Porteous v McNamara
[1999] WASCA 123
•12 AUGUST 1999
PORTEOUS -v- MCNAMARA [1999] WASCA 123
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 123 | |
| 12/08/1999 | |||
| Case No: | SJA:1070/1999 | 20 JULY 1999 | |
| Coram: | WHEELER J | 20/07/99 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeals allowed | ||
| PDF Version |
| Parties: | ROSEMARIE PORTEOUS GABRIELLE MCNAMARA |
Catchwords: | Restraining orders Standard of proof Turns on own facts |
Legislation: | Restraining Orders Act 1997 (WA) |
Case References: | Briginshaw v Briginshaw (1938) 60 CLR 336 Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 Attorney General (Qld) v T (1983) 46 ALR 275 Brown v Dunn (1894) 6 R 67 Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53 Corvisy v Corvisy (1982) 2 NSWLR 557 Daley v Martin (No 1) [1982] Qd R 23 Dearman v Dearman (1908) 7 CLR 549 Devries v Australian National Railways Commission (1993) 177 CLR 472 Hickey v Fallows, unreported; SCt of WA; Library No 930122; 9 March 1993 Jones v Dunkel (1959) 101 CLR 298 Keane (1997) 95 A Crim R 593 Mahoney v Cosgrove, unreported; SCt of WA; Library No 960545; 22 August 1996 Parry v Crooks (1981) 27 SASR 1 Sgarlata v Peacock, unreported; SCt of WA; Library No 920447; 1 September 1992 Warren v Coombes (1979) 142 CLR 531 Zimitat v Douglas [1979] Qd R 454 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : PORTEOUS -v- MCNAMARA [1999] WASCA 123 CORAM : WHEELER J HEARD : 20 JULY 1999 DELIVERED : 20 JULY 1999 PUBLISHED : 12 AUGUST 1999 FILE NO/S : SJA 1070 of 1999 BETWEEN : ROSEMARIE PORTEOUS
- Appellant
AND
GABRIELLE MCNAMARA
Respondent
Catchwords:
Restraining orders - Standard of proof - Turns on own facts
Legislation:
Restraining Orders Act 1997 (WA)
Result:
Appeals allowed
(Page 2)
Representation:
Counsel:
Appellant : Mr J W K Burnside & Ms M M Polis
Respondent : Mr K G Robson
Solicitors:
Appellant : Slater & Gordon
Respondent : Matthew Glossop & Associates
Case(s) referred to in judgment(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
Case(s) also cited:
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1
Attorney General (Qld) v T (1983) 46 ALR 275
Brown v Dunn (1894) 6 R 67
Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53
Corvisy v Corvisy (1982) 2 NSWLR 557
Daley v Martin (No 1) [1982] Qd R 23
Dearman v Dearman (1908) 7 CLR 549
Devries v Australian National Railways Commission (1993) 177 CLR 472
Hickey v Fallows, unreported; SCt of WA; Library No 930122; 9 March 1993
Jones v Dunkel (1959) 101 CLR 298
Keane (1997) 95 A Crim R 593
Mahoney v Cosgrove, unreported; SCt of WA; Library No 960545; 22 August 1996
Parry v Crooks (1981) 27 SASR 1
Sgarlata v Peacock, unreported; SCt of WA; Library No 920447; 1 September 1992
Warren v Coombes (1979) 142 CLR 531
Zimitat v Douglas [1979] Qd R 454
(Page 3)
1 WHEELER J : These are appeals against a decision of the Court of Petty Sessions on 8 April this year, granting misconduct restraining orders against the appellant under Part 3 of the Restraining Orders Act 1997. The facts out of which the application arose fall within a narrow compass.
2 The evidence was, in brief, that Mrs McNamara alleged that her home had been broken into on a number of occasions. She alleged that one of these break-ins was done by or on behalf of Mrs Porteous. It was alleged that documents had gone missing on that occasion which were relevant to litigation between Mrs Porteous and Mrs McNamara. It was alleged that one of those documents, a fax from Hancock Prospecting Pty Ltd to Mrs McNamara, ultimately came into the possession of Mrs Porteous's solicitors.
3 It became clear that the document which was received by the solicitor was a copy, on thermal paper, of the facsimile received by Mrs McNamara. It was not clear whether it was made on Mrs McNamara's facsimile machine or on some other, although Mrs McNamara at first appeared to be firm in the view that it had been made on her machine. It appears that it was not possible to tell from inspection of the document whether it had been copied on that machine or some other.
4 The solicitor, Ms Polis, gave evidence, which was not challenged, that the document had been left at her office by a person who said that she wished to assist Mrs Porteous in her dispute with Mrs McNamara. That person said that she had copied the document on Mrs McNamara's facsimile machine (without Mrs McNamara's authority) whilst in Mrs McNamara's house at Mrs McNamara's invitation. Although that evidence was plainly hearsay, it was elicited in response to a question by Mrs McNamara's counsel, over the objection of the appellant, and it seems to me that it is appropriate to give it some weight.
5 The solicitor further said in evidence that to her knowledge the person was not related or known to Mrs Porteous, although it appears from the evidence that the person had strong views about the litigation. Mrs Porteous was not asked whether she knew that person. Mrs Porteous, in her evidence, identified another informant, who she said had telephoned her and spoken about Mrs McNamara to her, although not in relation to this document.
(Page 4)
6 In due course the solicitor ensured that Mrs Porteous gave discovery of the document which she received in the course of the relevant litigation.
7 Based upon those facts, his Worship reasoned as follows:
"I have no doubt at all that there was a break-in. I have no doubt at all that Mrs McNamara's faxing machine was taken advantage of in the sense that her property was removed from it. I have no doubt at all that that property found its way to Mrs Porteous's solicitors."
8 I interpose here that it is not clear from that passage whether his Worship, in referring to "that property", was referring to the facsimile originally received by Mrs McNamara or to the copy. If the former, that was not consistent with the evidence; if the latter, it seems to me that his Worship has not dealt with the question of how that copy was linked, if at all, to the break-in. Resuming the quote:
"I have no doubt at all that it went into the court brief for the discovery that followed. Why would someone do that? Why would someone put themselves at such grave risk just purely for love or hate or both of them. Is that just merely suspicion that Mrs Porteous was somehow involved, or was Mrs Porteous at the back of it, or was she involved in some way. Well, it seems to me to be drawing too long a bow to suggest that Mrs Porteous was not involved. I believe that she was involved. As I have said and as Mr Burnside quite properly pointed out, it is on the balance of probabilities that I make my decision in this case. There is a good deal of bad blood quite obviously between Mrs Porteous and Mrs McNamara; no doubt about that. There may have been some kind of a liaison between Mrs McNamara and Mrs Rinehart. Again, that is circumspection -
- I think that is a mistranscription of speculation -
"and possibilities and probabilities. That may be the case. There may have been all types of things going on, but it seems to me that there was some action on the part of Mrs Porteous that would cause somebody to remove that document and put it into the hands of her solicitors. I do not think that that is drawing too long a bow."
(Page 5)
9 There are a couple of steps taken in the submissions made on behalf of the appellant. The first is that it is submitted that the learned Magistrate erred in failing to apply what is commonly referred to as the Briginshaw standard of proof which, although requiring proof on the balance of probabilities, requires more exact proof and clearer inference in cases where serious allegations are sought to be proven: Briginshaw v Briginshaw (1938) 60 CLR 336.
10 I do not accept that submission in the context of the Restraining Orders Act. The history of the restraining orders legislation is well known. When such provision was originally introduced into the Justices Act it was intended primarily to deal with what is known as domestic violence. In those cases where the police were reluctant to act because, among other reasons, they took the view that proof to the criminal standard was unlikely, it was thought that an order obtained on the civil standard of proof restricting certain types of conduct for the future would provide some protection. Though, no doubt, the granting of an order of this kind casts a shadow on the character of the person restrained, it is not punitive in nature. In my view the whole purpose of the restraining order scheme would be undermined if it were necessary to prove past conduct involving some breach of the law to a higher than usual standard before the order could be granted.
11 Next, however, it was submitted that there was no direct evidence that Mrs Porteous was involved in the relevant break-in and that no inference could be drawn that she was, for a number of reasons. Even applying the ordinary civil standard of proof, I agree with this proposition.
12 Once the document was shown to be a copy of that received by Mrs McNamara it is difficult to infer that that copy document was necessarily created as a result of the break-in. Mrs McNamara's document may have been removed and then copied but, equally, it may have been copied at her house as explained to Ms Polis.
13 Even if it were somehow derived from the break-in, it does not follow on the balance of probabilities that Mrs Porteous was therefore linked to the break-in. As the document was relevant to the litigation between Mrs Porteous and Mrs McNamara, and was sufficiently relevant to be disclosed at discovery, it would appear that Mrs Porteous was a person with a motive to obtain it. However, in the peculiar circumstances of this case, documents relevant to Mrs Porteous are of much wider interest, it appears.
(Page 6)
14 The evidence in this matter demonstrates that the document in question was of interest to Mrs Rinehart, who is engaged in other litigation with Mrs Porteous and, more broadly, that matters pertaining to Mrs Porteous and Mrs McNamara were apparently of interest to at least one women's magazine spoken to by Mrs McNamara and presumably, therefore, of interest to some section of the public at large. The evidence of Mrs Porteous and of Ms Polis, which was unchallenged and untested in cross-examination on these aspects, pointed to the existence of two individuals with no known direct connection to Mrs Porteous who, nevertheless, took a very keen interest in Mrs McNamara and in her dealings with Mrs Porteous.
15 Finally, there were four other break-ins, none of which was linked to Mrs Porteous, and in at least one of which documents of a broadly similar nature; that is, documents relating to the litigation, were taken. The status of those break-ins in the respondent's application was by no means clear. Evidence was adduced concerning them, but apparently on the basis that they were relevant only to Mrs McNamara's state of mind. What was said about the break-ins other than the one on 28 October by Mrs McNamara's counsel was as follows, and again I quote:
"We say, your Worship, we stand or fall on the incident of 28 October. That's the only break-in in which we seek to establish a direct connection with the respondent. The evidence of the applicant will be - and I hope I can say it sufficiently gingerly that I'm not going to be seen to be leading her - that there was subsequent break-ins which simply go to her state of mind - a state of fear - which may be a relevant factor in the exercise of your Worship's discretion as to whether, assuming we are successful on the facts, your Worship chooses to grant a restraining order.
These further incidents are not in themselves grounds for a restraining order. I don't seek to establish that link. That's why they weren't particularised - because they are not material facts that are pleaded against the respondent."
16 Looking at the course of the evidence, the case appears to have been conducted on the basis that Mrs Porteous may have been responsible only for the break-in of 28 October. In my view it is now too late to assert, as the respondent apparently seeks to do, that it is possible that she was involved in others. It therefore follows from the evidence relating to the break-ins that at least one other person appears to have been interested for
(Page 7)
- their own reasons in the documents of Mrs McNamara relevant to litigation.
17 This is far from the common restraining order case where there is a course of anonymous harassment in circumstances where the relationship between the victim and one other person points to that person as the perpetrator of the conduct. In this case, in my view, it is not possible to say that Mrs Porteous more probably than not was responsible for the break-in on 28 October.
18 So far I have dealt only with the inferences which, in my view, may be open on the bare facts. I am conscious that I should not interfere with the orders made by his Worship if it appears that his Worship's decision was influenced by matters of credibility.
19 It was expressly conceded by the respondent at trial that the credibility of Ms Polis was not in issue. So far as Mrs McNamara and Mrs Porteous were concerned, while his Worship made no express findings of credibility, the observations he made in respect of each of them suggests that he may have had reservations about the evidence of each.
20 It is possible that where, as here, competing inferences are open, one may be rendered more probable when regard is had to the evidence of a witness. In particular, in this case, had his Worship formed the view that Mrs Porteous was not to be believed in her denials, it would have been open to him to conclude that the inference that she was responsible for the break-in of 28 October could then be drawn.
21 I am conscious of the fact that the Court of Petty Sessions is a busy court and full and detailed reasons cannot be given. However, as I read his Worship's reasons, they are clear on this point. He appears to have arrived at his decision not because of his assessment of any witness, but because it was his view that no-one lacking Mrs Porteous's interest in the relevant document would have taken the risk of breaking into Mrs McNamara's house. For the reasons which I have given, in the peculiar circumstances of this case, it seems to me that that inference was not available and I would therefore allow the appeals.
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