Michael v Potger
[2002] WASCA 6
•1 FEBRUARY 2002
MICHAEL -v- POTGER [2002] WASCA 6
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 6 | |
| Case No: | SJA:1154/2001 | 14 DECEMBER 2001 | |
| Coram: | HASLUCK J | 1/02/02 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | SHAWKY MICHAEL RICHARD KELVIN POTGER |
Catchwords: | Restraining Orders Act Dispute between neighbours Restraining order granted by Magistrate Issues of procedural fairness Whether hearing should have been adjourned Appeal dismissed Turns on own facts |
Legislation: | Justices Act 1902, s 196, s 199 Restraining Orders Act 1997, s 34, s 35, s 36, s 42 Vexatious Proceedings Restriction Act 1930 |
Case References: | Glennon v The Queen (1992) 179 CLR 1 Anlaby v Praetorius (1888) 20 QBD 764 Cash v Wells (1830) 109 ER 826 Colleoni-Vanotti v Sirna [2001] WASCA 184 Daly v Silley [1960] VR 353 Gamble v Killingsworth & McLean Publishing Co Pty Ltd [1970] VR 161 Garrett v Nicholson (1999) 21 WAR 226 Hughes v Justin [1894] 1 QB 667 Johnsen v Duks [1963] NSWR 730 Kertesz v Kessler [1966] VR 453 McKenzie v Edmondson (1996) 15 WAR 391 Muir v Jenks [1913] 2 KB 412 Pace v Neil (1893) 19 VLR 393 Pacini v Johnson [2001] WASCA 228 Porteous v McNamara [1999] WASCA 123 Sherry v Tristram, unreported; SCt of WA; Library No 980706; 30 November 1998 Vosmaer v Spinks [1964] QWN 36 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : MICHAEL -v- POTGER [2002] WASCA 6 CORAM : HASLUCK J HEARD : 14 DECEMBER 2001 DELIVERED : 1 FEBRUARY 2002 FILE NO/S : SJA 1154 of 2001 BETWEEN : SHAWKY MICHAEL
- Appellant
AND
RICHARD KELVIN POTGER
Respondent
Catchwords:
Restraining Orders Act - Dispute between neighbours - Restraining order granted by Magistrate - Issues of procedural fairness - Whether hearing should have been adjourned - Appeal dismissed - Turns on own facts
Legislation:
Justices Act 1902, s 196, s 199
Restraining Orders Act 1997, s 34, s 35, s 36, s 42
Vexatious Proceedings Restriction Act 1930
Result:
Appeal dismissed
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Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr K Burgoyne
Solicitors:
Appellant : In person
Respondent : Kevin Burgoyne
Case(s) referred to in judgment(s):
Glennon v The Queen (1992) 179 CLR 1
Case(s) also cited:
Anlaby v Praetorius (1888) 20 QBD 764
Cash v Wells (1830) 109 ER 826
Colleoni-Vanotti v Sirna [2001] WASCA 184
Daly v Silley [1960] VR 353
Gamble v Killingsworth & McLean Publishing Co Pty Ltd [1970] VR 161
Garrett v Nicholson (1999) 21 WAR 226
Hughes v Justin [1894] 1 QB 667
Johnsen v Duks [1963] NSWR 730
Kertesz v Kessler [1966] VR 453
McKenzie v Edmondson (1996) 15 WAR 391
Muir v Jenks [1913] 2 KB 412
Pace v Neil (1893) 19 VLR 393
Pacini v Johnson [2001] WASCA 228
Porteous v McNamara [1999] WASCA 123
Sherry v Tristram, unreported; SCt of WA; Library No 980706; 30 November 1998
Vosmaer v Spinks [1964] QWN 36
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1 HASLUCK J: This is an appeal against the making of a restraining order pursuant to provisions of the Restraining Orders Act 1997 in the Court of Petty Sessions at Perth on 13 September 2001.
2 The applicant for the restraining order, Richard Kelvin Potger, being the respondent in these proceedings, applied for relief against the appellant, Shawky Shafeek Michael, who resides at 8 Tully Court, Bull Creek.
3 Section 34 of the Restraining Orders Act reads as follows:
"A court may make a misconduct restraining order 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 applicant and that would, in fact, intimidate or offend the applicant;
(ii) cause damage to property owned by, or in the possession of, the applicant; or
(iii) behave in a manner that is, or is likely to lead to, a breach of the peace;
and
(b) granting a misconduct restraining order is appropriate in the circumstances."
5 The grounds of the application in the present case were that the appellant was likely to behave in a manner that is intimidating, or offensive, or was likely to behave in a manner that is, or is likely to lead
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- to a breach of the peace. Mr Potger's summons required the appellant, Dr Michael, to attend at the Court of Petty Sessions on 30 April 2001.
6 The application for relief was eventually listed for hearing before Mr Imlah SM on 30 July 2001. Mr Potger gave evidence in support of his application. I will turn to the details of his evidence in due course. Put shortly, he referred to a long history of ill-feeling between the appellant and his neighbours in Tully Court, including Mr Potger, which had given rise to legal proceedings and various incidents. It seems that the hearing could not be completed in one day and this led to a continuation of the hearing on 31 August 2001.
7 It is apparent from the transcript of the hearing that by the end of the second day each party had completed presentation of his evidence, but further time was required for closing submissions. An arrangement was then made for the matter to be adjourned to 9.30 am on 13 September 2001 for that purpose. The learned Magistrate indicated that it would be open to the parties to prepare written submissions.
8 The parties attended at the Court of Petty Sessions at 9.30 am on 13 September 2001. The appellant had with him a lengthy document described as "Final Submission Concerning MRO Application", being a document that was included in the appeal book at the hearing before me.
9 It seems that the learned Magistrate was involved in another case on 13 September 2001 which ran on longer than expected. The parties involved in the present case were asked to wait until 11 am via a court official, and then for a further period. Eventually, shortly before midday, they were told that the learned Magistrate could not proceed with the hearing until 2.15 pm.
10 The appellant says that he then became distressed and decided he could not wait any longer. Accordingly, he arranged for the court official to deliver a handwritten note to the learned Magistrate and left the court premises, taking with him his final submissions. The appellant's handwritten note is in these terms:
"I am up from 5 am and could not continue from 2.15 (let alone going to Bull Creek and come back). I must have some rest today and prepare for my Police v Michaels trial tomorrow (Mr Potger is a complainant). Please kindly apologise to his Worship and I will be happy to have the matter heard any time next week. The registry could phone me at any time. Thanks for your kind co-operation."
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11 It is apparent from the transcript that this note was delivered. However, the learned Magistrate took the view that, as the matter had already "dragged on" for the better part of two previous days, and as it only remained for the parties to present their submissions, he was minded to proceed upon the basis that the appellant had elected not to make submissions. Mr Potger then proceeded to make some oral submissions, in the course of which he referred to "the six faxes and the one letter" adduced in support of his application for relief.
12 This prompted the learned Magistrate to review the numbering of the various documents that had been received into evidence, with the result that a fresh list of exhibits was brought into existence.
13 I digress briefly to observe that the list of exhibits for the hearing on 30 July 2001 contained 11 items, including two documents described as exhibit 7 (being a letter from R Potger to Wesley dated 21 February 2001) and exhibit 8 (being a letter from R Potger to S Michael dated 22 January 2001). It is not entirely clear whether the 30 July list includes documentary evidence adduced on 31 August 2001, being the second day of the hearing. The list of exhibits referable to the renumbering on 13 September 2001 contains 19 items and arguably did not include the two items just mentioned.
14 In the course of the renumbering exercise, the learned Magistrate noted that a letter dated 4 August 2000 from the appellant to Professor Lance Twomey at Curtin University was to become exhibit 11. This letter appears to have been described as exhibit 6 on the 30 July list.
15 The learned Magistrate then turned to the question of whether a ruling should be made, notwithstanding the absence of the appellant. He was of the view that the appellant had "effectively elected not to make submissions" and, as the matter had gone on long enough, it was necessary to make a decision. He went on to say that there was evidence of altercations between the parties. The learned Magistrate held that the appellant had behaved in a manner that could be offensive to Mr Potger, the applicant for relief, on more than one occasion between 1997 and the hearing of the application, and was likely to do so again unless restrained.
16 The learned Magistrate said further that he was concerned about the content of the letter that had been written by the appellant dated 4 August 2000 to Curtin University, where Mr Potger worked. He was of the view that an order should be made to prevent that kind of behaviour continuing
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- in the future, bearing in mind that there had been no satisfactory explanation as to why the letter was sent.
17 The learned Magistrate then proceeded to make a misconduct restraining order for a period of 12 months as follows: the appellant was not to behave in an intimidatory or offensive manner towards Mr Potger as the person protected; the appellant was not to behave in a manner that was likely to lead to a breach of the peace, communicate, or attempt to communicate by whatever means with the person protected by the order; the appellant was not to enter upon 3 Tully Court or any other premises where the person protected lives or works or be within 200 metres of the nearest external boundary of Curtin University, or approach within 10 metres of the person protected.
18 The appellant subsequently obtained leave to appeal against this ruling on various grounds that are reflected in the order for leave to appeal dated 24 October 2001. I will come to the details of these grounds in due course. However, broadly described, the grounds of appeal raise issues of procedural fairness as to whether the learned Magistrate erred in proceeding to renumber the exhibits and to rule upon the matter before him in the absence of the appellant. Issues are also raised as to the form of the relief provided.
19 For the sake of completeness, I note also that, subsequent to the commencement of the appeal proceedings, the appellant applied to the Court of Petty Sessions for a variation of the orders previously made. This application was refused. I recognise that the institution of an appeal may have deterred the court from granting the relief sought. Thus, I am not inclined to give any weight to the refusal of the application.
20 Before turning to the particular grounds of appeal, it will be useful to look at the nature of the dispute between the parties as it appears from the various exhibits and other evidence presented at the hearing before the learned Magistrate. An outline of the dispute is reflected in the appellant's letter to Professor Twomey dated 4 August 2000. I will call this the "appellant's August letter".
21 It appears from the appellant's August letter that Dr Michael and his wife have lived at 8 Tully Court, Bull Creek, for the past 16 years. On the appellant's account, the history of ill-feeling in Tully Court commenced in April 1997 when the appellant objected to the noise created by a neighbour's son playing his car stereo while washing his car. This led to various exchanges with the neighbour and the commencement of legal
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- proceedings. Other residents in the street became conscious of the disagreement and, according to the appellant's August letter, Mr Potger decided to place a Christian-shaped cross on the front of his lawn bearing an inscription, "In the memory of peace and integrity in Tully Court lost 24 March 1997". Thus, the mood of ill-will in the street continued.
22 The appellant's son had a young people's party in early 2000 and this led to Mr Potger making a complaint to the police and writing a letter to the headmaster of Wesley College about the matter. It was against this background that the appellant wrote the August letter to Professor Twomey in which he referred to the previous events and made some unflattering comments about Mr Potger as a person employed by Curtin University as a lecturer.
23 Mr Potger represented himself at the hearing before the learned Magistrate. He advised the Court, prior to giving his evidence, that he was to be his only witness. He said that there had been a long history of litigation, harassment and unreasonable behaviour by the appellant, not only towards himself, but towards others in Tully Court. This had led to an approach being made to the Crown Law Department to bring proceedings under the Vexatious Proceedings Act. He said that there had been ongoing harassment and that every time he, Mr Potger, was talking to neighbours, the appellant would come up in his car and start a verbal altercation, or send a fax to his workplace.
24 Mr Potger tendered faxes in support of his case. These faxes included the appellant's August letter to Professor Twomey, which was referred to originally as exhibit E, then marked as exhibit 6, and renumbered eventually as exhibit 11.
25 Mr Potger said there had been various incidents of the kind he had described within the last 12 months. The transcript contains this passage from Mr Potger's evidence-in-chief:
"Well, for example, within the last 6 months, how many such incidents would you say there had been?---I can't count them, sir.
Roughly?---To myself or to the whole neighbourhood?
No, just yourself. Yes?---Just myself, none.
Right?---Because, as I said, I've stayed clear. I drive in, I jump into my house ... (indistinct) … and I do that so I don't spend
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- time in my garden at all. I'm trying not to give him a reason for doing these things.
And you feel that you have to stay inside or there would be an offensive - - or an incident that could be offensive to you. Is that - - ?---Yes, your Worship. In fact, you might like to know that there's a police case against the respondent for assault on me."
26 Mr Potger was then cross-examined by the appellant. In the course of the cross-examination, reference was made to the previous history of disagreement between the parties, including reference to the "cross on the lawn" incident. Mr Potger said that he placed the cross on the lawn because he was absolutely enraged with the appellant's behaviour "in relation to another person in the street by sending to that person four faxes to his workplace which is exactly the same thing that he's doing now" [21].
27 The appellant proceeded to give evidence directed to his side of the dispute. He was cross-examined by Mr Potger. The tenor of the appellant's evidence was that he was not responsible for the underlying disagreement between the parties. The appellant referred to Mr Potger's letter to Wesley College and to letters sent to the appellant's place of worship. The appellant called a number of witnesses in support of his case. Mrs Potger was required to give evidence in regard to the cross on the lawn incident, and other matters.
28 I digress briefly to observe that the appellant's "final submission", being the document he brought with him to the Court on 13 September 2001, reflects the line of argument he intended to put before the Court.
29 The appellant says in his final submission that the relief sought was in the nature of an injunction. That being so, the person applying for an order should do so promptly, approach the Court with clean hands, and inform the Court of all the facts. These precepts had not been complied with in the present case because Mr Potger had applied for relief many months after the faxes and letters complained of had been sent, as exemplified by the appellant's August letter. Mr Potger's evidence was said to be selective and evasive. He had failed to inform the Court of all the facts, and in particular had not made it clear that the Attorney General's action against the appellant under the Vexatious Proceedings Restriction Act 1930 had failed.
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30 The appellant's final submission referred also to the requirements needed to make an order under the Restraining Orders Act. The appellant submitted that the faxes and letters relied on by Mr Potger did not amount to intimidating or offensive conduct. The appellant's conduct could not be characterised as conduct likely to lead to a breach of the peace. An order should not be made without some understanding of the past relationship, and in this case such an understanding would reveal that Mr Potger was the party in default.
31 As I have already indicated, on 13 September 2001, the learned Magistrate weighed up the evidence and made a ruling in favour of Mr Potger. His reasons for decision are brief but it is quite clear that he gave consideration to the requirements prescribed by s 34 of the Restraining Orders Act. He took account of the arguments on either side but gave particular weight to the appellant's August letter. He was obviously satisfied that the granting of a misconduct restraining order was appropriate in the circumstances. The restraining order was served upon the appellant a few days later on 20 September 2001, and has remained in force since that time.
32 It will be useful to remind myself of certain basic principles concerning appeals in a matter of this kind.
33 Section 64 of the Restraining Orders Act allows for an appeal to the Supreme Court in relation to a final order. The appeal is to be conducted pursuant to the relevant provisions of the Justices Act 1902.
34 By s 196 of the Justices Act 1902, the Court shall determine the appeal on the material before the court below. By s 199, the Court may dismiss the appeal, or set aside, quash or vary the decision or remit the case for rehearing. The Court is not required to set aside, quash or vary the decision because the Magistrate omitted to make any necessary finding if the facts or evidence in substance support the decision or justify the finding. If the Court considers that no substantial miscarriage of justice has occurred, it may dismiss the appeal notwithstanding that a point raised in the appeal has been decided in favour of the appellant.
35 It is apparent from s 199 of the Justices Act 1902 that if an error in the reasoning or determination below is exposed on appeal, the Court is not necessarily obliged to quash the decision. It seems, however, that unless the Court is persuaded that, properly informed, the Magistrate would have inevitably reached the same verdict, the Court on appeal should provide relief, especially where a finding as to an element of an
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- offence necessarily depends on credibility: Glennon v The Queen (1992) 179 CLR 1. The relief may take the form of remitting back to the court below.
36 The appellant relies upon various grounds of appeal.
37 Ground (a) is that the Magistrate was wrong in law and in fact by continuing to hear the matter in the appellant's absence on 13 September 2001 in circumstances where the appellant had not completed the presentation of his case, and in disregard of a request for an adjournment contained in the appellant's handwritten note.
38 Section 42 of the Restraining Orders Act provides the Court with a discretion to hear matters if either one of the applicant or respondent does not attend the hearing. The Court can, if the respondent does not attend, hear the matter in the absence of the respondent. A provision of this kind may be necessary in the special circumstances that are likely to arise when an application for a restraining order is made and involves a recalcitrant party. In any event, it is necessary to take account of this provision and the power to ensure that applications under the Act, being applications often made in circumstances of stress to the parties, are dealt with expeditiously.
39 I have already noted that the hearing had proceeded over two days and the parties had been allowed ample opportunity to call witnesses and adduce evidence in support of their respective cases. It is quite clear from the transcript that the only remaining matter was the presentation of submissions. It was for this purpose that the matter was adjourned 13 September 2001.
40 The learned Magistrate considered the appellant's note handed to the Court on 13 September 2001, the contents of which I have previously described, and then decided to continue. He noted that the appellant had not appeared or instructed a solicitor to appear on his behalf. It is also relevant that the appellant had prepared submissions pursuant to the opportunity allowed to him and could have delivered his written submissions to the learned Magistrate for consideration. The decision made by the appellant to leave the Court, notwithstanding that the matter was to resume within the next hour or so, was a decision made by the defendant unilaterally. The Magistrate treated his decision to leave as an election not to make submissions.
41 When a Court is faced with an application for an adjournment it must balance the possible detriment to the applicant against the potential
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- prejudice to the other side. A Court cannot work on the basis of granting adjournments automatically or simply to suit the convenience of one party, otherwise it will lose control of its proceedings and its authority will be diminished. In my view, the learned Magistrate gave proper weight to the competing considerations. I am not persuaded that he was in error in refusing to grant an adjournment. Further, and in any event, I am not persuaded that a miscarriage of justice resulted from any such error. The appellant's final submission did not appear to contain any compelling argument that was likely to have altered the outcome.
42 Against this background, and having regard to the power contained in s 42 of the Restraining Orders Act to proceed in the absence of one party, I do not consider that this ground of appeal has been made out.
43 Ground (b) is that the Magistrate erred in law and in fact in not allowing the appellant's final evidence and documents, as well as any argument in law concerning the non-admissibility of certain evidence relied upon by the respondent.
44 This ground, to some extent, touches the issues raised by the previous ground. It is important to understand, however, contrary to what is suggested by this ground of appeal, that the hearing on 13 September 2001 was convened for the limited purpose of receiving submissions. It cannot be said that the appellant was denied an opportunity to present further evidence.
45 The appellant contends that certain hearsay evidence may have been admitted. It is significant, however, that the learned Magistrate relied principally on a document prepared by the appellant. What was said in the appellant's August letter and related documents may or may not have been the full story but the comments made in the documents went to the issue of misconduct before the Court. In my view, the learned Magistrate was entitled to have regard to the same. In any event, the appellant did not have any objection at the hearing to the principal letter being admitted.
46 It follows that I am not persuaded that the appeal should be allowed on this ground.
47 Ground (c) is that the Magistrate erred in law and in fact in giving the final restraining order on issues and restrictions which were never sought or applied for by the appellant.
48 The Restraining Orders Act, as I have already indicated, gives the Court of Petty Sessions broad powers to impose such restraints on the
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- lawful activities and behaviour of the respondent to a restraining order as the Court considers appropriate. I have referred to a passage from Mr Potger's evidence-in-chief and to the appellant's August letter. Having regard to these matters, it was open to the learned Magistrate to make a restraining order in the terms granted. Unlike an appeal court, the learned Magistrate had the advantage of seeing and being able to make an appraisal of the witnesses.
49 There is no requirement in the Act for the restraining order applicant to put to the Court the terms and restrictions upon which an order is sought.
50 I am not persuaded that the appeal should succeed on this ground.
51 Ground (d) is that the Magistrate, in effect, imposed a restriction which was too restrictive in its terms.
52 I repeat the observations I have made concerning ground (c).
53 Grounds (e), (f) and (g) are directed to alleged errors in law and fact associated with the renumbering of the exhibits and the alleged deletion of exhibits 7 and 8 from the evidence.
54 In my view, there is no substantial injustice to the appellant in renumbering the exhibits. It is significant that the learned Magistrate's decision in relation to the misconduct restraining order was principally based on the appellant's August letter to Curtin University. This letter remained before the Court and was therefore not affected by the renumbering.
55 There is a degree of ambiguity concerning the documents the appellant describes as exhibits 7 and 8. These are described by the appellant in the appeal book as a letter from Mr Potger to Wesley dated 21 February 2000 and a letter from Mr Potger to Mr Michael dated 22 January 2001. However, in the transcript of the hearing on 30 July 2001, exhibit 7 is described as an undated "Mr Michael letter".
56 As both parties were unrepresented, it is clear that letters and faxes were brought to the attention of the Court in a rather random way, and it was this that prompted the learned Magistrate to undertake a systematic renumbering at the end of the case. The indications are that he gathered together and numbered all the documents which were thought to have been properly adduced in evidence. It is clear from the transcript that the substance of Mr Potger's letter to Wesley was squarely before the Court.
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- Thus, if the renumbering exercise or any facet of it be regarded as an error, I am not persuaded that it gave rise to a miscarriage of justice. Having regard to s 199 of the Justices Act, I would not be prepared to quash the Magistrate's decision on this ground.
57 Ground (h) is that the Magistrate erred in law in including a communication relating to an offer of settlement by the parties.
58 To my mind, there is no substance in this ground. The letters in question do not appear to be subject to privilege and, in any event, the assumption must be that any privilege was waived.
59 Ground (i) is that the Magistrate erred in law in refusing the appellant's request to have all witnesses excused from being present in the courtroom during the hearing.
60 There is no substance in this ground. The only witness present on Mr Potger's side was Mr Potger himself. The alleged failure to make an exclusion order cannot be said to have worked to the disadvantage of the appellant. In my view, if an error was made, it did not give rise to a miscarriage of justice.
61 Ground (j) is that the Magistrate erred in law in granting the order that the appellant not communicate, but ignored the offensive letter sent by the respondent to the appellant's place of worship and to the place of education of the appellant's son.
62 There is no substance in this ground. The transcript does not suggest that the learned Magistrate overlooked evidence and documents bearing upon the past relationship between the parties. The orders he made were in response to the application brought before him.
63 Ground (k) is that the imposition of an order for 12 months is oppressive.
64 There is no substance in this ground. Section 37 of the Act provides for an order to remain in force for the period specified or otherwise for one year. It follows that the order made in the present case is consistent with the timeframe allowed for by the statutory provisions.
65 Ground (l) is that the Magistrate erred in law in receiving (ex parte) evidence on 13 September 2001 from the respondent which had been rejected earlier.
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66 In my view, there is no substance in this ground of appeal. It became apparent at the hearing before me that the appellant was referring to that part of the transcript in which, on 13 September 2001, the learned Magistrate heard oral submissions from Mr Potger. It was quite clear that what was said was not being received as evidence but as submissions.
67 In summary, then, the appeal will be dismissed. I will hear from the parties as to whether any further orders or directions are required.
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