Rawle v Calvar

Case [2022] WADC 27

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   RAWLE -v- CALVAR [2022] WADC 27

CORAM:   SHEPHERD DCJ

HEARD:   20 SEPTEMBER 2021

DELIVERED          :   22 MARCH 2022

FILE NO/S:   APP SHE 1 of 2021

BETWEEN:   ANDREW CHRISTIAN RAWLE

Appellant

AND

JOSHUA JAMES CALVAR

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE RIDLEY

File Number            :   MC/CIV/SHE/RO245/2020


Catchwords:

Appeal from decision granting an application for final family violence restraining order - Grounds of appeal from decisions in interlocutory applications - Right of appeal against a final order - Duties of the court to self‑represented litigants - Procedural fairness - Turns on its own facts

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 (WA), s 40
Restraining Orders Act 1997 (WA), s 3, s 10D, s 44A, s 64

Result:

Appeal dismissed

Representation:

Counsel:

Appellant : In person
Respondent : In person

Solicitors:

Appellant : Not applicable
Respondent : Not applicable

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

Allesch v Maunz [2000] HCA 40 [23]; (2000) 203 CLR 172

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175

Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225

Blenkinsop v Holland [2018] WADC 146

Brocx v Hughes [2010] WASCA 57

Butler v Bennett [2007] WADC 107

CDW v LVE [2015] WASCA 247; (2015) 54 Fam LR 297

Glew v Frank Jasper Pty Ltd [2010] WASCA 87

Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338

International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319

Kickett v Starr [2013] WADC 52

KSJ v GJA [2021] WASCA 98

Licul v Corney [1976] HCA 6; (1976) 180 CLR 213

Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65

Nobarani v Mariconte [2018] HCA 36; (2018) 265 CLR 236

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1

Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550

Sali v SPC Ltd (1993) 116 ALR 625; (1993) 67 ALJR 841

Smart v Prisoner Review Board (WA) [2012] WASC 48

Tobin v Dodd [2004] WASCA 288

Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

Woodley v Woodley [2018] WASCA 149

Yazarloo v Assadi [2003] WASCA 326

Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40

SHEPHERD DCJ:

1.1     Introduction

  1. Joshua Calvar was 18 years of age when he met Andrew Rawle. Mr Rawle was 32, or thereabouts, and was Mr Calvar's employer and manager at the bar where they both worked.  Mr Calvar and Mr Rawle began a relationship which started as employer‑employee, moved to one of friendship and then progressed to a relationship of cohabitation across a number of different locations, sharing a bed in some accommodation, not in others.  The relationship involved, at times, acts of sexual intimacy, punctuated by the use of illicit drugs and alcohol.   The relationship…

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AGLC
Rawle v Calvar [2022] WADC 27
Case
[2022] WADC 27
Decision Date

CaseChat Overview and Summary

The case of Rawle v Calvar involved a dispute between the appellant, Mr Rawle, and the respondent, Mr Calvar, in which Mr Rawle appealed against a decision made by a magistrate regarding family violence. The appeal was heard in the Supreme Court of Western Australia. The central issue in the case was whether the magistrate had erred in her assessment of the evidence presented, particularly concerning the alleged coercive and controlling behavior by Mr Rawle towards Mr Calvar. Mr Rawle argued that there was insufficient evidence to support the magistrate's findings of family violence and that the magistrate had been influenced by an overwhelming volume of paperwork presented by Mr Calvar's counsel.

The court examined the evidence provided by Mr Calvar, which included details of his relationship with Mr Rawle, describing it as tumultuous, involving frequent fights, drug use, and threats of suicide from Mr Rawle. Mr Calvar testified about incidents of alleged coercive behavior, such as Mr Rawle sending messages claiming someone was at the front of his house to isolate him. The court considered whether these incidents constituted coercive and controlling behavior as defined by the relevant legislation. It also assessed whether the magistrate's decision was influenced by procedural fairness and the appropriate weight given to the evidence presented.

The court concluded that the magistrate's findings were supported by the evidence and that there was no basis for a claim of bias or procedural unfairness. The court emphasized that procedural fairness is not an absolute right but a principle designed to avoid practical injustice, taking into account the interests of all parties and the efficient use of court resources. The court found that Mr Rawle had not demonstrated any procedural injustice or bias in the magistrate's handling of the case. Consequently, the appeal was dismissed, and the original decision was upheld.

The final orders of the court confirmed the dismissal of Mr Rawle's appeal and upheld the magistrate's decision regarding the findings of family violence and the orders made in relation to the dispute between Mr Rawle and Mr Calvar.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Reconsideration of the evidence Mr Rawle argued that he had a:[101][R]easonable apprehension of bias given the weight of the evidence and exhibits that were presented on the day, there was no evidence of coercion. There was no evidence of manipulation in the determination of the magistrate.[101] ts 37, Hearing of the Appeal, 20 September 2021. Mr Rawle argued, in summary, that none of the exhibits that were tendered into evidence could have led to any finding that he manipulated or coerced Mr Calvar. Mr Rawle developed this submission to argue that the magistrate only reached that conclusion 'from the overwhelming volume of paperwork that had been put in by counsel for the respondent or by the respondent … if I'd seen that information beforehand it would have led me down a path'.[102][102] ts 37, Hearing of the Appeal, 20 September 2021. Mr Rawle then confirmed that despite what her Honour says and made clear during the course of the 17 November 2020 proceedings, the final order hearing and in her reasons for her decision, she cannot not have been affected by all of the other material that was before the court. Mr Rawle said that he felt that anybody who had seen those documents would be in a similar position.[103][103] ts 38, Hearing of the Appeal, 20 September 2021. This is a recitation of Ground 2 which I have dismissed for the reasons given in section 6.4. Mr Rawle argues that there was no evidence upon which the magistrate could properly have come to her conclusion that he perpetrated family violence against Mr Calvar in the form of coercive and controlling behaviour.[104] To this extent Mr Rawle raises the duty of the judge hearing this appeal to reconsider the evidence before the magistrate.[104] Reasons for Decision [43]. I turn now to reconsider the evidence before the magistrate. Mr Calvar gave evidence that he met Mr Rawle in around May 2018 in Sydney when Mr Rawle hired him for a job at a bar called World Bar. Mr Calvar was 19 at the time, Mr Rawle in his early thirties.[105] Mr Rawle was the licensee and Mr Calvar's boss.[106][105] ts 18, Final Order Hearing, 1 December 2020.[106] ts 18, Final Order Hearing, 1 December 2020. Mr Rawle and Mr Calvar lived together for a period of time in Sydney, which Mr Calvar described as including lots of fights, arguments, a lot of drugs and was 'toxic'.[107] Mr Calvar described suffering his own mental health issues including trying to kill himself. Mr Calvar described the circumstances of him moving to Port Hedland where Mr Rawle had moved because of Mr Rawle's threats of suicide.[108][107] ts 19, Final Order Hearing, 1 December 2020.[108] ts 19 - ts 20, Final Order Hearing, 1 December 2020; Exhibit 2. Mr Calvar gave evidence that having moved to Port Hedland he and Mr Rawle lived together in different accommodation. Mr Rawle would send him messages saying that there was someone at the front of the house when there was not and that Mr Rawle was trying to isolate him.[109][109] ts 22, Final Order Hearing, 1 December 2020.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The rules of procedural fairness are not fixed or immutable. Procedural fairness is directed to avoid practical injustice and what is necessary to avoid practical injustice will depend upon the particular circumstances.[47] In a curial setting there is no absolute right to have an action heard and determined on its merits. What the rules of procedural fairness require is that each party be provided with a reasonable opportunity to be heard.[48][47] Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37].[48] International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 [54], [88], [141]. What is a reasonable opportunity is to be judged nowadays not solely by reference to the interests of the parties but also having regard to the wider interest of other litigants waiting to have cases heard and the public interest in the proper and efficient use of the scarce public resources of the court.[49][49] See Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (Aon); Brocx v Hughes [2010] WASCA 57 [96]. What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.[50][50] Sali v SPC Ltd (1993) 116 ALR 625; (1993) 67 ALJR 841, 844; Aon [26] - [27]. The balance is struck by limiting the assistance given to a litigant in person to that necessary to overcome, so far as is reasonably practicable, the procedural disadvantages a litigant in person faces by reason of not being legally trained.[51][51] Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 [74]. As the Court of Appeal observed in Zerjavic v Chevron Australia Pty Ltd:[52]1.The court's obligation is to ensure a fair and just trial for all parties …2.A self-represented litigant is subject to the practice and procedure of the court as much as any other litigant …3.The court's obligation in the case of a self-represented litigant is to give sufficient information about the practice and procedure of the court to mean that there is a fair trial to both parties (the application of the principle depending on the circumstances of the case) … Among other things a trial judge should usually inform a self-represented litigant of the manner in which the trial is to proceed and his or her right to examine witnesses and object to evidence. Also, it will usually be of importance to ensure that a self-represented litigant understands the distinction between evidence and submissions ...4.A trial judge's duty does not extend to advising a self‑represented litigant as to how his or her rights should be exercised …5.All the more so the trial judge's role in providing information to the self-represented litigant with the object of attempting to overcome procedural disadvantages faced by not being legally trained is not a duty to formulate or conduct the case for the self‑represented litigant …[52] Zerjavic v Chevron Australia Pty Ltd [75].