Reynolds v City of Darwin
[2020] NTSC 69
•30 October 2020
CITATION:Reynolds v City of Darwin [2020] NTSC 69
PARTIES:REYNOLDS, Carolyn
v
CITY OF DARWIN
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:2020-02980-SC
DELIVERED: 30 October 2020
HEARING DATE: 9 October 2020
JUDGMENT OF: Barr J
CATCHWORDS:
CONTRACT – Interpretation – Long-term lease – Renewal – Lessee required to serve notice accepting offer of renewed term – No express requirement for written notice – Held requirement for written notice implied by the requirement for ‘service’ – Consideration of principle of objectivity
Wilson v Nightingale (1846) 8 QB 1034; The Queen v Shurmer (1886) 17 QBD 323; Wilson v Lowery (1993) 4 NTLR 79; Universal Roofing and Accessories Pty Ltd v Singh [2004] NSWSC 32; KFS Financial Services Pty Ltd v Mostamandi [2016] NSWSC 1797, considered
Toll (FGCT) Pty Limited v Alphapharm Pty Ltd [2004] HCA 52, 219 CLR 165;
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 343 ALR 58, applied
Lifoon Pty Ltd v Gillard & Ors; Hendriks & Ors v Gillard & Anor [2006] NSWCA 182, distinguished
REPRESENTATION:
Counsel:
Appellant:Self-Represented
Respondent: W. Roper
Solicitors:
Appellant:Self-Represented
Respondent: Minter Ellison Lawyers
Judgment category classification: B
Judgment ID Number: Bar2007
Number of pages: 51
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINReynolds v City of Darwin [2019] NTSC 69
No. 2020-02980-SC
In the matter of an appeal under the Local Court (Civil Procedure) Act 1989
BETWEEN:
CAROLYN JANE REYNOLDS
Appellant
AND:
CITY OF DARWIN
Respondent
CORAM: Barr J
REASONS FOR JUDGMENT
(Delivered 30 October 2020)
Carolyn Reynolds (“the appellant”) appeals the decision of the Local Court given in proceedings commenced by the City of Darwin (“the respondent”) seeking vacant possession of Lot 5245 Town of Darwin, Doctors Gully, Larrakeyah. The land is the site of a WWII era oil tank, which has been used by the appellant for many years as an indoor rock climbing gym.
I will refer to Ms Reynolds as “the appellant” and to the City of Darwin as “the respondent”, notwithstanding that in the Local Court they were respectively the respondent and applicant.
Background
On 30 August 1984, Darwin City Council granted a 25-year lease over Lot 5245 to Tekserv International Pty Ltd. The lease was duly registered on 14 September 1994 in accordance with the provisions of the Real Property Act 1886 then in force.[1] The stated permitted use under the lease was “Climbing Gymnasium”. In August 2001, the lease was assigned by Tekserv, with the consent of the respondent, in accordance with the terms of a Deed (“the Deed”) executed on 8 August 2001.[2] At the time of the assignment, a formal variation of lease was registered to include, as an additional permitted use, “a Child Care Facility”.[3]
The name ‘Darwin City Council’ was changed to ‘City of Darwin’ on 3 August 2012.[4]
The term of the lease was from 1 July 1994 to midnight on 30 June 2019. However, under the terms of the lease, the lessee had an option to renew for a further 25 years. The option was in the form of a standing offer contained in clause 10 of the lease, which the lessee could accept during a period commencing six months and ending three months before the date of expiry of the initial 25-year term.
Clause 10 of the lease read, relevantly, as follows:-
RENEWAL
(1) The Lessor hereby offers the Lessee a renewal of this lease for a term of Twenty Five (25) years commencing on the day after the date of expiry of the Term hereof and subject hereto containing identical covenants to the covenants of this lease (excepting this clause). The initial rent for the renewed term shall be calculated ….
(2)The Lessee may only accept this offer if the rent shall have been duly and punctually paid and the covenants contained in this lease have been complied with throughout the Term hereof and the Lessee shall have served on the Lessor notice that he accepts this offer of a renewed term during a period commencing six (6) months and ending three (3) months before the date of expiry of the Term hereof.
It is unclear from the drafting of cl 10 (2) whether the words “… and the Lessee shall have served on the Lessor notice that he accepts this offer of a renewed term” state a condition precedent to the lessee’s right to actually accept the offer of the lease renewal, or whether they provide the manner in which acceptance is to be communicated. However, it is not necessary to resolve that construction issue, because in either case the requirement must be complied with by the lessee in order to make good the entitlement to a renewed term.
In order to secure the lease renewal offered under cl 10 (1), the appellant was required to serve notice on the Council in the period 1 January 2019 to 1 April 2019.[5]
In Reasons for Judgment delivered 26 August 2020, Judge Woodcock found that cl 10 (2) required service of written notice, and that no written notice was served within the relevant period.[6] His Honour further found that, on 27 July 2019, the respondent had given the applicant a valid notice to quit, in compliance with s 131 of the Business Tenancies (Fair Dealings) Act 2003.[7] On that basis, and in the circumstances that the appellant had not given vacant possession of the premises, the Local Court ordered that a warrant of possession issue for Lot 5245 with effect from 9 am on 31 August 2020.[8]
The appellant subsequently instituted an appeal in this Court. Although the Notice of Appeal states or at least indicates that the appeal is brought pursuant to s 131 of the Business Tenancies (Fair Dealings) Act 2003, the core assertion is that the warrant of possession was wrongfully or unlawfully issued by the Local Court, that is, issued as a result of an error of law. An appeal from the Local Court to the Supreme Court is permitted by the Local Court (Civil Procedure) Act 1989, but only “on a question of law”.[9]
It is important to bear in mind that the powers of this Court on an appeal of this nature are limited. The Court does not have jurisdiction to correct factual errors, and will intervene on appeal only where there has been an error of law (or where there has been a breach of the requirement of natural justice or procedural fairness). The principles derived from the decided cases in relation to what is, or is not, a question of law were summarised by Mildren J in Tracy Village Sports and Social Club v Walker,[10] and subsequently affirmed by the Court of Appeal in Wilson v Lowery.[11] I set them out below:
(1) In the process of arriving at an ultimate conclusion a trial judge goes through a number of stages. The first stage is to find the preliminary facts. This may involve the evaluation of witnesses who gave conflicting accounts as to those facts. If the trial judge prefers one account to another, that decision is a question of fact to be determined by him and is not reviewable on appeal. It may be that the reason given for preferring one witness to another is patently wrong. Nevertheless, no appeal lies: R v District Court of the Metropolitan District Holden at Sydney; Ex parte White(1966) 116 CLR 644 at 654; Azzopardi v Tasman UEB Industries Ltd(1985) 4 NSWLR 139 at 156; Haines v Leves(1987) 8 NSWLR 442 at 469-70.
(2) Regardless of the trial judge’s reasons, if there is evidence which, if believed, would support the finding, there is no error of law: Nicolia v Commissioner of Railways[1972] ALR 185 (High Court).
(3) If, on the other hand, there is no evidence to support a finding of fact which is crucial to an ultimate finding that the case fell within the words of the statute (for example, that injury by accident arose out of the course of the employment, or that the failure to give notice was occasioned by mistake), there is an error of law: Nicolia v Commissioner of Railways (supra); Tiver Constructions Pty Ltd v Clair (supra), per Martin and Mildren JJ at 10-11; Haimes v Leves (supra), at 156.
(4) But, a finding of fact cannot be disturbed on the basis that it is “perverse”, or “against the evidence or the weight of the evidence or contrary to the overwhelming weight of evidence”. Nor may this Court review a finding of fact merely because it is alleged to ignore the probative force of evidence which is all one way, even if no reasonable person could have arrived at the decision made, and even if the reasoning was demonstrably unsound: Haines v Leves (supra), at 469-470.
(5) The second stage is the drawing of inferences by the trial judge from the primary facts to arrive at secondary facts. This is subject to the same limitations that apply to primary facts.
(6) If there are no primary facts upon which a secondary fact could be inferred, and the secondary fact is crucial to the ultimate finding as to whether or not the case fell within the words of the statute, there is an error of law. If there are primary facts upon which a secondary fact might be inferred, there is no error of law.
(7) It is not sufficient that an appellate court would have drawn a different inference from those facts. The question is, whether there were facts upon which the inference might be drawn. If a tribunal draws an inference which cannot reasonably be drawn, it errs in point of law and its decision can be reviewed by the courts: Instrumatic Ltd v Supabrase Ltd [1969] 1 WLR 519 at 521; [1969] 2 All ER 131 at 132, Lord Denning MR, with whom Edmund Davies LJ and Phillimore LJ agreed; Edwards v Bairstow [1956] AC 14.
Issues on appeal
At the hearing of the appeal, the appellant relied on an amended notice of appeal dated 4 September 2020, which had been filed in court previously. That document contains 26 paragraphs. It asserts errors of law and makes lengthy submissions in relation to many grounds. In addition, the appellant provided the Court with written submissions extending to 55 pages and containing 110 paragraphs.
The questions of law asserted by the appellant include allegations of “judicial misfeasance and mis-conduct” in November 2019 (four months before the hearing in March 2020), the allegation being that Judge Woodcock caused the appellant to have a “medical collapse”, whereupon he erred in law in that he “failed to provide appropriate medical consideration”.[12] A similar ground is that his Honour erred in law when he failed to accept a medical certificate for the appellant’s non-appearance on 13 December 2019 (three months before the hearing).[13] Another ground is that his Honour erred in law and failed to provide an unbiased decision, the allegation being that the judge was “compromised by his previously declared dislike of Mrs Reynolds and her ownership of the Rock Centre Darwin”.[14] A similar theme is pursued in another ground which asserts that his Honour “erred in law throughout this trial clearly demonstrating his serious contempt and dislike of Mrs Reynolds especially after her daughters and she had reported his behaviour to the Chief Judge Ms Armitage”.[15] Another alleged error of law was that his Honour “failed to accept any of the evidence and particulars presented by Mrs Reynolds”, and that he “repudiated any of the facts presented by Mrs Reynolds’ witnesses”.[16] A similar ground asserts that His Honour erred in law “when he excluded all the factual evidence given by Mrs Reynolds, while under oath, as both truthful and accurate”.[17] The factual evidence said to have been excluded included Telstra records, diary entries, and visitation records.[18] It is asserted as another error of law that his Honour refused to allow many of Mrs Reynolds witnesses to appear.[19] In that context, his Honour is said to have failed to explain the court process so as not to “unjustly disadvantage a self-represented litigant with a declared medical condition”.
It is not necessary to dwell further on the grounds of appeal at this stage. However, I set out below ground 9 because it gives a flavour of the way in which the appeal hearing proceeded, with the applicant constantly making unsupported and illogical allegations against the trial judge, as well as irrelevant submissions which were very often not referable to the evidence before the Local Court:
Ground 9
Judge Woodcock erred in law and relied on Hearsay evidence and he “wrongfully informed him” [himself] about Mrs Reynolds medical condition. His skuldugerous behaviour, assertions regarding the operation of Mrs Reynolds business clearly demonstrate that Judge Woodcock was informing himself and has no considerations as a business minded person planning and preparing the future of their business. Mrs Reynolds clearly understands that a 25 year lease is likely to continue beyond her operational effectiveness hence Mrs Reynolds in discussion with the City of Darwin had discussed and developed a comprehensive succession plan involving her daughter and other climbing Instructors taking over the new renewed lease.
At an early stage in the appeal hearing, the appellant addressed the crucial finding made by the Local Court, that cl 10 (2) of the lease required service of written notice. The appellant contends that the Local Court erred in law in the construction of cl 10 (2). She contends that the clause permitted notice to be served orally (and that she served such oral notice repeatedly throughout January 2019, which was within the three month notice period). In support of her contention, the appellant referred to the fact that notice provisions in the lease and the Deed were facultative or permissive; that none of the notice provisions in the lease or the Deed made it mandatory for the lessee to give notice to the lessor in writing or in any particular way.[20]
In my judgment, however, the requirement in cl 10 (2) that “the Lessee shall have served on the Lessor notice that he accepts this offer” is a requirement for service of a written notice. The plain English meaning is clear. The word “serve” in the expression “to serve notice” (or “shall have served … notice”) implies that the notice must be in the form of a document. Subject to any express provision, it may be possible to give notice orally, but it is not possible to serve notice orally.
The construction adopted in [16] is consistent with the observations of Lord Coleridge CJ in The Queen v Shurmer:[21]
It may be that a notice given to a person verbally might produce the effect desired to be secured as well as one in writing, but we are bound by the words of the section, and they are not ‘given to’ but ‘served upon’. I think it would be straining these words to make them equivalent to ‘given to’.
The case of The Queen v Shurmer involved the interpretation of a law which required notice to be “served upon” an accused person before the taking of evidence from a dying complainant. After making the observation extracted in the previous paragraph, Lord Coleridge CJ added:
I am not prepared to say that, having regard to the context, it might not be possible in some cases that they should have that meaning, but the question is, what is really meant by them in this Act?
In an earlier English decision, Wilson v Nightingale,[22] the statute under consideration required that a landlord could not distrain a tenant’s goods for unpaid rent unless notice of intention to do so had been left at the leased premises. The requirement that notice be ‘left’ was held to be a clear indication that written notice was intended. Lord Denman CJ observed that the object of the Legislature seems to have been “to prevent the matter from being left to parol evidence”.[23]
In Universal Roofing and Accessories Pty Ltd v Singh,[24] Young CJ in Eq considered an option for renewal clause which provided that the tenant could exercise the option only if “the tenant serves on the landlord a notice of exercise of option not earlier than the first day stated in item 11 D in the schedule and not later than the last day stated in item 11 E in the schedule…”. The tenant had not served notice in writing but there was evidence that oral notification had been given. His Honour determined that the use of the word ‘serves’ in the option clause implied that the notice was to be in writing, and referred in that context to Wilson v Nightingale and The Queen v Shurmer. His Honour was not satisfied that there was even a prima facie case that the option had been properly exercised.
In a subsequent New South Wales Supreme Court decision, KFS Financial Services Pty Ltd v Mostamandi,[25] Wilson J considered a rental agreement under which, at the end of the term, the defendant renters were required to return the rented goods to the plaintiff finance company and “serve … a notice that [they] do not wish to extend this contract”, in default of which the agreement would be automatically extended, with the renters’ liability continuing. The magistrate at first instance found that the finance company had received notice from the renters in the form of an email requesting a payout figure. However, Wilson J found that the relevant clause imposed a clear and unambiguous obligation on the defendants to terminate the agreement by returning the goods and serving a notice. As to the requirements for such notice, her Honour held:[26]
Serving a notice, by the language used, implies the conveyance of a written notice to the relevant party. … A record of an enquiry as to a payout figure cannot constitute evidence of the service of a notice by the defendants upon the plaintiff.
The decisions referred to in the previous several paragraphs generally support the construction of cl 10 (2) set out in [16]. However, some points of distinction may be noted. As mentioned, both Wilson v Nightingale and The Queen v Shurmer involved the interpretation of statute law, and, depending on the circumstances, different principles may apply to the construction of leases and other commercial agreements. In Universal Roofing and Accessories Pty Ltd v Singh and KFS Financial Services Pty Ltd v Mostamandi, the relevant provision required the service of “a notice”, and I consider that the use of the indefinite article made it clear beyond doubt that the notice required in those cases was a written notice. However, that does not mean that the interpretation in [16] is for that reason questionable since, in my opinion, the words “shall have served on the Lessor notice …” clearly imply that a written notice was required.
There is another, powerful, reason why the construction in [16] is to be preferred as the correct construction. It is well established that the terms of a commercial contract (including a lease) are to be understood objectively, by what a reasonable businessperson would have understood them to mean.[27] In the present case, the correct test is not what the parties to the lease or the Deed might each have believed or understood, but rather the principle of objectivity. As the High Court observed in Toll (FGCT) Pty Limited v Alphapharm Pty Ltd:[28]
References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.
A 25-year extension to a 25-year lease over public land in a significant Darwin inner city location represented a serious long term commercial and civic commitment by the lessor and a serious long term commercial and personal commitment by the lessee. In terms of commercial considerations, there was potential for both parties to benefit but also for each to suffer detriment. The lessee’s right to accept the offer of the lease renewal was restricted, inter alia, by the notice requirement, itself circumscribed by the limited time window. It would be extraordinary if the common intention of the parties to the lease were that an oral notice of acceptance – carrying with it the potential for significant uncertainty and disputation – would suffice in all the circumstances. In my opinion, a reasonable businessperson or a reasonable person placed in the position of the parties would have understood the words “shall have served on the Lessor notice …” as requiring the service of written notice.
The application of the principle of objectivity in determining the common intention of the parties requires a consideration not only of the terms of the lease but also any terms of the Deed which applied to the lease. Clause 7 of the Deed was as follows (underline emphasis added):
NOTICES
Any notice to be given under this Deed or under the Lease may be given by a party or its solicitors or, if a party is a corporation, by a director of that corporation, and any notice is deemed to be sufficiently given if given by prepaid registered post to the addressee at the address set out in this Deed or in the Lease, or, in the case of a notice to the New Lessee, by prepaid registered post addressed to the New Lessee at the Demised Premises or at the business or private address last known and any such notice shall be deemed to have been given forty-eight (48) hours after the notice is posted.
Clause 7 states who may give notice but, more importantly, the manner in which notice may be validly given. It is true, as Ms Reynolds contends, that the clause does not exhaustively prescribe the ways in which notice may be given. However, there is no provision (in the lease or the Deed) permitting oral notice, and in my opinion cl 7 contemplates that any notice to be given under the lease will be in the form of a written document. Documents are traditionally ‘served’ by physical delivery, whether to a person, or to the registered office or principal place of business of a corporation or institution. Clause 7 provides for service of notices by prepaid registered post as an alternative to physical delivery. Commercial agreements very often incorporate a clause permitting service of notices and other documents by prepaid registered post, for the obvious reason that it provides independent verification of postage (and thus of valid deemed service in accordance with the terms of the particular commercial agreement). In the case of a 25-year lease extension, it would be incongruous for the lease and Deed to make provision in the alternative for the service of written notice in an objectively verifiable way, but to make no provision whatsoever for the giving of oral notice notwithstanding the potentially greater uncertainties involved.[29]
Judge Woodcock in his written reasons decided that the “plain English meaning” of cl 10 (2) required written notice by the appellant to confirm acceptance of the offer to renew.[30] For reasons explained in [16] – [26], I agree with his Honour that the appellant was required to serve written notice.
The appellant has referred the Court to the decision of the New South Wales Court of Appeal in Lifoon Pty Ltd v Gillard & Ors; Hendriks & Ors v Gillard & Anor.[31] The lease in that case was a five-year lease granted by the appellant lessor to the respondent lessees’ predecessors in title which contained an option of renewal for a further five years. The lessees wishing to renew were required to give written notice:[32]
“ … shall prior to the expiration of such term give to the Lessor not more than six months’ and not less than three months’ notice in writing …”.
No such written notice was given. However, still within the three-month option period, the lessees’ solicitor attended a meeting with the managing director of the appellant. Handley JA observed, “Incredibly the solicitor went to this meeting without a written notice exercising the option for service on the appellant”. Nonetheless, the respondents claimed that their solicitor exercised the option orally during the meeting, and that the managing director of the appellant accepted the oral exercise of option and expressly waived the requirement for a written notice. As a consequence, it was argued, the appellant lessor was estopped from relying on the absence of a written notice.
The trial judge had made a specific finding that the lessor’s managing director said at the meeting that it was not necessary for the tenants to exercise their option in writing.[33] That finding was supported by evidence and was not glaringly improbable or inconsistent with facts incontrovertibly established.[34]
On review of the evidence, Handley JA observed that the inference that the lessees had relied on the representation of the lessor’s managing director was overwhelming. If he had insisted on a written exercise of the option, there was every reason for thinking that the necessary notice would have been sent in good time. Indeed, the solicitor could have written it out, had it signed and given it to the lessor’s representative at the meeting.[35]
On analysis, the decision in Lifoon Pty Ltd v Gillard & Ors is not authority for the proposition that an option of renewal requiring notice in writing may be exercised by oral notice. Rather, it is an example of the application of the principle of estoppel, in particular the principle that the essential element in an estoppel – reliance by the representee on a representation – need not be the sole cause of the representee’s change of position.[36]
It may be noted that Judge Woodcock made a finding that no employee of the respondent had made representations to the appellant, performed an act or omitted to do the same, relating to the renewal of the lease such as to give rise to an equitable remedy.[37]
Appellant’s alternative submission on appeal
The appellant submitted on the hearing of the appeal that she had served written notice, such service evidenced by an entry in the business papers for a Council meeting on 26 February 2019. Under the agenda heading “Oil Tanks in Bicentennial Park”, there was a sub-heading “Key Issues”, under which was the following text (underline emphasis added):
· Council has been considering the various development proposals for the oil tanks in Bicentennial Park since they were acquired in the 1980s;
· To date only one oil tank has been developed at Doctors Gully which was leased as a climbing gym in 1994 for 25 years with a 25 year option;
· The most recent proposal to Council in relation to the oil tanks was received from the Northern Territory Government in 2014 in relation to an Esplanade boardwalk. This project appears to have not progressed and not been brought back to Council for consideration.
· These assets represent significant opportunities to enhance liveability and accessibility of our cities [sic] unique environment.
The appellant’s submission, that the service of a written notice is proved by the Council’s meeting papers, is rejected. The appellant cannot point to evidence of any written notice served by her. The second dot point item simply reflects the status of the appellant’s lease of the oil tank as at 26 February 2019, at a time still within the notice period for acceptance of the lease renewal offer. The reference to the single oil tank having been leased as a climbing gym cannot constitute written notice as required by cl 10(2) of the lease. Moreover, the learned Local Court judge carefully considered the evidence of witnesses called on behalf of the respondent, and the evidence of the appellant, her daughter and other witnesses in the appellant’s case, and made findings as follows:[38]
It is uncontroversial that the [appellant] did not serve written notice during the notice period. I have found that the Lease required such notice must be in writing. I have also found that the requirement to give notice was overlooked by the [appellant] and accordingly she did not give oral notice of an acceptance [of] the offer to renew the lease as set out in clause 10. In the event I am wrong about the need for written notice I am satisfied no oral notice was given during the notice period.
At the appeal hearing, the appellant sought to attach additional significance to the Council’s meeting papers. She submitted that the papers contained a report which discussed the future of all of the other tanks in Bicentennial Park, that is, tanks other than the tank actually leased by her and another tank in respect of which she had indicated an interest to lease. The appellant submitted that the omission from the meeting papers of any relevant reference to the tank leased by her (and the other tank) established that she had (at least orally) accepted the offer of the lease extension by the time of the Council meeting of 26 February 2019. In my opinion, however, the evidence does not have the significance contended for by the appellant. It might be consistent with the respondent being aware that the appellant had given notice accepting the offer of the renewed term of 25 years (if she had given such notice). However, it is equally consistent with the respondent not having received acceptance of the offer of the renewed term and, as at 26 February 2019 (and still within the notice period), simply not speculating on the future of the leased tank, which depended on whether the appellant would serve notice as required by cl 10(2) on or before 1 April 2019.
Even if, unconstrained by Judge Woodcock’s findings of fact, this Court were to explore the possibility that the appellant had verbally accepted the lease extension offer by the time of the Council meeting of 26 February 2019, the appellant is unable to point to a specific occasion when she informed Council, “I accept the lease extension offer”, or words to that effect. The alleged date, the circumstances, what was said by her and to whom – all remain unclear on the evidence in the Local Court. The appellant’s evidence in cross examination consisted of such statements as: “I did [provide oral notice] when I rang through and I provided oral notice”,[39] “I thought that the oral notice and the notice had been given”,[40] “I’d already provided notice originally outside of the time”,[41] “I have gone into the Council and physically met on 29 January with the Council to say ‘I want meetings so that I can extend the lease’ and that was my oral notice”,[42] “I had assumed that the [notice] had already been given, the oral notice, and that we were sitting down to discuss the final details with the additional opportunities with respect to the taking on the next tank”.[43]
When the appellant was cross examined about the fact that she did not refer in her affidavit to having given oral notice to Ms Herewini-Johnson[44] on 29 January, she replied: “I say that I asked her if she was able to request a meeting with Mr Carroll and Mr Merrigan to discuss the lease extension as I had been unable to secure a meeting through my own efforts as at that date”.[45] A fair reading of the appellant’s evidence in cross examination indicates that the appellant did no more than try to arrange a meeting with certain Council officers (which in any event was denied by all of the respondent’s witnesses). She did not orally accept the offer of a lease extension. Significantly, the appellant did not assert in contemporaneous correspondence that she had given oral notice of acceptance of the renewed term.[46]
The appellant contends in ground 25 of her notice of appeal that “mis-feasance, mal-feasance and non-feasance [were] demonstrated by the City of Darwin when they failed to comprehend the implied notice”. Invoking the principles of company law, she contends that Liam Carroll, Chris Potter, Tim Merrigan, Anna Magrotowitz and front office receptionist Mrs Susan Herewini-Johnson all had implied notice. The appellant’s use of the term ‘implied notice’ appears to be an acknowledgment on her part that she did not give actual notice of acceptance of the offer of the lease extension.
Ultimately, the questions as to whether or not the appellant served notice, and whether she did so in writing or otherwise, were questions of fact which were decided against her in the Local Court. I refer to the extract from the reasons of Judge Woodcock in [35] above. Having regard to the principles explained in [11], and in particular sub-paragraph (1), there is no basis for this Court to intervene on appeal.
Additional grounds - the various attacks on the trial judge
I turn to deal with the plethora of allegations made against Judge Woodcock in the appellant’s notice of appeal, many but not all of which are mentioned by me in [13] and [14] above. Those allegations could be dismissed on the basis that they are misconceived and/or raise irrelevant matters, or do not assert errors of law, or that they raise contentions which are unsupported by the evidence. However, some of them at least require consideration and analysis.
Asserted refusal to allow the appellant’s witnesses
Ground 5 is set out in full below:
Judge Woodcock erred in law when he refused to allow many of Mrs Reynolds’ witnesses to appear. He failed to explain the court process so that this did not unjustly disadvantage a self-represented litigant with a declared medical condition. At the time of the hearing Mrs Reynolds was unwell and did not realise that she was still able to subpoena Mr Leighton Scott, Mrs Rachel Taylor, Mr Kon Vatskalis (Lord Mayor), Mr Tim Merrigan (past Property Manager) and Mr Scott Waters (CEO).
Apart from the general complaint that his Honour failed to explain the court process (hardly an error of law), the ground asserts a refusal to allow the appellant to call witnesses. The ground would only have merit on this appeal if his Honour did in fact refuse to allow the appellant’s witnesses to give evidence and if the evidence proposed to be given by the affected witnesses were relevant.
In her written submissions, Mrs Reynolds contended that Judge Woodcock refused to allow six of her witnesses to appear: the same five referred to in ground 5 and Mr Joshua Sattler, Business Innovation Manager.[47]
I will deal first with Leighton Scott. At the hearing, before completion of the evidence in the respondent’s case,[48] the appellant applied to interpose Mr Scott as a witness. The transcript discloses the appellant’s submissions in support of her application:[49]
Ms Reynolds: Your Honour, I’d really like to be able to call Leighton Scott, if possible, because he must go (inaudible) and all of my witnesses until 12:30.
His Honour: What will he be giving evidence about?
Ms Reynolds: He will be giving evidence as to a long-term participant at the gym and what was occurring and what was being told with respect to the extension, the buying of the tank, further on, all the ---
His Honour: Told by whom?
Ms Reynolds: By Gemma [the appellant’s daughter] when he was at different meetings ---
His Honour: I won’t hear from him. He is not relevant.
Ms Reynolds: --- meetings that ---
His Honour: He is not relevant to this case.
Ms Reynolds: The climbing centre is a slightly different centre. It is run as a club.
His Honour: How about this? That is my preliminary view. I will hear you again when it comes to your case but, at this point, we’re completing the applicant’s case. Then, once that’s complete, you can go into evidence. If it turns out that he is relevant – and on first blush, it seems to me he is completely irrelevant – if you convince me he is relevant, we’ll make arrangements to bring him back, okay? …
Notwithstanding the appellant’s complete inability to demonstrate relevance in the evidence proposed to be called from Mr Scott, his Honour did not close the door to Mr Scott giving evidence. He simply did not permit him to be interposed in the opposing party’s case. His Honour left open the opportunity for the appellant to persuade him that his preliminary view was wrong, and that Mr Scott had relevant evidence to give, and he informed the appellant accordingly. His Honour’s approach was very fair. Curiously, the appellant did not subsequently seek to call Mr Scott as a witness, but in her closing address, she made the following submission:[50]
So all this time the verbal notice for the renewal of the lease had been well and truly delivered at least 20 times. I told them what my plans were, I told them. They had the plans for the redevelopment going through for what had been submitted and once before had been stopped half way through the development. They were told about the increase in the climbing height [and] what we needed to do for the Olympics to get Darwin on the map because we have some incredibly brilliant climbers here, your Honour.
In fact one of those climbers came into court yesterday and spent four hours in court waiting to give his testimony, Mr Leighton Scott, who wanted to be a witness because of the life changing help that he has (inaudible) himself through climbing. I really wanted Leighton to be there to be able to give witness.
So while I was awaiting for the paperwork for the opportunity to take on the second tank … I kept informing everybody. All the climbers knew of all the developments, they were – everybody was excited.
Not only did the appellant ultimately not call Leighton Scott as a witness in her case, but in closing submissions she was unable to identify any issue about which he could have given relevant evidence.
I next deal with Scott Waters, who is the Chief Executive Officer of the City of Darwin. I mentioned in [45] that the appellant applied to interpose Mr Leighton Scott as a witness. The application to interpose Mr Scott was made just after Scott Waters had been called as a witness by the respondent. After his Honour considered the application to interpose Mr Scott, Mr Waters was sworn and gave evidence. He was then cross-examined by the appellant, at length, and largely on irrelevant matters.[51] The appellant’s contention that she was in some way denied the opportunity to call evidence from Scott Waters is not made out. Indeed, he was presented for cross examination.
I turn to consider the balance of the appellant’s complaints to the effect that that Judge Woodcock “refused to allow many of her witnesses” to be called.
Towards the end of the hearing on 5 March 2020, his Honour received into evidence the affidavits of two witnesses relied on by the appellant.[52] He then enquired as to whether the appellant proposed to call any further witnesses. The exchange which then took place is set out below:[53]
His Honour: Now other witnesses today ---
Ms Reynolds: I still would like to rely on Tim Merrigan. I did spend – at lunchtime I went to the NDIS offices to try and see where – if I could talk to him and I was advised – I was advised that they don’t even know somebody of that name working there.
His Honour: All Right. Well it’s your responsibility to have your witnesses here. I have adjourned this matter and adjourned this matter, I have really accommodated you. You have not – you don’t have that witness either.
Ms Reynolds: Your Honour, as you will appreciate I have gone above and beyond just like I did when I tried to renew the lease, going above and beyond – copious telephone calls, copious requests, I even wrote to Miss Pringle in writing and asked for her to supply ---
His Honour: All right. I have heard all this. Now are there any other witnesses you wish to call, just for the record?
Ms Reynolds: Kon Vatskalis.
His Honour: You wish to call --- is he here?
Ms Reynolds: No, because I haven’t been able to contact the Council.
His Honour: It’s your responsibility to have your witnesses here.
Ms Reynolds: When you’re obstructed and I have attempted to contact him and there’s been continual obstruction of me being able to get hold of these people ---
His Honour: What will he give evidence of?
Ms Reynolds: He will give evidence of the meeting that he was at and he will give evidence of the fact that at no time has he come down to or been at The Rock centre, even when we have requested that he come down to competitions and have a look at stuff. He’s never, ever, once supported the business.
His Honour: I see. So ---
Ms Reynolds: He will also give evidence of what ---
His Honour: He will give evidence of nothing relevant to this case?
Ms Reynolds: He will evidence of absolute relevance and intent to be able to put something else at The Rock climbing centre, anything other than me.
His Honour: All right, thank you. Well, that’s your witnesses. And I am satisfied if I ---
Ms Reynolds: Rachel Taylor ---
His Honour: Who is she?
Ms Reynolds: --- is a very important witness.
His Honour: Yes. What is she going to give evidence of?
Ms Reynolds: She’s actually assisted Gemma throughout and has been her really massive support person with the whole ---
His Honour: Well she is not relevant then.
Ms Reynolds: She’s very relevant in the fact that she helped Gemma through the period of October ---
His Honour: All right. Any other witnesses?
Ms Reynolds: --- August 2017 to ---
His Honour: Any other witnesses? I will let you put whoever you like on the record now, but not calling – you’d like to call, I want to be fair to you.
Ms Reynolds: Chris Potter I would ---
His Honour: How would he be relevant?
Ms Reynolds: Well Chris Potter was the person that I was dealing with while Scott Waters was away on holidays in the period of January through to April.
His Honour: What will he give evidence of?
Ms Reynolds: The phone calls that I had with him.
His Honour: Okay.
Ms Reynolds: And the discussions that we had with ---
His Honour: Have you summonsed him?
Ms Reynolds: Pardon?
His Honour: Did you summons him?
Ms Reynolds: I believe he’s gone back to England. I don’t know where he is.
His Honour: All right, All right.
Ms Reynolds: Once again the Darwin City Council wouldn’t give me any evidence of where he’d gone to.
His Honour: All Right. And anybody else ---
Ms Reynolds: I have done searches through the Facebook and internet and I had – did have an investigator trying to find people, but many of these people have been told they’re not to get involved.
His Honour: All right. Well that’s your evidence ---
Ms Reynolds: Given that ---
His Honour: --- and I am satisfied – sorry, go ahead.
Ms Reynolds: Tim Merrigan.
His Honour: How is he relevant?
Ms Reynolds: He was the go-to person.
His Honour: Did you summons him?
Ms Reynolds: The project officer.
Ms Pringle: Your Honour, that’s the first person she mentioned when we came to witnesses.
His Honour: That’s Right. No, we’re back again, All right. Now well I am satisfied that you have called such witnesses as you have ---
Ms Reynolds: Sorry, your Honour, there is one other witness that we have not been able to get her here.
His Honour: Yes.
Ms Reynolds: And that is also Catherine Reynolds my other daughter.
His Honour: All right.
Ms Reynolds: Who is actually my power of attorney.
His Honour: All right. How is she relevant?
Ms Reynolds: Because she has assisted in all matters to do with The Rock centre and the assistance of writing, but unfortunately she was unable to be here today. She lives in Sydney.
His Honour: Right.
Ms Reynolds: But she is happy to fly up.
His Honour: Have you summonsed her?
Ms Reynolds: Yes I have but she ---
His Honour: All right. Well where is the summons?
Ms Reynolds: I haven’t ---
His Honour: We’ll call upon it now.
Ms Reynolds: I haven’t actually got that summons with me here, your Honour. Unfortunately ---
His Honour: So you did summons her?
Ms Reynolds: Everything, your Honour.
After re-stating that she had summonsed her daughter, the appellant conceded that she did not “actually manage to get it [the summons] into the court” because, she claimed, she had been unwell. The appellant does not complain in this appeal that her daughter Catherine Reynolds was one of the witnesses his Honour refused to allow to appear.
In relation to Kon Vatskalis, it may be noted that the Notice to Quit and Vacate Premises addressed to the appellant and dated 17 July 2019 was under the common seal of the City of Darwin affixed in the presence of Mr Vatskalis and Mr Waters, who signed in their respective capacities as Lord Mayor and Chief Executive Officer.[54] There would be no obvious reason for the appellant to call the Lord Mayor as a witness. She told Judge Woodcock at the start of her case that she had attempted to call Mr Vatskalis as a witness because, she asserted, he was “absolutely key in all of this”. She claimed to have contacted the respondent’s solicitors “and asked them to put him on the witness list”, but that they had been obstructive.[55] The simple fact remained that she had not summonsed Mr Vatskalis. Nothing said by the appellant supported her assertion as to the fundamental importance of Mr Vatskalis as a witness in her case. She referred to his having attended a meeting – an unspecified meeting – and to the fact that he had not attended at her business premises. There was no indication that the evidence which Mr Vatskalis might have been able to give was relevant in any way. Moreover, Judge Woodcock did not refuse or prevent the appellant calling Mr Vatskalis as a witness; she had simply failed to issue a summons for his attendance.
There is no evidential basis to support the ground of appeal that Judge Woodcock refused to allow six of the appellant’s witnesses to appear.
Asserted dismissal of the appellant’s health concerns
Ground 12 of the notice of appeal criticizes Judge Woodcock for allegedly dismissing the appellant’s health concerns.[56] I set out the ground in full below (spelling and punctuation has been corrected by me):
At all times Mrs Reynolds as a self-represented litigant requested assistance as she was very unwell with critically high blood pressure. Mr Woodcock chose not to believe any of Ms Reynolds’ medical practitioner reports and dismissed Mrs Reynolds’ considerable medical issues as irrelevant and untrue statement stating: “the Respondent was endeavouring to delay proceeding and muddy the waters”. Judge Woodcock wrongfully informed himself that this “included exaggeration, untruths and red herrings of various types”. Without calling any medical practitioner witnesses he made the judgment: “I do not accept her assertion that she has a brain injury, was struck by lightning or has Post Traumatic Stress Disorder (PTSD) as she claims. Judge Woodcock is NOT a doctor and is not qualified to inform himself with respects to Mrs Reynolds’ diagnosed medical conditions without questioning of her Doctors and Mrs Reynolds has not been asked to provide permission for such request to Judge Woodcock.
Judge Woodcock dealt with the appellant’s claimed medical conditions in his written reasons. His Honour noted:[57]
In the lead up to the final hearing the behaviour of the [appellant] was erratic and it was contemplated that a litigation guardian may be appointed for the [appellant]. On 19 November the [appellant] said that she had a front lobe brain injury and as a consequence she could not help but be disrespectful.[58]
Given his Honour’s reference to the appellant’s erratic behaviour and to a particular statement made by her in court on 19 November, it is instructive to consider the events of that day, although it is important to bear in mind that this was almost four months before the hearing on 5 March 2020.
Tendered before Judge Woodcock on 19 November 2019 was a letter from the appellant’s cardiologist, Dr Marcus Ilton, which read as follows, formal parts omitted:[59]
I have been the cardiologist taking care of Carolyn Reynolds for over 18 years and write to you with regards to her current medical condition where she has very difficult to control hypertension which has required a number of admissions to hospital this year, including recent episode in October on the 29th where she had severe hypertension associated with blurry vision and weakness and tingling in the arms and also difficulty with speech. There is no subsequent evidence of definite stroke but a blood pressure of this level does put her at risk of stroke.
The blood pressure is clearly exacerbated by stressful situations and at this stage I feel that it would be in Carolyn Reynolds best health interest if the court case could be delayed for further adjustment in treatment management and appropriate legal support so she can avoid the stresses of representing herself in court which I think does significantly contribute to the risk of severe hypertension and/or stroke.
Also tendered on 19 November 2019 was a letter dated 13 November 2019 from Dr Ilton to Dr Lucy Hurlstone (the appellant’s general practitioner), in which Dr Ilton wrote as follows:[60]
I reviewed this pleasant 53-year-old lady in the Cardiology clinic today [13 November] and note that she has had a further transfer from Batchelor with hypertensive crisis with an admission to the Royal Darwin Hospital on 29 October 2019 where she was discharged on the current combination of medications …
She has been under a lot of pressure through the courts for both her property at Batchelor and also her rock-climbing centre in Doctors Gully … She has been representing herself without legal aid and I think this has also been contributing to quite extreme stress. …
Her blood pressure again seems to have become difficult to control, but seems again to relate to her ongoing court battles which do sound very difficult, and without her actually having legal support, I think it makes it very difficult for her.
She is due to go to court next Monday, 18 November 2019, but again, she is not having any legal representation. My suggestion to her is to seek legal representation and I am happy to provide a letter saying that the case should be deferred while we are further seeking to control her blood pressure and probable post-traumatic stress with the use of venlafaxine which she was commenced on at the end of October.
On 19 November 2019, the appellant complained about her elevated blood pressure, claimed she could not see, said that she had pain in her arm and post-traumatic stress. The following exchange then took place between Judge Woodcock and the appellant (underline emphasis added):[61]
His Honour: All right. Have you done anything about – your medical advisor thinks that ---
Ms Reynolds: The head of NT Cardiac, Dr Marcus Ilton.
His Honour: Yes.
Ms Reynolds: Who has sent you a letter and a medical certificate ---
His Honour: Yes.
Ms Reynolds: --- and a report saying that I should not be in court today, and you’re subjecting me to this, your Honour.
His Honour: He was of the opinion that it would be of assistance to your distress if you had some legal assistance. Have you done anything about getting legal ---
Ms Reynolds: Your Honour, I’ve been in and out of hospital and trying to deal with stuff. I’ve also had another person down at Lake Bennett who has attempted suicide and should actually be in the mental health ward, but there is no room so they’re staying with their parents there at the moment. I just can’t cope with it all, your Honour.
His Honour: All right. Look I must say and I’m not going to defend myself, that’s not my job. But the court has offered you every courtesy ---
Ms Reynolds: Really, your Honour, really?
His Honour: --- and every convenience has been ---
Ms Reynolds: Really, your Honour? I’ve been in hospital three times.
His Honour: Please stop yelling. … There’s – We’ve adjourned the matter several times so that you can consider it, so you can get legal representation ---
Ms Reynolds: Your Honour, you don’t live a realistic life.
His Honour: --- legal advice. We really – we’ve been patient with you because you’re self-represented and you complain of many things ---
Ms Reynolds: Your Honour, this is not procedural fairness.
His Honour: Yes.
Ms Reynolds: Your Honour, you should not even be a judge if this is the way you behave.
His Honour: All right. Well I don’t think that’s the way you should talk here. I don’t think that’s ---
Ms Reynolds: Your Honour, you are either not a human being ---
His Honour: Okay.
Ms Pringle: Sorry, your Honour, I have to object.
His Honour: That’s okay. Let Ms Reynolds go. She is not feeling well. All right Ms Reynolds, I think one of the great stressors of litigation is the fact that it’s ongoing and I think it would be best for all concerned, given what I have read, that the matter be completed today. As I said on the last adjournment it would be ---
Ms Reynolds: Your Honour, I call no faith in you as a judge, your Honour.
His Honour: Yes.
Ms Reynolds: I call no faith and I ask you to bring the Chief Judge here please so I can talk to the Chief Judge. …
His Honour: No, Ms Reynolds.
Ms Reynolds: Yes, your Honour.
His Honour: The matter will proceed today.
Ms Reynolds: Yes – your Honour, that is absolutely disgusting ---
His Honour [to respondent’s counsel]: Please bring your witnesses in.
Ms Reynolds: Sorry, your Honour, you must be biased, are you with the Labour Party or are you just so biased politically?
His Honour: Please stop this.
Ms Reynolds: This is ridiculous, your Honour. You’ve got a medical certificate here which is a legitimate medical certificate. I’ve been to the hospital three times trying to save my life. Do you want to kill me, your Honour?
His Honour: Ms Reynolds, please ---
Ms Reynolds: Do you not understand medicine, your Honour? For God’s sake.
His Honour: All right. Well the matter is going to proceed. We’ll do it as quick as we can.
Ms Reynolds: Well I’d like an adjournment for the moment so I can go and get some help.
His Honour: No, Ms Reynolds. That’s why I’ve adjourned it several times.
Ms Reynolds: Your Honour, this is just ---
His Honour: Now which witnesses do you want to – I rule against your application for an adjournment Ms Reynolds. The matter will proceed now ---
Ms Reynolds: Your Honour, I would like to call the Lord Mayor and I’d like to call the ---
His Honour: No, no.
Ms Reynolds: Yes, I’m going to rely on the Lord Mayor, your Honour.
His Honour: The applicant goes first.
Ms Reynolds: And I’m going to rely on the Chief Executive Officer of Darwin City Council, your Honour.
A short while later the appellant told the judge that she needed to take a recess so that she could “get some medical support”. His Honour informed her that the matter would proceed in her absence, to which she replied, “This is bullshit, your Honour”.[62] After counsel for the respondent read the affidavit material relied on, and confirmed that the affidavits had been personally served on the appellant, the appellant said, “I haven’t got all of those, your Honour. I have been in hospital”. She was provided with further copies. Judge Woodcock then told the appellant that he would allow her 15 minutes to consider which witnesses she would like to cross examine and the order in which she would like to cross examine them. The transcript from that point reads as follows:[63]
Ms Reynolds: Your Honour, I’m not well enough to do this.
His Honour: Ms Reynolds ---
Ms Reynolds: Your Honour, do you not understand medical certificates? Do you not understand that a cardiologist – do you not understand medicine at all, your Honour?
His Honour: I’m not going to revisit it. But you were unwell on the 29th.
Ms Reynolds: Yes, I was, your Honour.
His Honour: And there’s no suggestion you can’t do it today. Certainly it was ---
Ms Reynolds: Your Honour, have you read the certificate?
His Honour: It is suggested that you’d be assisted if you had legal representation. You have not done that ---
Ms Reynolds: Your Honour, I’ve been in hospital.
His Honour: I have given you a number of adjournments to do that
Ms Reynolds: Your Honour, I’ve been in hospital, all right. What do you not understand?
His Honour: And in my assessment I read what the specialist said ---
Ms Reynolds: No, you’re not ---
His Honour: --- but you’re here now and we can do this in a couple of hours. ---
Ms Reynolds: I’m here now because I’m out of hospital. I don’t want to be back in there, and if you kill me ---
His Honour: All right. We can – we can do this in a couple of hours.
Ms Reynolds: --- if you kill me, your Honour, by making me go through this, that will be on your head.
His Honour: All right, okay.
Ms Reynolds: That will be on your head, your Honour.
His Honour: We’ll come back in 15 minutes. Please tell me who you would like to cross examine and the order in which ---
Ms Reynolds: You, your Honour. I want to cross examine you first, your Honour.
His Honour [to counsel for the respondent]: Have them ready to go, Ms Pringle?
Ms Reynolds: Your honour, I would like to cross examine you first --- to find out what your bias is.
His Honour: Okay, thank you. We’ll come back at quarter to 11:00.
Ms Reynolds: You’re the first person I want to examine, your Honour.
I was informed by counsel for the respondent on the hearing of the appeal that, during the court break which followed, after the appellant had unsuccessfully made an application to adjourn the hearing, an ambulance was called for her.[64] Ambulance officers declined to take (or at least did not take) the appellant to hospital. When court resumed in the afternoon of 19 November, the appellant claimed that her blood pressure had been so high that morning that she could not see very well and could not read her files. This led to an exchange between the appellant and Judge Woodcock as follows:[65]
Ms Reynolds: Your Honour, I just have very high blood pressure and I had been seen [for] my high blood pressure, with pain down my arm, and I can’t see very well, and down my leg, but I’m happy to continue your Honour, if you wish to ---
His Honour: You can’t see well?
Ms Reynolds: I can’t – I was trying to tell you that this morning, your Honour, when I have high blood pressure, I can’t actually see very well. I can’t see my files to read very easily which is why ---
His Honour: Surely if that were the case you would have been taken to hospital?
Ms Reynolds: Your Honour, I don’t like hospitals.
His Honour: Well it was your choice not to go, is that right?
Ms Reynolds: No, your Honour, I got myself – my blood pressure – I’ve got some GTN [transdermal] patches on to try and keep my blood pressure down, which is to keep it under 200.
His Honour: Well you have been given numerous adjournments to convenience you. Now really it will take a couple of hours and then it will be over pending the decision. So it might be better all round to do it today, Ms Reynolds?
Ms Reynolds: I don’t think I’m really up to it, your Honour …
It is not necessary to analyse the appellant’s statements extracted in the previous paragraph, except to note the real possibility that the appellant did not actually want to go to hospital, and that she had medication to control her elevated blood pressure.[66] At a subsequent mention in the Local Court on 3 December 2019, the appellant claimed, in relation to her medical episode (such as it was) on 19 November 2019: [67]
I was not protected by the court, there was a criminal offence committed by ambulance officers and first aiders who left me in a dangerous situation and circumstance … My doctors are not very impressed that I wasn’t transferred to hospital. But I was brave and courageous enough to come back into a court in the afternoon because I don’t quit”.
Whatever the true position may have been, his Honour did adjourn the hearing on 19 November 2019, and subsequently excused the appellant from appearing on 26 November; further adjourned the matter on 3 December, and did not list the matter for the March 2020 hearing until 13 December 2019.
His Honour’s concerns in relation to the appellant’s fitness to represent herself reached the point where he gave notice that he would consider the appointment of a litigation guardian on 13 December 2019. The appellant did not attend court on that day. His Honour noted:[68]
The [appellant] did not attend court on 13 December when appointment of a litigation guardian was to be considered. No person was available to act in this capacity and no evidence was made available regarding the [appellant’s] front lobe injury. No litigation guardian was appointed.
The dramatic (some might say melodramatic) events in the Local Court on 19 November 2019 have only peripheral or background relevance to the proceedings which took place on 5 and 6 March 2020, and even less relevance to his Honour’s ultimate decision. Even if it were correct that his Honour caused the appellant to have a “medical collapse” in November 2019, as she asserts as her first ground of appeal, that would not amount to an error of law in his Honour’s decision.
The appellant’s complaints on appeal raise a question as to the extent to which a court should indulge a respondent litigant, self-represented or otherwise, who repeatedly seeks adjournments on the basis of claimed debilitating or incapacitating conditions. The answer obviously depends on all the circumstances. In the appellant’s case, some additional consideration of the background to the hearing on 5 March 2020 is required.
It may be noted that on 24 September 2019, at an initial mention before Judge Armitage, and before the matter was first set down for hearing on 15 and 16 October 2019, her Honour suggested that the appellant take legal advice.[69] On 15 October 2019, the appellant told Judge Woodcock that she would need to “take some advice”. She did not specify whether it was legal advice or some other advice she wished to take. When His Honour responded, “You’re not coming here today not having taken advice”, she replied, “Your Honour, of course I’ve taken advice”.[70] After several unsuccessful applications for adjournment, the appellant made a further application based on personal health reasons (struck by lightning in March 2017, severely assaulted in August 2017, and also suffering extremely high blood pressure). She referred to having had a “massive anaphylactic reaction” to bee stings in early 2019. She also complained that she had been served with documents at the last minute. Judge Woodcock ultimately dealt only with a preliminary issue as to whether Part 13 Business Tenancies (Fair Dealings) Act 2003 applied to the lease. After hearing the submissions of both parties, his Honour adjourned the matter until the following week and told the appellant, “Go and get some advice on the case law that you have been given today. Get yourself a lawyer even.”[71]
At the mention on 24 October 2019, his Honour asked the appellant if she had obtained legal advice. She replied, “I have sought some legal advice but, unfortunately, I’m not able to have a lawyer represent me because the lawyer was not available to make this court date”.[72] That statement implied that the appellant had obtained the services of a lawyer to act for her, but that the lawyer was not available that day. However, the appellant added, “… and the other two lawyers that I spoke to, it appears that they’re a little bit fearful to come and talk in respect to what’s going on in this town at the moment.”[73] Shortly afterwards, the following exchange took place:[74]
His Honour: Do you want an adjournment to get a lawyer?
Ms Reynolds: It would be advantageous but I’m not sure that ---
His Honour: Do you want an adjournment to get a lawyer?
Ms Reynolds: Your Honour, I am not sure that I can get a lawyer at the moment because the ones I have asked don’t want to be represented against the Government or the Darwin City Council because of the situation of problems in this town and in this city at the moment.
His Honour: I’ll take that as a ‘no’. Thank you very much.
The case was then listed for hearing on 19 November. The appellant did not make application for any adjournment beyond that date, although she left the door open; she told his Honour on 24 October that she was not sure if she would be able to “get through the day” if she had to do it herself, but that she would do her best.[75]
The appellant’s resistance to the 5 March trial listing evolved from passive to active resistance by the time the matter was mentioned in the Local Court on 17 January 2020. The appellant asked for the 5 March hearing date to be vacated, stating: “My brother is trying to come in from the UK … my brother is looking at flying from the United Kingdom…”.[76] The relevance of her brother’s attendance was not explained. The following transcript extract is illustrative:
His Honour: The matter will proceed on the 5th of the 3rd at 10 o’clock. Please be here. Please be ready.
Ms Reynolds: Your Honour, I will not be ready on the 5th.
His Honour: Right. Nothing further?
Ms Reynolds: I will need my brother here. … I have asked you, your Honour, to be able to have my brother here in court. …
Apart from the fact that the appellant clearly had not wanted the case to proceed on 19 November 2019, two things may be noted from the exchange extracted in [59] above. The first (and here I refer to the underlined parts) is that the appellant avoided dealing with his Honour’s questions about her specialist’s recommendation that she obtain legal representation and support to help reduce the levels of stress she was experiencing. Instead, she launched a verbal assault against the judge. She employed vitriol as camouflage for her unwillingness to acknowledge the connection between her elevated blood pressure and her refusal to obtain legal representation. As his Honour noted, the appellant sought to delay the proceedings and “muddy the waters” by means which included exaggeration, untruths and red herrings of various types.[77]
The second matter to note is the obvious wisdom in his Honour’s observation that the matter needed to be resolved (his Honour optimistically suggested on that same day) in the interests of both parties. Notwithstanding the identified risk to her health of engaging in stressful litigation without legal representation, the appellant had not retained a lawyer to act for her in the hearing listed for 19 November 2019. Although she vigorously denounced Judge Woodcock for not acting on a “medical certificate” and not adjourning the hearing (presumably indefinitely), she had not acted on the advice of her cardiologist that she obtain legal representation in order to reduce her stress levels and help control her dangerously elevated blood pressure. In circumstances where the appellant had chosen not to be legally represented, the obligation of the trial judge was to ensure that the hearing proceeded expeditiously, in spite of the appellant’s resistance. The interests of justice required that the matters in contest – legal and factual – be promptly heard and determined. Having regard to the interests of the appellant, a prompt disposition was even more desirable, not only because of health concerns, but also because the longer the matter continued, the greater her costs exposure. Litigation is expensive and costs normally follow the event, that is, the unsuccessful party is usually ordered to pay the costs of the successful party. Each adjournment was potentially increasing the appellant’s costs liability by thousands of dollars.
The appellant ultimately informed Judge Woodcock that it had not been her choice to be unrepresented. I ‘fast forward’ to 6 March 2020, to the start of the appellant’s closing submissions in the Local Court (the evidence having been completed the day before). The following exchange took place between the appellant and the trial judge:[78]
Ms Reynolds: I do actually have in front of me a thing that I have been able to organise this morning which is to be able to – to be able to get some legal advice. I have attempted that this morning, but I have spoken to many lawyers for which I have their representation and they can’t. They feel that they’re unable to enter into such a matter at this time, some because of time, some because of lack of experience, some because they live in a small town called Darwin and they don’t trust getting involved in something like this because it’s not worth risking their careers (inaudible). So I stand here again unrepresented.
His Honour: Yes, by choice.
Ms Reynolds: Not by choice, by necessity.
His Honour: Right, okay.
Ms Reynolds: There is no choice here.
His Honour: Any submissions?
Ms Reynolds: There is no justice and there is no equity in the system that support people trying to do their best.
At no time did Ms Reynolds describe the efforts made by her to obtain legal representation or even mention name of a lawyer whom she may have approached for legal assistance. Given the procedural history, and statements made by the appellant throughout, I consider that it is quite unlikely that she took any serious steps to obtain legal representation. There are other possibilities, of course, including that she obtained legal advice but was unwilling to accept it. However, there is no evidence on which I could make reliable findings about matters of that kind on this appeal.
As to the assertion in ground 12 of appeal that Judge Woodcock “chose not to believe any of Ms Reynolds’ medical practitioner reports”, that is not borne out by his Honour’s reasons for decision. It is apparent that his Honour considered “a bundle of medical reports” relating to the treatment of the appellant and indeed set out extracts from two reports: (1) from the appellant’s respiratory physician and (2) from her cardiologist.[79] His Honour then made a non-publication order pursuant to s 57 (1)(ii) Evidence Act 1939 in respect of the two paragraphs of his decision in which the extracts were set out. The order was most made to protect the appellant’s privacy. Significantly, his Honour then made the following finding:[80]
I accept the [appellant] has seriously high blood pressure and was unwell at periods during this proceeding; various adjournments were granted to accommodate her. Ultimately the hearing had to be attended to, it is a matter of short duration and the [respondent] was entitled to have it heard.
It would therefore appear that, contrary to the assertion in ground 12, his Honour did have regard – appropriate regard – to the medical evidence which confirmed the appellant’s claims that she suffered from very high blood pressure.
In order to determine whether there is any validity to the appellant’s contention that his Honour erred in dismissing her other claims (allegedly contrary to the medical evidence) that she had a brain injury, had been struck by lightning and suffered from post-traumatic stress disorder, I have examined the medical reports in exhibit D17 in the Local Court proceeding.[81] They included Dr Ilton’s report referred to in [58], Dr Flavell’s report referred to in footnote 66, and some other reports referred to below.
Included in exhibit D17 was a copy of a medical certificate issued by Dr Lucy Hurlstone, on the letterhead of the Batchelor Community Health Centre, dated 27 November 2019.[82] It read (formal parts omitted):
I hereby certify that I have examined Carolyn Reynolds who in my opinion is suffering from a Medical Condition.
She will be unfit for full duties on 18 November 2019 with the following restrictions: Not Applicable
The first certificate covers the period 18 November 2019 to 7 December 2019 (inclusive).
Like so many other unhelpful generic medical certificates, the certificate said no more than that the appellant was suffering from a “medical condition”. The certified unfitness “for full duties” did not specify any relevant limitation, and said very little about the appellant’s capacity to engage in court proceedings. The certificate was issued on 27 November 2019, apparently based on an examination carried out that day, yet Dr Hurlstone purported to certify the appellant’s unfitness backdated to 18 November 2019 and extending to 7 December 2019. If it is correct that Dr Hurlstone examined the appellant only on 27 November 2019, one might question the basis on which the unfitness was said to have commenced eight days previously, on 18 November 2019.
To the extent that the appellant relies on Dr Hurlstone’s certificate to contend that she was too unwell to participate in court proceedings on 19 November 2019 (when Judge Woodcock is said to have treated her unfairly by declining to adjourn the hearing)[83], such reliance is misplaced. In any event, the events of 19 November 2019 were ultimately of little relevance, for reasons explained in [63] and [65].
Exhibit D 17 contained five other copy medical certificates issued by the Batchelor Community Health Centre, for the following periods: 7 December 2019 to 13 January 2019 [sic] inclusive; 17 January 2020 to 19 January 2020 inclusive; 16 January 2020 to 24 January 2020 inclusive; 4 February 2020 to 6 February 2020 inclusive; and 6 February 2020 to 8 February 2020 inclusive. All of the certificates suffered from the same deficiencies identified in [77] above, in that there was no diagnosis apart from “medical condition”, and no specific limitations were identified.
In any event, whether his Honour rightly or wrongly rejected the appellant’s assertions (ie, that she had suffered or was suffering from a brain injury, or that she had been struck by lightning or that she suffered from post-traumatic stress disorder), it was irrelevant to his ultimate decision.[84]
I now turn to the hearing of evidence on 5 March 2020. At the commencement of the hearing, the appellant informed his Honour that she had received a “really bad wasp bite” the previous day when she was cutting the lawns at her Lake Bennett resort. She claimed that this caused her to have a massive anaphylactic shock, which required her to attend at the Royal Darwin Hospital in the late evening of 4 March. Given the history of the matter in the Local Court, a sceptic might doubt that this was a genuine medical emergency. However, the appellant produced medical evidence to support her claims.[85] It was simply a coincidence that she had suffered a massive anaphylactic shock the day/night before the court hearing she had tried to avoid. To her credit, the appellant soldiered on, as she explained in the following brief exchange: [86]
Ms Reynolds: But I don’t want you thinking I don’t want to proceed with this because I absolutely 100 per cent do. I’m finding it hard to talk … Because of the anaphylaxis and the really swollen throat.
……..
His Honour: All right. You’re here today and we’re going to proceed?
Ms Reynolds: Look, I’m going to do my best, your Honour.
In relation to the appellant’s difficulty in talking, she stated at the start of her cross examination of Mr Carroll that she had a really sore voice.[87] However, she then embarked on a very lengthy cross-examination of Mr Carroll which resulted in more than 40 pages of transcript. Indeed, she cross-examined all of the respondent’s witnesses at length and made submissions on many occasions. Having read the transcript, I am satisfied that the appellant did not appear to have suffered any disadvantage in conducting her defence of the respondent’s case as a result of her health conditions. She conducted her case in a very robust (albeit at times misguided) manner. Indeed, the following passage of transcript indicates that the appellant was satisfied that she had been able to put her case adequately on the day, in spite of her medical conditions and the fact that she had been under observation in hospital the previous night for anaphylaxis :[88]
His Honour: … You are self-represented but you’ve proven today how intelligent and organised you are. You are no stranger to the courts and you are a person of business clearly to think in this structured fashion and act as you have this morning – quite impressive, but it’s – at the end of the day – your responsibility to put your case together. I have had numerous adjournments to accommodate you.
Ms Reynolds: I do appreciate those, your Honour, and you will see, with the medical certificates, that I have always provided you – that I have at all times made sure that, when I can stand and put my case forward, I have been able to do that.
His Honour: Yes. Well that’s very impressive today – and I should also say that we were at one stage – all three of us – contemplating you having a litigation guardian. Your conduct of the matter today is such that clearly was not necessary.
Ms Reynolds: A litigation guardian may have been an awful lot easier for me, your Honour. Especially with wasp bites and high – and wasp stings and high blood pressure.
His Honour: No, civil litigation is very stressful.
At the conclusion of her oral submissions on 6 March 2020, the appellant told Judge Woodcock, “I would like to thank you from the bottom of my heart for helping me”. It is unclear whether such heartfelt thanks was intended to apply to the extensive help and guidance given to the appellant throughout the hearing, or whether it was limited to the help given by his Honour immediately prior. It is not necessary to decide that question on this appeal.
Conclusion
I have not dealt specifically with each and every one of the assertions or allegations made against Judge Woodcock by the appellant in her notice of appeal. To do so comprehensively would require a written judgment at least twice as long as these reasons. In brief, however, I am satisfied that none of the grounds has been made out.
It appears from my reading of the transcript that there were times when his Honour dealt with the appellant in a firm manner. However, those were times when the appellant was conducting herself inappropriately, for example: raising her voice, speaking over the judge, making personal attacks upon the judge, or refusing to accept his rulings. In preliminary hearings, his Honour tolerated angry, illogical and irrelevant outbursts which many judicial officers would not have tolerated. I am satisfied that his Honour dealt with the appellant in a manner which was very fair to her, at times undeservedly so. Overall, his Honour made considerable efforts to assist the appellant, including explaining matters of evidence and procedure and even overruling legitimate objections made by counsel for the respondent, in the interests of permitting the appellant as a self-represented person to conduct her case.
The appeal should be dismissed.
I will reserve the question of costs. If the respondent seeks an order for costs, the respondent is to file written submissions within 21 days and the appellant in response within a further 21 days. I would then decide the issue on the papers. If the respondent does not seek an order for costs, I would ask that my Associate be notified.
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[1]The Real Property Act, 1886 (South Australia), as amended by a succession of Northern Territory Ordinances and Acts, was in force in the Territory until the commencement of the Land Title Act 2000.
[2]‘Deed of Consent to Assignment of Lease’, executed by Tekserv International Pty Ltd, Darwin City Council and the appellant.
[3]There were other agreed variations, which are not relevant to the issues in this appeal proceeding.
[4]Notified in the NT Government Gazette S 48, 9 August 2012. The names of the local government area and of the council were both changed.
[5]The notice period was extended to 1 April 2019 because 31 March 2019 was a Sunday. Nothing turns on that.
[6]City of Darwin v Carolyn Reynolds [2020] NTLC 5 at [35].
[7]Ibid, at [37]. Part 13, Division 2 of the Business Tenancies (Fair Dealings) Act 2003 provides for repossession of business premises including the giving of notice to quit (s 125, s 130) and making application for a warrant of ejectment (s 131). The definition of ‘business premises’ includes “premises leased primarily for business purposes, whether or not the premises may be used as a residence under the business lease”.
[8]Ibid, at [37], [49].
[9]Local Court Act s 19(1).
[10]Tracy Village Sports and Social Club v Walker (1992) 111 FLR 32 at 37.
[11]Wilson v Lowery (1993) 4 NTLR 79 at 84.
[12] Ground 1.
[13]Ground 13.
[14]Ground 2.
[15] Ground 15. The complaint was made to Chief Judge Morris on Friday, 6 March 2020, the day after the hearing on 5 March 2020.
[16] Ground 4.
[17]Ground 6.
[18]Ground 7.
[19]Ground 5.
[20]Appellant's written submissions filed in court 9 October 2020, par 23.
[21]The Queen v Shurmer (1886) 17 QBD 323 at 324, per Lord Coleridge LJ (Denman, Field and Mathew JJ concurring).
[22]Wilson v Nightingale (1846) 8 QB 1034 – 1037.
[23]Ibid at [1037].
[24]Universal Roofing and Accessories Pty Ltd v Singh [2004] NSWSC 32.
[25]KFS Financial Services Pty Ltd v Mostamandi [2016] NSWSC 1797.
[26]Ibid at [102] – [103].
[27] Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12, 343 ALR 58 at [16], per Kiefel, Bell and Gordon JJ.
[28] Toll (FGCT) Pty Limited v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [40].
[29]For example, neither the lease nor the Deed specified the person or persons, or the position or level of officer within the administrative structure of the City of Darwin to whom oral notice might be given.
[30]City of Darwin v Carolyn Reynolds [2020] NTLC 5 at [9].
[31]Lifoon Pty Ltd v Gillard & Ors; Hendriks & Ors v Gillard & Anor [2006] NSWCA 182, per Handley JA, Ipp JA and Tobias JA agreeing.
[32]Ibid, at [2].
[33]Ibid, at [11] – [13].
[34] Ibid, at [14].
[35] Ibid, at [24].
[36] Ibid, at [23], citations omitted.
[37]City of Darwin v Carolyn Reynolds [2020] NTLC 5 at [36].
[38]City of Darwin v Carolyn Reynolds [2020] NTLC 5 at [35].
[39] Transcript 5/03/2020, p 145.9.
[40] Transcript 5/03/2020, p 146.1.
[41] Transcript 5/03/2020, p 146.7. This was a reference to having allegedly given oral notice in a conversation with Mr Carroll in 2018 at the Botanical Gardens [the subject of cross-examination at T 24-25]. See also par 2 of the appellant’s letter to Scott Walker dated 9 May 2019, contained in exhibit D14.
[42] Transcript 5/03/2020, p 147.1.
[43] Transcript 5/03/2020, p 148.4.
[44] Ms Herewini-Johnson was the respondent’s senior customer service officer.
[45] Transcript 5/03/2020, p 149.1.
[46] See, most relevantly, the appellant's lengthy letter to Scott Walker dated 11 June 2019, contained in exhibit D14.
[47]Appellant's written submissions, par 25.
[48]Reference to the respondent is to the City of Darwin.
[49]Transcript 5/03/2020, p 66.
[50]Transcript 6/03/2020, p 182.
[51] Transcript 5/03/2020, cross examination pp 68 – 86.
[52]Exhibit D 14, Transcript 5/03/2020, p 156.
[53]Transcript 5/03/2020, pp 156 – 159.
[54]The Notice is reproduced in City of Darwin v Carolyn Reynolds [2020] NTLC 5 at [10].
[55] Transcript 5/03/2020, p 87.
[56] Grounds 13, 19, 20 and 24 raise similar contentions.
[57]City of Darwin v Carolyn Reynolds [2020] NTLC 5 at [38].
[58]See the transcript of 19/11/2019, p 106, where Ms Reynolds referred to her (alleged) frontal lobe brain injury and told Judge Woodcock: “… the impulsivity and the stuff like – I apologise for my – I can't stop it your Honour… I don't mean it, your Honour. It's just I can't – when my blood pressure gets too high I can't manage it … but I really want to help people. His Honour accepted the apology; he replied, “That's all right. As I say I haven't responded to any of the insults today.”
[59] Exhibit R2, tendered 19/11/2019.
[60]Exhibit R1 tendered 19/11/2019 (Dr Marcus Ilton, NT Cardiac).
[61] Transcript 19/11/2019, pp 79-80.
[62] Transcript 19/11/2019, p 82.
[63] Transcript 19/11/2019, pp 83.6 – 84.
[64]The events were described in neutral terms by Judge Woodcock in court, in the absence of the appellant, as follows: “It is my understanding that during the adjournment [from 10:30 to 10:45] that Ms Reynolds caused an ambulance to be called and that ambulance arrived and she has been attended to since the arrival of that ambulance from that time. I also understand a decision has been taken, at this stage, that she will not be taken by ambulance to hospital, and although she continues to be attended by the paramedics. That being so I am going to stand the matter down until 2 o'clock so that hopefully I can have some clarity on the situation – Transcript 19/11/2019, p 85.
[65] Transcript 19/11/2019, p 86.
[66]
[67]Transcript 03/12/2019, p 122.
[68]City of Darwin v Carolyn Reynolds [2020] NTLC 5 at [41].
[69]Transcript 24/09/2019, p 12.3, 12.9.
[70] Transcript 15/10/2019, p 17.
[71] Transcript 15/10/2019, p 55.
[72] Transcript 24/10/2019, p 58.4.
[73] Transcript 24/10/2019, p 58.5.
[74]Transcript 24/10/2019, pp 58.9 – 59.
[75]Transcript 24/10/2019, p 71.
[76] The appellant kept resisted the listing of the matter for hearing even after the several adjournments referred to. At a listing mention in the Local Court on 17 January 2020, the appellant asked for the 5 March hearing date to be vacated, stating: “My brother is trying to come in from the UK … my brother is looking at flying from the United Kingdom…”.
[77]City of Darwin v Carolyn Reynolds [2020] NTLC 5 at [46].
[78]Transcript 06/03/2020, p. 173. See also Transcript 05/03/2020, p 163 where, at the end of the day on 5 March 2020, the appellant requested to be able to get some legal advice. His Honour reminded her that he had told her many times to get legal advice. The appellant then stated: “I have attempted to do that but unfortunately people don't trust this government or the council and they are worried as to who they work with because of other issues.” His Honour responded, “I have been a lawyer for a long time and that is not my experience.”
[79]City of Darwin v Carolyn Reynolds [2020] NTLC 5 at [42], [43].
[80]City of Darwin v Carolyn Reynolds [2020] NTLC 5 at [45].
[81]Exhibit D 17 was a bundle of medical reports identified as “Private and confidential medical information regarding Carolyn Reynolds.
[82]The copy contained within exhibit D 17 is unsigned, but on the hearing of the appeal, the appellant provided a copy of a signed original (part of attachment 3 to her written submissions).
[83]Ground 1 of appeal.
[84]The only possible relevance was in relation to whether or not a litigation guardian should have been appointed for the appellant, and that is not raised on appeal.
[85]
[86] Transcript 05/03/2020, p 5.
[87] Transcript 05/03/2020, p 24.2.
[88]Transcript 05/03/2020, p. 88.
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