Polleycutt v Aldcroft

[2019] ACTSC 174

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Polleycutt v Aldcroft

Citation:

[2019] ACTSC 174

Hearing Date:

12 November 2018

Decision Date:

5 July 2019

Before:

McWilliam AsJ

Decision:

See [72].

Catchwords:

APPEAL – Appeal from Magistrates Court dismissing applications for personal protection orders – whether denial of procedural fairness – whether representation in Magistrates Court was a conflict of interest – whether magistrate failed to take into account contradictory evidence – appeals dismissed

Legislation Cited:

Court Procedures Act 2004 (ACT) s 65

Court Procedures Rules 2006 (ACT) rr 280, 5014(1)(b)

Human Rights Act 2004 (ACT) ss 8, 10, 12, 13, 16, 21, 28, 29, 30, 40(2)(b), 40B

Personal Violence Act 2016 (ACT) ss 11, 21(c), 26, 48, 67, 72, 84, 85

Cases Cited:

Commonwealth v Davis Samuel Pty Ltd [2008] ACTSC 59

Commonwealth v Davis Samuel Pty Ltd (No 2) [2008] ACTSC 60

Damjanov v Maley [2002] NSWCA 230; 55 NSWLR 149

Federated Engine Drivers and Fireman’s Association v The Broken Hill Pty Co Ltd (1913) 16 CLR 245

Galladin Pty Ltd vAimnorth Pty Ltd (1993) 60 SASR 145

Hamod v New South Wales [2011] NSWCA 375

House v The King (1936) 55 CLR 499

Nangus Pty Ltd v Charles Donovan Pty Ltd (in liq) [1989] VR 184

O’Toole v Scott [1965] AC 939

R v Ross-Jones; Ex parte Green (1984) 156 CLR 185

Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82

Parties:

Eric Polleycutt (Appellant)

Lisa Aldcroft (Respondent in proceedings SCA 84 of 2017)

William Raymond Aldcroft (Respondent in proceedings SCA 85 of 2017)

Aleah Taylor (Respondent in proceedings SCA 69 of 2017)

Representation:

Self-Represented (Appellant)

Self-Represented (Respondent in proceedings SCA 84 of 2017)

Self-Represented (Respondent in proceedings SCA 85 of 2017)

Self-Represented (Respondent in proceedings SCA 69 of 2017)

File Numbers:

SCA 69, 84, 85 of 2017

Decision under appeal:

Court:  ACT Magistrates Court

Before:        Special Magistrate Cush
(proceedings RO 249 of 2017)
Magistrate Theakston
(proceedings RO 105 and 107 of 2017)

Date of Decision:     27 July and 1 August 2017
(proceedings RO 249 of 2017)
20 September 2017
(proceedings RO 105 and 107 of 2017)

Case Title:     Polleycutt v Aldcroft; Polleycutt v Taylor

File numbers:  RO 249 of 2017; RO 105 and 107 of 2017

McWilliam AsJ:

1. The appellant, Mr Eric Polleycutt, applied in the Magistrates Court for personal protection orders in respect of three members of the same family: Lisa and William Aldcroft, who are husband and wife, and their daughter, Aleah Taylor (collectively, the respondents). They are his former neighbours and the genesis of the dispute was Mr and Mrs Aldcroft’s decision to build a residential unit at the back of their property in which it was intended Ms Taylor would live. All three applications were dismissed and the appellant now appeals to this Court, pursuant to ss 84 and 85 of the Personal Violence Act 2016 (ACT) (PV Act). 

2.        The appeal in relation to Ms Taylor is from orders of Special Magistrate Cush made on 27 July 2017, and subsequent costs orders made on 1 August 2017 in proceedings RO 249 of 2017 (Taylor proceedings).  The appellant’s application was dismissed because the appellant did not attend the hearing on 27 July 2017.  The magistrate then formed the view that the entire application was frivolous, and ordered the appellant to pay Ms Taylor’s costs, which he assessed at $6,000.

3.        The appeals in relation to Mr and Mrs Aldcroft are from orders of Magistrate Theakston made on 20 September 2017 in proceedings RO 105 and 107 of 2017 (together, the Aldcroft proceedings). On 22 June 2017, a deputy registrar dismissed the applications for non-attendance. The appellant then lodged appeals from that decision on 30 August 2017. As this was outside the 5-day time limit provided for by r 5014(1)(b) of the Court Procedures Rules 2006 (ACT) (Rules), the appellant required the leave of the court below to extend the time in which to file the appeal.  Magistrate Theakston refused to grant such leave as he was not satisfied there was a satisfactory explanation for the failure to file the appeals within time. 

4.        All three appeals were heard together in this Court on 12 November 2018.  At the conclusion of the appeals, the appellant indicated that he wanted to respond to the written submissions of the respondents that had been filed earlier on 23 May 2018 but were either not received or were overlooked by him.  He was granted until 23 November 2018 to complete that response in writing.

5.        After the hearing, and notwithstanding that during an exchange at the outset of the hearing, it was confirmed that the appellant would make oral submissions in respect of all three appeals together, it transpired that in fact the appellant did not believe that he had addressed all the arguments he wanted to make in proceedings SCA 84 and SCA 85 of 2017, being the appeals relating to Mr and Mrs Aldcroft.  The matter was listed for further directions on 19 November 2018 and the appellant was granted until 25 January 2019 to file written submissions putting whatever further arguments he wished to make in respect of the appeals, limited to 20 pages.

6.        On 12 December 2018, the appellant applied to the Court by email, without any formal application and without the consent of the respondents, for further time in which to file written submissions.  This was unorthodox and is not conduct to be encouraged, but due to the parties being self-represented and with a view to progressing the conclusion of the appeals in the most efficient manner, I considered the emailed application.  The appellant sought an extension of time in which to file his further submissions until the end of February 2019.  His application was on the grounds of stress related illness.  It was supported by a medical certificate, however the medical certificate only covered the period until 10 January 2019.  As the appellant still had sufficient time to attend to filing any submissions he wished to make after that date and within the time limits imposed by the existing order, there was no basis to further extend the time, and the application was refused.  No further written submissions were received from the appellant in respect of any of the appeals.

7.        Given that the appellant had already filed full written submissions in respect of all three appeals before the hearing, had been given the opportunity to put his arguments orally over a full day’s hearing, and that the appellant had already been given two extensions to file further submissions, I was satisfied that the appellant had been given sufficient opportunity to be heard in relation to the appeals.

Representation

8.        A preliminary issue of representation arose.  Up until the hearing, all three respondents had been represented by the same solicitor.  However, by the date of the hearing, each respondent had filed a notice of acting in person, apparently due to the mounting costs of the dispute.  Mr Aldcroft sought to appear on behalf of his daughter, Ms Taylor, due to a psychological medical condition from which Ms Taylor suffers.  It is unnecessary to provide further detail about that condition.  What is important is that Mr Aldcroft holds an enduring power of attorney which specifically allows him to deal with the legal affairs of Ms Taylor. 

9.        The Court retains an inherent jurisdiction to allow a person to appear before it, as described in authorities such as O'Toole v Scott [1965] AC 939, Federated Engine Drivers and Firemen's Association vThe Broken Hill Pty Co Ltd (1913) 16 CLR 245, Galladin Pty Ltd vAimnorth Pty Ltd (1993) 60 SASR 145 (Galladin) at 145 and Damjanov v Maley [2002] NSWCA 230; 55 NSWLR 149. Such authorities were relied upon by Refshauge J in Commonwealth v Davis Samuel Pty Ltd [2008] ACTSC 59 at [2] in permitting the litigant in person in that case to also appear for his father and mother, among others.

10. However, under s 65 of the Court Procedures Act 2004 (ACT) (Court Procedures Act) a party to a proceeding in a court may appear before the court either personally or by a lawyer.  I would not interpret the section as excluding the inherent jurisdiction of the Court.  However, the exercise of the Court’s discretion to depart from the ordinary course must be carefully controlled and the Court must be jealous to ensure that the safeguards which follow from proper legal representation are not eroded by allowing for representation by unqualified persons who do not have the responsibilities and duties of counsel: Galladin at 147.

11. It is critical that Ms Taylor does not actually lack mental capacity despite her illness being somewhat debilitating. In my view, the ability to sign legal documents on Ms Taylor’s behalf under a power of attorney is a different proposition from being appointed a litigation guardian or otherwise appearing on Ms Taylor’s behalf at a court hearing. A litigation guardian is appointed where a person is under a legal disability: r 280 of the Rules. There is also power to appoint a litigation guardian under s 72 of the PV Act if a person has an impaired decision-making ability.  Ms Taylor’s condition is not such that she lacks legal capacity or the ability to make decisions.

12.      Further, Mr Aldcroft is not a qualified lawyer and intended to rely upon affidavits affirmed by himself in the appeals, including in Ms Taylor’s matter (as stated in the written submissions filed prior to hearing).  That is, he was to be a witness in Ms Taylor’s case as well as purporting to represent her.  Those factors suggested to me that it was not appropriate for him to appear for Ms Taylor, nor for him to be formally appointed to represent her. 

13.      Mr Aldcroft then confirmed that Ms Taylor was aware of the appeal from the orders of Special Magistrate Cush being listed for hearing on 12 November 2019, that she adopted the submissions of Mr Aldcroft in relation to the appeal against him insofar as they were applicable to her matter, and that she chose not to participate further in the proceedings against her.  I was satisfied that there would be no detrimental impact or lack of fairness in Ms Taylor remaining self-represented, to simply note that she adopted the written and oral submissions made by her father in respect of the appeal involving her, and to record that Ms Taylor chooses not to participate further in the proceedings.  I have proceeded on that basis.

Grounds of Appeal

14.      The grounds of appeal were prepared by the appellant apparently without any legal assistance and are difficult to understand.  Bearing in mind that a self-represented litigant should not be disadvantaged by any lack of understanding in procedure, and with a view to ensuring that both the Court and the respondents could properly understand and respond to the appellant’s arguments, the appellant explained each of his grounds of complaint orally during the hearing.  Through that dialogue, the complaints on appeal have crystallised. 

15.      As a result, nine issues have emerged.  They are as follows:

(a)       Ms Taylor should not have been permitted to be represented by the appointment of a litigation guardian, being her father, either in the court below or on appeal to this Court (Issue 1). 

(b)       The appellant was denied procedural fairness by the magistrate receiving statements from the bar table in the Aldcroft proceedings without allowing the appellant an opportunity to respond.  In the Taylor proceedings, the complaint was about the conduct of a deputy registrar in making notes during a conference which influenced the magistrate’s understanding and reasoning in dismissing the application (Issue 2).

(c)       In the Taylor proceedings, a further denial of procedural fairness, arising in two ways.  First, the appellant had provided a notice of ill health to the court below requesting an adjournment.  However, the Registry proceeded in the appellant’s absence.  Second, the appellant was not given access to certain documents on the Magistrates Court file which he needed in order to deal with the appeal to the Magistrate (Issue 3).

(d)       The respondents, Mr and Mrs Aldcroft were in a position where their interests conflicted with those of their daughter.  They should not have been permitted to be jointly represented (Issue 4).

(e)       The three proceedings were meant to be heard together in the court below, but that did not occur.  The first application in proceedings RO 107 of 2017 was dismissed, and this led to the dismissal of the Taylor proceedings.  This was procedurally unfair (Issue 5).

(f)        The magistrate in the Taylor proceedings erred in not properly considering the material contained in the file.  Rather, the magistrate relied on what the respondents had said and failed to take into account other material which contradicted what the respondents had said (Issue 6).

(g)       The representation of Ms Taylor affected the costs orders that were made.  The magistrate should have considered who the parties were, and what standing they had to be there (Issue 7).

(h)       In relation to the costs orders made on 1 August 2017, the appellant was denied procedural fairness.  The issue before the court below on that occasion was the assessment of a bill of costs.  The respondents attended on that date and handed up a bill of costs that the appellant had not previously seen and had not been given any opportunity to respond to.  Accordingly, the appellant was denied procedural fairness (Issue 8).

(i) The appellant claims that his human rights have been infringed in a number of ways. He relies on ss 8, 10, 12, 13, 16, 18, 21, 28-30 and 40B of the Human Rights Act 2004 (ACT) (Human Rights Act) (Issue 9).

Was there legal error in relation to the Taylor Proceedings?

Issues 1 and 4

16.      The issues concerning the representation of Ms Taylor may be dealt with together.

17.      In the court below, Ms Taylor was represented by a solicitor, Mr Byrne from Capital Lawyers.  The evidence suggests that the Magistrates Court may also have permitted Mr Aldcroft to be recorded as a litigation guardian for Ms Taylor, although this must have been informal as the proceedings at all times remained against Ms Taylor directly.

18. The procedures adopted by the Magistrates Court are matters largely within the discretion of that Court unless they can be shown to demonstrate some legal error that affected the substantive outcome of the proceedings below. As set out above, I made a different decision in relation to refusing to grant Mr Aldcroft leave to either be named as a litigation guardian or appear in some other way for Ms Taylor in the appeal proceedings. That arose from the absence of the involvement of a solicitor. That is a different case from what occurred in the Magistrates Court. Section 65 of the Court Procedures Act permitted Mr Byrne to appear on behalf of Ms Taylor and this is what occurred in the court below.  Further, the fact that it appears a different decision was made on an informal basis in the court below in relation to the appointment of a litigation guardian for Ms Taylor does not reveal error and even if it was wrong, it was immaterial to the hearing of the substantive disputes before the Magistrates Court. 

19.      As to the argument that there was a conflict of interest between Mr and Mrs Aldcroft on the one hand and Ms Taylor on the other, so that they should not have been jointly represented, the general rule is that counsel (in this case, Mr Byrne the solicitor) should not appear for two clients whose interests may conflict: Nangus Pty Ltd v Charles Donovan Pty Ltd [1989] VR 184 at 185.

20.      The authorities discussing the principles where there may be a conflict of interest were discussed in Commonwealth v Davis Samuel Pty Ltd (No 2) [2008] ACTSC 60 by Refshauge J at [12]-[31]. It is unnecessary to deal with them in any detail because no actual or perceived conflict of interest in the court below in respect of any of the respondents was identified.

21.      A personal protection order was sought by the appellant against each of the three respondents.  Each case was very much concerned with the appellant establishing that he was in need of protection from the particular individual against whom the application was brought.  There was no question of conflicting liabilities in a cause of action, for example.  The appellant did not identify any particular aspect of the evidence which may have potentially caused a conflict, such as knowledge of confidential information, nor was an outcome possible in one proceedings that was to the advantage or detriment of a different respondent so that Mr Byrne may have been required to obtain informed consent of the respondents.

22.      I am not satisfied there was any error in Mr Byrne representing all three respondents in the court below.  Issues 1 and 4 do not establish legal error.

Issue 2

23.      Issue 2, insofar as it relates to the Taylor proceedings, is entirely without substance.  There is no indication from the transcript that the magistrate on 27 July 2017 had any regard to notes written during a conference that the appellant had not seen.  It is not even clear whether there were any notes on a court file, or what might have been the content of such notes.  The only time the magistrate considered any factual evidence was when an application for costs was made.  At that point, the magistrate adjourned the application to 1 August 2017.  No legal error has been established with regard to Issue 2 as it relates to the Taylor proceedings.

Issue 3

24.      Issue 3 relates to an asserted denial of procedural fairness, first in the magistrate proceeding to hear the matter on 27 July 2017 in the appellant’s absence, and second in the appellant not being given access to documents on the file which he says he required. 

25.      Procedural fairness moulds to the circumstances of the case.  What is required in any given case will be determined by the legislation governing the dispute and the facts of the case.  In the Taylor proceedings, the following facts demonstrate that there was no legal error in the procedure as it unfolded in the court below. 

26.      On 19 July 2017, at 7.35pm the appellant sent an email to the Protection Unit at the Magistrates Court.  Part of the contents of the email is as follows:

I have a hearing tomorrow for an application for protection order.  I was hoping to put to the Registry in person the following [day] but I am not able to attend due to illness.

…

I have requests from the registry for procedural guidance outstanding to identify how to access and address that ex-party process affecting my application and the hearing of my matter.

…

I would appreciate this matter held out of the list until the procedural information how to address the preliminary issues relevant to the administration of this matters affecting this application

27.      Unfortunately, the appellant was mistaken about the date of the hearing.  It was in fact listed for 27 July 2017.  The matter had been listed for hearing at a conference that the appellant attended on 18 April 2017 and a subsequent notice of hearing was sent confirming the date.

28.      No one from the Magistrates Court responded to the appellant’s email between 20 and 27 July 2017 to advise the appellant of his oversight.  There may be many good reasons for this, given the lateness of the correspondence, the unilateral nature of the communication without the leave of the court or consent of the opponent, the lack of any supporting medical evidence, and the inappropriate request by email to stand a matter out of the list for reasons that were somewhat unclear.  However, it does not matter.  What is important is that there was no procedural obligation on the Magistrates Court, even where a litigant is self-represented, to proactively ensure that a litigant attends a hearing in circumstances where the litigant was present at the time the hearing was set down.  An applicant cannot assume that a request will be granted simply because an email is sent to the court.  There was no such expectation created by the registry staff of the Magistrates Court.

29.      The transcript of the hearing before the magistrate on 27 July 2017 makes it clear that the magistrate was unaware of the appellant’s communication to the court below the previous week.  The solicitor for the respondents did not know about the email because the appellant did not include him in the correspondence with the Magistrates Court.  As a result, he could not enlighten the magistrate on 27 July 2017 as to why the appellant may not have attended the hearing.  In those circumstances, there was no error in the magistrate proceeding to deal with the matter in the appellant’s absence.

30.      The next communication from the court below was on 28 July 2017 from the Protection unit.  It stated as follows:

…

Please see the attached order in relation to the hearing conducted on 27 July 2017 in your absence.

Please see the attached timing notice for the costs application on 1 August 2017.

31.      The appellant attended the costs hearing on 1 August 2017.  The transcript indicates that at no stage did the appellant inform the magistrate that he had been ill or had mistaken the day, or thought that the matter had been stood out of the list.

32.      Although the appellant did not manage to make the arguments he wanted to in support of his application for a personal protection order, I cannot see that the lack of that opportunity was the product of any procedural unfairness. 

33.      The argument about a lack of access to certain documents on the court file is irrelevant to the outcome of the substantive hearing, as the reason the appellant’s application failed was simply because he did not attend court at the appointed time.  However, even if it were relevant, the documents the appellant was concerned about (as discussed during the hearing) related to the appointment of a litigation guardian, Ms Taylor’s representation and a potential conflict of interest.  These are all matters that I have considered separately, but they do not establish any denial of procedural fairness.

34.      No legal error has been established with regard to Issue 3. 

Issue 5

35.      Issue 5 concerns a complaint that the three proceedings were meant to be heard together in the court below, but that did not occur.  While that may have been a convenient course, and while I accept that the deputy registrar may have given an indication to the appellant to that effect, I do not consider there was any legal error in the Taylor proceedings ultimately being listed and heard separately.  Certainly, no prejudice or procedural unfairness was identified by the appellant and I was not otherwise able to discern any unfairness that may have arisen by the Taylor proceedings being listed separately from the Aldcroft proceedings. 

36.      It is not correct to submit that because the Aldcroft proceedings were dismissed, this led to dismissal of the Taylor proceedings.  The reasons for the dismissal of the Taylor proceedings were discussed in relation to Issue 3 and they were unrelated to the Aldcroft proceedings.  Without more, Issue 5 does not appear to be productive of legal error.

Issue 6

37.      This complaint is about the evidence taken into account by the magistrate and the submission that the magistrate did not consider the objectives of the PV Act.  I have considered the complaint in the context of the hearings on both 27 July 2017 and 1 August 2017.  The appellant contends that the magistrate should have taken into account other material on the court file.  This is a difficult argument to make given that the appellant did not in fact lead any evidence on the substantive application, because of his failure to appear.  Further, in relation to the costs argument, when the appellant was asked why the application was not vexatious or frivolous, the appellant did not take the magistrate to any material to demonstrate an arguable case against Ms Taylor, either on the court file or otherwise. 

38.      During oral argument, the appellant submitted that the registry had re-filed the three applications, that interim orders were made to protect the affected person (being the appellant), and this demonstrated there was some substance to his applications.  Yet none of the procedural history was considered by the magistrate either during the hearing or in respect of the costs application.

39. Section 26 of the PV Act provides that the Magistrates Court may, on application, make a final order for personal protection if satisfied that the respondent has used personal violence in relation to a person, and may engage in personal violence in relation to the person during the time the order is proposed to operate if the order is not made. The magistrate must take into account the matters set out in s 11 of the PV Act, which include (among other things) the objectives of the PV Act and whether any previous protection orders have been made. 

40.      However, the magistrate never got to the point of considering the merits of the application on the evidence, because of the appellant’s failure to attend.  That does not amount to a failure to take into account mandatory relevant considerations under the PV Act.  It is simply that the application in the Taylor proceedings was dismissed on a summary basis. 

41. The course the magistrate took was entirely in accordance with section 48 of the PV Act, which provides that if the applicant is not present, personally or by a representative, at a time when an application for a protection order is returned before the Magistrates Court, the court must dismiss the application or adjourn the proceeding.

42. In circumstances where the applicant had not appeared, there was no error in the magistrate declining to delve into the merits of any evidence or procedural history, including the fact that an interim order had been made, as an interim order only operates until the application for a final order is decided: s 21(c) of the PV Act.

43.      As to the material considered by the magistrate in respect of the costs application, the appellant attended that hearing and was given the opportunity to put to the court below any evidence and submissions to rebut or refute the argument put against him that ultimately succeeded, being that the entire application in respect of Ms Taylor was frivolous.

44.      As revealed by the transcript of the hearing on 1 August 2017, none of the submissions made to the magistrate suggest that there was a failure to consider evidence that was materially relevant to the issue of whether the entire application was ‘frivolous’.  On the contrary, there was nothing before the magistrate to found even a bare assertion that Ms Taylor was someone from whom the appellant required personal protection.  That is sufficient to dispose of Issue 6.

Issues 7 and 8

45.      Issues 7 and 8 may be dealt with together as they both concern the procedure at the costs hearing. 

46.      Issue 7 is a complaint that the representation of Ms Taylor affected the conduct of the costs hearing and the orders that were made as a consequence of it.  However, I have found that there was no legal error with regard to Ms Taylor’s representation, and accordingly, Issue 7 must similarly fail.

47.      Issue 8 relates to a denial of procedural fairness in the conduct of the costs hearing.  First, the notice sent to the appellant from the court below notifying him of the listing on 1 August 2017 stated that the listing was for a conference to be conducted by a deputy registrar to see whether the parties could resolve the application by consent.  The notice was incorrect.  In fact, what was occurring was a hearing of an application for costs before a magistrate.

48.      Second, the appellant was given a detailed affidavit on costs amounting to approximately $7,500 only once the costs hearing had commenced (leave was sought to file the affidavit in the court below on the day of the hearing), with no opportunity to consider it properly, and then required to put submissions in answer to the quantum of it immediately. 

49.      I accept that these matters are established on the evidence.  From the exchanges recorded in the transcript between the appellant and the magistrate in the court below, it is apparent that the appellant was called upon to make submissions in respect of the quantum of the costs sought at the same time that he was attempting to read the contents of the affidavit attaching a bill of costs that he had just received.  He was also attempting to listen to the exchanges between the solicitor and the magistrate as to various items on the bill of costs. 

50.      The appellant also appears to have had hearing difficulties, as he explained to the magistrate at the commencement of the hearing – he was having trouble with his hearing aid.

51.      There is no reason why the bill of costs proposed to be relied upon could not have been provided to the appellant before the hearing on 1 August 2017.  The appellant was entitled to consider the contents of the bill of costs in advance, so that he could compare what was being charged with what was occurring procedurally at the time.  The transcript records the appellant telling the magistrate that he cannot work out what some of the charges are for.  That was a clear indication to the court below that he was not able to fully digest and respond to the affidavit on the run.  Later the appellant is asked if he has anything else to say and he explains that he is still ‘looking through’ the document.  The appellant was manifestly not in a position to properly respond to the case being put against him on the quantum of costs.  Yet the case proceeded and was disposed of shortly thereafter. 

52.      Overall – and paying due regard to the busy lists in the court below and the time constraints in dealing with applications for costs – the procedure adopted, as recorded in the transcript of the hearing on 1 August 2017, does seem to me to have been unfairly prejudicial to this particular self-represented litigant. 

53.      The magistrate said to the appellant that whether he made the costs $3,000 or $5,000 or $6,000, the appellant was not going to be able to pay the amount.  That was not the point.  There was much the appellant could have said in terms of the quantum, regardless of his ability to pay that sum.  For example, had the appellant been able to properly consider the costs affidavit, the appellant may have objected to the method of the solicitor in charging costs in the Taylor proceedings on the basis that the total amount of work performed by the solicitor was simply divided by three because there were three respondents.  Affidavit evidence had been prepared and there was no opportunity for the appellant to consider whether any of the affidavit evidence dealt with the Taylor proceedings or even whether a third of the affidavit evidence was directed to the issues arising in the Taylor proceedings, so as to make the solicitor’s stated method of charging for the work ‘reasonable’. 

54.      In this case, consideration has been given to whether the appellant should have requested an adjournment.  He was not told that he had a right to seek even a brief adjournment.  In Hamod v New South Wales [2011] NSWCA 375 Beazley JA (as her Honour then was), with whom Giles and Whealy JJA agreed, said at [309]:

Courts have an overriding duty to ensure that a trial is fair: Dietrich v R [1992] HCA 57; 177 CLR 292. This entails ensuring that the trial is conducted fairly and in accordance with law: MacPherson v R [1981] HCA 46; 147 CLR 512 per Gibbs CJ and Wilson J at [16] 525. The duty reposes in the individual judicial officer hearing a case.  In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: R v Zorad (1990) 19 NSWLR 91 at 94–95. …

[Emphasis added.]

55.      Procedural fairness is not a rigid concept, and there are competing priorities in courts with high volumes of cases and full lists.  However, the reality of the hearing in the court below, as evidenced by the transcript, was that the appellant was trying to respond to the magistrate but the argument was moving too fast for him.  It is unrealistic to expect a self-represented litigant to seek to control the procedure in such circumstances and as the authorities indicate, that is part of the role of the judicial officer.  In my view, the legal representative opponent should have assisted the court below by ensuring that the self-represented litigant had the information on which his client proposed to rely in advance of the hearing.  Having failed to do that, the opportunity for a brief adjournment should have been canvassed.

56.      It is well appreciated that there is a daily struggle to balance efficiency in the disposal of court business with the essential requirements of procedural fairness.  However, a number of factors combined to produce a significant procedural disadvantage for this particular self-represented litigant.  First, he attended court on the basis that what was occurring was a conference of an adjourned hearing with a view to settlement.  Instead, he faced a final hearing on costs for which he was not prepared.  Second, he was then required to make submissions at the costs hearing, where the procedure adopted included admitting last minute evidence that was not straightforward, due to the solicitor for the respondents having one file to cover three proceedings, only one of which was the subject of the application for costs.  Third, having admitted the evidence, the appellant was then not given a sufficient opportunity to properly consider that evidence and respond to it.

57.      Even a short adjournment or standing the matter down briefly so as to enable the appellant to read the document, gather his thoughts and properly respond to a matter of critical importance to him, being the quantum of a costs judgment, may have been sufficient for the appellant to be able to deal with the evidence at a hearing that came as somewhat of a surprise to him. 

58.      For these reasons, legal error has been established in terms of a denial of procedural fairness such as to warrant appellate intervention with respect to Issue 8.

Issue 9

59. Issue 9 is directed to alleged breaches of the Human Rights Act. As discussed with the appellant during the hearing, section 40B of the Human Rights Act makes it unlawful for a public authority to act in a way that is incompatible with a human right. Section 40(2)(b) excludes ‘a court’ from the definition of a public authority, except when it acts in an administrative capacity. The orders from which the appeal is brought are clearly the court acting in a judicial capacity. Further, the respondents to the appeal are all individuals. Their conduct is not governed by the Human Rights Act.

60.      During the hearing, the appellant clarified that he was seeking to complain about the registry in the court below, the ACT Planning and Land Authority, and the Chief Minister’s department, as all breaching his human rights.  Such complaints are outside the scope of the present appeals before this Court.  None of those entities are parties to the appeal.  Breaches of the Human Rights Act were not contained in the Notice of Appeal, but even if they were, such grounds would not have been competently brought for the reasons just given.

Was there legal error in relation to the Aldcroft Proceedings?

61.      Issues 1, 4, 5 and 9 have already been dealt with above and the same reasoning applies. 

62.      Issues 3, 6, 7, and 8 are only applicable to the Taylor proceedings.

63.      That leaves Issue 2 and whether there was any denial of procedural fairness in the Aldcroft proceedings by the magistrate receiving statements from the bar table without allowing the appellant an opportunity to respond.

64.      The nature of the decision being made by Magistrate Theakston was a discretionary one.  As such, error in accordance with the principles stated in House v The King (1936) 55 CLR 499 at 505 must be established.

65.      The magistrate heard from the appellant as to his explanation for the delay in lodging an appeal.  What was material to the magistrate’s decision was the appellant’s failure to provide the magistrate with a satisfactory reason for not filing the appeal in time.  This did not depend on anything the legal representative for Mr and Mrs Aldcroft said.  The procedure adopted by the magistrate did not result in any unfairness for the appellant. 

Other complaints

66.      The grounds of appeal in the Notice of Appeal that have not been discussed as part of the Issues considered above are complaints about a failure to administer justice by not considering or placing reasonable weight on the possible consequences of dismissing the case, not giving reasonable weight to the evidence before the court, and an argument that the appellant now has no legal protection.

67.      Although it was not the primary basis of the decision, the magistrate did give consideration to the underlying merit of the applications.  His Honour’s reasons for decision conclude as follows:

For an order to be made under this [Act] which is the [PV Act], there’s a need for two things to be in place.  One is that the respondent has used personal violence in relation to the person and may engage [in] personal violence in relation to the person during the time that the order is proposed to operate.  When I consider the allegations I have reservations in relation to the first element as to whether or not personal violence has been engaged in.  In any event, there’s no evidence before me to suggest that it will occur in the future. 

I note the indication at this stage is that …[the appellant]…would like to return to the place he had been residing next door to the respondents.  Besides that there’s really no indication that this matter is ongoing or will escalate in a way that would satisfy the issue of there being personal violence.  …

Due to my reservations about the merits of the matter but more particularly in relation to the failure to file or demonstrate a justifiable reason for the delay, I refuse the application. 

68.      It is clear from this reasoning that the magistrate did give consideration to the underlying merit of the application and the potential consequences if the application for leave were refused.  Questions of weight given to evidence were matters within the magistrate’s discretion.  There was no error in the magistrate’s reasoning. 

Conclusion

69.      The appellant has succeeded in respect of a denial of procedural fairness on the costs application only.  Failure to adhere to the requirements of natural justice will ordinarily require the decision to be set aside: R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 194 per Gibbs CJ; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at [51] per Gaudron and Gummow JJ; at [5] per Gleeson CJ and at [172] per Hayne J. In this case, the successful appeal of the costs judgment on 1 August 2017 necessitates those orders being set aside.

70.      Given the amount in dispute, it is highly desirable that this aspect of the proceedings be dealt with efficiently so as to finalise the matter between the parties.  However, due to the nature of the error, the Court does not have evidence or submissions that would enable it to substitute a decision without further argument.  I will hear from the parties as to the potential remittal of that aspect of the dispute.

71. In relation to costs, s 67 of the PV Act does not apply as these are appeal proceedings.  I consider that the appropriate order is for costs to follow the event in respect of each appeal.  The appeal in proceedings SCA 69 of 2017 was a combined appeal from the orders made in the court below on 27 July 2017 and 1 August 2017 and there was no clearly severable issue.  As the appellant was successful in relation to the orders of 1 August 2017, it is appropriate to apportion the costs of that appeal at 85%, having regard to the time taken up with arguments directed to the various issues during the hearing.

72.      The Court makes the following orders:

(1) In proceedings SCA 69 of 2017, the appeal is allowed in part.

(2) The order of Special Magistrate Cush made on 1 August 2017 in proceedings RO 249 of 2017 to pay the respondent’s costs fixed in the sum of $6,000 is set aside. 

(3) The appeals in proceedings SCA 69 of 2017, SCA 84 of 2017 and SCA 85 of 2017 are otherwise dismissed. 

(4) The appellant is to pay 85% of the respondent’s costs in proceedings SCA 69 of 2017.

(5) The appellant is to pay the respondents’ costs in proceedings SCA 84 and 85 of 2017.

(6) The parties are to notify the Court within 7 days, either orally or in writing, of their intention to have the outstanding issue of the costs of proceedings RO 249 of 2017 remitted to the Magistrates Court, or to otherwise have the Court deal with the question of the quantum of costs on the papers following the receipt of further submissions. 

I certify that the preceding seventy-two [72] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam.

Associate:

Date: 5 July 2019