Muldowney v Bailie/Flinders University of SA No. Scgrg-99-250 Judgment No. S164

MULDOWNEY V BAILIE/FLINDERS UNIVERSITY

[1999] SASC 164

Magistrates Appeal

MARTIN J. (Ex tempore) By notice of appeal lodged on 10 February 1999 the applicant seeks to appeal against a decision made in the Magistrates Court on 12 June 1996 when the magistrate made what is commonly referred to as a restraining order.
The applicant was unrepresented before the magistrate and in this Court. He indicated he wished to proceed unrepresented. No affidavit was filed in support of an application to extend the time within which to appeal, but the applicant explained his reasons from the bar table and then gave evidence in support of that application. He was cross-examined by counsel for the respondent.
The complaint seeking a restraining order was taken out by Peter Bailie, Deputy Director of Registrar and Administration at the Flinders University of South Australia (“the university”). It is dated 15 December 1995. That complaint alleged that there was a reasonable apprehension that the appellant would, unless restrained, behave in an intimidating or offensive manner toward a number of named individuals. Those individuals included a number of students, a security officer employed by the university, a service superintendent also employed by the university and the proprietor of a contract cleaning business retained by the university to perform cleaning services.
In his reasons, the magistrate indicates there was some discussion about the form of the complaint. He states that the matter proceeded on the basis that the university was seeking an order restraining the defendant from entering upon the campus of the university. In those circumstances, the magistrate exercised his powers pursuant to s181 of the Summary Procedure Act 1921 and amended the complaint so it was clear that it was a complaint by the university.
The applicant contested the application. A number of affirmations from the persons named in the complaint were tendered and confirmed on oath. The applicant cross-examined those persons. The hearing took some days and occupies 515 pages of transcript. It commenced on 15 April 1996 and concluded on 23 April 1996. As mentioned, judgment was delivered on 12 June 1996.
The magistrate ordered that the applicant be restrained in the following terms:
“1.......... From behaving in an intimidating or offensive manner towards Dean Male, Helen Adams, Stephen Miller, Pauline Weekley, Gillian Brannigan, Darryl Burns, Ernest Mennie, Jan Mahoney and Anthony Ward.
2. From assaulting, approaching, threatening or otherwise interfering with Dean Male, Helen Adams, Stephen Miller, Pauline Weekley, Gillian Brannigan, Darryl Burns, Ernest Mennie, Jan Mahoney and Anthony Ward.
3........... From entering or remaining in the vicinity of or upon the campus of the Flinders University of South Australia at Bedford Park in the State of South Australia, excluding the areas known as the Flinders Medical Centre.
4. From damaging or threatening to cause damage to the real or personal property of the Flinders University of South Australia.”
The applicant confirmed from the bar table that those orders were made on 12 June 1996. The document setting out the orders appears from the court file to have been served on the appellant on 15 July 1996. The magistrate ordered that the applicant pay the respondent's costs fixed at $19 470.50. It appears that order was made on 28 June 1996. On 15 July 1996, the appellant applied for a copy of the transcript.
Within a couple of days of instituting this appeal, the appellant also applied to the magistrate to vary the terms of the order. I have been told that last Friday, in what should have been a conciliation hearing, the magistrate on his own initiative removed three names from the order, namely, those of Adams, Ward and Miller. In addition, he revoked order No.4. Counsel for the university has indicated that the proper course to be taken by the appellant is to make a further application to vary if for example, he now wishes to study at the university. In one sense that is a practical resolution, but the appellant wishes to clear his name and pursue the current appeal. He has advised the court that if he is successful in the proceedings in this Court there will obviously be no need to take any further action with respect to the course followed by the magistrate last Friday. If he fails in this Court, he will appeal against the decision of the magistrate.
As to why there has been such a delay of approximately 31 months, the applicant said he was horrified by the decision and from the outset had in mind to appeal against it. Prior to seeking a copy of the transcript, he became aware of the two week time limit within which to appeal. That period had already expired. At about that time, he was travelling regularly between Adelaide and Melbourne and within a month or two of July, 1996 he commenced living in Melbourne permanently. He lived in Melbourne from that time until the end of 1998, but returned to Adelaide from time to time for various reasons. He went to Melbourne to live because of a personal relationship and an ultimatum given to him by his partner to live in Melbourne or the relationship would end.
In essence, the applicant said that while he was in Melbourne he did not know how to address this matter and he had lost confidence in the legal system. He needed time to regain his health and generally could not cope with life in a manner consistent with pursuing this appeal. He said his ability in not dealing with things when they were due to be dealt with is notorious.
During the course of the proceedings before the magistrate, the applicant was also engaged in other legal proceedings which ultimately found their way into the High Court. In conjunction with those proceedings, he was running a political campaign against certain electoral laws. He said in evidence that he lost in the High Court. His campaign was joined with that of another person who was also challenging various electoral laws. In the course of those matters, he was getting legal advice from time to time. It is clear from the applicant's evidence that he chose to direct his energies into the political campaign and the associated legal proceedings rather than pursuing an appeal in this matter.
The applicant contacted a solicitor about an appeal, but within a couple of months of the judgment that solicitor had indicated he would not take the matter. His next contact with another firm of solicitors was in about April 1997. Between the first solicitor declining and April 1997, the applicant chose to concentrate on the political campaign in connection with the electoral laws.
The applicant gave evidence concerning the lack of response from solicitors he contacted in about April 1997. He said it was not until December, 1998 or January 1999 that those solicitors finally declined to take the matter because he was unable to provide the necessary funds. I have not heard any evidence from those solicitors nor seen any documents in connection with the course of the relationship between the appellant and those solicitors.
There is another feature of significance. The applicant has said that he has been arrested on four occasions for failure to pay the costs. On the third occasion, he was provided with a notice, a copy of which is on the court file and which the applicant acknowledged in evidence he had seen at the relevant time. The third arrest occurred under a warrant issued on 9 August 1997. Following the arrest, a decision was made to suspend the operation of the warrant on certain conditions. The most obvious condition was that payment be made of the costs and a date was fixed for that payment, namely, 12 September 1997. It was also noted on the notice to the applicant that, in view of the two previous occasions when the warrant had been suspended and the applicant had “failed to act on the advice given”, the registrar had stated this was the applicant's final opportunity. The applicant said in evidence that on each occasion he was arrested the warrant was suspended on the basis that he was intending to appeal against the original decision. He acknowledged that the advice to which the notice referred was advice from the court that he should proceed with the appeal. The notice also indicated that he was required to attend at the court by Friday, 12 September 1997 “...and either lodge an appeal or discuss the matter with the deputy registrar”. It is stated that if he failed to do so, the warrant would be reissued and not suspended again.
The applicant lived in Melbourne for the remainder of 1997 and for virtually all of 1998. He did not lodge an appeal or take any effective steps in that direction. He said it was not because he was in Melbourne and would not be arrested, but that he was very wary of the legal system, bearing in mind his experiences in the Magistrates Court and the High Court, and he needed time to regain his health. He was back in Adelaide for about one month prior to his arrest in about December 1998, but took no steps to appeal in that month until he was arrested. He denied he instituted the appeal because of the arrest and maintained he appealed because it was a bad decision and should not be allowed to stand.
The applicant's explanations are, to say the least, unconvincing. I find that he made a deliberate choice to pursue other matters rather than an appeal in this matter. He has had more than ample opportunity to institute the appeal. It is clear he decided to proceed with the appeal because he would otherwise be required to spend time in custody for failing to pay the outstanding costs.
In Hembrow v Police (unreported judgment delivered 18 March 1996, judgment No.S5550), Lander J pointed out that an extension of time is an indulgence by the court and, when that indulgence is being sought, the court is entitled to be “fully and frankly informed with the appropriate degree of candour as to the reasons why the procedural requirements have not been complied with”. I find that the applicant has been anything but frank in his explanation to this Court. In view of the length of the delay and the conduct of the appellant, exceptional reasons would be required to justify an extension of time. Ultimately, however, the test that I must consider is whether the justice of the case requires the extension. The justice of the case includes a consideration of the interests of both parties, as well as other factors.
The applicant's grounds of appeal convey a number of complaints, but they can be distilled in the following fashion. First, there is a challenge of the validity of the complaint because it was taken by Bailie. Secondly, it is said that the imposition of order No.4 was unfair because it was not sought until the very conclusion of the proceedings. That matter is not of particular concern at this time as order No.4 was revoked last Friday. Third, the appellant attacks generally the findings of the magistrate as to the facts of the various incidents that were before him. Finally, the applicant in his written outline complains that the magistrate did not inform him that the magistrate was intending to find against him and that the applicant should bring the witnesses to court.
As to the fourth matter, the applicant acknowledged that throughout the hearing he was aware that the magistrate would be asked to make findings on the dispute between the applicant and the witnesses called on behalf of the university. He said he called three witnesses, but not others, because as the case proceeded he formed a judgment that the witnesses called by the university “kept shooting themselves” and it was not worth wasting the court's time bringing in other witnesses to contradict the case for the university. It was in those circumstances that the applicant made a judgment in the course of the proceedings. In my opinion, it cannot be said that he was denied procedural fairness in any relevant sense, or that the particular matter he now raises would justify the granting of an extension of time.
As to the validity of the complaint, counsel for the university properly and fairly conceded that there might be an arguable issue, but the prospects were not sufficient to justify such a large extension of time.
Section 99A of the Summary Procedure Act is in a division of the Act dealing with restraining orders. It provides that a complaint for a restraining order may be made:
“(a)....... by a member of the police force, or
(b) by a person against whom or against whose property the behaviour that forms the subject matter of the complaint has been or may be directed.”
The question arises as to whether the university was entitled to take out a complaint. I say “the university” because the magistrate allowed an amendment to the complaint and, as indicated in his reasons, the hearing was conducted on the basis that it was a complaint by the university, in essence, seeking an order restraining the applicant from entering onto the campus of the university.
The treatment of the complaint in that fashion is not reflected in the body of the complaint which stated that there was a reasonable apprehension that the applicant might, unless restrained, behave in an intimidating or offensive manner towards various individuals. In considering the justice of the situation in terms of an extension of time, however, in my opinion it is appropriate to take into account the manner in which the hearing was conducted before the magistrate. It was clear when the witnesses were called that the hearing was on the basis of a conflict between the witnesses and the applicant as to the various incidents upon which the university based its case. The applicant knew the university was using those incidents as a basis for its case that he should be barred from the university campus. There was no unfairness in the sense of the applicant not knowing what case he was called upon to meet.
While s99A refers to the complaint being made by “a person”, s4 of the Acts Interpretation Act 1915 states that in every Act, unless the contrary intention appears, the word “person” includes a body corporate. The magistrate correctly found that the university was a body corporate (s3(3) of the Flinders University of South Australia Act 1966). I note also s22 of the Acts Interpretation Act 1915 requires that if a provision of an Act is reasonably open to more than one construction, the court should prefer a construction that would promote the object of the Act.
The purpose or object of restraining orders is to be considered in the light of s99 of the Summary Procedure Act which sets out the circumstances in which a court may make a restraining order. The order can be made if:
“(a) ...... 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
(b) the court is satisfied that the making of the order is appropriate in the circumstances.”
It is clear that parliament set out to protect persons from personal injury and from intimidating or offensive behaviour. It also set out to protect property from damage. It follows that parliament contemplated that these orders could be used to protect, for example, property of a corporation. If the behaviour is directed against students or employees of an educational institution that is charged with the responsibility of exercising reasonable care for the safety of those students and employees, in a practical sense it can fairly be said that the behaviour is directed against the institution itself.
In this matter, according to the case for the university and the findings of the magistrate, the behaviour of the applicant was directed against both students and employees of the university and an independent contractor employed by the university as well as the property of the university. Leaving aside the effect of statutory enactments, at common law the university could have sought an order requiring the applicant to be bound over to keep the peace. The university could also seek an injunction restraining the applicant from entering onto the premises or from harassing students or employees. In my opinion, bearing in mind the obvious purposes of s99, it would be surprising if parliament intended to exclude an employer, including an educational institution, from those entitled to take out a complaint.
I note that in his affirmation of 15 December 1995, Mr Bailie indicated the university was concerned about harassment of its students and staff. A letter was tendered (Exhibit P3) signed by the Vice-Chancellor of the university and directed to Bailie confirming his authority to act on his legal advice and seek restraining orders against particular individuals in order to prevent those individuals from assaulting or engaging in further acts of harassment against members of the university community. The file indicates a complaint by police was, by agreement between the police and the university, withdrawn in order that the university complaint might proceed.
In all the circumstances, I am satisfied that the university was “...a person against whom or against whose property” the offending behaviour had been and was likely to be directed. The complaint was valid. Even if the point might be considered arguable, in my opinion the justice of this case does not justify the extension of time on this ground.
The third general attack by the applicant is against the findings of the magistrate as to the conduct in which his Honour found the applicant engaged on the various occasions. There was a clear conflict between the witnesses called on behalf of the university and the applicant. As a general observation, the magistrate indicated that the witnesses called for the university appeared to be telling the truth and there was nothing from any of those witnesses which would lead him to believe that they were not endeavouring to tell the truth. He found that the applicant was not a good witness during evidence-in-chief and, in particular, during cross-examination. He described the applicant as, at times, supercilious, and found that he prevaricated in answering questions. He said at times he gained the impression that the applicant was “just plain nasty”.
His Honour considered the evidence of each of the witnesses carefully. In respect of each witness called by the university he preferred their evidence in their essential respects to that of the applicant. A perusal of the evidence of those witnesses and the applicant demonstrates that his Honour was well justified in arriving at those views.
The evidence points to a rather unpleasant and disturbing picture of ongoing and widespread offensive and intimidatory behaviour over a period of time. It is not unfair to describe the evidence as demonstrating that the applicant was aggressive and obnoxious in the extreme. His conduct gave rise, understandably, to a reasonable apprehension of violence and of a continuation of that pattern of behaviour.
In those circumstances, I have arrived at a clear view that there is no prospect of the applicant succeeding in his challenge to the findings of the magistrate which were based on the magistrate's assessment of the evidence and the various witnesses. His Honour had more than ample opportunity to observe the witnesses giving evidence and to observe the applicant. It is unnecessary to cite the well known authorities concerning the position of an appellate court when considering the findings of the lower court.
The application to extend the time within which to appeal is refused. I order that the applicant pay the respondent's costs of this appeal.

[1999] SASC 164

19 April 1999