Nield v Shire of SERPENTINE-JARRAHDALE - [2004] WASCA 160

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: NIELD -v- SHIRE OF SERPENTINE-JARRAHDALE [2004] WASCA 160

CORAM: SIMMONDS J

HEARD: 2 JULY 2004

DELIVERED : 4 AUGUST 2004

FILE NO/S: SJA 1129 of 2002

BETWEEN: PAUL GREGORY NIELD
Appellant
AND
SHIRE OF SERPENTINE-JARRAHDALE
Respondent

ON APPEAL FROM:
Jurisdiction              :  COURT OF PETTY SESSIONS
Coram   :MR McINTYRE SM
File Number            :  AR 285 & AR 365 of 2002

Catchwords:

Misconduct restraining orders - Whether appellant should have been given prior notice of matters to be alleged at hearing - Whether Magistrate erred in refusing to allow appellant to adduce evidence - Rule in Browne v Dunn

Justices Act - Appeal against misconduct restraining order - Whether appeal is hypothetical - Whether appeal should be dismissed because misconduct restraining order has expired - Whether there has been a substantial miscarriage of justice

Legislation:

Justices Act 1902 (WA), s 184, s 199(1)(b)

Restraining Orders Act 1997 (WA), s 33, s 34, s 35, s 68

Summary Procedure Act 1921 (SA), s 26, s 28, s 99

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr P L Wittkuhn

Solicitors:

Appellant: In person
Respondent: McLeods

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

Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1
Ashmore v Corporation of Lloyd's [1992] 2 All ER 486
Bass v Permanent Trustee Ltd (1999) 198 CLR 334
Bayston v Scotch College [2002] VSC 516
BGC (Australia) Pty Ltd v Australian Limestone Supplies Pty Ltd, unreported; FCt SCt of WA; Library No 980424; 30 July 1998
Browne v Dunn (1893) 6 R 67 (HL)
Brunsgard v Daire (1984) 36 SASR 391
Chuck v Cremer (1846) 1 Coop & Cott 338; (1846) 47 ER 884
Confederation of Western Australian Industry (Inc) v Federated Miscellaneous Workers Union of Australia, Hospital Services & Miscellaneous, WA Branch (1990) 35 IR 287
Galea v Galea (1990) 19 NSWLR 263
Jones v National Coal Board [1957] 2 QB 55
Kennedy v Lovell [2002] WASCA 217; (2002) 27 WAR 39
Krakouer v Durka [2003] WASCA 141
Ku‑ring‑gai Municipal Council v Suburban Centres Pty Ltd [1971] 2 NSWLR 335
Little v Lewis [1987] VR 798
Moore‑McQuillan v Police, unreported; SCt of SA; 24 June 1997
Quicksilver v Liddy, unreported; SCt of SA; 24 January 1992
R v Ireland (1970) 126 CLR 321
Smith v Vivian [2002] WASCA 227
Veloudos v Young (1981) 56 FLR 182

Case(s) also cited:

Burwood MC v Harvey (1995) 86 LGERA 389
E I Du Pont De Nemours & Co v Commissioner of Patents (1987) 83 ALR 499
Johnson v Miller (1937) 59 CLR 467

SIMMONDS J: This is an appeal pursuant to s 184 of the Justices Act1902 (WA) against the decision of his Worship Mr McIntyre SM in the Court of Petty Sessions at Armadale on 21 October 2002. Those proceedings involved two applications for misconduct restraining orders, being matters AR 285/02 and AR365/02. Matter AR 285/02 was an application made by the appellant in the appeal, Paul Gregory Nield ("the appellant"), for a restraining order against Denyse Lydia Needham, then a councillor of the Shire of Serpentine‑Jarrahdale ("the Shire"). Matter AR 365/02 was an application made by Ms Needham for a misconduct restraining order against the appellant.
On that occasion the learned Magistrate dismissed the appellant's application for a restraining order and allowed Ms Needham's application. The appellant now appeals against the learned Magistrate's decision to make a misconduct retraining order against him. He does not appeal against the dismissal of his own application for a restraining order against Ms Needham.
The learned Magistrate made the misconduct restraining order against the appellant under s 34 of the Restraining Orders Act1997 (WA) ("the Act"). Section 34 of the Act provides that:
"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."
Having regard to matter AR 365/02 that was originally lodged by Ms Needham, the focus of the Court on 21 October 2002 was on s 34(a)(i) and s 34(a)(iii). The questions before the learned Magistrate were, firstly, whether or not, unless restrained, the appellant was likely to behave in a manner that could reasonably be expected to be intimidating or offensive to Ms Needham, and whether or not that conduct would, in fact, intimidate or offend her; or whether or not, unless restrained, the appellant was likely to behave in a manner that would be, or would be likely to lead to, a breach of the peace. Having answered that question in the affirmative, the Court then had to be satisfied that granting an order was appropriate in the circumstances.
Section 35 of the Act deals with matters to be considered by the Court. The provisions of the section state that, when considering whether to make a misconduct restraining order for reasons referred to in s 34(a)(i), and the terms of the order, a Court is to have regard to (among other things) (s 35(1)(a)(i)) the need to ensure that the applicant is protected from "intimidatory or offensive" conduct. The Court is also to consider (s 35(1)(h)) any previous similar behaviour of the respondent whether in relation to the person to be protected or otherwise (a paragraph to which I will return below), and also (s 35(1)(i)) any other matters the Court considers relevant.
Section 35 further provides that, when considering whether to make a misconduct restraining order for reasons referred to in s 34(a)(iii), and the terms of the order, the Court is to have regard to (among other things) (s 35(2)(a)) the need to ensure the public is protected from breaches of the peace, as well as (s 35(2)(h)), other matters that the Court considers relevant.
Section 68 of the Act deals with the extension of restraining orders to protect persons other than the applicant. When making a restraining order, a Court may extend the order to operate for the benefit of a person named in the order in addition to the persons protected by the order. If an order is so extended, the provisions of the Act apply to the named person as if that person was the person protected by the order.
Matter AR 356/02 was begun by a restraining order summons in the form prescribed under the Act and was dated 14 August 2002. It named the appellant as the respondent, as I have indicated, and Ms Needham as the person to be protected. The summons, in the "Grounds for Application" box in the form, under the heading "Why do you need a misconduct restraining order? Because the respondent is likely to", had checked off the boxes alongside the choices "behave in a manner that is intimidating or offensive to the protected person" and "behave in a manner that is, or is likely to lead to, a breach of the peace". In the limited open space remaining in the box under these choices the following appeared:
"The [appellant] persistently acts in an offensive and intimidating manner towards [Ms Needham] when she is attempting to discharge her duties as a Councillor of [the Shire]. The behaviour of the [appellant] causes persistent anxiety and distress to [Ms Needham]."
The misconduct restraining order made on this summons, and that is the subject of the appeal (I shall call this order from now on either "the order" or "the MRO"), is in the form prescribed under the Act and names the appellant as the restrained person, and Ms Needham as the protected person. The terms of the MRO made by the learned Magistrate in material part are as follows:
"The Respondent shall not:
behave in an intimidatory or offensive manner towards the person protected, behave in a manner that is likely to lead to a breach of the peace, cause or allow any other person to engage in conduct of the type referred to in the preceding paragraphs of this order.
OTHER ORDER: This Order is to apply to all Councillors and Officers of the [Shire]."
I interpret the "Other Order" as based on the power in s 68 of the Act, above.
Pursuant to s 37 of the Act, the MRO came into force when it was served on the appellant on 11 December 2002, and remained in force for 12 months. The MRO therefore expired on 11 December 2003. There has been no suggestion in these proceedings that the appellant at any time during the life of the restraining order breached or attempted to breach any of its terms.
The Act, s 64(2), provides for an appeal in this case under Pt VIII of the Justices Act 1902. By virtue of s 184 of that Act, the appellant applied for leave to appeal against the Magistrate's decision on 12 November 2002, approximately one month prior to the date that the restraining order came into force. His Honour EM Heenan J granted the appellant leave to appeal on 19 November 2002 on certain grounds which I quote below.
Before leaving the provisions of Justices Act 1902, I need to note the powers of the Court on an appeal like this one contained in s 199(1), which is as follows:
"199.Powers of Court
(1)Upon the hearing of an appeal, the Court may do one or more of the following -
(a)dismiss the appeal, or set aside, quash or vary the decision of the justices and any order made or thing done as a result of the decision;
(b)dismiss the appeal notwithstanding that any point raised on the appeal might be decided in favour of the appellant, if it considers that no substantial miscarriage of justice has occurred;
(c)substitute a decision that ought to have been made by the justices;
(d)remit the case for rehearing by justices or specified justices or a magistrate or a specified magistrate, with or without any direction to him or them;
(e)refer the case for hearing and determination by the Full Court;
(f)exercise any power that the Court may exercise on an application for certiorari, mandamus, prohibition or habeas corpus;
(g)make such other order as it thinks fit, including an order as to costs."
I will have occasion to make a number of references to s 199(1)(b) later in my reasons.
At the commencement of the appeal, Ms Needham was the respondent to the appeal. On 20 February 2003, upon application by Ms Needham, his Honour Templeman J ordered that the Shire be substituted as the proper respondent to the appeal. The application and order for substitution were made on the ground that the learned Magistrate had, under s 68 of the Act, extended the benefit of the restraining order to "all Councillors and Officers of the [Shire]".
At the hearing of the appeal before me the appellant represented himself, and was assisted by his wife. The Shire was represented by counsel. The grounds of appeal for which leave to appeal was given are as expressed in his application for leave to appeal and reproduced in EM Heenan J's orders of 19 November 2002. They are:
"(a)The learned Magistrate erred in not allowing the applicant to be aware of what he was to be accused prior to the complaint being heard.
(b)The Learned Magistrate erred in dealing with the Matter by not allowing evidence to be heard which would prove the innocence of the applicant
(c)The Learned Magistrate erred in not allowing the applicant to call witnesses to put in question claims made against him."
Before I deal with these grounds of appeal, I first address two matters. One is the context to the applications by the appellant against Ms Needham, and hers against him, so far as appears to me to be important to a proper understanding of the proceedings in the appeal. The other preliminary matter I address is an objection to this appeal by the Shire on the basis that the issues it raises are "hypothetical" in the sense I will discuss.

Context to the MRO proceedings

The appellant is apparently a ratepayer of the Shire. For a significant period before the hearing of the applications for restraining orders in this case, he had been making representations to the Shire about concerns he had related to certain alleged polluting activity affecting land in the Shire that allegedly raised particular health concerns for children. The appellant apparently became further concerned about how he believed the Shire was responding, or not responding, to those concerns. He apparently had become, or attempted to become, an active participant at meetings of committees of the Council at the Shire, and at Council meetings themselves. He apparently had communicated his concerns in strong terms, in writing and in person, to a number of Shire officers individually. His application for a restraining order against Ms Needham and hers for one against him arose out of this background, it would appear. As I have noted, there is no appeal against the dismissal of the appellant's application.
This context is returned to at a number of points in my judgment. For now, it is important for me to reinforce what I said at the hearing of this appeal, namely, that nothing in this judgment, including these remarks, is addressed to the justifiability or otherwise of the appellant's concerns as I have described them. The appeal before me is restricted to the matters covered by the grounds that I have already quoted.
It also follows from what I have just said that this appeal is not about the justifiability or otherwise of the findings made by the learned Magistrate from which the appeal was taken as being made without evidence, or against the evidence. As counsel for the Shire reminded me, there does appear to be a substantial body of evidence to support the finding, to some of which I return below. Rather, the grounds of appeal in this case go to matters that, if established, might call into question the safety of the decision.

Should this appeal be dismissed because the MRO has expired?

The Shire, by chamber summons filed on 24 December 2003, sought orders, the principal one of which was that the appeal in this case be struck out on the ground that the MRO "has expired, and the issues in the appeal have become hypothetical". This application was dismissed by his Honour EM Heenan J on 5 April 2004, with an order granting the appellant any proper disbursements he had incurred that were related to his opposition to the application. EM Heenan J's reasons for doing so emerge from the transcript of the hearing of this application in chambers on 5 April. Those reasons were that leave to appeal having been granted, the Court only had jurisdiction to dispose of the appeal at a hearing on the merits of the appeal, except in a case of want of prosecution or abuse of process. No appeal against that decision was prosecuted, and counsel for the Shire indicated before me that the Shire was not relying upon want of prosecution, nor, as I interpret counsel's submissions, abuse of process.
Before me, counsel for the Shire submitted that the appeal should be dismissed on the foundation relied upon in the chamber summons I have referred to and based upon the fact that the appeal had not been prosecuted within the life of the MRO, which, as I have indicated, expired on 11 December 2003. I note that the appeal was, in fact, entered for hearing on 25 January 2003, but, upon application by the appellant, that hearing date was vacated. The appeal was subsequently, on 24 December 2003, again entered for hearing.
Counsel for the Shire submitted that this appeal concerned a matter that was "hypothetical" in the sense used in the authorities which have said that Courts should decline to decide a case brought before them concerning such matters. Counsel for the Shire referred me to four cases in this regard. In Bass v Permanent Trustee Ltd (1999) 198 CLR 334, the High Court referred to a declaration made by the Full Court of the Federal Court as one "not based on facts, found or agreed" and so "purely hypothetical" (at [49], per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ). In Confederation of Western Australian Industry (Inc) v Federated Miscellaneous Workers Union of Australia, Hospital Services & Miscellaneous, WA Branch (1990) 35 IR 287, the Full Court of this Court dismissed an appeal against two orders that varied two industrial awards where those variations were "entirely superseded" by a further order, with effect as from the following day. Only the initial two variation orders were appealed. The Court quoted (at 288) from the judgment of Else‑Mitchell J in Ku‑ring‑gai Municipal Council v Suburban Centres Pty Ltd [1971] 2 NSWLR 335 at 339 that:
" … it is not the function of the established courts to entertain applications which are designed solely or primarily as a means of obtaining legal advice for potential litigants, and that the courts should, so far as possible, avoid making determinations of hypothetical questions."
The Full Court also quoted from the judgment of Lockhart J in Veloudos v Young (1981) 56 FLR 182, at 190, as follows (288 ‑ 289):
"Courts will not decide a question that is academic in the sense that it is useless, merely hypothetical, raised prematurely or a dead issue; although they preserve a discretion to determine a question which has ceased to be a live issue inter‑parties where the determination would be in the public interest."
(I would not consider that that exception is relevant in this case, as it was not in the Full Court's case.)
In Bayston v Scotch College [2002] VSC 516, the Court dismissed an action for declarations, including, most relevantly for present purposes, one of the invalidity of the appointments of a certain person to the Council of the College, where that person's term of office had ceased, and no allegation had been made of the invalidity of any actions of the Council taken during that person's time on it. Byrne J referred to the declaration sought, which the parties in that case were all anxious to have decided, as one requiring the Court to address issues that "are no longer of any consequence", while to the extent the declaration sought raised "more general issues of principle" (going to the basis upon which the nomination of someone like the appointee should be rejected), the declaration "put to the court a truly hypothetical question" ([25]).
In R v Ireland (1970) 126 CLR 321, the Court refused an application for special leave to appeal from a decision by a majority of the Court of Criminal Appeal of South Australia that allowed an appeal against a conviction for which several grounds had been argued, but no single one of which had commanded acceptance by a majority of that Court. Barwick CJ referred (at 330) to the proper characterisation of the judgment appealed from as the order made by the majority, not the reasons for that order, which could not themselves be the subject of the appeal.
It appears to me that the case before me does not fall within this area of the law. The appellant lodged an application for leave to appeal against an order of the Court within the time allowed and was granted such leave on the grounds I have specified. That order, the MRO, was not superseded by any other, and had an operation for a significant period. The MRO is based, as s 34 indicates, on a determination by the Court that, unless restrained, the person subject to the order is likely to behave in the ways described in the section and material to this case; and that granting the order was appropriate in the circumstances. This Court has recognised the seriousness of an order of this nature: see Smith v Vivian [2002] WASCA 227 per Hasluck J at [62], which I quote from later in these reasons. I further note that breach of an order like this MRO is made an offence punishable by a penalty of $1000 (s 61(2) of the Act).

Counsel for the Shire reminded me that there is no allegation by the Shire of any breach or attempted breach of the MRO. He further submitted that, were this appeal to be decided in the appellant's favour, that could not prevent the prosecution of the appellant for an offence committed before the disposition of the appeal. He cited Little v Lewis [1987] VR 798 which involved an appeal against a committal for contempt of an injunction against practising as a solicitor; and Kennedy v Lovell [2002] WASCA 217; (2002) 27 WAR 39, which involved an application for committal for alleged contempts of the Royal Commission. In both of these cases, the Court had clearly indicated that the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the Court that it might be discharged. As long as it existed it must not be disobeyed: Chuck v Cremer (1846) 1 Coop & Cott 338; (1846) 47 ER 884, per Lord Cottenham LC, at [342], as quoted in Lovell (supra) at [54] per Malcolm CJ.
However, in this case, the appellant did precisely what the authorities call for, namely, followed the procedure laid down to challenge the MRO. The procedure did not result in a hearing of that challenge until the order expired; but this was explained by the appellant on the basis of the concern he had not to be seen to be acting in contravention of the MRO itself. That is, by prosecuting the appeal, the appellant might be deemed to be behaving in an offensive manner towards the persons protected by the MRO. There was, in my view, clearly no reasonable basis for such a belief, as counsel for the Shire strongly submitted to me. However, there was no challenge to the honesty of this belief; and, in any event, as I have said, no case was put to me to dismiss this appeal for want of prosecution.
In all of these circumstances, I do not consider the appeal should be dismissed on the basis of the concern of the Courts not to be called upon to decide matters that are "hypothetical". The issues at stake here, namely, the possibility that the MRO ought to be set aside on one or more of the grounds on which the leave to appeal was granted, are not of "no consequence" in the Bayston (supra) sense, as it appears to me. There is a pejorative significance for the appellant attached to an order of this sort even after its expiry. Its possible relevance to dealings he may have with third parties in the future is akin to, even if not the same as, a conviction of a person for an offence which is sought to be set aside, even after the term of imprisonment for that conviction is served.
This means that it is not determinative that the learned Magistrate made no order as to costs on the MRO, a matter he addressed in his decision. The existence of such an order was seen by the Court in BGC (Australia) Pty Ltd v Australian Limestone Supplies Pty Ltd, unreported; FCt SCt of WA; Library No 980424; 30 July 1998 to be a factor making it appropriate to decide an appeal against the dismissal of an application for an order for payment into court even though such a payment had, in fact, been made.
The view I have just described also in my analysis disposes of the argument that the Shire appeal should be dismissed on the ground in the Justices Act 1902 s 199(1)(b) because the MRO went only to enjoin the appellant in very limited ways that arguably simply reflected the bounds of civil conduct. Section 199(1)(b) of the Justices Act 1902 says, as I have previously indicated:
"(1)Upon the hearing of an appeal, the Court may do one or more of the following -
…
(b)dismiss the appeal notwithstanding that any point raised on the appeal might be decided in favour of the appellant, if it considers that no substantial miscarriage of justice has occurred;"
However, as I will explain below, s 199(1)(b) has other applications to this appeal. I also note that the relatively lower level of constraint imposed by the MRO in this case is to be weighed in answering the question of whether or not a substantial miscarriage of justice within s 199(1)(b) has resulted notwithstanding any point or points raised on the appeal might be decided in the appellant's favour: see Krakouer v Durka [2003] WASCA 141, per Templeman J, at [35]. I have so proceeded in this appeal.
I turn now to consider the grounds of appeal, being those upon which the MRO is challenged, and, as I explained to the appellant at the hearing, are those alone on which argument in that appeal could focus.

Prior notice of the proceeding

The appellant in his argument before me expanded upon his written submissions on this ground (a). He explained that he had not been made aware of the particular alleged incidents on which Ms Needham would be relying to show that a misconduct restraining order should be made. So far as I have been able to determine, those incidents that might have formed the basis for the learned Magistrate's decision were at least the following:
•At a meeting of the Shire's planning committee chaired by Ms Needham, and at which the appellant was present, he became "very aggressive, paced in and out, glared through the windows at us" in what was described as "an intimidating" way (transcript 87);
•that he had engaged in conduct at various meetings of the Council and committees of the Shire that had resulted in him being ejected from a particular meeting on 17 December 2001, and that action of this sort had not stopped the behaviour of concern (transcript 89, 90);
•that during a break in a meeting of a committee at the Shire at which the appellant became "very angry" he followed a female employee of the Shire, a Ms Abbiss, to the ladies' toilets demanding answers to certain questions in a manner that caused her to go into and lock the door to the toilet (transcript 96);
•he had been persistently aggressive, unpredictable, intimidating and threatening in his approach to dealing with councillors at meetings (transcript 89).
A somewhat longer list, including the items I have listed, is set out in the respondent's submissions as to the evidence in support of the learned Magistrate's decision, submissions to which I have referred earlier. I have also considered whether there was a further item that should be included, one to which the appellant's submissions referred. It was that at a meeting of the Council the appellant had conducted himself towards a councillor of the Shire, a Mr Richards, in ways which caused Mr Richards thenceforth to avoid contact with the appellant outside Council meetings. As I will explain below, the appellant believed that he had been unfairly denied an opportunity to counter this evidence. I will indicate below why I do not consider that this item, in fact, played a significant part in the learned Magistrate's decision to make the MRO.
I have noted that the learned Magistrate had only this to say directly about the basis for his order:
"That doesn't mean that the court is entitled to make a restraining order against someone who just persists in asking questions, whether difficult questions or otherwise but, at the end of the day, if enough people of good faith, reasonable people, come forward and say this is the situation, this is the impact that this is having upon me then, in appropriate circumstances, the court is entitled to say enough is enough and impose restraints upon people which don't fetter their right to complain but limit the manner in which the complaints can be made.
With that in mind, I'm satisfied on the evidence that's been given before me that it is appropriate to make a restraining order, very limited in its terms, but sufficient to bring to an end the behaviour of the kind of which I've heard reference made. The evidence, in my view, establishes that when it suits him, Mr Nield is capable of being overbearing, persistent, offensive, insulting to an extent which takes him beyond the limits which might be imposed on a reasonable ratepayer making appropriate inquiries in an appropriate forum.
I find that Mr Nield persistently and habitually neglects to comply with directions which are made which are in fact appropriate in the circumstances. So I intend making an order against Mr Nield which, in my view, as I've already indicated, will allow him to legitimately pursue issues of appropriate concern. The restraining order which will be made which takes effect immediately and will last for 12 months will restrain you - Mr Nield, if you stand up - from behaving in an intimidatory or offensive manner or behaving in a manner that's likely to lead to a breach of the peace or causing or allowing any person to engage in conduct of the type referred to.
In view of what's been said and the nature of the evidence that's been given, I am satisfied that you are not likely to simply confine yourself to any particular person, you're likely, as I find to be the case, for example, to persist in following Miss Abbiss as she walks down the corridor and circumstances where, in my view, accepting her evidence as I do, your behaviour is totally in appropriate [sic]." (transcript 127 ‑ 128)
Counsel for the Shire drew my attention to the response made by solicitors for Ms Needham to the appellant's request by letter dated 1 October 2002 for further information about the basis for the restraining order summons of 14 August 2002. That response by letter dated 4 October 2002, in material part, read as follows:
"The sheet of the application form headed 'Application Details' [I understand from the approach taken to this letter both by the appellant and counsel for the Shire that this refers to the restraining order summons, the form for which begins 'An application has been made for a restraining order against you. The details of the application are set out below.'] is in our view sufficiently descriptive of our client's concerns. Evidence will be lead [sic] of incidents at the office of the [Shire] on various dated including 17 June 2002, 15 July 2002 and 22 July 2002. There may be further evidence lead [sic] as our preparation for trial continues. In our client's view that behaviour was as such to justify and application by her for a Misconduct Restraining Order."
I did not take counsel for the Shire to be submitting that this was necessarily a response such that the appellant thereby had all of the information as to the matters I have previously itemised, and, in view of their nature, I would not so determine. The response was, however, an effort to provide the appellant with further information of the sort he was requesting.
Counsel for the Shire, however, also reminded me that the essential issue in the determination of an application for a misconduct restraining order under s 34 of the Act in a case like this is the issue I have referred to earlier, namely, whether unless restrained a person against whom the order is sought is likely to behave in one or other of the two manners referred to in s 34(a)(1) and (3). Only if that determination is made is the question then reached, from s 34(b), of whether or not an order is "appropriate in the circumstances". Section 34 of the Act is to be contrasted in this respect with the provision that it replaced from the Justices Act 1902, former s 172, for orders restraining a person to prevent that person from acting in the ways described in the section. For each of the ways described in that section - causing personal injury or damage to property, carrying out a threat to cause either, or behaving in a "provocative or offensive manner" that is likely to lead to a breach of the peace - there was a requirement that the justices have found a prior incident or the threat, as the case may be. Under the Act, there is no such requirement. There is also considerable scope for evidence to be considered on the issues in s 34(a), and on the terms of the order, provided for under s 35, as I have indicated, including (for s 34(a)(i) and (ii)), "any previous similar behaviour of the respondent [the appellant here] whether in relation to the person to be protected or otherwise" (s 35(1)(h)), to which I return again below.
Counsel for the Shire referred me to the procedures under the Act for mention hearings and final order hearings in the Act ss 40 to 44, as well as the possibilities in s 63 for making restraining orders in other proceedings, all of which tended to indicate that the Act does not provide a requirement for particulars. Counsel for the Shire also laid emphasis on the "fundamental" distinction in the law between particulars and evidence.
Counsel for the Shire also drew my attention to what he submitted was the intention underlying the Act, to allow for access to the protection it provided for ordinary members of the public, many of whom could be expected to be self‑represented. That was the case in respect of the appellant's application for an order against Ms Needham which had failed and to which I have previously referred. There was support for that view of the intention underlying the Act in relation to applications for violence restraining orders, at least, which is the other form of restraining order available under the Act, from the preliminary debates that preceded its passage: see Hansard, 8 April 1997, page 1219. There is also some support for this view of the intention underlying the Act to be seen in the form of a summons prescribed under the regulations to the Act, a form followed in this case, as I have indicated.

The appellant's authorities

However, the appellant drew my attention to a number of authorities which he submitted supported this ground of appeal (a). They are legislative provisions in South Australia authorising the making of restraining orders and corresponding in a number of respects to provisions in the Act. The most recent of the three authorities was Moore‑McQuillan v Police, unreported; SCt of SA; 24 June 1997, Duggan J, which cited to the other two authorities, Brunsgard v Daire (1984) 36 SASR 391 and Quicksilver v Liddy, unreported; SCt of SA; 24 January 1992. Moore‑McQuillan concerned an order made under what appears to be the South Australian equivalent of the Act, s 34, the Summary Procedure Act 1921 (SA), s 99. The order had originally been made in the absence of the respondent ("ex parte") on affidavit evidence under the South Australian equivalent Act, s 26(2) and s 28, which in this State is available only for violence restraining orders. In both States, there is a requirement in such a case for the respondent to be notified of any order made at the ex parte hearing, so that an objection to that order becoming a final one may be made and tested at a hearing for the purpose: Summary Procedure Act 1921 (SA), s 99C(2); the Act, s 33. Under a further provision of the Summary Procedure Act 1921 (SA), s 99C(3), which has no counterpart in our Act, however, the order made ex parte on affidavit may not be confirmed in reliance on such evidence if the respondent has required the deponent or deponents to appear personally at the hearing for confirmation of the order so that they will give oral evidence of the matters referred to in the affidavit or affidavits, and the deponent or deponents have failed to appear. In Moore‑McQuillan, the respondent had requested copies of the affidavits in question, but none were supplied to him. The Court held that the appeal against the confirmation of the order in that case should be allowed, and one of the bases for that decision was that the respondent "was entitled to the precise details of the allegations made by any deponent, both as a matter of procedural fairness (Brunsgard v Daire (supra) at 396) and the provisions of the Act [the South Australian legislation]" (pages 5 ‑ 6; underlining in original).
Counsel for the Shire submitted that I should distinguish Moore‑McQuillan on the basis that it concerned confirmation of an order originally made on affidavit evidence, where the respondent was denied the effective enforcement of his right to decide whether or not to call and cross‑examine witnesses. I agree. I also agree that a greater level of detail than that provided in the summons in this case was not called for under the Act. If the appellant had a reasonable need for more time to meet the matters referred to in the summons, an adjournment might have been sought. The appellant was unable to indicate to me any request for an adjournment in the proceedings below. The appellant did indicate at the hearing prior to evidence being taken on his application for a restraining order against Ms Needham, which as I have indicated the learned Magistrate had indicated would be heard before Ms Needham's application, that he had concerns as he was unsure about what allegations he had to meet in relation to the latter. He was reassured by the learned Magistrate that "the evidence will be confined to the essential elements of the matter" (transcript 6). During the hearing of his own application, the appellant reiterated his concern that he was "unable to summons people to defend what I may or may not be accused of" (transcript 49). The learned Magistrate on this occasion referred to the summonses containing "the grounds" (transcript 49). Again, after the appellant's application had been dealt with, and before evidence of Ms Needham on her application was led, the appellant reiterated his concern (transcript 78). The learned Magistrate appears to have responded to this by asking counsel for Ms Needham, who was not counsel for the Shire before me, for "specifics" so that the appellant would be "aware of what it is you're alleging against him" (transcript 78). Finally, the appellant reiterated the concern again when counsel for Ms Needham asked to know who the witnesses to be called for the appellant would be, and the appellant answered that he was not sure whom he was going to call as he did not know "what accusations are going to be thrown at me" (transcript 80).
I will indicate later that there are issues arising in this case of further evidence that the appellant claimed before me he was denied the opportunity to have adduced. These, however, go, in my view, to the grounds of appeal (b) and (c), and the question whether and adjournment might have been appropriate to permit the matter to be addressed. They do not go to the notice ground.
I should not leave this matter without noting that the appellant was, indeed, entitled to have the hearing confined to the matter referred to in the summons, at least unless there was a procedure for its amendment, on which I was not addressed. I have already referred to the terms of the summons in respect of the grounds upon which Ms Needham indicated she proposed to rely. While I note that the basis for making the order is a propensity to engage in conduct unless an order is made, as counsel for the Shire put it to me, the summons indicates that the case for that relief will rest on conduct of a particular nature being conduct "towards" Ms Needham "when she is attempting to discharge her duties as a councillor of the [Shire]", being conduct which "causes persistent anxiety and distress to [Ms Needham]". However, in the light of the provisions of s 35 to which I have referred, it does not appear to me to be appropriate to say that matters within that provision, and particularly s 35(1)(h) from which I have previously quoted, could not be adduced, provided at least that they could be said to bear on the case to be made in the summons, as I have referred to it. A number of elements in the itemised list set out earlier in my judgment involved, of course, conduct towards persons other than Ms Needham and the effect on those persons of that conduct. However, it appears to me that the learned Magistrate could appropriately form the view that they indicated a pattern of behaviour into which the evidence concerning the appellant's behaviour towards Ms Needham fitted, and which helped to explain the latter behaviour. I note, particularly in this regard, the following passage from the decision of the learned Magistrate in which he considers the relevance of s 35(1)(h) to his case:
"Now, I've already raised what 'or otherwise' might mean but I think, in the circumstances of this particular case, I'm entitled to take into account some of the other issues that have been raised, for example, that raised by Miss Abbiss for example and some aspects of what's been raised by Mr Richards. I'm concerned about the breadth of the evidence given in relation to those matters and I attach to some of the evidence the weight which I think is appropriate. In some instances, such as that which was sought to be tendered from Mr Owston [a witness called for Ms Needham], I didn't think the issue required me to give any weight to it." (transcript 127)

I return to this passage later in these reasons. I would distinguish Brunsgard v Daire (supra), also cited by the appellant as I have indicated, on this basis.
In Brunsgard, the proceedings were under South Australian legislation equivalent to the former s 172 of the Justices Act 1902 (WA) to which I have referred. An order had been made without an appearance by the respondent, and at the hearing evidence was led of incidents other than at the places and before the date shown in the complaint. I have already indicated that it is an essential element of provisions like these that there was a prior incident of the sorts referred to in them. The Court held that the Magistrate in that case, at the hearing to confirm the order, did not have the complaint before him to amend to fit the evidence, although if matters had rested there (they did not) the Court would not have quashed the confirmation, as there was no objection at the hearing that went to those details, at least as to place. Further, no one was misled and no prejudice was evident. Here, there was, in view of s 35 of the Act (which appears to have no counterpart in the South Australian legislation) and the terms of the summons in this case, no reason to amend it, as I have indicated. The appellant did not object to the calling of any of the witnesses, the subject of the itemised list. The appellant did not appear to indicate before me that he was misled by the form of the summons or prejudiced by its terms other than its failure to supply particulars of all of the incidents in question.
Before leaving this ground, I need to note from Moore‑McQuillan the following passage:
"As is pointed out in Brunsgard v Daire (supra) and Quicksilver v Liddy (S3232 24 January, 1992), the making of a restraining order places important restrictions on a defendant and breach of it may be punished by a term of imprisonment [in the case of the Act, this is not so for a misconduct restraining order]. It is essential that the hearing which leads to such an order being made is conducted in accordance with the requirements of the legislation and that it is focused on the matters which have to be established before the order sought can be made or confirmed."
I further note (albeit in a different context under the Act, that of the requirement that an order be supported by admissible evidence, including the requirement that there be evidence showing it to be objectively justifiable that is imported by "reasonably" in s 34(a)(1)), the following passage in the judgment of Hasluck J in Smith v Vivian (supra), to which I have referred earlier, at [62]:
"If a restraining order is made, whether it goes to allegedly violent conduct or simply to conduct characterised as misconduct, such an order imposes a restraint upon the respondent. It seems to me that this brings into play a consideration of the rights of the citizen. Even in the case of remedial legislation, the exact boundaries of the powers allowed to the Court must be discerned by a close reading of the legislation, and it should not be assumed too readily that new powers are necessarily [sic to] be construed in a broad manner. See I W v City of Perth (1997) 191 CLR 1 at 15."
I have borne these views in mind in my approach to identifying the Act's standard for reasonable notice to the appellant of what he would be required to address.
I turn now to the grounds of appeal related to the way the proceedings unfolded so far as concerned the appellant's opportunities to meet the evidence against him.

The opportunities of the appellant to meet the case against him

I group grounds of appeal (b) and (c) here together, as they overlap. Ground (b), as it emerged from the appellant's submissions and at the hearing before me, related to the appellant's claim that the learned Magistrate erred in refusing to allow him to put into evidence audio‑tapes of certain meetings at the Council of the Shire, and to the appellant's claim that he was denied the chance adequately to examine certain witnesses who had been called. Ground (c) as it emerged in the appellant's submissions and at the hearing, related to the appellant's claim that the learned Magistrate had erred in refusing to allow him to call certain witnesses for certain purposes.
I preface this discussion by noting that, in hearings under the Act, the ordinary rules of evidence apply: Hasluck J in Vivian (supra) at [6]. These include the rules as to hearsay, which were applied in Vivian itself, and also by the learned Magistrate in this case; and the rule in Browne v Dunn (1893) 6 R 67 (HL), a widely quoted formulation of which is that of Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1, at 16:
" … that, unless notice has already clearly been given of the cross‑examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross‑examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn."
As I will indicate, the learned Magistrate also appears to have applied the rule in this case.
Further, it is necessary for me to bear in mind the role and responsibility of a trial Judge, like the learned Magistrate in this case, which is to control the proceedings so that he can identify "the crucial issues" and that "they are tried as expeditiously and inexpensively as possible": Ashmore v Corporation of Lloyd's [1992] 2 All ER 486, at 488 per Lord Roskill. There has been a long‑standing recognition that the role of the Judge is both to "hearken to the evidence, only himself asking questions of witnesses where it is necessary to clear up any point that has been overlooked or left obscure" as well as to "exclude irrelevancies and discourage repetition": Jones v National Coal Board [1957] 2 QB 55, per Denning LJ, at 64. However, more recently, there has been a greater emphasis on the scope this allows for the Judge to take "an active part in the conduct of cases", in part as "a response to the growth of litigation and the greater pressure of court lists": Galea v Galea (1990) 19 NSWLR 263 per Kirby ACJ, at 281. A further reason for this greater emphasis is the incidence of self‑represented litigants: Galea (supra), at 282 per Kirby ACJ.
A particular burden is cast on judicial officers, like the learned Magistrate and myself in this case, where a self‑represented litigant is involved. That burden is to bear in mind the potential for injustice to such a litigant arising from their lack of representation, as well as the potential arising out of that same lack for harm to the interest of the community in the speedy resolution of trials that is consistent with the demands of justice: see Law Reform Commission of Western Australia, final report Review of the Criminal and Civil Justice System of Western Australia (1999), par 18.6.

Tapes of Shire meetings

Turning to the appellant's concerns with respect to the matter of the tapes, these were of certain meetings of the Council of the Shire and had been obtained by the appellant. However, I have noted from the transcript of the hearing before the learned Magistrate that there might have been some further tapes of interest. In particular, it is not clear that the tapes that the appellant had obtained by summons related to the Council meetings at which some at least of the alleged incidents occurred that may have been important to the learned Magistrate or to which my attention was drawn in this appeal. One such incident, testified to by Ms Needham, was said to be the appellant's ejection from the meeting, which was not reopened until after he had left (transcript 88 ‑ 89). Another such incident was one testified to by another councillor of the Shire, Councillor Richards, and was said to involve that councillor being called "corrupt" and accused of assault in ways that caused that councillor to avoid any contact with the appellant outside meetings (transcript 107 ‑ 108). I have indicated earlier that the first incident at least may have been important to the learned Magistrate.
There was no argument before me directed specifically to those two incidents. However, one was referred to in the appellant's written submissions, and the other formed part of the context to an exchange in cross-examination before the learned Magistrate to which my attention was directed by counsel for the Shire.
Thus, in respect of the ejection incident, I note the following passage in the cross‑examination by the appellant of the applicant:
"And of course these ‑ ‑ ?‑‑‑We've had to close meetings and have you ejected. You know that.
We haven't ‑ ‑ when have you had me ejected?‑‑‑December last year at the ACM. You ‑ ‑ the meeting was closed.
Was I physically taken out?‑‑‑The meeting was closed and you had to leave the room and the meeting was not reopened until you left. I've listed [sic] to the tapes recently.
I'm not quite sure about that one but you would have the tapes of these many meetings will show that I subpoenaed ‑ ‑ I summonsed Miss Star to supply tapes which will show that I am the person who is asking the question and councillors interject and harass and heckle as I'm trying to ask questions?‑‑‑Mostly because you make unsubstantiated accusations as a preamble to every question you ask." (transcript 88 ‑ 89)
Counsel for the Shire pressed on me that this indicated that the only matter the appellant had raised in respect of the matter on the tapes was that of the behaviour of councillors alleged by the appellant, and that the appellant obtained the admission he was seeking without having to play the tapes. However, I would see the questions and the answers received in a rather broader light. This may have been the case for the learned Magistrate also, in view of the extract from his decision I have quoted above (transcript 127 ‑ 128), read with his discussion of the Act, s 35(1)(h), also quoted above (transcript 127).
With respect to the exchange with the councillor involving the alleged accusation in a manner having the effect described, I refer to the following passage from the cross‑examination of that councillor by the appellant:
"MR NIELD: When you're saying that I'm abusive, have I ever sworn at you?‑‑‑You've said to me that I was corrupt. You've ‑ ‑
When was that?‑‑‑At one council meeting.
HIS WORSHIP: Don’t worry about ‑ ‑
MR NIELD: So that will ‑ ‑ good. That will be recorded?‑‑‑Look, so much so that I do no longer go out to the front of the building after council meetings just to avoid you." (transcript 107 ‑ 108)
The appellant indicated in questioning by the learned Magistrate that he wished to have at least the tapes that he had obtained by summons played so that the learned Magistrate could "fully identify the behaviour at the meetings by listening to the tape and that would be appropriate and that would show that I'm telling the truth" (transcript 116). As I have previously indicated, it is not clear to me that the tapes the appellant had obtained related to the meetings in relation to the specific incidents I have referred to. In any event, the matter was not explored, as, to the appellant's request that I have quoted, the learned Magistrate responded "I have got no intention of doing that." (transcript 116).
It is clear to me, as was submitted by counsel for the Shire, that the learned Magistrate had in mind in respect of this request that the appellant wished to show his behaviour at Council meetings was indeed appropriate and that councillors interjected and harassed and heckled him as he asked questions. The learned Magistrate, in fact, allowed in testimony from witnesses called by the appellant directed to these points and concluded that further evidence, in the form of the tapes, would be "repetitious" (transcript 126). The learned Magistrate indicated at the hearing that he considered much of the evidence about what occurred at, among other places, the meetings of the Shire not to rise to matters falling within s 34. He indicated this in his findings as follows:
"I might say by way of broad generalised comment that many of the matters that have been referred to simply come within the ambit of the nature of the contact you'd normally expect between a councillor and a difficult ratepayer and I've suggested by way of flippant comment throughout the evidence, some means by which you could deal with many aspects of this behaviour, such as, throw letters in the bin." (transcript 126).
However, I have already set out the learned Magistrate's determination forming the basis for his order that appears to indicate that some at least of what occurred in those settings went beyond the bounds of robust exchange between ratepayers and their local authority. He may well have had in mind the evidence as to the appellant's ejection from at least one meeting when he said "I find that Mr Nield persistently and habitually neglects to comply with directions which are made which are in fact appropriate in the circumstances" (transcript 128, previously quoted). I initially considered that it was possible he had in mind Councillor Richards' concerns that caused him to avoid the appellant when he said:
"The evidence, in my view, establishes that when it suits him, Mr Nield is capable of being overbearing, persistent, offensive, insulting to an extent which takes him beyond the limits which might be imposed on a reasonable ratepayer making appropriate enquiries in an appropriate forum" (transcript 128, also previously quoted).
However, later I indicate why I believe that, in fact, it did not play a significant part in his decision.
In respect of Councillor Richards' evidence, at this point in my decision, however, I further note that earlier in his decision the learned Magistrate had, when discussing the application of the Act, s 35(1)(h) to this case, said what is set out in the passage I quoted earlier in relation to his evidence (transcript 127, above). I also note that, while the appellant's submissions prepared for this appeal only clearly address the Richards incident, at par 34, and not the ejection one, attention was drawn by the appellant to, and argument at the hearing concerned, the admission of tapes of meetings. There was a particular focus at the hearing before me on the exchange following the questions on the ejection that I referred to above.
In evaluating these materials, I noted that the learned Magistrate was entitled to control the proceedings before him, as I indicated at the beginning of this section of my judgment. However, I was concerned in case the learned Magistrate might have lost sight of two respects in which the appellant might have sought to meet the case against him. In the end, however, I am not convinced that the appellant had, in fact, sought to make an issue either of the alleged ejection, or of the alleged exchange with Councillor Richards. Rather, the transcript indicates to me that the appellant was endeavouring to show that, just as tapes of meetings might be of assistance to witnesses called in support of Ms Needham's application, so tapes of (other) meetings might be of assistance to the appellant. The appellant in his written submissions to and argument before me did not direct me to any other view I should take of these incidents. In the final analysis, I conclude that there was no denial to the appellant in respect of these two incidents of opportunities to allow in taped evidence which the appellant had sought in order to prove his case. However, I return below to other evidence in relation to the incident involving Councillor Richards, where I also indicate why I believe this incident was not important to the learned Magistrate's decision.

The calling of further evidence and the Magistrate's approach

I turn now to the aspects of grounds (b) and (c) on which there was extensive argument before me. This argument went to what the appellant said was the denial to him of the opportunity to more fully examine witnesses who had been called, as well as to call other witnesses and to play the audio‑tapes he had obtained. Before me, the appellant submitted that the questioning of witnesses by the learned Magistrate himself, as well as his response to the appellant's requests to put in further evidence, including the tapes the appellant had obtained, and to call further witnesses, had the effect of preventing the appellant from developing the case that the grounds of appeal relate to.
I do not doubt that the learned Magistrate did, indeed, actively intervene in the proceedings, to question witnesses (see for example transcript 82 – 83, 86 – 87, 91, in the case of the testimony of Ms Needham), as well as to prevent questioning by the appellant (see for example transcript 89, 93, in the cross‑examination of Ms Needham by the appellant), and to reformulate the appellant's questions for the witness (see for example transcript 90 in that cross‑examination). I note, however, that the learned Magistrate also intervened in the questioning of counsel for the Shire (transcript 95, 96, the examination of Ms Abbiss, 101, the examination of Councillor Richards, and 118, the cross‑examination of the appellant). It is clear to me that this intervention was, as counsel for the Shire submitted to me, with a view to ensuring that the proceedings were restricted to the issues the learned Magistrate saw (properly, in my view) to be raised by the summons and addressed in his decision as I have explained it. In particular, he was concerned to ensure that the proceedings were not burdened with the justifiability or otherwise of the concerns the appellant had over the Shire's dealings with the environmental issues he had raised with it, as I have described them and which the appellant apparently sought to draw into the proceedings (see examples of such attempts transcript 89, 90, 98, 100, 105, 106 and 107).
Before me, the appellant submitted that the justifiability for which he contended showed both that his behaviour was appropriate, and that the concerns about that behaviour testified to by a number of witnesses at the hearing were not of the sort to which s 34 of the Act related. In my view, the learned Magistrate, before whom this argument was also pressed, properly rejected it. Whether justifiable or not, it was the forms of address of those concerns by the appellant, not the concerns themselves, that were an issue in this case. I do not consider that the conduct of the learned Magistrate in denying the appellant the opportunity to address the justifiability of his environmental concerns and the response to them denied him an opportunity he ought properly to have had.

Further evidence to counter the case against the appellant

However, the appellant pressed on me that he had been denied the opportunity to bring out, by further questioning of witnesses, or the calling of other witnesses, or the leading of other evidence, that the evidence of a number of Ms Needham's witnesses should be disbelieved. The evidence related to issues of two sorts. One was, the appellant said, that the conduct of the appellant at meetings of the Shire, including committee meetings, had in fact been appropriate where those witnesses had testified that it had been otherwise. The other sort of evidence was to establish, the appellant said, that those witnesses or at least some of them, were biased against him and had not testified truthfully. With respect to the latter sort of evidence, the learned Magistrate did, indeed, allow in, or formulate for the appellant, questions of witnesses called for Ms Needham directed to allegations as to their truthfulness (see transcript 98 and 106), and also permitted witnesses called for the appellant to testify as to those matters (see transcript 114 – 116 and 124). He also, however, refused to permit the appellant to pursue a line of questioning of one of his witnesses as to "credibility of other witnesses" (transcript 120 – 121) apparently on the basis of the rule in Browne v Dunn (supra), that the appellant had not put the matter to them in his examination of them. In respect of at least one of Ms Needham's witnesses, Councillor Richards, with respect to whose evidence the appellant had called the witness he did, a Ms Bond, (see transcript 119), it is not clear to me that the appellant had in fact failed to lay the requisite foundation, in fact in this witness's case, with the assistance of the learned Magistrate himself (see transcript 106, referred to above and quoted from below). The form the learned Magistrate assigned to that foundation was one with which the appellant disagreed, although I have concluded that there was no basis for the disagreement.

That foundation was that the witness was allegedly biased against the appellant because of the nature and seriousness of his allegations against them. Here I need to set out the relevant passage from the transcript (at 106):
"HIS WORSHIP: I'm not going down that path, I've told you. If you suggest this witness is just simply biased against you, that he's taking a line against you because you're one of those people that persist in asking questions and he doesn't want to be questioned then put that to him. Say, 'Look, isn't it true the only reason you're here is because (a) you don't like me and, (b) because you think you're going to shut me up by making a restraining order against me.' Now, is that what you're suggesting?
MR NIELD: No.
HIS WORSHIP: Well, what are you suggesting ‑ ‑
MR NIELD: I'm suggesting ‑ ‑
HIS WORSHIP: ‑ ‑ and if you're not suggesting that then you'll just have to sit down very shortly.
MR NIELD: I would like to suggest that the reason you're here today is because I am pointing out the negligence of your time as a counsellor.
HIS WORSHIP: Well, that's the very issue that I raised.
(TO WITNESS): That's what's being put to you in an oblique sort of way and you've heard what I said so what's your response if that propositions put to you ‑ ‑?‑‑‑That's incorrect."
To the extent the appellant was seeking through the questioning of this witness or the calling of the further witness (see transcript 119) to establish that there was substance to the allegations he was making, the learned Magistrate could rightly have excluded the questioning on relevance grounds, if not on Browne v Dunn grounds. There does not seem to be any other basis for a credibility challenge that the appellant was seeking to make out, either from the transcript of the hearing before the learned Magistrate or from his submissions to or argument before me.

Further evidence as to two particular incidents

However, the appellant also said to me that this further witness, Ms Bond, was called to testify as to the alleged incident involving Ms Abbiss to which I earlier referred. The appellant had in fact challenged the truthfulness of her account (transcript 98). Both the appellant and his wife had been permitted to testify as to Ms Abbiss's truthfulness (transcript 114 ‑ 116 and 124). While the learned Magistrate appears not to have allowed for further questioning of Ms Bond that the appellant indicated to me would have gone to the Abbiss incident (transcript 121, quoted below), that aspect of her evidence had not, it seems to me, to have been made clear to the learned Magistrate. He appears to have been told that Ms Bond would testify further as to his conduct at meetings to establish the appropriateness of his behaviour there, which it was said would further call into question the credibility of the witnesses (like Ms Abbiss) testifying as to the inappropriate way he was pressing his concerns. He also appears to have been told that Ms Bond would testify as to Councillor Richards' behaviour outside meetings.
I refer here to the following passage in the transcript (at 120):
"MR NIELD: No. I'd like to ask Mrs ‑ ‑ Miss Bond has seen me perform at the meetings. There's other things I'd like to ask.
HIS WORSHIP: Well, I think you used the right words and I've asked her how she believed you conduct yourself ‑ ‑
MR NIELD: Okay, yeah.
HIS WORSHIP: ‑ ‑ because that's what it's all about, isn't it? The council say you conduct ‑ ‑
MR NIELD: No. It's ‑ ‑
HIS WORSHIP: ‑ ‑ yourself inappropriately and you say 'I do'.
MR NIELD: I believe it's also about credibility of the witnesses, your Honour.
HIS WORSHIP: All right. That's a different issue.
MR NIELD: Or lack of ‑ ‑
HIS WORSHIP: This witness can't give me any comment on the credibility of other witnesses. Okay.
(TO WITNESS): Thank you.
MR NIELD: Can't I ask if she's seen Councillor Richards after the council meetings?
HIS WORSHIP: No.
MR NIELD: He's testified about his actions after the ‑ ‑ come out ‑ ‑
HIS WORSHIP: Well, he has ‑ ‑
MR NIELD: Sorry?
HIS WORSHIP: ‑ ‑ but that is on an area that is known as peripheral so you're bound by the answers which he gives in cross‑examination. You cannot call other witnesses to contradict his testimony. It's a rule of evidence. I'm sure you don't know it but I do."
As with the taped evidence concerning the incident involving Councillor Richards to which I earlier referred, I am not convinced an objection to further questioning on Browne v Dunn grounds was appropriate. However, on what the learned Magistrate had been told, he was entitled to regard the relevance of what Ms Bond might say as to behaviour at meetings to the truthfulness of Ms Abbiss's account of the incident involving her as sufficiently slight to warrant refusing further questioning on that account.
Further, I am convinced that no substantial miscarriage of justice within Justices Act1902 s 199(1)(b) (quoted at the beginning of this judgment) occurred because the appellant could not ask questions of Ms Bond about what she observed of that incident. The appellant had not raised the point with the learned Magistrate, nor had he done so in respect of his wife whom he had called as a witness, as I have indicated, and who he said to me had also been present at the Abbiss incident. I have taken account of the way the learned Magistrate conducted the trial in this case, which (as the extracts from the transcript quoted from indicate) was not one which encouraged the appellant to explain his case to the former. However, the appellant equally had shown himself able to press his concerns on issues in the evidence he considered to be important on the learned Magistrate.
The testimony of Ms Bond as to Councillor Richards raises somewhat different issues, as the last part of the quotation from the transcript above indicates. There the appellant clearly pressed on the learned Magistrate his concern to have Ms Bond testify in that respect. Here it is not clear if the evidence would have gone to his reaction to the particular incident involving him, or simply his approach to the appellant outside meetings generally. However, I interpret the last part of the quotation above as indicating, in its reference to the "peripheral" character of evidence of that sort so far as the learned Magistrate was concerned, that he did not consider either aspect of the matter to be significant in his deliberations. While I do not consider there was any "rule of evidence" commanding that approach (see JD Heydon, Cross on Evidence 6th Australian edition (2000), [17590]), I do consider that the learned Magistrate is indicating that the incident involving Councillor Richards was in his view a matter within "the ambit of the nature of the contact you would normally expect between a Councillor and a difficult ratepayer" (transcript 126, above).
Thus, in respect of the testimony of Ms Bond as to Councillor Richards, I am also convinced that under Justices Act 1902 s 199(1)(b) no substantial miscarriage of justice occurred because the appellant was not permitted to ask the questions he said he would have put.

Further evidence on the "delegation" matter

Before me the appellant further submitted that, but for the learned Magistrate's approach at the trial, he would have called a witness to establish that the appellant had made an appropriate claim to be heard at a meeting of the Shire on the basis, material for this purpose it was contended, that he was acting as a "delegation", and therefore that its rejection was "dishonest". However, it appears to me that this does not go to the conduct of the appellant in pressing any such claim or in responding to its rejection, nor, as the claim and its rejection were not disputed in the evidence adduced for Ms Needham (see transcript 83, 92), it does not go to the creditworthiness of those who gave that evidence. The appellant did appear to be suggesting that there had been a previous agreement by the Council to accept him as a "delegation", and he pointed to a letter dated 28 May 2002 from a Mr Andrew Watson of the Shire. As counsel for the Shire submitted to me, however, this letter only acknowledges his right to ask questions without clearly indicating that such right rested on any status as a "delegation". It seems to me that this is some distance from establishing that Shire officers who maintained he had no right resting on such a claim could be seen to be untrustworthy witnesses. This was even more clearly the case in respect of the witness, a Mr Dunk, apparently a former officer of the Shire, whom the appellant indicated he would have called on this point. The appellant referred me to a letter dated 21 February 2003 from Mr Dunk to him that speaks to the unexceptionable character of the dealings between the two and the appellant's desire to be heard at what I gather was the relevant meeting.
The appellant was, thus, not, in this respect, denied any opportunity he ought to have had to adduce evidence.

Further evidence in the form of tapes, more generally

The matter of denial of the opportunity to play the tapes of Council meetings which the appellant had obtained to establish the appropriateness of the appellant's conduct is more difficult. The standard for the conduct to which s 34 of the Act relates is undoubtedly objective in part: Vivian (supra) at [19]. The tapes may well have confirmed, to some extent at least, the testimony of witnesses called for the appellant that they did not consider the conduct of the appellant at meetings of the Shire went beyond the bounds of appropriate interactions between a concerned ratepayer and the Shire. However, there is no indication that the learned Magistrate did not believe they were testifying truthfully, and he had indicated that (in effect) he did not believe that the tapes would add anything useful to that evidence (see transcript 125 – 126), consistently with his view about "the ambit of the nature of the contact you would normally expect between a Councillor and a difficult ratepayer" (transcript 126, above). Further, much of the behaviour with which the learned Magistrate appears to have been concerned in his decision and to which I have previously referred in my itemised list was non‑verbal or outside any meetings of the Shire.
I am therefore convinced that, notwithstanding the extent to which those aspects of the appeal going to ground (b) might have been made out, no substantial miscarriage of justice has occurred. I am also convinced no such miscarriage of justice has occurred from the combination of such aspects and the aspects above going to ground (c).

Conclusion

It follows from the foregoing that this appeal should be dismissed.