sort of comes at night when I'm alone, then I can't really protect myself. Yes, that's basically all I can say - want to say."
57 The learned Magistrate then delivered her reasons for making the interim order final. She noted the advertisement in The West Australian on 7 December 2002, advertising a furnished room for $85 per week. She noted there was no dispute between the parties that they reached an agreement that Mr Hassan should pay a bond of $170 and rent of $85 a week, two weeks in advance, and that he had made that payment. She also noted that there seemed to be agreement that the arrangement could be terminated on two weeks' notice.
58 She then noted that Mr Kuzich's evidence was that the respondent became progressively hostile and abusive once he had moved into the
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- home. She referred to the evidence of Mr Kuzich that, on 8 January, Mr Hassan had complained about the noise that Mr Kuzich was making while housekeeping. She also noted that in the Form 20A Notice of Breach of Agreement, a document dated 17 January 2003, Mr Hassan did complain about loud noise. She surmised that noise was a factor in the breakdown of the residential arrangements.
59 Her Worship accepted that, at some point, Mr Kuzich had disconnected the stove, and again seems to have accepted that this led to a deterioration in the residential relationship.
60 The learned Magistrate then referred to the incident of Tuesday, 14 January, involving Mr Kuzich's mother and her dog, noting that Mr Kuzich was unable to produce any admissible evidence and that Mr Hassan described the incident as one where he was confronted with an unknown woman and a dog at the front door. She accepted that this had also affected the residential relationship.
61 Her Worship noted that Mr Hassan said that Mr Kuzich, on 15 January, asked him to move out by the following Sunday. She did not think there was any real dispute about that. However, she noted there was dispute as to whether or not Mr Kuzich had acted in a threatening manner with a baseball bat, saying that he would send the body of Mr Hassan to hospital if he did not move out. The learned Magistrate did not accept that that threat was made. She ruled in these terms:
"I don't accept that that threat was made by the applicant towards the respondent. There had been no cross examination on that issue when the applicant first gave evidence and after I had explained to the respondent his obligations as to putting certain matters to the applicant.
It's also an allegation that's contained in the letter dated 18 January 2003 and I'll come back to that letter a little later in these reasons … "
62 The learned Magistrate accepted that, on 16 January, Mr Hassan had sought advice from the Department of Consumer and Employment Protection and that, on 17 January, he had completed the Form 20A Notice of Breach of Agreement, which form was presumably supplied to him by the department.
63 Following that, the learned Magistrate accepted that there was an incident as described by Mr Kuzich whereby he came home at about 9 pm
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- after finishing work, when Mr Hassan was chopping vegetables and became angry towards him while he was holding a knife and waving it around, which caused Mr Kuzich to bolt from the house and telephone the police. The learned Magistrate ruled:
"Now, when I look at that that incident was hotly contested between the parties but in observing the parties give their evidence I must say that the applicant's evidence did have a ring of truth about it in the way he spoke of leaving the house, ringing, explaining why he rang and how he felt and I do prefer his version of that particular incident."
65 The learned Magistrate seems to have accepted that, following that incident, Mr Kuzich disconnected the stove over the weekend.
66 The next incident was on 19 January. The learned Magistrate observed that "the applicant tendered into evidence a letter that he wrote on the 19th and intended and attempted to give to the respondent on that day. It was basically a letter asking him to leave setting out some of the complaints." She accepted that Mr Kuzich did prepare such a letter, even though Mr Hassan did not initially appear to accept that such an event occurred. She noted that Mr Hassan did acknowledge that Mr Kuzich asked him to sign a letter at some point.
67 The learned Magistrate accepted that, on 19 January, cross words were expressed by Mr Hassan towards Mr Kuzich, as a result of which Mr Kuzich "bolted" into his room and later telephoned the police in relation to the incident. She found that there was "no reason for the respondent (Mr Hassan) to overreact in the manner that he did". She found that he was verbally abusive and that he pushed the applicant on this occasion.
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68 The learned Magistrate said that her findings in that respect where "fortified by the behaviour observed by the police when on 22 January they served the notice [that is, the interim order]". I should say in passing that, in my view, it is unfair for the conduct of Mr Hassan when faced with an effective eviction from his rooms on 22 January, at the time the police served the interim violence restraining order on him, to be treated as confirmation of his earlier behaviour on or about 19 or 20 January towards Mr Kuzich. I do not consider that such evidence can be used as similar fact evidence.
69 The next incident was on 21 January, when Mr Kuzich says that, while he was in the shower, Mr Hassan was carrying on and yelling out abuse. Mr Kuzich then says that he overheard a conversation on the telephone - that is, overheard what Mr Hassan was saying. Her Worship noted that Mr Kuzich recalled that Mr Hassan had actually said "No, no, no. Not now. We'll fix him up when I leave". The learned Magistrate accepted the applicant's evidence that he did hear the respondent say those things on that day and that the respondent had behaved in the manner the applicant described in relation to abusing him when he was in the shower and banging on the door.
70 The learned Magistrate also accepted the evidence given by Constable Jose concerning the attitude and behaviour of Mr Hassan when she served the restraining order on 22 January. She accepted that Mr Hassan was "very aggressive" and that his behaviour was "out of the ordinary" compared with the way people often behave when restraining orders are served. Again, in my view, this qualitative evidence of how various people act or react when served with a violence restraining order, is not a proper basis upon which to measure the significance of Mr Hassan's conduct on this particular day. Nothing in the evidence of Constable Jose suggested that there was any particular threat of violence made by Mr Hassan on this occasion. The only evidence she gave - and relied upon by the learned Magistrate - was: "There was a lot of aggression from the respondent towards both the police and the applicant".
71 The learned Magistrate appears to have placed great store on the fact that Constable Jose considered Mr Hassan's behaviour to be "unusually excessive and aggressive" while the police were at the house serving the interim order. Of course, it must be recalled that Mr Hassan had just been advised of a restraining order that had been taken out against him without notice to him, which was then being executed, and which was intended to have the result that he would find himself immediately homeless.
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72 The learned Magistrate then turned to the question of the letter of 18 January. She noted that there was a dispute about when Mr Kuzich received that letter. Her Worship found:
"First of all again, despite my explanation to the respondent as to his obligations when questioning the applicant, the letter of 18th January wasn't put to the applicant when he was giving his evidence. Indeed, he had to be recalled to give evidence about it.
His evidence was that he was not given this letter on 18th January. He did not see it until it was left in his letterbox after the restraining order had been granted. Now, this allegation regarding the baseball bat incident was contained in that letter, supposedly given to the applicant on the 18th along with the notice dated 17th January.
It was tendered via the respondent at his request along with his evidence with these papers; that is, the letter and the form 20A agreement were handed to the applicant on the date of the letter, 18th January. When one looks at point 4 on this notice, 'Locked me out of the shower and toilet' that is clearly a reference to the incident on 22nd January 2003.
To my mind - and I so find - this letter and its allegations, and particularly that allegation regarding the baseball bat, was concocted after the applicant obtained the restraining order against the respondent."
73 The learned Magistrate then (following an attempt by Mr Hassan to say something further in the light of this finding) confirmed the restraining order. The learned Magistrate noted that, by s 11 of the Restraining Orders Act, the Court may make an order:
" … if it is satisfied that unless restrained the respondent is likely to commit a violent personal offence against the applicant or behave in a manner that could reasonably be expected to cause the applicant to fear that the respondent will commit such an offence and granting a violence restraining order is appropriate in the circumstances".
74 The learned Magistrate decided that the interim order should be made final, for these reasons:
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- "When I look at that, when I look at the fact that this is such a recent incident, only some 3 weeks old, and in light of my findings that the respondent did behave in an abusive fashion on a number of occasions as set out in my findings, that he has threatened the applicant and pushed him on an occasion causing the applicant twice to have recourse to dialling the triple zero number I consider that it is appropriate to grant the order.
I can understand that a person would be upset if they were asked to vacate the premises but to my mind the lead-up to the very request to leave and the respondent's reaction to the request, particularly in light of the police evidence which I've accepted, are matters that do warrant the making of the order."
75 In my opinion, the learned Magistrate was not entitled to use the police evidence to which she referred in the manner that she did. Constable Jose's evidence suggested that Mr Hassan was unusually aggressive, in her experience, for a person being served with a violence restraining order. However, as I have already observed, in circumstances where a person is effectively being made homeless upon the execution of that order, their aggressive conduct might be considered not all that surprising. In any event, it seems to me unfair to rely upon that conduct and the attitude evinced by Mr Hassan at the time he was served with the interim order and summarily evicted from the premises by three police officers, to support a finding that Mr Hassan was likely to commit a violent personal offence against the applicant or behave in a manner that could reasonably be expected to cause the applicant to fear that the respondent will commit such an offence.
76 The only other evidence upon which the learned Magistrate was entitled to rely in considering the making of the final order was that concerning the knife being held by Mr Hassan at the time he was chopping the vegetables, and the other occasion when he apparently pushed Mr Kuzich. As to the knife incident, I have already observed that Mr Kuzich himself did not allege that he was threatened with the knife. I consider that the learned Magistrate has made more of that incident than she was entitled to make of it. Mr Kuzich did not consider that he was being threatened with the knife. He simply decided that, in the circumstances, he should not remain in the room. On his own evidence of this incident, Mr Kuzich's reaction in complaining to the police was disproportionate to the claimed incident. One can only infer that he was worried that something might develop. In my view, while his reaction might have been a sensible one in the circumstances, Mr Kuzich's
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- personal reaction to the incident does not provide a proper basis for a fear that he was about to be assaulted with the knife or at all.
77 Similarly, as to the evidence that Mr Hassan pushed Mr Kuzich, there was obviously not much in it. The evidence-in-chief and cross-examination of Mr Kuzich discloses that Mr Hassan pushed him. There is no evidence that Mr Kuzich fell over. He seems to have stepped backwards. He immediately "bolted" to his room. Again, there appears to have been some excitable conduct from Mr Hassan, but, all in all, it seems insufficient, on its own, to justify a finding that a violence restraining order was appropriate in the circumstances, especially some weeks after the incident when the parties were no longer sharing accommodation.
78 It also seems to have been central to the findings made by the learned Magistrate, and her decision to make the interim order final, that the letter of 18 January and its allegations, particularly the allegation concerning the baseball bat, were "concocted" after Mr Kuzich obtained the interim restraining order. Before me in this appeal, as noted above, a copy of that letter bearing the date stamp of the Department of Consumer and Employment Protection of 20 January 2003, has been produced. It was initially contained in the "Appeal Book" without particular explanation. The copies of the letter that went into evidence before the learned Magistrate as exhibit 2 and part of exhibit 8 do not bear that date stamp. After the initial hearing of this appeal, I relisted the appeal for further hearing in order to clarify the circumstances in which the "Appeal Book" came to include that document. As a result, Mr O'Rourke for the Department was subpoenaed by Mr Hassan to give evidence, which he did on 25 June 2003.
79 Mr O'Rourke confirmed that he had a number of dealings with Mr Hassan in his capacity as an officer of the Department of Consumer and Employment Protection. He confirmed that he, in all probability, personally received the letter dated 18 January 2003 from Mr Hassan on 20 January 2003 and caused it to be date-stamped on that date.
80 In circumstances such as the present, I consider it appropriate that the further evidence of Mr O'Rourke and the copy of the letter dated 18 January 2003 bearing the date-stamp of the Department (which appears as annexure "D" in the "Book of Appeal" in this appeal) should be received into evidence pursuant to s 196(1)(b) of the Justices Act 1902. I do not consider it is necessary for an appellant to establish "exceptional circumstances" before the power to admit further evidence on such an appeal should be admitted. It is only necessary that the discretion so
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- granted to the Court should be exercised judicially: Jag Demolition Pty Ltd v Partridge [2002] WASCA 272 at [6]; and Canale v Bayens [2001] WASCA 383 per Pullin J.
81 It appears to me that the copy of the letter of 18 January bearing the date stamp of the Department of Consumer and Employment Protection of 20 January 2003, is extremely material evidence that might well have caused the learned Magistrate to reconsider her initial inclination and ultimate finding that the evidence referred to therein was "concocted", as was the whole of the letter. It may have led her to form the view that the chronological account of events given by Mr Hassan, and the particular version of events given by Mr Hassan when in conflict with Mr Kuzich's account of those events, was more reliable or, at least, that Mr Kuzich's account was not fully accurate. In any event, it might have placed a quite different complexion on the nature of the disputation and tensions that had developed between Mr Hassan and Mr Kuzich. It might also have been material to the question whether or not the learned Magistrate could be satisfied that the interim violence restraining order should be made final.
82 Once the fact is accepted, as I accept it, that Mr Hassan's letter dated 18 January 2003 was received by the Department of Consumer and Employment Protection on or about 20 January 2003, that is before the interim order was granted, a different complexion comes over the whole of the evidence received by the learned Magistrate. No longer can it be said with the degree of certainty that the learned Magistrate entertained, that the letter and the allegations concerning the baseball bat were "concocted". Other possible explanations then arise as to why exhibit 3 had added to it a fourth category of complaint. The original or copy of that document held by the witness may well have had the fourth category added to it at some later point. It is instructive that the copy received by Mr Kuzich did not have the fourth category added to it.
83 In all of these circumstances, it seems to me that an unpleasant and totally unworkable tenancy relationship developed between Mr Kuzich and Mr Hassan. They were incompatible. It was best that that tenancy relationship be terminated, as it now has been. Indeed, it had been terminated at the time the learned Magistrate decided to make the interim violence restraining order a final order. Once the true nature of that relationship is unravelled, and it is accepted, in light of the fact that Mr Hassan's letter dated 18 January 2003 was received by the Department on 20 January 2003, that no finding could confidently be made against Mr Hassan that he had "concocted" any evidence after the interim violence restraining order was made on 21 January, that there had been
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- tensions between the parties as occupants of the house for some weeks, and that the behaviour of Mr Hassan upon which Mr Kuzich feared for his safety was, on any analysis, slender, the interim order should not have been made final. There was little evidence, only conjecture by Mr Kuzich upon overhearing part of a telephone conversation on the phone on 21 January, that included Mr Hassan saying, "We'll fix him up when I leave", upon which to base a final order. When one considers the context in which such words were spoken, they were probably spoken to Mr O'Rourke of the Department of Employment and Consumer Affairs and probably directed to the tenancy arrangements. In any event, they hardly provide the basis of a belief that Mr Hassan was planning a violent reprisal upon his leaving the house.
The second ground of appeal - that the learned Magistrate erred in making findings on the basis that the appellant had failed to cross-examine
84 I have referred to the substance of this ground in dealing with the first ground of appeal.
85 As I have explained, while the learned Magistrate made the point that the letter of 18 January 2003 was not put by Mr Hassan to Mr Kuzich when he cross-examined him, her Worship does not in substance appear to have held against the interests of Mr Hassan for this reason. She fairly considered all of the evidence. Indeed, she caused the parties to be recalled to give their evidence about the matters relevantly in issue.
The third ground of appeal - that there was a miscarriage of justice in that the findings of the learned Magistrate were unreasonable and cannot be supported by the evidence
86 I think that this ground, when considered together with the first ground of appeal, has substance to it.
87 The review of the evidence and the facts upon which the interim violence restraining order was made a final order lead me to consider that there would be a miscarriage of justice if the final order were left in place.
Conclusion and order
88 For the reasons I have given above in relation to the first and third grounds of appeal, I consider that the order of the learned Magistrate making final the interim violence restraining order against Mr Hassan should not have been made. Accordingly, I would uphold the appeal.
89 In those circumstances, the appropriate orders in a case such as the present should, I think, be as follows:
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- (1) The appeal be upheld;
(2) the order of Ms P Hogan SM in the Local Court at Perth on 11 February 2003 making final the interim violence restraining order made by Mr Cullen SM in the Local Court at Perth on 21 January 2003 be discharged and in lieu thereof there be an order that the applicant's application for a final order be dismissed.
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