JC v TH
[2024] WADC 58
•26 JULY 2024
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: JC -v- TH [2024] WADC 58
CORAM: BLACK DCJ
HEARD: 26 MARCH 2024
DELIVERED : 26 JULY 2024
FILE NO/S: APP 51 of 2023
BETWEEN: JC
Appellant
AND
TH
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE SCADDEN
File Number : RO/148/2023
Catchwords:
Procedural fairness - Unrepresented litigant - Lack of transparency of decision‑making - Issue estoppel in the context of Family Court proceedings
Legislation:
Criminal Procedure Act 2004 (WA)
Restraining Orders Act 1997 (WA)
Result:
Appeal allowed
Matter remitted to Magistrates Court for re-hearing
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr G M Cridland |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | Legal Aid (WA) |
Case(s) referred to in decision(s):
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Brocklehurst v Wolinski [2015] WADC 36
Butler v Bennett [2007] WADC 107
Downes v Maxwell Richard Rhys & Co Pty Ltd (in liq) [2014] VSCA 193
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49
Nugawela v American Express Australia Ltd [2016] WADC 170
Re Minister for Immigration and Multicultural Affairs
Ex Parte Lam [2003] HCA 6
Stone v Braun [2015] WASCA 103
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40
BLACK DCJ:
Overview
The appellant and the respondent married in 2010 and went on to have five children together. Ten years later the marriage had irrevocably broken down and within weeks of the separation, orders were sought from the Magistrates Court restraining the appellant from contacting his former wife (the respondent).
The appellant now seeks the cancellation of a final Family Violence Restraining Order (FVRO) that was made in the Albany Magistrates Court on 1 September 2023 in favour of his former wife. An interim order to the same effect had been in place since 24 May 2023.
The parties had by the time of the FVRO hearing endured a four‑day contested trial in the Family Court. Following that trial, Justice O'Brien delivered a written decision and made accompanying Family Court Orders (FC Orders) on 10 November 2022. These orders regulated the manner in which the former husband and wife could interact, particularly in relation to the care of their children.
The FC Orders failed to resolve the issues between the parties and between 22 and 24 May 2023 the respondent applied for and was granted on an ex-parte basis, an interim FVRO.
In August of that same year a final FVRO hearing took place. At this hearing the presiding magistrate, Magistrate Scaddan, part way through the hearing, narrowed the scope of evidence by purporting to restrict the evidence to matters alleged to have occurred after the making of the FC Orders.
This was despite the fact that the respondent's particularised case and her evidence adduced in chief, related to matters and events that took place both prior to and after the making of the FC Orders.
No adequate explanation was ever provided by the magistrate for this limitation. The limitation was applied inconsistently throughout the hearing. It was the magistrate who unilaterally determined to deal with the case on this narrow basis, despite the fact that this was a civil hearing brought by the parties.
The magistrate was ultimately satisfied that the respondent had proved that there were reasonable grounds for her to apprehend that the appellant would commit family violence against her by reason of his conduct after the FC Orders. Accordingly, a FVRO was ordered against the respondent for a period of three years.[1]
[1]Section 10D(1)(b) of the Restraining Orders Act 1997 (the RO Act).
The appellant says that this decision was contrary to fact and law, and that he was not afforded procedural fairness at the hearing. This latter complaint related predominantly to the magistrate restricting his cross‑examination and his case to events occurring after the making of the FC Orders and failing to have regard to the fact that he was unrepresented.
For the reasons that follow, this appeal is allowed on the basis that the appellant was denied procedural fairness by the magistrate.
It may have been open for the magistrate to seek to confine both parties in a way that properly addressed the applicability of the doctrine of issue estoppel to the earlier Family Court proceedings. The magistrate did not do this and the manner in which the magistrate did confine the case was unfair, especially to the appellant.
The reasons for the unfairness included that the respondent was not constrained in the same way as the appellant, the magistrate failed to have proper regard to the broader case that was being brought against the appellant, and the magistrate failed to deal with the issues of relevance and the tender of documents in a way that was transparent and procedurally fair. Further the magistrate failed to have proper regard to her obligations in relation to a self-represented litigant.
The consequence of these failings resulted in a hearing that was unfair to the appellant. It is not possible to know what difference the evidence the appellant sought to adduce would have made to the ultimate outcome of the hearing, and accordingly, it cannot be concluded that the decision was correct and should be upheld notwithstanding the procedural failures.
The appeal is therefore allowed, and the matter is remitted to the Magistrates Court for re-hearing.
The reasons for these findings are as follows.
Legal principles relevant to this appeal
A person aggrieved by a decision of a magistrate to make or refuse to make a final FVRO may appeal to the District Court.[2]
[2] The RO Act s 64.
The appeal is to be decided on the material and evidence that was before the Magistrates Court.[3]
[3] Magistrates Court (Civil Proceedings) Act2004 (WA) s 40(4)(a) (MCCP Act). See also District Court Rules 2005 (WA) r 50(1).
The appeal is by way of a rehearing.[4] As a rehearing, the appellate powers of the District Court are only exercisable if the appellant demonstrates that the decision was the result of some legal, factual or discretionary error.[5] A breach of the duty to act judicially or in accordance with the rules of procedural fairness will constitute an error of law.[6] The onus is on the appellant to demonstrate this error.
[4] Brocklehurst v Wolinski [2015] WADC 36 [14] (Derrick DCJ); Butler v Bennett [2007] WADC 107 [6] ‑ [10] (Bowden DCJ).
[5] Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23] (Gaudron, McHugh, Gummow & Hayne JJ).
[6] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 366 - 367 (Deane J).
Leave to adduce further documentary evidence on appeal
The appellant sought to adduce further documents at the appeal. He asserts that these were documents that he attempted to adduce at the hearing and was prevented from doing so by the magistrate.
The appellant is required to demonstrate exceptional circumstances as to why leave ought to be granted to do this.[7]
[7] The MCCP Act s 40(4)(b) and s 40(5).
The appellant bears a heavy onus in seeking to introduce new evidence on appeal.[8]
[8] Nugawela v American Express Australia Ltd [2016] WADC 170.
He is required to demonstrate exceptional circumstances as to why leave ought to be granted.[9]
[9] MCCP Act s 40(4)(b), s 40(5).
In light of my findings otherwise in this appeal, it is unnecessary to decide whether or not leave ought to be granted.
Legal principles in relation to restraining orders
A person such as the respondent may apply for a FVRO.[10]
[10] The RO Act s 24A(1)(a).
Family violence is defined broadly to include both violence and a threat of violence toward a family member or 'any other behaviour by the person that coerces or controls the family member or causes the member to be fearful'.[11]
[11] The RO Act s 5A(1).
An FVRO may be made on one of two bases:
(a)where the court is satisfied that the respondent has committed family violence against the person seeking to be protected and is likely to do so again; or
(b)where the person seeking to be protected can prove that they have reasonable grounds to apprehend that the respondent will commit violence against them.
Grounds of appeal
The appellant relied upon 11 grounds of appeal.
The appellant was unrepresented. The grounds were drafted in such a manner as to make it difficult to discern the precise issue being raised in each of the grounds.
Following the hearing of the appeal where some of these issues were ventilated and, to an extent clarified, it is appropriate to reframe the grounds in a way that more precisely articulates the arguments advanced.
The appeal grounds are best understood as follows:
(a)Ground 1: the magistrate erred in finding that the appellant's conduct in stopping his vehicle in the respondent's driveway constituted an act of family domestic violence and would cause an apprehension of such future conduct;
(b)Grounds 2 and 5: the magistrate erred in refusing to accept evidence from the appellant that preceded the Family Court hearing, particularly where she did accept such evidence from the respondent;
(c)Ground 3: abandoned at the appeal hearing;
(d)Grounds 4 and 7: the magistrate improperly curtailed cross‑examination and disallowed documentary evidence to be tendered by the appellant on relevant matters;
(e)Ground 6: the magistrate improperly made orders relating to matters already canvassed in the Family Court, namely relating to the recording of child handovers;
(f)Grounds 8 and 9: the magistrate failed to properly consider relevant issues namely:
(i)the fact that the FC Orders were poorly written in relation to the handover location; and
(ii)the respondent was refusing to comply with handover orders.
(g)Ground 10: the magistrate unfairly prevented the appellant from tendering the annexures to his witness statement but allowed the respondent to do so; and
(h)Ground 11: the magistrate failed to take account of the fact that the appellant did not understand the judicial process and procedures.
Law in relation to procedural fairness and a self-represented litigant
The appellant was unrepresented both in the appeal and at the restraining order hearing.
Fairness is essentially a practical concept. It is not abstract in nature. Procedural fairness is directed to avoid practical injustice and what is necessary to avoid practical injustice will depend upon the particular circumstances.[12]
[12] Re Minister for Immigration and Multicultural Affairs: Ex Parte Lam [2003] HCA 6.
While the requirement to afford procedural fairness to a litigant applies equally to a represented and an unrepresented litigant, there is a particular imperative in this respect when a party is unrepresented, especially when the other party is represented.
A litigant in person should be afforded some leniency in relation to court rules and his claims should be approached with some flexibility.[13]
[13] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10]; Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536 ‑ 543.
In a curial setting there is no absolute right to have an action heard and determined on its merits. What the rules of procedural fairness require is that each party be provided with a reasonable opportunity to be heard.[14]
[14] International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49.
In communicating with a self‑represented litigant, the court must be careful to ensure that things said by the court do not inadvertently mislead the self‑represented litigant, including by reinforcing a misapprehension, about the applicable substantive or procedural law, or about the way in which the case is to be conducted.[15]
[15] Downes v Maxwell Richard Rhys & Co Pty Ltd (in liq) [2014] VSCA 193.
As the Court of Appeal observed in Zerjavic v Chevron Australia Pty Ltd:[16]
(a)the court's obligation is to ensure a fair and just trial for all parties;
(b)a self-represented litigant is subject to the practice and procedure of the court as much as any other litigant;
(c)the court's obligation in the case of a self-represented litigant is to give sufficient information about the practice and procedure of the court to mean that there is a fair trial to both parties (the application of the principle depending on the circumstances of the case);
(d)a trial judge's duty does not extend to advising a self‑represented litigant as to how his or her rights should be exercised; and
(e)the trial judge's role in providing information to the self‑represented litigant with the object of attempting to overcome procedural disadvantages faced by not being legally trained is not a duty to formulate or conduct the case for the self-represented litigant.
The temporal restriction - after the FC Orders - unilaterally imposed by the magistrate
[16] Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40.
Grounds 2, 4, 5 and 7 relate directly or indirectly to the magistrate's treatment of matters said to have occurred prior to the making of the FC Orders on 10 November 2022.
In the event that one or more of these grounds are made out, then the appeal would succeed and it would be unnecessary to consider any of the remaining appeal grounds.
It is appropriate therefore to consider this issue first.
The magistrate in her reasons for decision stated as follows:[17]
… I have sought to limit the decision to consideration of matters that arose since the Family Court orders. I have done so mainly because the applicant alleges the respondent's behaviour since the Family Court orders is the reason why she made the application. …
[17] Appeal Book, page 134.
It is unclear why the applicant's 'reason' for making the application was a proper basis for limiting the magistrate's decision nor what part of the applicant's evidence the magistrate was referring to in the making of this statement. The magistrate did not address in her reasons the fact that she had allowed considerable evidence from the applicant that related to matters occurring prior to the making of the FC Orders.
Although the magistrate referred to the respondent's argument regarding an issue estoppel arising from the Family Court trial, this was not given as the basis for the magistrate's decision to limit the application to matters occurring after the FC Orders. Further, the magistrate expressly disagreed with the respondent's submission regarding the application of the doctrine of issue estoppel to the matters at trial before the magistrate.
The underlying issue that is common to grounds 2, 4, 5 and 7 is whether the magistrate erred in confining the appellant in the conduct of his case and the evidence he sought to adduce to matters arising since the making of the FC Orders. It is important to observe that the magistrate did not confine the respondent in the same way.
What was the case brought by the respondent (Applicant at the FVRO hearing)
The original application for a FVRO dated 22 May 2023 particularised that 'John and I were married for 10 years and during that marriage he was aggressive and controlling. He would sometimes throw items and make me feel frightened'.
The respondent's affidavit, filed in support of the application, included general references by her to the asserted past conduct of the appellant and a particularisation of three incidents. One of these incidents was alleged to have occurred over a year before the making of the FC Orders.
The respondent's witness statement, filed in advance of the hearing, was tendered by her as part of her evidence. This was supplemented with further brief oral evidence. Her evidence included an account of matters alleged to have taken place prior to the making of the FC Orders.
The appellant was required to cross‑examine the respondent through the magistrate. This was proper. Part way through his cross‑examination the appellant was abruptly prevented by the magistrate from asking any questions that 'traversed or were canvassed at the Family Court trial'. No adequate explanation for this was given to the appellant at this time, nor subsequently any explanation as to why evidence from the respondent that was contrary to this determination had been allowed to be adduced earlier in time.
The appellant was from that point prevented, for the most part, from cross‑examining and tendering documents that went to matters that 'were canvassed comprehensively by the Family Court'. It is unclear what the magistrate meant by this phrase, particularly given her unarticulated view at that time regarding the limited application of the principle of issue estoppel in relation to the earlier proceedings.[18]
[18] The learned Magistrate Scaddan's findings regarding issue estoppel only emerged for the first time in her reasons and they were contrary to the position that had been advanced by counsel for the respondent.
Late in the cross‑examination of the respondent by the appellant, counsel for the respondent raised an objection. In response, the magistrate told counsel, 'What I am going to allow is since the Family Court Orders'. This was a unilateral determination brought about by the magistrate without providing the parties an opportunity to address the issue further.
By the time the appellant came to give evidence, he was limited to adducing evidence only in relation to the matters that post-dated the FC Orders. Yet without explanation the magistrate did then accept the tender of his witness statement which addressed many matters occurring prior to the making of the FC Orders.
The magistrate further indicated at the time of the tender 'I've identified parts of your statement that represent the response to the application'. It is unclear which parts she was referring to and the purpose of doing so. Indeed, the appellant could have had no idea what parts the magistrate considered were 'unresponsive' to the application, given this was never clarified by the magistrate.
Later in the evidence of the appellant, after having tendered his statement that referred to matters occurring before and after the FC Orders, the magistrate brought the appellant's oral evidence to a halt and said, 'That was all canvassed in the Family Court. That was prior to the FC Orders'.
The capacity of the unrepresented party to understand and apply the magistrate's unilaterally determined, unexplained and inconsistently applied temporal limitation, was severely limited. The appellant's clear confusion, apparent from the transcript, as to what it was he could lead and not lead was unsurprising.
The lack of explanation and clarity regarding this moving feast of the test for relevance was made worse by the lack of any proper process being followed in relation to the tendering of exhibits by the appellant.
On a number of occasions, the appellant was prevented from tendering material that was possibly relevant without the magistrate viewing the document. Rulings as to evidence were made generally and in the abstract, and often without objection from the opposing party. The respondent accepts in his written submissions, although in the context of seeking to make an entirely different point, that 'it cannot be known by the Court or (the respondent) which emails were handed up to the Learned Trial Magistrate by the appellant'. This is quite correct but is clearly not the fault of the appellant.
The failure to look at proposed exhibits, to identify them and rule on them is a fundamental failure of the proper procedure to be adopted in a trial and contributed to the procedural failings of this hearing. It is also an approach that makes the task of a court reviewing a decision and determining the admissibility of other documents on appeal extremely difficult. It is not possible to now know which, if any, of the documents the appellant sought to adduce at the appeal were part of the documents sought to be tendered in the Magistrates Court.
At the close of the evidence, both the respondent and the appellant delivered a closing address. The appellant again raised the issue of documents he still wished to tender. The magistrate simply advised 'you are limited now to the evidence that has already been heard'. While this was technically correct, it reinforces the significance of the failure to give the appellant a proper opportunity to be heard on the tender of his documents. As the Court of Appeal has pointed out:
In some circumstances a judge ruling proposed evidence to be inadmissible may need to explain the ground on which it is inadmissible with sufficient clarity to ensure that a self-represented litigant understands it, and can consequently consider steps that might be taken to remedy the problem.[19]
[19] Stone v Braun [2015] WASCA 103 [67].
This was not done by the magistrate.
In the magistrate's reasons for decision, the decision was expressly limited to a consideration of only those matters that had arisen since the making of the FC Orders. This was not the case brought by the respondent.
Issue estoppel
It was unfortunate that the magistrate did not determine the applicability and scope of the doctrine of issue estoppel early in the hearing. Had this been done, these findings may have enabled the magistrate to limit the case, so as to avoid a re-litigation of critical facts and findings from the Family Court trial.
The purpose lying behind the legal principle of issue estoppel is the good public policy that parties to litigation should bring forward their whole case and not seek to reopen issues in subsequent court proceedings. This avoids inconsistent decision making and prevents the inefficient use of court time and resources.
At its most general, the principle operates to prevent a party asserting as against another party to the prior litigation anything to the contrary of an issue or factual finding fundamental to the prior judgment.[20]
[20] Blair v Curran; Curran v Blair; Perpetual Trustee Co (Ltd) v Blair (1939) 62 CLR 464.
The issue or factual finding in the subsequent litigation must be an issue or fact ruled upon in the prior litigation that was fundamental to the ultimate decision in that prior decision.
The magistrate made findings in relation to the applicability of issue estoppel only having already determined the case should be limited to conduct occurring after the making of the FC Orders. This was despite the respondent raising this issue at the outset of the hearing. Further, the magistrate did not find that issue estoppel applied to the extent that the respondent's counsel had submitted it did. While the magistrate at one point said that the appellant was:
… bound in relation to issues determined that cut across the family law proceedings … [a finding that was itself vague and uncertain].
The magistrate ultimately found that:
These issues were fully litigated but not to the extent that it resulted in a definitive finding about whether the respondent had engaged in family violence.
The respondent submits that 'issue estoppel prevents both parties from challenging or relitigating the necessary issues and facts finally determined by Justice O'Brien'. This does not however address the questions that are left unanswered from a reading of the transcript and the magistrate's reasons including:
(a)Why was the respondent permitted to adduce evidence relating to conduct between the parties that was alleged to have formed part of the decision of Justice O'Brien?
(b)Why did the magistrate only restrict the evidence part way through the hearing and to the disadvantage of the appellant?
(c)What did the magistrate find was covered by issue estoppel, and to what extent was this related to the magistrate's decision to limit her decision to only matters that took place after the FC Orders were made?
These questions cannot be answered either at all or with any precision having regard to the lack of explanation during the course of the hearing and a lack of clarity in her Honour's reasons.
Findings in relation to grounds 2, 4, 5 and 7
The appellant was not afforded procedural fairness in the hearing before the magistrate.
The appellant was denied a fair hearing and a proper opportunity to answer the case he was required to meet. This unfairness arose in many ways including the confusing and inconsistent way in which the magistrate addressed the issue of relevance.
The appeal in relation to grounds 2, 4, 5 and 7, to the extent they allege the appellant was denied a hearing that was procedurally fair, is allowed.
Ground eleven has considerable merit, however, it is subsumed by the more fundamental failings in relation to procedural fairness, and accordingly, it is unnecessary to finally determine this ground or the remaining grounds of appeal.
The refusal by the magistrate to allow the appellant to cross‑examine the respondent on all of her evidence, and to disallow the tender of potentially relevant materials without identification of these documents, and the uncertainty of her Honour's reasons, make any attempt to determine whether or not these matters would have impacted upon the outcome a futile one.
The appellant was denied the opportunity to properly respond to the case brought against him, and accordingly, was denied the opportunity to fully and fairly defend himself against the allegations made that at least in part formed the basis for the decision against him.
Conclusion
The appeal is allowed and the costs order made in the Magistrates Court is set aside.
As the appellant is unrepresented there shall be no order as to costs in the appeal.
The matter is to be remitted to the Magistrates Court for a re‑hearing before a different magistrate.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MS
Associate to Judge Black
25 JULY 2024
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