Matsebula v Reynolds
[2016] ACTSC 55
•4 April 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Matsebula v Reynolds |
Citation: | [2016] ACTSC 55 |
Hearing Date: | 1 April 2016 |
DecisionDate: | 4 April 2016 |
Before: | Murrell CJ |
Decision: | Leave granted to amend the Notice of Appeal. Appeal stayed pending lodgement of security for costs. Otherwise, applications dismissed. Appellant to pay the respondent’s costs of the applications. |
Catchwords: | PRACTICE AND PROCEDURE – Applications – application for leave to amend Notice of Appeal and adduce fresh evidence – leave granted to amend Notice of Appeal and refused to adduce fresh evidence PRACTICE AND PROCEDURE – Applications – application to strike out principal ground of appeal as incompetent – security for costs application – powers to order strike out and security for costs – merits of appeal – appellant impecunious – justice of the case – where making order has effect of halting appeal – security for costs order made |
Legislation Cited: | Domestic Violence and Protection Orders Act 2008 (ACT) ss 7, 13 Court Procedure Rules 2006 (ACT) rr 1900, 1901, 1902, 1903, 5055, 5172 |
Cases Cited: | Benjamin v GB Franchising Australia Pty Ltd (2008) ACTLR 287 Hughes v Janrule Pty Ltd (2011) 177 ACTR 1 Robson v Robson [2008] QCA 36 |
Parties: | Jabulane Matsebula (Appellant) Julia Reynolds (Respondent) |
Representation: | Counsel Self-represented (Appellant) Mr G Stagg (Respondent) |
| Solicitors Self-represented (Appellant) Farrar Gesini and Dunn (Respondent) | |
File Number(s): | SCA 3 of 2016 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Special Magistrate Cush Date of Decision: 15 December 2015 Case Title: Matsebula v Reynolds Court File Number(s): DV 15/791 |
MURRELL CJ:
The applications
The Magistrates Court refused an application by Mr Matsebula for a domestic violence order against his former de facto partner, Ms Reynolds. He appealed. In relation to the appeal, Ms Reynolds seeks to strike out the principal ground of appeal and asks for security for costs. Mr Matsebula also has an application before the Court.
The couple lived together for many years. They have two children. In May 2015, they separated. The children remained with Ms Reynolds. On 15 May 2015, Ms Reynolds obtained an interim domestic violence order against Mr Matsebula. She withdrew the application for a final order when, on 7 July 2015, Mr Matsebula gave undertakings without admission.
In September 2015, Mr Matsebula sought domestic violence orders against Ms Reynolds. This application was resolved when Ms Reynolds undertook that she would not harass Mr Matsebula, that she would not dispose of his personal property situated at the former matrimonial home (which was occupied by Ms Reynolds), and that she would deliver certain items to Mr Matsebula: see Exhibit 1.
On 30 October 2015, Mr Matsebula sought a domestic violence order against Ms Reynolds. He claimed that, in breach of her undertaking, Ms Reynolds had harassed him by sending text messages between 18 and 21 October 2015. He said that the content and frequency of the text messages constituted harassment. The text messages (and Mr Matsebula’s responses to the messages) are Attachment B to the Notice of Appeal.
On 15 December 2015, the Magistrates Court heard and dismissed Mr Matsebula’s application. In considering whether the text messages were “harassing or offensive to a relevant person” within the meaning of the Domestic Violence and Protection Orders Act 2008 (ACT) (DVPO Act), the Special Magistrate referred to:
(a)a Law Reform Commission report;
(b)other definitions of “harassing”;
(c)the objects of the DVPO Act; and
(d)the principles for making protection orders set out in s 7 of the DVPO Act.
Mr Matsebula appealed on the grounds that:
(a)The Special Magistrate erred in law by failing to sufficiently address the evidence of “unwanted mobile text messages” (which were demeaning, damaging and distressing to Mr Matsebula) for the purpose of determining whether they were “harassing” within the meaning of the DVPO Act.
(b)The Special Magistrate failed to provide sufficient reasons for his decision.
Ms Reynolds seeks orders that:
(a)Ground 1 of the appeal be struck out as incompetent under r 5172 of the Court Procedures Rules 2006(ACT) (CPR).
(b)Mr Matsebula pay $30,000 as security for her costs of the appeal within 60 days under rr 1900–1903 and 5055 of the CPR.
(c)The appeal be stayed until security is lodged.
(d)If security is not lodged, the appeal be deemed to be abandoned.
(e)Mr Matsebula pay Ms Reynolds’ costs of, and incidental to, the proceedings.
The orders sought by Mr Matsebula are not clear from the application. Mr Matsebula drafted the application and represented himself at the hearing. During the hearing, it became apparent that Mr Matsebula was seeking leave:
(a)To amend the Notice of Appeal to argue that the Special Magistrate had failed to consider oral evidence presented by Mr Matsebula and had failed to allow Mr Matsebula the opportunity to present written material (2013 and 2014 emails) that supported his oral evidence.
(b)To adduce fresh evidence in the form of the 2013 and 2014 emails.
(c)To adduce fresh evidence, being a text communication sent by Ms Reynolds to Mr Matsebula in March 2016.
Competency of the appeal: Domestic Violence and Protection Orders Act
Rule 5172 of the CPR provides that a respondent to an appeal may apply for an order striking out the appeal as incompetent. Under r 5172(2), the burden of establishing competency is on the appellant.
The meaning of “competent” and “incompetent” was not argued before me; it was assumed that “incompetency” could be established by the absence of merit.
Section 13(1) of the DVPO Act relevantly provides:
(1) For this Act, a person’s conduct is domestic violence if it—
(a) causes physical or personal injury to a relevant person; or
...
(e) is harassing or offensive to a relevant person; or ...
In the context of these proceedings, Mr Matsebula is a “relevant person”.
He now contends that the text messages both caused “personal injury” (psychological harm) and were “harassing” to him.
While it was plain to the Special Magistrate that Mr Matsebula said that he was distressed by the text messages, it was not made clear that Mr Matsebula also claimed that there was “domestic violence” because of “personal injury” within the meaning of s 13(1)(a) of the DVPO Act. Whether (particularly in the absence of expert evidence) distress of the type claimed by Mr Matsebula could ever constitute “personal injury” within the meaning of the DVPO Act, such an argument was not independently identified in the Magistrates Court by Mr Matsebula and was not the subject of the Special Magistrate’s decision.
Against this background, it is unsurprising that the issue of “personal injury” is not raised in the Notice of Appeal. Both at first instance and on the appeal, Mr Matsebula focused on the issue of “harassment”. On the appeal, Mr Matsebula’s key argument is that the Special Magistrate erred in the meaning that he attributed to “harassing”.
The Special Magistrate gave an ex tempore decision. In relation to the question of “harassment”, the Special Magistrate noted that the content of the text messages related to access or contact with the children and the delivery of clothing. His Honour noted that the messages did not contain abusive words or threats. In fact, some messages used courtesies such as “please”. The Special Magistrate concluded:
It is my view, having regard to the content, tone and the amount of messages that were sent, that it does not amount to harassing conduct and in breach of the legislation.
There is no obvious fault in the approach of the Special Magistrate. The Special Magistrate referred to a Law Reform Commission report and to definitions of “harassment”. His Honour referred to the evidence. When a court gives ex tempore reasons, it cannot be expected to provide a detailed analysis of all the evidence.
Mr Matsebula has not advanced a persuasive argument as to why the appeal is competent (in the sense of meritorious).
However, as Mr Matsebula is self-represented, on an interlocutory application the Court is naturally reluctant to strike out the key ground of appeal as incompetent.
Without forming a final view about merit, I proceed on the basis that the appeal lacks obvious merit.
Security for costs
Ms Reynolds estimated that her costs of defending the appeal (including the costs of this application) will exceed $25,000. There is evidence that the costs will exceed $30,000: Annexure H to the affidavit of Ms Reynolds.
Under Division 2.17.8 of the CPR, a court may order a party making a claim to provide security for the respondent’s costs for the purpose of ensuring that, if a costs order is made in favour of the respondent, the order will be met. Rule 5055 of the CPR confirms that such an order may be made in relation to an appeal to the Supreme Court.
Under the common law, mere impecuniosity is not a justification for an order for security for costs. Rule 1901 of the CPR provides that a court’s discretion to order security for costs under r 1900 arises only if one of eight threshold requirements is satisfied. In this case, Ms Reynolds relied on the threshold requirement that “the justice of the case ... [required] the order to be made”: r 1901(h). If one of the eight matters is satisfied, the court may (but need not) order security for costs.
Rule 1902 provides that, in deciding whether to exercise its discretion to order security for costs, a court may have regard to a non-exclusive list of matters, including: (a) the effective means of the parties, (b) the merits of the proceeding, (c) “the genuineness of the proceeding”, (g) whether such an order would be oppressive, (h) whether such an order would stop or limit the progress of the proceeding, and (m) “the estimated costs of the proceeding.”
In Robson v Robson [2008] QCA 36, the Queensland Court of Appeal considered the relationship between a provision that was similar to the ACT r 1901(h) “justice of the case” provision and a provision similar to r 1902 of the CPR. Muir JA and McMeekin J considered that, when deciding whether “the justice of the case” required the making of a security for costs order, a court could have regard to the matters set out in the provision that was equivalent to r 1902. This approach was also taken by Penfold J in Hughes v Janrule Pty Ltd (2011) 177 ACTR 1 at [72] (Hughes v Janrule).
Although impecuniosity is not a ground for ordering security for costs at trial, it may be a very relevant factor on appeal: Benjamin v GB Franchising Australia Pty Ltd (2008) ACTLR 287. On an appeal, the merit of the proceeding is also a significant issue: Hughes v Janrule at [85]
During the hearing, on 15 December 2015, Mr Matsebula told the Magistrates Court that he was “in extreme financial hardship” and under “financial duress”. In family law proceedings in the Federal Circuit Court, Mr Matsebula has filed a financial statement stating that his weekly expenses outweigh his weekly income by $280 per week and he has only $20 in his bank account. He is resisting a child support payment on the basis that he cannot afford it: see Annexure A to Ms Reynolds’ affidavit. At the hearing of the applications, Mr Matsebula stated that he was suffering “financial hardship” and that he would be unable to satisfy any significant costs order. Should security be ordered in any significant sum, he would be unable to lodge it.
For the following reasons, I have decided that the justice of the case requires that Mr Matsebula lodge a significant sum by way of security for Ms Reynolds’ costs of the appeal.
(a)I accept that Mr Matsebula’s impecuniosity means that an order for security for costs will almost certainly halt the appeal. Conversely, Mr Matsebula’s impecuniousity also means that he would not meet any order that he pay Ms Reynolds’ costs of the appeal.
(b)The merits of the matter were, at first instance, decided in favour of Ms Reynolds. The reasons of the Special Magistrate disclose no obvious error.
(c)There are other means by which Mr Matsebula may protect his position, should the need arise. In September 2015, Ms Reynolds gave a two-year undertaking that she would not harass Mr Matsebula. This undertaking provides some indirect protection. More direct protection is provided by the DVPO Act. Should there be any fresh act of harassment, Mr Matsebula could bring new proceedings in the Magistrates Court.
(d)If Mr Matsebula succeeded on the appeal, this Court may well refer the matter back to the Magistrates Court for reconsideration. In that sense, a final resolution of the controversy between the parties may lie with the Magistrates Court, regardless of whether the appeal proceeds.
(e)Ms Reynolds’ legal costs of the appeal would be very substantial.
Reynolds fears that the appeal is a mechanism by which Mr Matsebula seeks to punish her rather than a mechanism by which he genuinely seeks protection. In effect, this raises a question of abuse of process.
Amendment of the appeal grounds
Mr Matsebula should be allowed to add an appeal ground to the effect that the Special Magistrate erred in failing to consider oral evidence presented by Mr Matsebula and failing to allow Mr Matsebula the opportunity to present written material (2013 and 2014 emails) that supported his oral evidence.
The new ground can be determined by an examination of the short transcript; it will not unduly prolong the hearing of the appeal.
The ground can be considered in the absence of the 2013 in 2014 emails. The complaint is that the Special Magistrate did not afford Mr Matsebula the opportunity to adduce the email evidence. It is not necessary to see the emails to determine that issue.
The application to adduce evidence of a communication in March 2016 is refused. This communication post-dated the Magistrates Court hearing and it cannot inform whether the Special Magistrate erred in his decision.
Costs
The ordinary rule in relation to costs should apply to the costs of these applications.
In substance, Ms Reynolds succeeded on her application. Almost all the hearing time was occupied with argument about the merits of the appeal and the question of security for costs.
On the other hand, almost no time was devoted to Mr Matsebula’s application, the true nature of which was not clear until the hearing.
Orders
The Court makes the following orders:
(1) Provided that he does so within 14 days, Mr Matsebula is granted leave to amend the Notice of Appeal to:
(a)Clarify that ground 1 of the appeal asserts that the Special Magistrate erred in law in relation to the interpretation of s 13(1)(e) of the DVPO Act and the application of that provision to the subject case.
(a)Claim that the Special Magistrate erred in failing to consider oral evidence presented by Mr Matsebula and failing to allow Mr Matsebula the opportunity to present written material (2013 and 2014 emails) that supported his oral evidence.
(2) Mr Matsebula is to pay to the Court $20,000 by way of security for Ms Reynolds’ costs of the appeal within 60 days.
(3) Except in relation to the operation of order 1 above, the appeal is stayed until security is lodged with the Court or until further order of the Court.
(4) If Mr Matsebula fails to lodge $20,000 by way of security for costs of the appeal with the Court within 60 days, the appeal is deemed to be abandoned.
(5) Mr Matsebula is to pay Ms Reynolds’ costs of the applications.
(6) Otherwise, the applications are dismissed.
(7) The matter is to be placed in the Registrar’s callover list on a suitable date after the expiry of 60 days for the purpose of clarifying the status of the appeal. The Registry is to advise the parties of the allocated date.
| I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 13 April 2016 |
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