Moore-McQuillan v Police No. Scgrg-98-25 Judgment No. S6636

[1998] SASC 6636

MOORE-McQUILLAN v POLICE

Magistrates Appeal
Bleby J

On 22 May 1997 three ex parte restraining orders were made in the Adelaide Magistrates’ Court against the appellant pursuant to s99 of the Summary Procedure Act 1921.

In matter No AMC-97-16988, the court made the following order:

1. That the defendant Markham Wayne Moore-McQuillan be restrained from behaving in a provocative or offensive manner towards Kim Leane Adey and from communicating with her directly or indirectly, whether by telephone or in person other than via solicitor contact or facsimile transmission or by post.

1. That the defendant Markham Wayne Moore-McQuillan be restrained from assaulting, approaching, molesting, threatening or otherwise interfering with Kim Leane Adey.

1. That the defendant Markham Wayne Moore-McQuillan be restrained from being within 200 metres of the place of residence or the place of employment.

A further order was made pursuant to s99D of the Summary Procedure Act concerning the use and possession of firearms.

Identical orders were made in the matter under AMC-97-16989 in respect of Janet Louise Ford.

In matter AMC-97-16990, the following order was made:

1. That the defendant Markham Wayne Moore-McQuillan be restrained from behaving in a provocative or offensive manner towards any member of staff of Messrs Donaldson Walsh, Lawyers, and from communicating with the firm directly or indirectly, whether by telephone or in person, other than by solicitor contact, facsimile transmission or postal contact.

1. That the defendant Markham Wayne Moore-McQuillan be restrained from assaulting, approaching, molesting, threatening or otherwise interfering with any member of staff of Messrs Donaldson Walsh, Lawyers.

1. That the defendant Markham Wayne Moore-McQuillan be restrained from being within a 200 metre radius of the place of business of Messrs Donaldson Walsh.

An order similar to those made in the two other cases was also made under s99D of the Summary Procedure Act 1921.

Summonses were issued to the appellant to show cause why the orders should not continue, returnable in the Adelaide Magistrates Court on 29 May 1997.  After several preliminary hearings and a number of days of evidence, on 23 December 1997 the two restraining orders in respect of Ms Ford and Ms Adey were confirmed, and the one in respect of the firm of Donaldson Walsh was discharged.  In respect of the matter concerning Ms Adey, the magistrate ordered the appellant to pay $200 witness fees and $200 prosecution fees, payable within six months.  In respect of the matter concerning Ms Ford, there was an order for the payment of $100 witness fees and $200 prosecution fees.  In respect of the matter concerning Donaldson Walsh, the prosecutor applied for but was refused an order for costs, but the court ordered payment of the sum of $50 to the appellant by the complainant.  No reasons were given for the various costs orders, nor was it entirely clear what the sum of $50 represented.

It is against the orders made in all three matters that the appellant now appeals to this Court pursuant to s42 of the Magistrates Court Act 1991.

By way of background, the firm of Donaldson Walsh is a firm of solicitors carrying on business in the City of Adelaide. So far as is relevant for the purpose of these proceedings, they were acting for VACC Insurance Worksafe (SA) Pty Ltd ("VACC"), a claims agent for the Workcover Corporation, in respect of a claim for compensation by the appellant and various associated matters arising under the Workers Rehabilitation and Compensation Act 1986. In respect of those matters the appellant was representing himself, as he did in the proceedings in the Adelaide Magistrates Court, and as he did before me.

It appears that the appellant was dissatisfied with the way VACC and Donaldson Walsh had been handling various aspects of his claim.  It is not necessary to go into the details of that.

Kim Leane Adey was a solicitor employed by Donaldson Walsh and had been assisting in the conduct for VACC of the matters affecting the appellant’s claim.  Janet Louise Ford was a receptionist employed by Donaldson Walsh.

The appellant’s only complaint concerning the orders made in respect of the matter concerning Donaldson Walsh was that the amount awarded to him was inadequate and unfair when compared with the orders made for costs against him in the other two matters, all of which had been heard together.  I will return later to the question of costs concerning all three matters before the magistrate.  Otherwise, the matter concerning Donaldson Walsh requires no further consideration.

The grounds of appeal were numerous, and many were not relevant to the issues arising under s99 of the Summary Procedure Act 1921.  Distilled to their essence, I think there are four grounds of substance or grounds which I am prepared to treat as representing the substance of the appellant’s complaint:

1. That the orders constituted an attempt at or had the effect of denying or interfering with appellant’s rights under the Workers Rehabilitation and Compensation Act 1986;

1. That by virtue of his participation in other proceedings involving the appellant, the magistrate who heard the matter was disqualified from hearing these matters;

1. That in refusing an adjournment to enable two witnesses to be compelled to attend to give evidence on behalf of the appellant, and in allowing a further opportunity to secure the attendance, the appellant was denied natural justice;

1. That the magistrate’s discretion with respect to costs in all three matters was wrongly exercised.

The case for the complainants before the magistrate was based on a number of allegedly threatening and embarrassing telephone calls and at least one visit by the appellant to the firm, concerning certain aspects of his claim.  The incidents and the language used were denied by the appellant.  In giving his reasons for confirming the two orders in respect of the two individuals, the learned magistrate made it quite clear that he accepted the evidence of the complainants’ witnesses and rejected that of the appellant.  Against that background I turn to the various grounds of appeal which I have identified above.

Effect Of The Order On The Appellant’s Rights Under The Workers Rehabilitation And Compensation Act

The learned magistrate, based on evidence led from a partner of the firm, considered that there was no prejudice to the appellant in the pursuit of his various claims if the restraint orders were made.  As far as I can see there was no evidence led of any actual prejudice to the appellant in the conduct of his Workers Compensation litigation as the result of the making of the ex parte orders.  No doubt there were some occasions when it may have been inconvenient to him if he was unable personally to telephone the solicitor handling his claim.  However, there was nothing to prevent his contacting the firm within the limits of the orders made.  That may have caused some inconvenience and expense, but I cannot be satisfied that the order interfered with or denied the exercise of his rights to pursue whatever claims he might wish to pursue under or in accordance with the provisions of that Act.  I certainly cannot be satisfied that he was disadvantaged in the sense of having his rights under the Act qualified in any way.

Whatever disadvantage he may have had during the period of the ex parte orders, they were significantly diminished by the discharge of the order in respect of the firm, as there was nothing to prevent him from speaking to any employee or partner of the firm, other than Ms Adey or Ms Ford, even if it was merely to leave a message for Ms Adey.

I am not satisfied that this ground has been made out.

Bias

On the first day of the hearing the appellant asked the learned magistrate to disqualify himself from hearing the matter.  When the appellant was asked to explain why the magistrate was disqualified, the following exchange occurred:

"DEFENDANT:  Well, you are the one that made the original ex parte orders.

HIS HONOUR:  Yes.

DEFENDANT:   You have heard matters before concerning me, so you would be prejudiced in other matters concerning this.

HIS HONOUR:  I have never made any findings as to your honesty or credibility.

DEFENDANT:   All right, let’s go one step further then, without stepping on too  many boundaries, you have made three previous restraining orders against me on different occasions, or your name has been on the bottom as ex parte, and those restraining orders would only have occurred - would not have stood the test had anyone else - but because of the biases and slander and opposition by yourself.

HIS HONOUR:  That’s why we are here today, to determine whether or not the orders should be confirmed.

DEFENDANT:   Yes, but your Honour, I think you have already got a pre-determined thought pattern in your head of what I am actually guilty before, like Mr Deegan did the other day, and I do think that makes it prejudiced.

HIS HONOUR:  I note your objection and I overrule it and I will be hearing the matter . . ."

On the hearing of the appeal the appellant asserted that the matters that the magistrate had previously heard involving the appellant were matters that extended beyond the mere making of the ex parte orders which the magistrate was then being asked to confirm. As the nature and extent of those matters was not apparent from the transcript of proceedings before the magistrate, I called for a report from the magistrate pursuant to r97.14 of the Supreme Court Rules 1987 requesting particulars of any other matters that the magistrate had heard involving either the appellant, any of the witnesses in the subject proceedings, or members, or employees of Donaldson Walsh, other than as advocates in proceedings not involving the appellant. Copies of the report were made available both to the appellant and to counsel for the respondent, and I provided an opportunity to the parties to make further submissions in the light of that report.

From the report received from the learned magistrate, prior to the discussion recorded above, the appellant had appeared before the learned magistrate on three earlier occasions upon applications for variation of the terms of orders for payment of money and costs made against him in two other earlier and unrelated proceedings.  Orders as to the time of payment were made by the learned magistrate on those applications.  A member of the firm of Donaldson Walsh had appeared for the Workcover Corporation on those days.

After the exchange recorded above and during the period covered by the course of the hearing of these proceedings, the appellant appeared before the learned magistrate again on what appear to have been applications for further variation of such orders.  On some occasions they were for mention only.  On one other occasion an application for variation was refused.  No member or employee of the firm of Donaldson Walsh appeared for the Corporation on those occasions.

In his report the learned magistrate said (inter alia):

1. Although the certificate of record does not indicate it, I have a memory of oral evidence having been heard by me from Mr Moore-McQuillan as to the basis of his application.  The Certificate of Record indicates the orders that I made from time to time. No findings were ever made in relation to Mr Moore-McQuillan’s credit.  Evidence was simply heard, submissions made and as a result, an order followed as to whether or not I would agree to amend the terms of payment...

I have made no comments at all in relation to Mr Moore-McQuillan or any member/employee of Messrs Donaldson Walsh.  I simply made a ruling having heard evidence and submissions."

There is nothing in the nature of those proceedings as reported by the learned magistrate which would appear to have required the learned magistrate to disqualify himself from the hearing of these applications. He does not appear to have been involved in the determination of any substantive rights affecting the appellant, but merely an order as to the time or times within which certain pre-determined orders had to be complied with. There is no evidence of any actual bias or pre-conceived views on the part of the learned magistrate as a result of his involvement in those proceedings. More importantly, however, the nature of those proceedings, as described in the magistrate’s report, do not appear to be such as would give rise, in the mind of a party or a fair-minded and informed member of the public, to a reasonable apprehension or suspicion of a lack of impartiality on the part of the Court (Webb v R (1994) 181 CLR 41).

The mere fact of some prior involvement by a judicial officer in litigation affecting a party does not of itself necessarily give rise to a reasonable apprehension of bias. In R v Masters (1992) 26 NSWLR 450 a trial judge was not disqualified although he had made adverse reflections on an accused when revoking his bail before trial. However, it may well turn on a matter of degree. In White v Liddy (1989) 51 SASR 412 a magistrate had not only twice revoked bail on the basis of his own suspicions, but was to be a witness against the plaintiff on a charge of forgery arising out of the first bail matter. There was no evidence of actual bias, but Mullighan J granted an application for judicial review to prevent the magistrate from dealing with the plaintiff on a plea of guilty, upon the basis that both the plaintiff and members of the public "might reasonably imply that the learned special magistrate is not unprejudiced or impartial, even though that may not, in fact, be the case" (supra at 419-420). In my opinion there is nothing in evidence before me that would give rise to such an apprehension in this case, and White v Liddy is distinguishable on the facts. Were there evidence of prior personal animosity against or findings affecting credit of one or more of the parties before him, the position would probably have been different.

The fact that the learned magistrate also made the ex parte orders in these proceedings, being orders made solely on affidavit evidence, is also not sufficient, standing alone or in conjunction with the other proceedings, to disqualify the learned magistrate from further hearing the applications for the purpose of confirming or otherwise the ex parte orders so made.  There is nothing to suggest that the learned magistrate in fact had any pre-conceived views as to the outcome of the applications as a result of having made the ex parte or holding orders, or as a result of his involvement in the other proceedings.  Given the nature of the matters decided both in the other proceedings and in the ex parte proceedings in these applications, the circumstances do not give rise to any reasonable suspicion or apprehension of lack of impartiality in deciding these proceedings.

Several times during his submissions the appellant referred to allegations relating to his treatment by other judicial officers, suggesting that the learned magistrate could not but have been aware of and have reacted to such treatment.  I reject those submissions.  There is no evidence before me either of such treatment, let alone of any collusion which would be a necessary foundation for such submissions.

During the course of submissions after receipt of the report from the learned magistrate, the appellant for the first time, alleged that the learned magistrate was biased as a result (as I understood his submissions) of the learned magistrate having made another ex parte restraining order some few days before he delivered judgment in these matters.  The assertion was made from the bar table that the magistrate’s report was incomplete.  I am not prepared to act on that assertion, not only because it is no more than that, but because it was a matter which the applicant, if it were of any significance, was at liberty to raise again before the magistrate but did not.  He was also at liberty to raise it as part of his primary submission before me, but did not.  Furthermore, in providing a copy of my request for a report from the learned magistrate I had, to the magistrate’s knowledge, invited both parties to draw to his attention, within a stated time, any matters of which they were aware and which should be brought to the magistrate’s attention.  The appellant did not mention that matter, if it occurred, to the magistrate.

At the hearing convened to consider the learned magistrate’s report, the appellant, also for the first time, asserted some disqualifying social contact between members of the firm and the learned magistrate.  That had never formed any part of the appellant’s appeal, had not been mentioned before, was not therefore the subject of any report by the magistrate and was no more than an unproved assertion raised at the very last minute in submissions.  I reject any submissions based on that assertion.

I find no substance in this ground of appeal.

Proceeding Without Hearing Witnesses

Evidence was heard by the learned magistrate over a number of days.  The matter was listed on other days and was adjourned for various reasons.  The appellant had submitted a number of applications for the issue of summonses to witness directed to a number of individuals.  Before me, there was a complaint by the appellant that these had not been attended to when requested at the early stages of the hearing.  In my opinion, there was no substance in this complaint, as finally, on 26 November 1997, the appellant’s outstanding requests for the summoning of witnesses were reduced to three.  The magistrate refused one application, and that is not the subject of any ground of appeal before me.  Despite opposition from the prosecutor, the magistrate directed the issue of summonses to witness to John Walsh, a partner in the firm of Donaldson Walsh, and to Brian Tenny, an employee of VACC.

It appears that in respect of Mr Walsh, another magistrate had granted an application for the subpoenaing of Mr Walsh, and the summons to witness had been prepared, made returnable for 11 July 1997, the first day of the hearing, but, according to the magistrate, the summons to witness "was never signed and never given to the front office to deal with.  I have just located it".  When and by whom it was actually signed and sealed is not clear, but the return date was altered to 8 December 1997, with no application of any correcting seal.

In relation to Mr Tenny, the learned magistrate signed a summons to witness, also made returnable on 8 December 1997.  Against the opposition of the prosecutor the matter was adjourned for further hearing until that date for the purpose of having the two witnesses called.

On the resumption of the matter on 8 December 1997, the following exchange occurred between the learned magistrate and the appellant:

"HIS HONOUR: Mr Moore-McQuillan, this matter was adjourned until today to enable you to call your witnesses.

DEFENDANT:   Yes, your Honour. I have been given the documentation from the courts, signed.  I then faxed it to John Walsh and Brian Tenney [sic].  I then followed that up with a receipted mail, with both the same information, to Brian Tenney [sic] and John Walsh and that was returned and they received that on the 1st of the 12th, and they have yet to return them, your Honour, or they have failed to appear. …

HIS HONOUR:  That means you have come to the end of your case, seeing as they are not here.

DEFENDANT:   No, your Honour I still want those witnesses brought in, but I can’t bring them in if I get - if I keep on getting informed by them that they get told by the prosecution, by Mr Ford, not to turn up.  There seems to be a fair bit of confusion just whether they have to turn up or not turn up.  I don’t know what else I can do to physically get them.  I can’t contact John Walsh physically by phone because he is part of Donaldson Walsh, so I faxed them and sent by registered mail and got a reply, and with Mr Tenney [sic] I did contact him and spoke with him last Wednesday and he was aware of the court case this morning and has failed to appear to the best of my knowledge.  I have looked around outside, I can’t find them."

The learned magistrate then directed that the witnesses be called.  They did not appear in response to the call.  The following exchange then occurred:

"HIS HONOUR: I assume from what you said Mr Moore-McQuillan, that you would be asking for an adjournment to enable steps to be taken to bring these witnesses to court.

DEFEDANT:     I would your Honour.

HIS HONOUR:  I note your application and it is refused.  Do you have any other witnesses you wish to call.

DEFENDANT:   Your Honour -

HIS HONOUR:  Have you got any other witnesses present to give evidence.

DEFENDANT:   No.

HIS HONOUR:  That then would represent the close of your case.

DEFENDANT:   Your Honour, I think I have been severely prejudiced here, because Bob Ford was the person who told them not to turn up and if the prosecution -

HIS HONOUR:  You can do whatever you like about that later.  I have to finish this case one way or another, Mr Moore-McQuillan.  The witnesses are not here, I have made an order that I am not granting any adjournments for them to be brought here.

DEFENDANT:   Are they going to be penalised for not turning up.

HIS HONOUR:  You can do whatever you like about that in due course.  I am just asking you now, do you have any other witnesses to give evidence.

DEFENDANT:   No, I do not, your Honour.

HIS HONOUR:          That then represents the close of the defendant’s case in the absence of his witnesses being present.

What happens now Mr Moore-McQuillan is, it is for Mr Ford to address me and then you can say, you respond to his address, and that will be the end of these proceedings."

After some further brief discussion, during which the appellant inquired about what he could then do about the witnesses’ non-attendance, and the magistrate not being prepared to give him any advice, the matter proceeded to addresses.  The magistrate’s decision was reserved and handed down on 23 December 1997.

It will be apparent from what I have recorded above that no reasons were given by the magistrate for refusing the adjournment, and no indication was given by the magistrate as to whether he considered that the witnesses had properly been served.  It was plain that the appellant did not attempt to prove service in the manner required by the Magistrates Court Rules, and that he may well not have not been in a position to do so.

Section 20 of the Magistrates Court Act 1991 provides for the court, on the application of a party to proceedings or on its own initiative, to issue a summons requiring a person to appear before the court. Section 23 provides for the issuing of a warrant to a person who fails to comply with a summons or if there are grounds for believing that, if a summons were issued, a person would not comply with it.

Rule 10.02 of the Magistrates Court Rules 1992, being the relevant rules which applied to these proceedings, requires that a summons to witness should be served personally. Rule 10.03 provides that service of a summons to witness may be proved by affidavit or certificate of service as provided by the Summary Procedure Act 1921. Section 48A of the Magistrates Court Act enables the Court, in certain circumstances, to authorise service by post or by other means.

It is apparent from what the appellant said before the magistrate on 8 December that the subpoenas may be not have been served in accordance with the requirements of the rules, and there was no attempt to prove service in accordance with the rules.

The hearing had taken many days.  There had been adjournments at the request of the appellant.  His cross-examination of the complainant’s witnesses had been lengthy and, in may respects, irrelevant.  The appellant’s own evidence was of the same character.  I can well understand the learned magistrate’s impatience at the prospect of further delays in the completion of the matter.  Much of the learned magistrate’s frustration arose out of the fact that the appellant was self-represented.  However, in those circumstances, a magistrate, despite busy lists and the need for expedition, must ensure that a self-represented litigant is not denied a fair hearing through ignorance of the basic procedures of the court and of the rules with which he must comply in presenting his case.  It is not for a magistrate to advise a litigant on the law or his rights.  However, he or she must ensure that a self-represented litigant at least understands that there are rules under which parties must proceed, and ensure that he or she is not deprived of a fair hearing by virtue of a failure to bring to that party’s attention some of the more obvious rules which are second nature to legal practitioners and those who regularly appear in the courts.  The court does have an obligation to protect a litigant in person from any apparent procedural disadvantages that such a party may suffer simply through ignorance of particular procedural rules.

In Cooling v Steel , Wells J had occasion to give a warning about the need for magistrates to be vigilant in ensuring that unrepresented litigants, at the various stages of a hearing on a plea of guilty to an offence, were not ignorant of their rights and duties.  I have recently had occasion to refer to and adopt the principles to which His Honour there referred (Taylor v Police ).  The general observation of Wells J which I repeat was (ibid at 251):

"In general, the court should ensure that the defendant is appraised of his rights and duties at all times, and be vigilant to keep the proceedings free of error or misunderstanding."

His Honour was there speaking of an unrepresented defendant on entering a plea of guilty.  The remarks apply with equal, if not greater force, to an unrepresented litigant’s understanding of the more complex procedures involved in a contested hearing.

At the hearing on 26 November, it was not for the magistrate to advise the appellant as to how he should go about serving the summonses and proving the service.  It might have been appropriate to draw his attention to the fact that there were special rules in relation to service which he should ascertain and comply with.

From what the appellant said to the magistrate, when the matter resumed on 8 December, it was apparent that he might well have been ignorant of those rules.  There was no attempt by the magistrate to point out where the appellant had gone wrong; the magistrate did not inquire as to whether the appellant was aware of the rules or whether he had sought the assistance of the registry and if so, with what result.  Given the position of the two witnesses sought to be summoned, it would not be surprising if, even with knowledge of the summonses, they did not present themselves if they thought the summonses had been ineffectively served, particularly if there were any substance in the allegations of the appellant that one of them, at least, had made it known that he would only come under lawful compulsion.

There may have been some good reason why the appellant did not serve the summonses or attempt to prove service in the manner required by the rules.  He may have just been ignorant of the rules; he may have been misled by the advice of others.  It is not for me to speculate what those reasons might be.  In my opinion, however, the learned magistrate erred in his peremptory refusal of the adjournment simply because the witnesses were not there.  Far greater inquiry was needed as to the appellant’s understanding of the requirements and whether there was some legitimate reason as to why they had not been met.  By refusing the adjournment in the manner in which he did, the learned magistrate denied any further opportunity to the appellant to call witnesses for whom the court had authorised the issue of a summons to witness.  It may be, if proper inquiry were made of the appellant, that there was some reasonable explanation for his failure apparently to comply with the rules, in which case the application of the adjournment should have been given much more careful consideration.  It may be that such inquiry would reveal that there had been a knowing disregard for the rules, in which case an application for an adjournment would obviously be viewed less sympathetically.  The fact is that no such inquiry was made when it should have been, and with that failure went any prospects the appellant might have had of having witnesses whom he considered relevant to be brought to the court to give their evidence.

The question remains as to whether the loss of that opportunity caused any ultimate prejudice to the appellant. At the hearing on 26 November 1997, in relation to Mr Walsh the appellant had said that the purpose of his being called was to give evidence of a conversation which he allegedly had with the appellant as to Mr Walsh’s understanding of the problem that the appellant allegedly had at, or about the time of the incidents involving the members of staff of the firm, and of his understanding of the dilemma that the appellant then faced regarding the alleged non-payment of a cheque by VACC. As explained by the appellant to me, the evidence was designed to enable a submission to be made that if the past conduct justified the making of a restraining order, such offending would only be likely to occur in future if something was required to be done by the solicitors under the Workers Rehabilitation and Compensation Act which had not been done.

So far as Mr Tenny was concerned, the appellant explained to the magistrate that he wanted to lead evidence from him that the police prosecutor had informed him (Mr Tenny) that he need not give evidence if required.  I have little doubt that such evidence, if attempted to have been led, was of no relevance to the issues before the magistrate, and would probably have been disallowed.  The other reason, however, for calling Mr Tenny was to prove that during the rather lengthy course of the proceedings, the firm of Donaldson Walsh had ceased acting for VACC in respect of the appellant’s claims.  That was intended, no doubt, to found the submission that there was no reason for any future contact to be made between the appellant and members or employees of the firm in the future, even if there had been conduct worthy of restraint in the past.

In considering whether or not to confirm the restraining order under s99 of the Summary Procedure Act 1921, a magistrate is required to consider if there is "a reasonable apprehension that the defendant may, unless restrained, cause personal injury or damage to property or behave in an intimidating or offensive manner", and a court must be satisfied that the making of the order is appropriate in the circumstances.  It is essentially an order preventing the defendant from engaging in future conduct of the prescribed type.  It will obviously be relevant to the exercise of the court’s discretion as to whether or not to grant an order, and in what terms, to inquire as to what has been the cause of the allegedly offensive conduct and to make some inquiry as to the likelihood of its recurrence.  These are all matters which need to be weighed up by the magistrate.  If the offensive conduct is not likely to arise again, or there is no reason for the antagonistic parties to make contact, that will be a relevant but not necessarily decisive factor in determining whether an order should be made.

By peremptorily refusing to adjourn the matter and by denying the appellant any further chance to place what would have been relevant evidence before the magistrate concerning the likelihood and opportunity of further contact between the parties, the proceedings, in my opinion, miscarried.  The fact that the occurrence of the relevant incidents in the past was bitterly disputed and that the magistrate made certain findings adverse to the appellant as to the happening of those events did not mean that the magistrate should, without good reason, have denied him the opportunity to call evidence relevant to the determination on the assumption that the appellant’s evidence as to the past events might be rejected.  I cannot say that the evidence, if led and accepted, would have made no difference to the result.  I cannot say that the evidence, if led, would have led to a different result.  It is enough that it may have, and that the appellant was denied the opportunity to explain his apparent non-compliance with the Rules, and an opportunity to seek a further attempt to have the witnesses compelled to give evidence.

For these reasons, in my opinion, this ground of appeal should succeed, and the hearing should be completed by the learned magistrate.  This does not mean, however, that the restraining orders must inevitably be discharged or even that the appellant will necessarily be entitled to make another attempt to subpoena the witnesses.  That will be a matter for the learned magistrate to determine in the light of these reasons.

Before I leave this ground, however, I should advert to one matter which was not the subject of the appeal but which, if disclosure of it to the magistrate had been made, could well have affected the outcome, at least in respect of one of the orders.  In his final submissions the appellant asserted that Ms Ford had, during the currency of the proceedings, ceased employment with Donaldson Walsh and had moved interstate.  Mr Nicholas, for the respondent, acknowledged that he had instructions that she was now no longer employed by the firm.  It is not my duty to enquire into those facts, as they were not formally raised for consideration on the appeal.  However, just as the question whether the firm was still acting in respect of the appellant’s worker’s compensation claim was material to the question whether the restraining order should be confirmed, so, quite obviously, was the question whether Ms Ford was still employed by the firm or whether she still resided in the State.  If it was the fact that those events occurred during the course of the hearing I consider it behoved the complainant to bring those facts to the attention of the learned magistrate.

Although restraining orders have their own common law historical origins and are now based on Statute, they have much in common with equitable relief and the principles upon which that is granted.  The inquiry in which the learned magistrate was involved under ss99 and 99c of the Act was not only whether the ex parte order was properly made in the first place, but whether it should, in the circumstances then pertaining, be continued.  The confirming of the order relies on the court being satisfied of a reasonable apprehension that the defendant may behave, in future, in a way which justifies the continuation of the order.  The order is made for the benefit of the complainant, and may often have the effect of severely restricting the rights of the defendant to engage in a variety of social intercourse.  It would be a matter of grave concern if information material to the making or confirming of that order and within the knowledge of the complainant, but not likely to be known by the defendant, were withheld from the court during the currency of an inquiry.

As the result of this appeal will require a continuation of the hearing for other reasons, it may be that the court can and should further investigate that matter as well.  I would not want it to be thought that because this decision requires one particular matter to be pursued there is no longer an obligation on the part of the complainant to disclose to the learned magistrate any fresh information which might be relevant to the outcome.

Costs In The Magistrates Court

I have already set out the nature of the orders made by the learned magistrate at the conclusion of the hearing. The nature of the argument on costs was not recorded and no reasons were given by the magistrate for the orders that he made. There was no other evidence before me as to what had transpired. Accordingly, again in reliance upon Rule 97.14 of the Supreme Court Rules, I sought a report from the magistrate as to the matters which he took into account in making the several costs orders and the reasons for his doing so. The learned magistrate was unable to provide any further information that might assist.

It did not follow, merely because the learned magistrate discharged the order in respect of Donaldson Walsh, that the orders for costs should be identical.  Self-represented litigants are not generally entitled to costs of representing themselves, apart from entitlement to a witness fee, where they give evidence, and out of pocket expenses.  It would appear that the learned magistrate approached the question of costs in that manner.  I can see no reason for interfering with his order other than as a result of allowing two of the appeals on other grounds.  The order in respect of the Donaldson Walsh matter should stand.  The learned magistrate will be at liberty either to reinstate the existing costs orders or to make such other orders as to costs in the other two matters as may be requisite upon conclusion of the hearing.

Orders

For the foregoing reasons the order of the Court will be:

1. Appeal allowed.

1. Set aside orders for costs made in matters AMC-97-16988 and AMC-97-16989.

1. Applications in matters AMC-97-16988 and AMC-97-16989 remitted to the Magistrates Court of South Australia for further hearing and determination by Mr Grasso SM according to law.