Kozak v Ehrhardt
[2022] WASCA 165
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KOZAK -v- EHRHARDT [2022] WASCA 165
CORAM: MURPHY JA
MITCHELL JA
HEARD: 8 DECEMBER 2022
DELIVERED : 8 DECEMBER 2022
PUBLISHED : 9 DECEMBER 2022
FILE NO/S: CACV 77 of 2022
BETWEEN: JAMES KOZAK
Appellant
AND
CATHERINE CHRISTINE EHRHARDT
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GETHING DCJ
File Number : APP 27 of 2022
Catchwords:
Appeal - Practice and procedure - Application for a stay pending determination of the appeal - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | C Breheny |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Barry Nilsson Lawyers (WA) |
Case(s) referred to in decision(s):
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168
REASONS OF THE COURT:
On 8 December 2022, we heard the appellant's application for a stay of proceedings in the Magistrates Court of Western Australia pending the determination of this appeal. At the conclusion of the hearing, we ordered that application be dismissed and that the costs of the application be reserved. We said that we would publish reasons for making those orders later. These are our reasons for making those orders.
Background
On 13 January 2022, the Magistrates Court made a misconduct restraining order (MRO) against the appellant in favour of the respondent. The MRO was for a duration of 12 months. It included a requirement that the appellant must not:
[R]efer to the [respondent] by any electronic means, including by using the internet and any social network application (such as 'facebook') to depict or refer in any offensive manner to the [respondent].
The grounds for making an MRO are provided for in s 34 of the Restraining Orders Act 1997 (WA), which relevantly states:
A 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; … and
(b)granting an MRO is appropriate in the circumstances.
The respondent's MRO application was supported by an affidavit of the respondent sworn on 15 November 2021.[1] The affidavit deposed to the appellant having published many posts containing offensive material concerning the respondent on two Facebook pages. The respondent, who is a member of a local government council, deposed to feeling offended, humiliated and intimidated, with particular reference to the publication of her address and the publication of images of firearms. She deposed to seeking an order preventing the appellant from publishing further material and approaching within 500 m of her, her immediate family and her home address. The Facebook posts referred to in the affidavit were identified as attachments to the affidavit.
[1] A copy of the affidavit, without attachments, is annexed to the appellant's affidavit sworn in the primary proceedings on 26 April 2022.
The appellant appealed to the District Court of Western Australia against the MRO. On 29 July 2022, the primary judge made orders setting aside the MRO, remitting the respondent's application for an MRO to the Magistrates Court and ordering a new trial of that application before a different magistrate.
The primary judge delivered oral reasons for making those orders. In essence, the primary judge set aside the MRO on the ground that the magistrate had failed to comply with s 44B of the Restraining Orders Act, which provides that, subject to a presently immaterial exception:
[A]t the request of a party to an application, the registrar of the court where the application was made is to provide to the person a copy of any affidavit received in evidence in relation to the application.
The primary judge found, in effect, that the appellant was not provided with procedural fairness as he was not provided with a copy of the affidavit on which the respondent sought to rely for the MRO application, to which he was entitled as of right, either prior to or at the hearing of the respondent's MRO application.[2]
[2] Primary ts 29 - 31.
In relation to the orders for a new trial, the primary judge said:[3]
Now, I do have a discretion to order a new hearing of the matter. Now, in my view it is appropriate to order a rehearing of the matter for this reason. On the evidence accepted by the magistrate and in the exhibits there is a very clear and cogent basis for the making of a misconduct restraining order against Mr Kozak.
Now, that I accept is on the basis of the evidence that was before the magistrate and that the magistrate hasn't had the benefit of any submissions or evidence Mr Kozak could adduce having had the opportunity to have a copy of the affidavit.
What that means is that it is clearly in the interests of justice for there to be a hearing on the merits of the application. Now, I accept Mr Kozak's argument that that may well be that the evidence is refined between now and then in the sense that the respondent who is now represented may with the benefit of counsel bring the evidence before the court in a manner that addresses some of the concerns set out by Mr Kozak.
However, I don't think Mr Kozak could have any quibble or take any issue with the respondent actually addressing the concerns that he has as to the quality of the evidence.
So it's going to be remitted for rehearing and I think it should in fairness be remitted for rehearing by a different magistrate. I have no doubt that the magistrate in this case will put in place programming orders for the exchange of evidence so that the issue of Mr Kozak knowing the case he has to meet is addressed probably by more comprehensive than usual programming orders.
[3] Primary ts 32 ‑ 33.
On 19 August 2022, the appellant appealed to this court against the primary judge's order remitting the respondent's MRO application to the Magistrates Court.
The appellant's case contains three grounds of appeal against the primary judge's order. The grounds are, in substance, to the effect that the primary judge erred in law by:
1.finding the magistrate did not comply with his obligations under s 44B of the Restraining Orders Act;
2.accepting that the respondent's affidavit sworn 15 November 2021 complied with s 9(3)(c) of the Oaths, Affirmations and Statutory Declarations Act 2005 (WA); and
3.concluding that there was a meritorious case to be remitted for retrial when it was open to find that the respondent's affidavit sworn 15 November 2021 did not contain the attachments referred to in it.
By application in an appeal filed on 17 October 2022, the appellant seeks a 'stay of proceedings in matter CACV 77 of 2022, to prevent a miscarriage of justice'. Although inelegantly expressed, it is apparent that the appellant seeks an order staying the remitted proceedings in the Magistrates Court pending the determination of the current appeal against the order remitting the respondent's MRO application to the Magistrates Court.
The parties have been notified of the hearing of the respondent's MRO application in the Magistrates Court on 20 February 2023.
Evidence in support of stay application
The appellant's stay application is supported by his affidavit affirmed on 12 October 2022.
The affidavit describes in some detail the appellant's unsuccessful attempts in the Magistrates Court to gain access to the attachments to the respondent's affidavit in support of the MRO application and his subsequent appeal to the District Court. The appellant deposes to what were said to be the attachments to the 15 November 2021 affidavit being handed to the court by the respondent's counsel at the hearing of the appeal to the District Court.[4] The affidavit raises a concern about whether the documents produced to the District Court were the same documents that were produced to the Magistrates Court as attachments to the respondent's affidavit sworn on 15 November 2021.
[4] See primary ts 3 - 4; appellant's affidavit sworn 12 October 2022, par 38.
Evidence in opposition to stay application
The respondent affirmed an affidavit on 3 November 2022 in opposition to the stay application. She deposes to the exhibits in the Magistrates Court being returned to her in an envelope which she placed in safekeeping until it was requested by her solicitor and collected by him on 20 July 2022. She deposes that she made no alterations to the contents of the envelope.
The respondent deposes to continuing publications of offensive images and comments in relation to her on a Facebook account of 'John Smith'. She also deposes to the basis on which she believes the appellant to be the controller of that account.
The respondent also relies on an affidavit of her solicitor, Mr Young, sworn 3 November 2022. That affidavit deposes to Mr Young collecting the envelope from the respondent on 20 July 2022, which he understood to contain the Magistrates Court exhibits, and providing the envelope to counsel who then provided it to the District Court. He also deposes that the respondent's MRO application has been listed for further hearing in the Magistrates Court on 20 February 2023.
Disposition of stay application
The principles governing the grant of a stay pending the determination of an appeal are well established.[5] Generally, primary regard is had to the questions of whether the appeal will be rendered nugatory if a stay is not granted, whether the appeal has reasonable prospects of success and where the balance of convenience lies.
[5] Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9]; Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 [22].
First, in the present case we are not satisfied that, if a stay is not granted, the appeal to this court will be rendered nugatory in a way that would justify the grant of a stay. If the appeal is ultimately allowed and the remittal order set aside after a further MRO is granted by the Magistrates Court, this court could make consequential orders setting aside the further MRO. An order setting aside a further MRO could, at least arguably, operate from the time the new MRO was granted.[6] We accept that one of the appellant's purposes in bringing the appeal, namely avoiding a further hearing in the Magistrates Court, may be defeated if a stay is not granted. However, we are not satisfied that this consequence would provide a proper basis for granting a stay in the circumstances of the present case.
[6] See, by analogy, the position as to orders setting aside orders in judicial review proceedings (Aronson M, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability (7th ed, 2022) par 15.40 and cases there cited) and criminal proceedings (see Yappo v The State of Western Australia [2021] WASCA 133 (S) [7] - [9] and cases there cited).
Second, we are not satisfied that the merits of the appellant's grounds of appeal are sufficiently strong to warrant the grant of a stay. A common order where an appellate court finds there to have been a failure to accord procedural fairness in proceedings below is to remit the matter for rehearing. None of the grounds of appeal identify any compelling reason why the primary judge erred in adopting that approach in the present case. The error contended for in ground 1 concerns the finding which led the primary judge to set aside the MRO, rather than any finding which led the judge to remit the MRO application to the Magistrates Court. Grounds 2 and 3 relate to the manner in which the attachments to the respondent's affidavit of 15 November 2021 were dealt with. That is not a matter which appears to us to be material to the question of whether there should be a retrial of the respondent's MRO application, at which time evidence will need to be tendered afresh and can be scrutinised. It does not appear to us from the material before this court that the respondent's MRO application is hopeless or doomed to fail. In the circumstances, it is difficult to see why an order remitting the MRO application, so that it can be the subject of a hearing that is procedurally fair to both the appellant and respondent, should not have been made.
Third, the balance of convenience appears to us to favour the refusal of a stay. Since the appeal to the District Court was determined, the respondent has been the subject of posts on social media which are capable of being characterised as intimidating and offensive. It is unnecessary for this court to reach any conclusion as to whether the material would justify the making of a restraining order or whether the appellant is responsible for the posts. It is not in the public interest for a person who continues to be the subject of publications of this type, from which she seeks the courts' protection, to be denied a hearing of her application for the MRO and the protection which the Restraining Orders Act provides until the appeal to this court is determined.
In his oral submissions, the appellant referred to pages of attachments to the original respondent's affidavit of 15 November 2021, which was provided to the Magistrates Court, that he contends were missing from the copy of that document handed to the District Court. He also alleges 'tampering' where blue dots have been placed on a page of one of the attachments, obscuring what he contends to be relevant information. However, these serious allegations, which are denied by the respondent, have not been tested in any judicial proceeding. Prima facie, the rehearing of the MRO application in the Magistrates Court would appear to be the most appropriate forum for the resolution of such a dispute, to any extent that its resolution is necessary to determine the outcome of the MRO application. We are not satisfied that the appellant's participation in a new hearing would be so oppressive as to make it in the interests of justice to grant a stay pending determination of the appeal.
For these reasons, we dismissed the appellant's application for a stay pending the determination of this appeal.
Costs
The respondent sought an order that the appellant pay her costs of the stay application on an indemnity basis on the ground that the application was hopeless and should never have been brought. It seemed to us appropriate to reserve the question of the costs of the application, which would be better determined in the context of a final disposition of the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Mitchell
9 DECEMBER 2022
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