Kumeroa v United Group Limited
[2014] WADC 88
•10 JUNE 2014
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: CONOMY -v- COLE [No 2] [2014] WADC 81
CORAM: BRADDOCK DCJ
HEARD: 7 MAY 2014
DELIVERED : 10 JUNE 2014
FILE NO/S: APP 9 of 2014
BETWEEN: JERROD CONOMY
Appellant
AND
STACEY COLE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE EDWARDS
File No :MH/RO 98 of 2013
Catchwords:
Appeal - Violence restraining order - Adjournment of final hearing pending criminal charge - Jurisdiction to appeal - Alleged error by magistrate in considering criminal proceedings
Legislation:
Restraining Orders Act 1997 s 64(1), s 67
Magistrates Court (Civil Proceedings) Act 2004 s 40, s 43, s 50
Result:
Dismissed
Representation:
Counsel:
Appellant: In person
Respondent: Mr M S Hovane
Solicitors:
Appellant: Not applicable
Respondent: Legal Aid WA
Case(s) referred to in judgment(s):
Kickett v Starr [2013] WADC 52
O'Grady v Northern Queensland Co Ltd [1990] HCA 16
BRADDOCK DCJ:
Introduction
This matter concerns violence restraining order proceedings in the Mandurah Magistrates Court between Mr Jerrod Conomy and Ms Stacey Cole. No final order has yet been made in those proceedings.
This matter came before me on 7 May 2014 by way of Form 6 appeal notice filed by Mr Conomy against a decision of Magistrate Edwards made 15 January 2014. That decision was to adjourn the final hearing of the violence restraining order then listed on 16 January 2014.
Chronology
12 February 2013 Ms Cole applies for a violence restraining order
13 February 2013 Ex parte interim violence restraining order granted
2 May 2013Ms Cole applies for adjournment of proceedings. Application granted. Hearing adjourned to 13 June 2013.
13 June 2013 Ms Cole applies for further adjournment of proceedings. Application granted. Matter listed for mention on 3 July 2013.
3 July 2013Proceedings listed for final hearing on 16 January 2014.
14 August 2013 Criminal charges laid against Mr Conomy by police. Allegation of breach of the interim order on 13 August 2013 and 'stalking'.
3 September 2013 Mr Conomy pleads not guilty to the criminal matters in the Magistrates Court, trial listed 19 March 2014.
6 December 2013 Criminal trial dates adjourned to 14 and 17 July 2014.
15 January 2014 Application of Ms Cole adjourning proceedings then listed for the following day in the Magistrates Court in Mandurah. Relisted set then for 31 July and 4 August 2014.
Appeals and Restraining Orders Act 1997 (ROA)
Generally, an appeal lies to the District Court from a decision of the Magistrates Court in civil proceedings pursuant to s 40(1)(a) of the Magistrates Court (Civil Proceedings) Act 2004. Section 40(4) provides that the District Court must decide the appeal on the material and evidence before the Magistrates Court; and any other evidence that it gives leave to be admitted. Section 50(5) provides that leave may only be given under s 50(4)(b), in exceptional circumstances.
Section 40(1) provides that a party to a case (that is not a minor case) may appeal to the District Court against –
(a)any order made by the Magistrates Court in the course of proceedings in the case; or
(b)the judgement of the Magistrates Court in the case.
Where an appeal lies to the District Court therefore, the court must decide on the material before the Magistrates Court, except where leave is given to adduce further material. The appeal is by way of rehearing; it is not a hearing 'de novo', as a consequence, it is necessary that error is demonstrated in the Magistrates Court: Butler v Bennett [2007] WADC 107 [11].
This is an appeal from the magistrate's decision to adjourn the final hearing in the proceedings. It did not determine any final issue between the parties. The respondent submits that these proceedings therefore do not fall within s 64(1) of the ROA and the court has no jurisdiction to hear the matter. It was submitted that the decision appealed is not 'in relation to a final order' as provided in s 64(1)(b). Mr Conomy contests this interpretation. I will return to this argument below.
Mr Conomy appealed by way of a notice of appeal filed on 31 January 2014. It contained some 11 grounds. Those grounds were amended on 3 April 2014. On 7 May 2014, I permitted Mr Conomy to include one of his original grounds which had been omitted in error from the amended grounds. Ground 3 of the original notice, which reads:
The Magistrate erred by not seriously considering the prejudice that I had raised with regards to the defence of my case and how important it was for me to have the VRO hearing first to establish the invalidity of the respondent's application as well as the frivolous and vexatious nature of it. It is important when analysing any series of events that the events be analysed in a timeline basis. Analysing a latter event before the earlier event does not make any sense and increases the chance of making an unjust decision.
The evidence
There were various affidavits before the magistrate on 15 January 2014. These included affidavits of Mr Conomy, dated 20 December 2013, 30 December 2013, 31 December 2013 and 13 January 2014. An affidavit by Ms Brinkley, Ms Cole's then solicitor dated 6 January 2014 which concerned the production of documents pursuant to a summons. Mr Conomy (in his affidavit of 30 December) set out his opposition to the adjournment sought by Ms Cole.
The matter was argued by Mr Conomy and counsel for Ms Cole, at length, on 15 January 2014.
By an application dated 31 March 2014, supported by an affidavit of the same date, Mr Conomy sought leave to adduce further evidence on appeal. On 7 May 2014, during the course of hearing from Mr Conomy, I granted leave for the transcript of the proceedings prior to the decision appealed to be received. Counsel for Ms Cole did not object, on the basis that reference might be had to transcript, if relevant. I also allowed a copy of the Mandurah court lists for 16 January 2013, both civil and criminal, to be adduced. The further matters sought to be admitted were:
(a)surveillance video footage taken from the Mandurah Courthouse on 16 January 2014;
(b)a survey of people who attended at Mandurah Courthouse on that day conducted by Mr Conomy.
I declined to permit that evidence to be adduced on the grounds that no exceptional circumstances had been demonstrated for its production.
Mr Conomy argued that the material evidenced bias on the part of the magistrate. He relied on the fact that other people attended for cases listed to be heard upon that date and had previously been summoned to do so. This circumstance does not go to show that the magistrate prejudged the application for an adjournment. Any information gathered from people who attended would, in any event, be hearsay and the materials were not probative of any issue relevant to the appeal otherwise. The cause list was admitted as a matter of record.
In addition, Mr Conomy had previously been granted leave by a registrar of this court to submit an affidavit, dated 24 February 2014, annexing details in support of expenses he had incurred in preparation for the proceedings.
Both parties filed written submissions. Subsequent to the hearing of the appeal, Mr Conomy also communicated to the court on 8 May 2014 and 21 May 2014 facsimiles. Submissions having been heard, and the decision reserved, I have not had regard to those communications.
Jurisdiction
The right to appeal is created by statute. As such, it is governed by the legislation that creates the right and also by the rules that apply to the execution of those rights. The ROA deals comprehensively with applications for the hearing of procedure for restraining orders. The ROA governs the consequences of orders and the interrelationship between other civil and criminal liability and orders made by the Family Court.
Section 67 of the ROA deals with adjournments. Section 67(1) provides:
In addition to the specific provisions of this Act regarding adjournments, a court may also grant an adjournment –
(a)at a final hearing, if the court is satisfied that an injustice would result if an adjournment were not granted; or
(b)at any other hearing if the court is satisfied that there is good reason to do so, when and for the period of time that the court considers appropriate.
Section 67 makes no specific provision for appeal by a person aggrieved by an adjournment.
Section 64(1) of the ROA provides:
A person aggrieved by the decision of the court –
(a)under section 23(1)(b) or section 29(1)(b) to dismiss an application; or
(b)in relation to a final order may appeal against that decision in accordance with this section.
Counsel for Ms Cole argued that there is no jurisdiction to hear this appeal, under s 64(1) of the ROA. Mr Conomy submitted that he has a right to appeal under s 40(1) of the Magistrates Court Civil Proceeding Act. He further argued that, under s 64(1)(b) of the ROA, the order appealed against is an order 'in relation to' a final order. He argued that the order made has a direct connection to a final order. Section 64(1)(a) has no relevance to these proceedings.
The second submission requires consideration of the words 'in relation to'. These words ordinarily denote a relationship or connection, whether direct or indirect, between the two subject matters to which the words refer, in this case the decision of the court and the final violence restraining order: O'Grady v Northern Queensland Co Ltd [1990] HCA 16. I do not consider that there is anything in the provisions of the ROA to indicate that the words 'in relation to', in s 64(1)(b), are to be given anything other than their ordinary, general accepted meaning. In Kickett v Starr [2013] WADC 52, Derrick DCJ came to the same conclusion, in different factual circumstances.
The proceedings there concerned an application by a respondent to a violence restraining order to have the order set aside. The order appealed was an order granting the respondent leave to continue her application to set that order aside.
In Kickett v Starr a final violence restraining order had been granted. The proceedings were to set aside that order. The judge concluded, rightly in my view, that the decision was therefore an application 'in relation to' a violence restraining order.
The decision under consideration in this case was made prior to the hearing and no final order had been made. A final order in this context means an order for a final violence restraining order made at a final hearing: ROA s 3. There existed only an interim ex parte order in favour of Ms Cole. No other provision in the definition of final order was suggested to be applicable. The decision to adjourn the proceedings does not determine any final right between the parties. It is a discretionary judgment.
Mr Conomy is certainly a person who could be described as being 'aggrieved' by the decision of the court, but that decision is not one that can be properly described as being 'in relation to' a final order. There was and is no such order.
Accordingly, s 64 ROA does not provide a right of appeal in these circumstances. In my view that is so, notwithstanding the general provisions of the s 40(1)(a) Magistrates Court (Civil Proceedings) Act. The specific statutory right of appeal is governed primarily by the statute creating and governing the matter at issue, the ROA. It is a limited right. This is consistent with restrictions more generally upon appeals from interlocutory decisions eg, s 60 Supreme Court Act 1935.
Notwithstanding this, I heard argument in full from Mr Conomy. Mr Conomy appeared to represent himself, as he has in earlier proceedings. He has clearly devoted much time and effort in the preparation of this appeal. However, proper analysis and understanding of Mr Conomy's grounds of appeal have been hampered by the form in which they were presented. The grounds of appeal run to some 15 pages containing 10 grounds. It is necessary to extract each ground from the argument surrounding it.
Ground 1:
The magistrate erred by allowing the appealed hearing to go ahead without Ms Cole being present.
On 7 May 2014, I struck out ground 1. It had no reasonable prospects of success: s 43(4) of the Magistrates Court (Civil Proceedings) Act. Ms Cole was represented by counsel before the magistrate: s 44(1) permits this. There was no requirement for her to be present. No evidence was taken at the hearing. Affidavits had been filed. The magistrate heard argument from counsel and Mr Conomy relevant to the application only.
Ground 2:
The magistrate erred by claiming that a ground for adjourning the final order hearing was to allow the related criminal hearing to be heard sooner in the best interest of the public.
On examining the argument at the hearing on 15 January 2014, it appears that the application was put to the magistrate on the basis that the facts relevant to the violence restraining order were relevant to the criminal charges. It was submitted that the criminal proceedings should take precedence, and that this would possibly avoid the necessity of there being two trials and spare Ms Cole giving evidence twice. Furthermore, it was submitted to the magistrate that there would be the possibility of a restraining order being made under s 63 of the ROA, if the charges were found to be proved. It was put that it was in the interests of justice that the criminal matter precede the violence restraining order final hearing. There were submissions as to the inter relationship of the evidence on for the various matters. It is to be noted that the stalking charge concerned an extended period, between 23 December 2013 and 12 August 2013. The alleged breach of the interim order was on 12 August 2013, by the sending of a text message.
In opposition to the application, Mr Conomy relied upon the costs that he had incurred, contrasting that with Ms Cole's position who was represented by Legal Aid. Mr Conomy referred to the amount of time he had had to take off work in preparation for the case. There was submissions made about who had requested the prior adjournments and the reasons for that, Mr Conomy also submitted that the amount of time taken away from work was affecting his reputation at work.
Mr Conomy's argument, in part, was that his case depended on him proving that there were no grounds for the violence restraining order in the first place. He submitted that it would be to Ms Cole's advantage and to his prejudice for the violence restraining order to be adjourned because he could not then demonstrate how 'she had misled the court'.
Before me, various scenarios were canvassed by Mr Conomy as to the sequencing of proceedings and the possible of outcomes. Mr Conomy wished to proceed with the restraining order matter in order that he might cross‑examine Ms Cole about the reasons why she had sought the interim order in the first place, in the belief that this would undermine the criminal proceedings..
It was submitted to the magistrate on behalf of Ms Cole that she did not wish to be put through the trauma of two trials, where there was the potential for there to be only one.
The magistrate determined the application and gave reasons, extempore. She noted that it was highly likely that the evidence which would be sought to be led in the criminal proceedings on the charge of stalking would include evidence relevant and admissible in relation to the restraining order proceedings. She also noted that in determining a final order under the ROA, the court had to consider not only the way in which Mr Conomy had behaved in the past towards Ms Cole but secondly, whether he would continue to behave in that manner, unless restrained, in the future. She stated that whether or not Mr Conomy sent a text message to Ms Cole, which was the allegation of breach of the restraining order would be relevant to grant or not of the restraining order at the final hearing. The magistrate also noted that if the final restraining order was heard before the criminal matters and Mr Conomy chose to give evidence, the court might have to give consideration as to whether a s 11 certificate should be granted under the Evidence Act. Mr Conomy for his part did not claim that any prejudice would result to him in that regard.
The magistrate's decision
The court was aware of the need to 'weigh up the competing interests of the parties and that it was in the discretion of the court whether the adjournment should be granted' and said so. The court had to consider whether refusal of an adjournment would cause a serious injustice to Ms Cole. On the other hand, if the court were to grant the adjournment it was necessary to consider whether or not there could be a serious injustice to Mr Conomy. The magistrate referred to the fact that Mr Conomy's view was if he was successful in contesting the final order, it would be a strong plank in his defence to the charge of breaching the order. She referred to the fact that on the breach charge, the prosecution had simply to prove that there was an order at the time, ie the interim order. She noted the considerable delay, she also noted that it was desirable that proceedings be dealt with efficiently, effectively and expeditiously. She then went on to say that it was desirable that criminal matters, where possible, took precedence over any associated civil matters because it was in the interests of the parties and the interest of the community. She did not adjourn the matter on the basis alleged in this ground.
She noted that, in the circumstances, the same magistrate would not preside over both sets of proceedings. She observed that Mr Conomy had raised the question of his lost income and time spent in preparation for the proceedings. She observed that the criminal proceedings for Mr Conomy were perhaps of more importance than the restraining order proceedings. Weighing up all of the circumstances and having read Mr Conomy's affidavit in opposition to the application and considering his submissions, she was of the view that it was preferable that the criminal proceedings take precedence over the civil proceedings. She granted the adjournment on the basis that the violence restraining order proceedings should be adjourned until after the criminal proceedings were concluded.
Reading the reasons as a whole, it is clear that the potential injustice to Ms Cole was weighed with the other factors. She did not refer in detail to the matters that had been argued earlier in submissions, but the injustice argued was the possibility of having to give evidence more than once on the same matters. On a full reading of the reasons, that is clearly the basis of her decision.
Ground 3 (in the amended grounds) is closely related to ground 2.
The magistrate erred by allowing the separate criminal matter to effect the civil violence restraining order matter. The magistrate's reason for the adjournment was that she felt there could be an injustice to Ms Cole if the VRO was heard prior to the criminal hearing.
It is also similar to the original ground 3 set out above in these reasons.
Essentially, Mr Conomy believed it was to his disadvantage in the criminal proceedings if the violence restraining order hearing did not proceed to determination first.
The magistrate was not persuaded by that argument.
The magistrate considered the evidential situation, the interrelationship between the proceedings criminal and civil as indicated above, with reference also to the differing standards of proof.
This was a discretionary decision, requiring the weighing of competing factors. The magistrate considered all the relevant factors that had been advanced before her and weighed them in coming to her determination. Neither ground 2 nor ground 3 in the amended or original forms are made out.
Ground 4
States the magistrate:
erred by demonstrating an incorrect interpretation of the ROA which influenced her decision not to give any weight to one my prejudice's raised [sic].
This ground again referred to Mr Conomy's belief that demonstrating the absence of grounds for the violence restraining order was important to his defence of the criminal proceedings. The magistrate did not interpret the ROA in any relevant sense and I struck this ground out: s 43(4) Magistrates Court (Civil Proceedings) Act.
Ground 5
This alleged failure to give any weight to the prejudice to Mr Conomy in regards to his costs. He referred to earlier adjournments and to Ms Cole's representation by Legal Aid.
Mr Conomy argued he had incurred costs, taken days off work, and referred to his affidavit of 24 February 2014. He argued the magistrate dismissed his costs. She pointed out that Mr Conomy could apply for costs at a later stage (ts 22). She was informed of time taken from work.
She was aware of the history of proceedings which had been protracted by the laying of charges.
She pointed out correctly that court appearances in the preceding six months were not for the violence restraining order and that there were a number of witness summons he had issued in preparation. Mr Conomy had summonsed a psychologist apparently to explain the effect of proceedings upon him. The magistrate had pointed out that was a matter which could be included later in a costs application.
She pointed out that necessary preparation done would be of use or in any event.
There is no basis for the ground that she did not give consideration to the costs and competing argument in opposition to the adjournment. The weight she gave to them was a matter for her discretionary judgment.
Ground 6
This alleges that the magistrate was biased:
Given all of the above breaches, the magistrate was quite clearly doing anything she could to adjourn the hearing. It was a display of bias. The decision to adjourn the hearing was decided well before the hearing took place which I will demonstrate in the following paragraphs.
Mr Conomy in his grounds/submissions referred to other matters listed in the court the following day (and to the material that has not been admitted in evidence). I accept that there were a number of civil and criminal matters listed. There is nothing to indicate that the magistrate was in any way biased in determining this matter nor that had she prejudged the matter. She heard extensive argument from both Mr Conomy and counsel for Ms Cole. The fact that other matters were listed in the Magistrates Court on the following day, civil and criminal, proves nothing either way. There were a total of seven criminal matters and nine civil matters. That is no evidence that this hearing would not have proceeded. This ground is not made out.
Ground 7
The magistrate erred by not giving any weight to a prejudice against me that I had raised in the hearing. That prejudice being with regards to my suffering reputation at work compared to the defendant not having any such disadvantage.
Mr Conomy submitted that his 'work reputation as an engineer' was compromised. He compared that with Ms Cole having Legal Aid and operating part‑time from home. He said he had deadlines to meet and people would be suspicious about the amount of time he had away rescheduling appointments. He said he had to make up false excuses.
In my view this ground is without foundation. The magistrate correctly pointed out to Mr Conomy he had not been required to appear in court on the violence restraining order matter in six months. She was aware he had lost income. The further materials in Mr Conomy's affidavit on appeal add nothing in principle to this issue. The weighing of this factor was again a part of her discretionary task.
Ground 8
The magistrate erred by claiming that a ground for the adjournment was to prevent covering the same events twice which is flawed. The reason being that the VRO hearing will most likely still go ahead after the criminal hearing. The magistrate mentioned it several times throughout the hearing. Therefore, the events will likely be covered twice anyway.
This ground is inaccurate in terms of what the court determined and a repetition of matters concerning the possible scenarios of sequencing of events raised on the appeal and before the magistrate. It is more likely that hearing the criminal proceedings first will obviate any duplications of evidence, although it was not certain. The ground is without foundation.
Ground 9
The magistrate erred by not giving any weight to the amount of time this VRO has been interim (currently 1 year) and that the reasons for an interim VRO are only if the circumstances are so dire that the applicant be protected in the SHORT period up until the hearing. The adjournment has now caused the interim period up until the hearing. The adjournment has not caused the interim period of the VRO to be 1.5 years given that it has now been re‑scheduled to the 31‑JULY‑2014. I plan to apply for a change of venue in the near future.
The magistrate was well aware of the history of the proceedings. She commented upon them and the need for matters to be resolved expeditiously.
There is nothing in this ground.
Ground 10
The magistrate erred by not taking into consideration that I was happy to discuss the events that happened after the interim VRO which was the subject of the Criminal hearing.
There is nothing in this ground. The magistrate alluded to the possibility of s 11 Evidence Act application in her reasons, but it was plainly not determinative, and Mr Conomy's desire to proceed was clear, although there is no specific statement that he would give evidence on the transcript.
Conclusion
I have already indicated that I am of the view that the decision appealed is not one which is amenable to appeal to this court. This is consistent with the fact that it does not finally determine any issue. It would not prevent any consideration of actual prejudice being raised at a later stage. There is no jurisdiction to determine this application. It does not fall under s 64 of the ROA.
In any event, I have considered and determined that none of the purported grounds of appeal can be made out. This was a discretionary decision made in knowledge of the relevant facts. The magistrate weighed them after extensive argument. Her reasons do not demonstrate any error. On the contrary, in the circumstances she was plainly right. Accordingly, the application is dismissed. I will hear the parties on the question of costs.
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