Re Michael
[2002] WASCA 76
•5 APRIL 2002
RE MICHAEL; EX PARTE MICHAEL [2002] WASCA 76
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 76 | |
| 05/04/2002 | |||
| Case No: | SJA:1154/2001 | 14 MARCH 2002 | |
| Coram: | HASLUCK J | 14/03/02 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| B | |||
| PDF Version |
| Parties: | SHAWKY MICHAEL RICHARD KELVIN POTGER |
Catchwords: | Restraining Orders Act Appeal against decision of Magistrate Question of whether leave to appeal should be granted from decision of single judge Turns on own facts |
Legislation: | Justices Act 1902, s 187(1), s 206A(1) Restraining Orders Act 1997 Supreme Court Rules, O 63A |
Case References: | Michael v Potger [2002] WASCA 6 Myers v Myers [1969] WAR 19 Roddan v Walker (1996) 17 WAR 277 Vick v Drysdale & Robb [1981] WAR 321 Weary v Stok (1986) 3 MVR 411 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
SHAWKY MICHAEL
Appellant
AND
RICHARD KELVIN POTGER
Respondent
Catchwords:
Restraining Orders Act - Appeal against decision of Magistrate - Question of whether leave to appeal should be granted from decision of single judge - Turns on own facts
Legislation:
Justices Act 1902, s 187(1), s 206A(1)
Restraining Orders Act 1997
Supreme Court Rules, O 63A
(Page 2)
Result:
Application allowed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : No appearance
Case(s) referred to in judgment(s):
Michael v Potger [2002] WASCA 6
Myers v Myers [1969] WAR 19
Roddan v Walker (1996) 17 WAR 277
Vick v Drysdale & Robb [1981] WAR 321
Weary v Stok (1986) 3 MVR 411
Case(s) also cited:
Nil
(Page 3)
1 HASLUCK J: This is an application for leave to appeal brought by the applicant, Dr Shawky Michael. He was the appellant in the matter of Michael v Potger [2002] WASCA 6, and is the prospective appellant in the proceedings to be brought before the Full Court. The proposed appeal is brought pursuant to provisions of the Justices Act 1902 and the Restraining Orders Act 1997. I will come to these provisions in a moment.
2 The background to the application for leave to appeal is reflected in the written reasons for judgment that were handed down by myself on 1 February 2002 in the matter of Michael v Potger (supra).
3 Briefly stated, the respondent in that appeal, Mr Richard Potger, obtained a restraining order pursuant to provisions of the Restraining Orders Act 1997 in the Court of Petty Sessions against Dr Michael. The learned Magistrate handed down his reasons for decision on 13 September 2001.
4 Dr Michael brought an appeal against that ruling pursuant to provisions of the Justices Act. Leave to appeal was obtained and the appeal came before a single Judge of the Supreme Court, namely myself. Various grounds of appeal were relied upon, such grounds being reflected in the written judgment I mentioned earlier.
5 Among the grounds was the question of whether the learned Magistrate erred in failing to grant an adjournment of the proceedings on 13 September 2001. The relevant circumstances were that Dr Michael had attended at the court on the day appointed for closing addresses. It seems that Dr Michael found himself indisposed and left the precincts of the Court before final submissions were made. The learned Magistrate proceeded to rule against Dr Michael in his absence. The adjournment issue is dealt with at some length in my written reasons.
6 There were various other grounds before the court including the weight to be given to certain letters and exchanges between the parties.
7 It is apparent from the reasons delivered by the Magistrate on 13 September 2001, and from my own reasons, that a good deal of attention was devoted to the implications of a letter written by Dr Michael dated 4 August 2000 to Mr Potger's employer, the University of Curtin. The letter was directed to Professor Twomey, the Vice-Chancellor of the institution. It is apparent from his reasons for decision that the learned Magistrate treated this letter as a significant piece of evidence. He gave weight to an indication in the letter that Dr Michael had made some
(Page 4)
- trenchant criticisms of Mr Potger to his employer, and might renew the attack.
8 I note also that a matter in issue before me as part of the appeal from the learned Magistrate concerned the extent and form of relief to be granted pursuant to the Restraining Orders Act. A question arose as to whether any restraining order made should restrain Dr Michael from approaching Mr Potger's place of employment, namely the University of Curtin.
9 Dr Michael's appeal against the decision of the learned Magistrate was dismissed. The reasons for that dismissal are reflected in my written judgment with each of the grounds of appeal being addressed in turn and disposed of. Within the 21 day period allowed by O 63A of the Supreme Court Rules, Dr Michael has brought an application for leave to appeal against the decision handed down on 1 February 2002.
10 Section 206A(1) of the Justices Act governs an appeal from the decision of a single Judge to the Full Court in these circumstances. Section 206A(1) provides that subject to any other act an appeal lies to the Full Court by leave as provided in this section.
11 Related provisions indicate that the procedures laid down by earlier provisions are to apply. In particular, one notes that by s 187(1) of the Justices Act leave to appeal shall be granted unless the Judge dealing with the matter considers that the appeal is frivolous or vexatious or that the grounds of appeal advanced do not disclose an arguable case.
12 There have been previous decisions of this Court bearing upon the question of what constitutes an arguable case. A useful point of reference in that regard is the case of Roddan v Walker (1996) 17 WAR 277. In that case Murray J said in the course of his judgment at 280:
"Whilst it may be accepted that the grounds upon which the judge may refuse leave to appeal under section 187(1) must be clearly demonstrated, that will be done if it is established that upon the grounds of appeal advanced the case is one which has no real prospects of success, rather than there being a need to establish that the points at issue are not capable of being argued at all, and for that reason may be regarded as frivolous or vexatious and an abuse of the process of the court."
13 His Honour approved earlier reasoning of the Court in which it was said that having regard to the context an arguable case is one that is not
(Page 5)
- merely capable of being argued but one that is reasonably capable of being argued in the sense that it raises an argument which has some prospect of success.
14 That brings me to the grounds of appeal in the present case. The grounds of appeal are set out in a document prepared by Dr Michael dated 12 March 2002 in which the proposed grounds are set out in par 1 to par 8. It is quite clear from the written submissions dated 14 March 2002 which have been put up in support of the application by Dr Michael that Dr Michael wishes to argue before the Full Court that the learned Magistrate should have granted an adjournment on 13 September 2001 in response to Dr Michael's plea in that regard. In the course of my discussion with Dr Michael at the hearing before me that point has been confirmed. He submits that as he was not allowed an adjournment, there was a miscarriage of justice.
15 As I read his grounds of appeal, I cannot find any explicit reference to that aspect of the matter. However, I note that grounds 1 and 2 are broadly expressed in asserting that the learned Justice, namely myself, erred in law in holding that the Magistrate was correct in his judgment. Various matters are then alluded to. I am prepared to hold for present purposes that those broadly expressed grounds bring into issue the various matters that were before me as the presiding Judge on the previous occasion. It follows that I will treat the particular question concerning the adjournment as a matter in respect of which leave to appeal is sought.
16 The question of whether an adjournment should be granted is a matter which has been addressed many times by the Courts. The decided cases recognise that to grant or refuse an adjournment is a matter for the discretion of the Court to whom the application is made. Where the refusal of an adjournment would result in serious injustice to one party, an adjournment should be granted unless in turn this would mean serious injustice to the other party. An Appellate Court will not interfere with a discretionary order of this sort unless there is strong reason for believing that an injustice has resulted. Cases bearing upon principles of that kind include Myers v Myers [1969] WAR 19 and Vick v Drysdale & Robb [1981] WAR 321.
17 It is indicated further by the decided cases that where a complaint in Petty Sessions relates to a minor charge it is proper to take into account both the public interest and the inconvenience to the defendant and the court system. If the grounds of the application are based on inefficiency or indolence on the part of the complainant and the result of the
(Page 6)
- adjournment would cause wasted time and consequent delays to other litigants in the court system, combined with significant inconvenience to the defendant, then the public interest would require that the matter be not adjourned. A case bearing upon a proposition of that kind is Weary v Stok (1986) 3 MVR 411.
18 I have previously ruled in this matter that the Magistrate was not in error in refusing to allow an adjournment. I held that as the only matter to be attended to in respect of a case which had already gone on for some months was the making of submissions, it was not in error for the Magistrate to take the view that by his departure from the Court Dr Michael had elected not to present submissions.
19 However, it follows from my brief review of the principles concerning an adjournment that a decision of this kind is a discretionary matter. I recognise that there is room for argument in the circumstances of the present case as to whether an adjournment should have been allowed or not. I therefore consider that there is an arguable case as to that aspect of the proposed appeal. It is a matter that goes very centrally to the administration of justice as to whether adjournments should be allowed in certain circumstances or not. I do consider that leave to appeal should be granted as to that aspect of the matter.
20 Another matter which Dr Michael wishes to bring forward for a ruling by the Full Court is the question of whether a restraining order should have been made where the application for relief under the Restraining Orders Act was not proceeded with immediately. The relevant application was lodged a considerable time after the events relied upon by the applicant for relief. Dr Michael refers to the fact that both the Magistrate at the original hearing, and myself as the Judge on appeal, gave considerable weight to a letter of 4 August 2000, and yet Mr Potger's proceedings for a restraining order were not initiated until April 2001.
21 My previous reasons for decision have dealt with the significance to be attached to the letter of 4 August 2000 to Curtin University (Mr Potger's employer) and the weight to be attached to that and other circumstances. However, again, for present purposes, I do consider that there is a reasonable case to be put to the Full Court that relief under the Restraining Orders Act should be sought promptly. I am prepared to grant leave to appeal in respect of the broadly expressed grounds embracing that issue.
(Page 7)
22 It appears from the reasons of the Magistrate, and my own reasons, as I have already noted, that the letter of 4 August 2000 was thought to be central to the granting of relief. It appears from the transcript of the hearing before the Magistrate (which is at page 38 of the original appeal book and at page 10 of the transcript itself) that there was evidence before the Magistrate that the letter in question had been sent, that it had been brought to the attention of Mr Potger by an emissary from the vice-chancellor, Professor Twomey, and that Mr Potger had been called upon to provide some explanation concerning the letter.
23 When one looks at the transcript, it is apparent that Dr Michael was present in Court and had no objection to the letter being received in evidence. He raised no dispute that it had been sent and brought into issue as alleged by Mr Potger. Indeed, Dr Michael's stance was that the letter of 4 August represented a succinct and forceful summary of his position and was a true reflection of the truth of the matter. Indeed, I have heard nothing at any stage to suggest that that is not still his position. He sees that letter as representing a fair and full summary of his position.
24 Nonetheless, on the application for leave to appeal presently before me, he sought to raise an issue as to whether the letter was in fact sent and received. In addition, he raised concerns about the authenticity of the letter, given that there are two versions of it in the appeal book. One finds in the appeal book what purports to be a signed copy and also an unsigned copy.
25 There appears to be no dispute as to the actual contents of the letter. I take it from what I have heard that Dr Michael does not resile from those contents. He still sees it as a fair summary.
26 The fact remains, however, that the letter in question was central to the case against him. I am persuaded that there is an arguable case to be advanced before the Full Court as to whether the weight accorded to that letter should have been of the order attached to it by the Magistrate in his reasons.
27 The letter sets out what Dr Michael contends is a judicious summary of the circumstances. It is a lengthy letter and it is open to various interpretations. It seems to me that although the learned Magistrate and myself have taken a certain view of the letter, other judicial officers might be persuaded that undue weight was given to the letter dated 4 August 2000. For that reason also I consider that leave to appeal should be granted.
(Page 8)
28 There is also an issue as to the extent of the relief granted by the learned Magistrate. The effect of my decision was to find that there was not an error by the Magistrate in the exercise of his discretion in that regard. I consider that there is an arguable case as to whether the relief was too extensive. For that reason also I am minded to grant leave to appeal. It seems to me, having regard to the fact that I am prepared to grant leave to appeal in respect of four substantial matters, it would not be appropriate for me to go through the grounds of appeal as expressed in par 1 to par 7 in a more detailed way attempting to weed out matters that might be thought to be less arguable. Dr Michael should be afforded an opportunity to present his case in its entirety.
29 In summary, then, there are a number of substantial matters reflected in the grounds of appeal which, to my mind, justify the grant of leave to appeal upon the basis that an arguable case exists. Subsidiary issues, which may bring into focus some of the other issues reflected in my written judgment of 1 February should be allowed to go forward also.
30 However, when I turn to the final matter in the document described as Grounds of Appeal, being the matter set out in par 8, somewhat different considerations apply. Here is a suggestion that there is conduct by Mr Potger subsequent to the hearing before the Magistrate which, according to Dr Michael, could be characterised as an abuse of the process of the Court.
31 It is clear to me that this is really an attempt to bring into issue events and conduct which were not part of the evidentiary materials before the Magistrate or myself. Dr Michael seems to concede this himself. It seems from my consideration of what he has said these matters cannot be characterised as in the nature of fresh evidence which might bear upon the findings that were made on the previous occasions. For that reason, I am not prepared to allow the proposed ground of appeal as expressed in par 8 to go forward.
32 If there is some untoward conduct, that may or may not be the subject of some other process, but it does seem to me the appeal must essentially be confined to those matters mentioned earlier which might persuade the Full Court that there was some error on the part of the judicial officers below, having regard to the evidentiary matters that were before the Magistrate. I therefore propose to make an explicit direction that par 8 of the grounds of appeal is to be deleted. Leave to appeal will be granted in respect of grounds 1 to 7.
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