Roberts v Molan

[1998] HCATrans 359

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S124 of 1997

B e t w e e n -

VONNIE J. ROBERTS

Applicant

and

MAGISTRATE P. MOLAN

Respondent

Application for special leave to appeal

GLEESON CJ
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 OCTOBER 1998, AT 10.54 AM

Copyright in the High Court of Australia

MS V.J. ROBERTS appeared in person.

GLEESON CJ:   We understand there is going to be no appearance for Magistrate Molan.  So, although we had marked this matter “Not before 11”, there is no reason why it should not go ahead if you are ready to go ahead.

MS ROBERTS:   Yes, sir.  Did you get the documents I handed up this morning?

KIRBY J:   We have the application book.

MS ROBERTS:   Yes.  I handed up some - - -

GLEESON CJ:   The front page is headed “List of Material Referred to in Argument”.

MS ROBERTS:   Yes, that is it.

GLEESON CJ:   Yes, we have that.

MS ROBERTS:   I wanted to bring this up because I feel that I have been denied natural justice in all three courts.  In the appeals court, as you will see by the judgment and the transcript is also there, the judgment does not reflect at all, it is a real misrepresentation of what did go on in the appeals court.  In the judgment it says that there was no points of law raised.  That is not correct because it was at 154, I think it was, I raised points of law there in that the Magistrate in the lower court had rejected evidence, admitted improper admission of evidence, had prevented me from fully cross-examining the plaintiff.  In fact, he sat me down – he threatened to sit me down a number of times and then sat me down before I had finished giving my evidence – cross-examination.

He also limited me in giving my own evidence.  He actually acted as the advocate there and he just sort of asked me the questions he wanted to know rather than what I wanted to present.  Then he also sort of – the whole procedure I was sort of intimidated all the way through because I was dysphasic and he got impatient with me and he sort of went off to morning tea – threatened to go off to morning tea and then he did go off to morning tea; threatened to sit me down repeatedly, then, as I said, finally sat me down.  So, I believe that according to Escobar – well, even in – I cannot pronounce the names, anyway it is Balenzuela v De Gail - I understand from that that wrongful rejection of evidence is a point of law.

Also in – I am sorry, I have got myself lost – Escobar v Spindaleri, it says in there that premature termination is also an error of law and also being denied argument – final submissions – is an error of law.  So, I was not in any way been able to put my evidence or argument fully to the lower court and so it was a denial of natural justice there as well as points of law.  Even denial of natural justice and procedural unfairness is a point of law so I do not understand how Justice Sully could say that there was no points of law in refusing the summons and orders.

KIRBY J:   Ms Roberts, Justice Sully went, as it were, straight to what he saw as the heart of the problem.  One issue was whether you were out of time for bringing the appeal and then the second was whether, in any case, even if you could overcome that hurdle, the matters that you were agitating on the stated case were matters of fact and not matters of law, and if you only have matters of fact, then you do not have an appeal by way of stated case.

MS ROBERTS:   Yes, I understand that but – I will just see if I can find it ‑ ‑ ‑

KIRBY J:   We are pretty familiar with most of these authorities, so if you just tell us what the principle is you want to apply.

MS ROBERTS:   The early premature termination of both my cross‑examination and also my evidence and also no argument.  I was not even invited to give argument.  He did not even have all the material before him.

KIRBY J:   Well, it is a bit unfortunate for you but the fact is that the proper procedures for challenging that sort of complaint about the Magistrate is not by way of the appeal on a point of law by a stated case, which is the one you took, but another procedure.

MS ROBERTS:   That was the only procedure I had available by the Dividing Fences Act, section 19(2), is by point of law.

KIRBY J:   That is another question but, in any case, the matter that is before us – we can only deal with the matter that is before us.  The matter that is before us is an appeal from the Court of Appeal of New South Wales which, in turn, really dealt with it only on the basis that you were arguing that what you had was a fence and that that is simply a factual matter and that it is not really a matter of law.

MS ROBERTS:   Sir, that is not so, because that is what I am talking about now.  The appeals case – I was arguing – he asked me – I mean, at the beginning I went to start straight off on being out of time because Justice Sully misdirected himself to read the Manly Court file instead of reading my 50-odd page affidavit, so he did not have any of my evidence before him when he made that decision.  After he dismissed my summons, then I sort of said, “Well, doesn’t this apply to me?”, and he said, “Well, I gave you the opportunity” but I did not know he had not read my affidavit.  He took the time, because he had been allocated at the last minute, to sit there and read it and I thought he was reading my affidavit, not knowing he even had the court file.  It should not have even been there.  So, that is where all the problem came.

KIRBY J:   Again, this is a complaint about the procedures but, you see, the only matter that is before us is an appeal from the Court of Appeal of New South Wales and that, in turn, was dealing with an appeal from Justice Sully, so we are locked into a consideration of whether their Honours, in the Court of Appeal, made a mistake and against whether Justice Sully made a mistake on a point of law.

MS ROBERTS:   Yes.  Well, at 154 that is Justice Powell’s and Justice Coles’ – the appeal to the appeals court.  What I am talking about here, on 154, I did raise points of law, so my case was competent on points of law.  Then I know the judgment says that I only raised about a dividing fence.  That is not so.  The transcript shows differently.  The points of law that I was referring to about the dividing fence was that the Magistrate had not dealt with it according to the Dividing Fences Act 1991 because in that a dividing fence is also – sorry, the definition of the “dividing fence” there is different to what it was before 1991. The dividing fence that I had – it says there:

“fence” means a structure, ditch or embankment, or a hedge or similar vegetation barrier, enclosing or bounding land, whether or not continuous or extending along the whole of the boundary separating the land –

and Justice - - -

KIRBY J:   Essentially, you say that the fence you have or had was a dividing fence?

MS ROBERTS:   Yes, according to the law.

KIRBY J:   But that simply is the application of the Act to the particular facts in your case.

MS ROBERTS:   Yes.

KIRBY J:   And the Magistrate regarded that as absurd because he said in fact it is a very low group of stone or bricks and it is dangerous to children and it is absurd to suggest that it is a dividing fence.  Now, that is just a factual decision.

MS ROBERTS:   Yes, I know, but he did not look at the Dividing Fences Act as far as section 4 – section 4 gives the considerations that have to be taken in respect to a dividing fence since 1991 and as Justice Cole or Powell said, sure, I have got a ditch or a trench with a row of brick in which is, according to the Dividing Fences Act 1991 and according to the intent of the Act, according to – I have put there, the second reading and the whole intention of the Act was to make it more flexible and up to date. My neighbourhood has that kind of fencing. In fact, even the neighbour who was complaining, he has got a row of bricks at the end of his driveway which is quite dangerous because there is a three foot drop under it, whereas mine is straight along. But I was not saying the dividing fence itself – I realise that is a fact, but he has not determined it according to the Dividing Fences Act.

Justice Powell, I think it was, he said, “You’ve got a row of bricks in a trench which satisfies that but you haven’t got a conventional fence.” According to the Dividing Fences Act and the intent, according to the second reading in Parliament, it does not have to be a conventional fence.  It is all these other things that have been allowed to come in.

KIRBY J:   Yes, but whether it is a dividing fence or not, within the Act, is just a question of fact which is given by the law of this State to a magistrate.  It is not a matter that would agitate the High Court of Australia.

MS ROBERTS:   Well, this matter comes up repeatedly in the Local Court and I believe it is one that should be determined.  If we are supposed to all have conventional fences, it is no use having the 1991 Act because magistrates are not taking any notice of it, the judges in the other courts are not taking any notice of it and all of this is causing problems in the community because, you know, we are acting – and it says there all the different characteristics that you have to look at, the matter of the community, and he has not - as I put there, he did not look at these according to the local council policies.  As I have got in there, it is a special area, Bilgola Plateau, and we have got wildlife in there, and the preference for the council is to encourage away from fencing because we have got bandicoots and things like that.  Here they have got problems down in the Manly Council because of the – St Patricks, because of bandicoots.  Here, we have got a very small pocket up there and even since this fence has gone up bandicoots have been killed on the road.

So, I am in a natural corridor and they are often in my area.  Virtually every night they are in my property there.  So, I mean, unless we get this clarified, if we are not going to go according to what the law has legislated with the Dividing Fences Act, we may as well forget it even exists and just sort of do anything.  But, see, he, in the appeals court, in respect to the time part, you will see there at the commencement of – I think it is – yes, on page 154, I, in having had the problems of not being told it was out of time before, which I realise nullifies my application, I thought, “Well, I will go straight in into time” and he said, “No, put that away; put it to one side at the moment and tell me what your points of law are” which I went ahead and told him and then he never gave me opportunity again to even mention it.  He went off – got my documents, went outside and had a short adjournment and came back in and said, “I’m sorry, there’s nothing we can do to help you”, without giving me any opportunity whatsoever to explain that – going back over to annexure A in 85.

Now, that is a stamped sealed document by the Manly Courthouse.  I lodged that on the 1/12.  In those documents that you have got there there is a letter I wrote to the – in fact, I put a letter in the same day as the Magistrate, Mr Molan heard it down at the Manly Courthouse on the argument which I believe is out of jurisdiction, but finding out it was not on the file, I went straight out and lodged a complaint and requested some investigation into why my sealed document was not on the file.  So, that was on the 1/12.  That was lodged two weeks – well, less.  My case was on the 21/11.  I lodged that on the 1/12.

KIRBY J:   As I read the Court of Appeal, they did not deal with the matter on the “out of time” point, they dealt with it on the fact that even assume you could overcome that problem, that you did not have a point of law because you were really complaining that the fence you had was a fence within the Dividing Fences Act, whereas the Magistrate held that that was, in his view, a ridiculous opinion and that it was not a fence, and that is just a factual question.

MS ROBERTS:   Okay, sir.  I will accept what you are saying there but it does not have to be a point of law on the dividing fence itself.  It can be a point of law on anything that happened in the court.  Here, I was denied justice by not being able to even cross-examine.  I was not even able to put all my evidence forward.  I was not able to argue.  So, according to – I think it was Justice Kirby in that one I just quoted a while ago, he said it was a denial of natural justice not to have those things being allowed.  I was denied the right to put my case.  Not to even fully put it – to present it to the court.

Jones v National Coal Board bring out the same things, that a person has the right to be able to put their case to the Court, even if we are unrepresented.  In fact, in Kirby’s judgment, I think it was, or Samuels, he actually says that a person – that also applies even more so to a person being unrepresented and here in Lutany Fashions provided – it says:`

The fundamental responsibility of a court –

this is coming back to the point of the Dividing Fences Act –

when it interprets a statute is to give effect to the legislative intention as it is expressed in the statute.  If an appellate court, particularly an ultimate appellate court, is convinced that a previous interpretation is plainly erroneous then it cannot allow previous error to stand in the way of declaring the true intent of the statute.

So, I mean, the true intent of the Dividing Fences statute has not even been looked at properly.  And, the one I was trying to find – so, you know, as an unrepresented person, especially when I do have problems with dysphasia since my car accident, it is sort of denying people with problems of dysphasia or any other language problem the right - - -

GLEESON CJ:   Now, Ms Roberts, have you seen that warning light flash there.

MS ROBERTS:   I am sorry.

GLEESON CJ:   Have they explained to you what that is all about?

MS ROBERTS:   Yes.  Well, sir, the fact is then that my application – I have got points of law there so I have the right to have my case heard on point of law and also, I was not out of time.  That document that I have shown you was submitted on 1 December.  The Court has lost it.  Section 150 of the Justices Act says that should be accepted as an acceptable, admissible document without further proof. 

The second application was not out of time.  It was due to the court’s error that they gave me an extension to the 12th instead of the 22nd, which I asked.  It was not the second application on the 5/12.  It was a correction of the court’s error.  In Attorney-General v Wylde it says there that:

Where a litigant has by error of an official of the Court been prevented from filing a document in the Court within the prescribed time, the Court will not allow him to be prejudiced by reason of such error.

So, if the court has not filed it, that is not my fault.  I have a copy of it.  On the second part, if the court made an error when my application for an extension of time was requested to go until after the Legal Aid had made a determination on the 22nd, they made an error and gave me an extension until the 12th.  I took it straight back.  I got my letter on the evening of the 4th.  I went down on the 5 January, pointed that error out and the Senior Magistrate, Mr Cleary, corrected that error in accordance with the powers of the court, which I have there on those front documents.  Under the Civil Claims Act, I think it is section 7 I think it was – no, section 16 and also the Supreme Court, I think, section 36 there, that they have got that power to correct the error.  So, I am being denied natural justice if here, again, today, I am not permitted to bring my case before the Court.

As it was Magistrate Molan who was out of jurisdiction also when he made the argument – he made the argument down in Manly Court.  It was his case to be stated.  There is nowhere in the Act anywhere to say that the Magistrate can argue his own case in the Local Court.  It was submitted to the Supreme Court to be argued in the Supreme Court on point of law and the Magistrate did not have the jurisdiction to make the arguments in the lower court.

GLEESON CJ:   Thank you, Ms Roberts.

In this matter the Court is of the view that there is insufficient reason to doubt the correctness of the decisions of the Court of Appeal and Justice Sully to warrant the grant of special leave to appeal.  For that reason the application is refused.

The Court will now adjourn to reconstitute.

AT 11.16 AM THE MATTER WAS CONCLUDED