Michael v Maughan - [2002] WASCA 322

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: MICHAEL -v- MAUGHAN [2002] WASCA 322

CORAM: EM HEENAN J

HEARD: 18 NOVEMBER 2002

DELIVERED : 18 NOVEMBER 2002

FILE NO/S: SJA 1123 of 2002

BETWEEN: SHAWKY SHAFEEK MICHAEL
Applicant
AND
WILLIAM ROBERT MAUGHAN
Respondent

Catchwords:

Justices Act - Application for leave to appeal - Violence restraining order - No arguable grounds shown

Legislation:

Justices Act

Restraining Orders Act, s 47

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Applicant: In person
Respondent: No appearance

Solicitors:

Applicant: In person
Respondent: No appearance

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Attorney-General v Michael & Anor [1999] WASCA 181
Brickfield Properties Ltd v Newton [1971] 3 All ER 328
Hughes v Justin [1894] 1 QB 667
MacFoy v United Africa Co Ltd [1962] AC 152
Michael v Potger [2002] WASCA 6
Reynolds v Coleman [1887] 36 Ch D 453
Spurell v De Rechberg (1895) 11 TLR 313
Vine Products Ltd v Green [1966] Ch 484

EM HEENAN J: There is before the Court an application by Dr Shawky Michael brought under the provisions of the Justices Act seeking leave to appeal from a decision of his Worship Mr P Michelides SM in the Court of Petty Sessions at Fremantle. The application for leave to appeal identifies the decision of the Magistrate which is complained about to be a decision of 9 October but in reality it seems that the decision was one of 17 October 2002. Why I say that will emerge in a moment.
The application originally came on for hearing before me on 11 November and I adjourned it for seven days to allow any appearance from the respondent. It has come back before me today and I have been notified that, although the respondent has been served, he does not wish to appear on the application for leave to appeal. I have therefore proceeded to deal with the application for leave to appeal on an ex parte basis having heard submissions from the applicant, Dr Michael himself. Dr Michael has filed, and relies upon, an affidavit which he swore in the proceedings on 8 November and has filed written submissions in support of and in elaboration of his claims made in an affidavit sworn 18 November.
This proposed appeal is part of a longstanding disagreement between Dr Michael on the one hand and his neighbour at Tully Court, Bullcreek, Mr William Maughan. It is the case that an order was made in the Court of Petty Sessions at Fremantle on 30 April 2002 against Mr William Robert Maughan restraining him from communicating with or attempting to communicate with the protected person, being Dr Michael, or of being in possession of a firearm or of behaving towards Dr Michael in an intimidatory, dangerous, offensive or provocative manner or in any manner likely to lead to a breach of the peace. That order has been referred to as a violence restraining order and was made, as I have said, on 30 April 2002.
Despite that order, it appears that the relations between Mr Maughan on the one hand and Dr Michael on the other have continued to be bad and that there have been several subsequent incidents which may have involved Mr Maughan in committing a breach of that restraining order. In fact, Dr Michael has complained to the police and has sought that Mr Maughan be charged with alleged breaches of the violence restraining order. According to the submissions which I have received, although there is no independent corroborating evidence, Mr Maughan was arrested by the police subsequently for an alleged breach of that violence restraining order and was brought before the Court of Petty Sessions. I am not able to say on the limited papers before me what if anything happened in that regard. However, the record before the Court demonstrates that Mr Maughan applied for a variation, by way of cancellation, of the violence restraining order that I have been speaking about and that that was listed for hearing on 3 July 2002. The grounds of the application are set out in the application to vary or cancel the restraining order and they are grounds which in fact and in law are challenged by Dr Michael.
Be that as it may, the application to vary the restraining order came on for hearing before his Worship Mr Michelides in the Court of Petty Sessions at Fremantle on 9 October 2002. Mr Maughan was apparently represented by counsel but there was no representation for or by Dr Michael. Whether he had notice of those proceedings is not clear. At the end of a short hearing the application to cancel the violence restraining order was adjourned by his Worship and steps were taken to notify Dr Michael that it would be heard on 17 October for mention and that he should be available on that date. A letter to that effect from the Clerk of Courts Fremantle dated 9 October was dispatched to Dr Michael the same day.
So, it will be seen that the only decision taken by his Worship Mr Michelides on 9 October was to adjourn the hearing of the application to cancel the violence restraining order until 17 October so that notice of the application could be given to Dr Michael. There does not seem to me to be any ground upon which Dr Michael could claim to be aggrieved by a decision which did no more than ensure that he had an opportunity to be heard on an application which might affect him.
When 17 October came there was again a hearing before his Worship Mr Michelides SM, but there is no formal record of that hearing in the papers before this Court. There is no process, there is no transcript and there is no affidavit as to precisely what happened. Nevertheless, I am informed by Dr Michael that there was a hearing which began sooner than advertised and notified to him and in his absence. As a result Magistrate Michelides was moved to vary the violence restraining order against Mr Maughan and proceeded to make, or begin to make, an order to that effect. However, shortly afterwards, Dr Michael arrived at the Court, explained that he was there to answer the matter and that circumstances had arisen which meant that he had not known about, or perhaps was not able to be present at the time when the application was first dealt with. Dr Michael has informed the Court, (again there being no evidence as to precisely what happened nor any corroboration of what he has said), that in those circumstances Magistrate Michelides decided to recall the order which had been made ex parte, indicating that Dr Michael was entitled to be heard and directing that the contested application to vary the violence restraining order would be adjourned for hearing for three days to be fixed in April 2003.
The result, therefore, on 17 April was that Mr Maughan failed to obtain any variation of the violence restraining order and Dr Michael succeeded in ensuring that he would be heard in opposition to Mr Maughan's application. The application remains pending and is now to be heard next April.
That being the case, I do not see how Dr Michael has any grounds to complain that an order was made adjourning the hearing until April 2003 in circumstances where he wished to be heard in opposition to the application, so there is nothing, in my opinion, which occurred on 17 October 2002 before his Worship Mr Michelides from which Dr Michael has any reasonable prospect of success in an appeal to this Court.
However, the written and oral submissions of Dr Michael assert that the decision which was made by the learned Magistrate on 9 October and which is the subject of this application for leave to appeal was a decision to admit and accept Mr Maughan's application to vary the restraining order and that that decision to admit and accept the application is an error of law because the application was made in actual and intended abuse of the process of the Court of Petty Sessions. As to that, all I can say is that the application to cancel or vary the restraining order appears to have been regularly made by an initiating process filed in the Court of Petty Sessions at Fremantle some time before 3 July 2002 and that it is an application regular on its face seeking a variation or cancellation of the previous order pursuant to s 47 of the Restraining Orders Act (1997). There is nothing which I can see in the initiation of that application or in its form which, on its face, makes the application an abuse of the process of the Court. Once an application has been regularly commenced, it is of course necessary for the Court to determine it upon its merits in due course.
The application was to be heard on 9 October, as we have seen. The hearing did not take place on that date because the Magistrate realised that notice should be given to Dr Michael and he accordingly adjourned it to 17 October. On 17 October it seems that an attempt was made to deal with the matter again ex parte, but when Dr Michael arrived and protested, that was set aside, the orders were recalled and cancelled, and it was directed that the application should be adjourned for hearing, as I have described, in April next.
Nothing in that course of proceedings or the procedure which was involved appears to be an abuse of the process of the Court in any obvious way. Nevertheless, it is possible that, although regular on its face and routine in the procedure adopted, an application to the Court could have been inspired and pursued by some malicious motive or for some collateral purpose in a way which would render the proceedings an abuse of the process of the Court. However, such a latent abuse is not apparent from the papers and is unlikely to emerge unless and until evidence in support, or in refutation, of the claim has been heard by the Court. There will be an opportunity for that to be considered when the hearing eventually takes place on the date appointed in April next. In those circumstances, I do not consider that I should, in any way, prejudge matters or anticipate the determination of what appears to be a regular proceeding in the Court of Petty Sessions. For that reason, and because I can see no basis upon which there is any reasonable prospects of success in any appeal, I refuse the application for leave to appeal.