Roberts v Molan

[1998] HCATrans 54

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 MR P. MOLAN

Respondent

Application for a stay

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 26 FEBRUARY 1998, AT 10.21 AM

Copyright in the High Court of Australia

MRS V.J. ROBERTS appeared in person.

HIS HONOUR:   Yes, Mrs Roberts.  Now, you have no more than 20 minutes to put what you want to put.

MRS ROBERTS:   Okay.  First of all - - -

HIS HONOUR:   It is now just on 25 past 10.  I should say that the Deputy Registrar has a certificate stating that he has been informed that the respondent in the above matter, that is to say the Magistrate, does not wish to be represented at the hearing of this present application and will submit to any order of the Court save as to costs.  Yes, Mrs Roberts.

MRS ROBERTS:   First of all, could you tell me, sir, you are familiar with the material I have submitted?

HIS HONOUR:   I have read the material.

MRS ROBERTS:   You have read that, so if I do not sort of go all over that you will - - -

HIS HONOUR:   It is up to you to present what you want to present but I can tell you I have read the material.  Now, the problem you face is that the Court of Appeal was dealing with an application for leave to appeal; that the Court of Appeal said that there was no question of law involved, that it was a factual matter, and Mr Justice Cole emphasised that.  You then face the difficulty that it is extremely unlikely that this Court would interfere in such a case and that, therefore, the order you seek today is equally unlikely to be made.  The order you seek today is, on your summons filed 8 December 1997:

that:  the professional costs and the fencing application orders made at Manly Local Court 21.11.1995 be stayed until the appeal to -

this Court -

is determined.

MRS ROBERTS:   Yes.  Well, I have put all along, which has not really been heard, that my request to state a case was not out of time.  It was lodged on 1/12/95.  I would like to pass up a couple of - - -

HIS HONOUR:   You have to persuade me that the Court of Appeal’s judgment has defects in it of sufficient significance as to make it likely that there would be a grant of special leave in this case.

MRS ROBERTS:   Yes.  Well, in the Court of - - -

HIS HONOUR:   This Court does not ordinarily sit to decide divided fence disputes.

MRS ROBERTS:   Well, I believe that this matter is a matter of community concern.

HIS HONOUR:   Now, why is that?

MRS ROBERTS:   Why?  Because the court has not really looked at the Act according to what the new Act is, for a start.  The Dividing Fences Act what they referred to - Justice - I think it was Cole or the other person - made reference, okay, you have a ditch with a row of bricks in it but that is not a conventional fence.  Now, the new Dividing Fences Act makes it quite clear, you do not have to have a conventional fence.  I do have a copy of it here somewhere.

HIS HONOUR:   What date is the new Dividing Fences Act?

MRS ROBERTS:   1991.  I will pass those up if you wish.  Also, if you look at the Bill that went with it, the purpose of the Bill was to make it more flexible, and there is also the council management plan for my particular area which is very conservational interested, and they want, as it puts in their plateau plan, that they are actually encouraging people to delineate with natural trees, natural vegetation.  That is on page 5, especially, of the Balgowlah plateau even though in places there is - - -

HIS HONOUR:   Now, has there been any attempted enforcement of these orders?

MRS ROBERTS:   No, except when I did try, I wrote a letter to - - -

HIS HONOUR:   It would be unlikely I would imagine.

MRS ROBERTS:   No, it is not.

HIS HONOUR:   Pending the application by this Court of your leave application.

MRS ROBERTS:   Yes.  Well, I was going to do something about the other fences they put up without any instruction or court - - -

HIS HONOUR:   No, no, you want some orders stayed.

MRS ROBERTS:   Yes.

HIS HONOUR:   The question is, is there an immediate risk of enforcement?

MRS ROBERTS:   Yes, in the sense that I have their tree still in my backyard which came - - -

HIS HONOUR:   Well, of course, you are not obeying it but is there any immediate risk of enforcement?

MRS ROBERTS:   Yes.  Well, I want to seek to remove their tree from my yard which has been there since 1995.  It is a 40 foot gum tree, so big round, and it is tick infested.  It is also a bushfire hazard.  It is right up to my back landing and it is now overgrown - I have photos of it here.  It is overgrown, it is tick infested.  I am now under the treat of Lymes disease.  I have just had blood tests.  So, it is a continual threat to me, both as far as the bushfire and the loss of my home and also in respect now to Lymes disease.

As these photos will show, it is not just a little tree that I can remove myself.  If I could pass these up, please.

HIS HONOUR:   No.

MRS ROBERTS:   I cannot?  So, there is that problem also.  If I go ahead and do what I have been told is legal, to have it chopped up and a crane remove it back on to their driveway, I know that is when they will really try and force this on me which means that my case before the Court is just going to be futile because they will force - the whole situation with my neighbour, it has been a vendetta, because they put up the rear fence without - - -

HIS HONOUR:   Yes.  Now why is it the function of this Court, as a national Court of Appeal, to resolve a vendetta between two neighbours of this sort?

MRS ROBERTS:   Well, the whole - well, this application, the application that they had before the court at Manly was a vendetta because they - - -

HIS HONOUR:   That may be so.  This Court is a national Court of Appeal.  It does not sit to resolve every suburban vendetta.  It would know no ends to its work.

MRS ROBERTS:   I believe I have the right to justice.  I have been denied justice in three courts now.  My case was not heard properly at the Local Court.  I was intimidated by the Magistrate.  I was sat down - threatened a number of times then sat down without being able to finish cross‑examining, without being able to finish giving my own evidence.  I was not able to cross‑examine the applicant, the second respondent in this matter, and so I was just completely denied justice.  It was a complete utter miscarriage of justice.  Then when I endeavoured to do a stated case I was refused transcript, I put in a - which I would like - - -

HIS HONOUR:   I have read the decision of Mr Justice Sully which deals with some of these matters.

MRS ROBERTS:   Justice Sully did not - that was another injustice because Justice Sully had only been handed the case only 10 minutes beforehand.  There was some, what, 50-odd page affidavit.  He did not read that.  He did not, apparently, even realise it was there until after he had made the verdict, and he said I was out of time, and then I raised the question, as you will see there, as to why or if a letter supplied by a legal representative is accepted and, if so, would it not apply to an unrepresented person, and he confirmed that it would but he then had already made the verdict and he did not reopen it.  There is the letter.  It was on the affidavit.  It was the very first annexure to the affidavit, a stamped letter with a court seal on it and then he said it was not up to him to find out why it was not on the file.

Now, I have correspondence here to confirm that that letter was on the file and - sorry, it was not on the file but it was handed up.  It was filed on 1 December and the registrar down there had not accepted that.  I can pass that up to confirm - - -

HIS HONOUR:   No, I am not entering into these disputed matters of fact, Mrs Roberts.

MRS ROBERTS:   Pardon?

HIS HONOUR:   I am not entering into these disputed matters of fact.  This is a very special stay application.

MRS ROBERTS:   Yes, but this has been said why I would not - what is the word I want - succeed in my case because it was out of time.  That was, full stop, it was out of time and then also - - -

HIS HONOUR:   I understand the importance of that. 

MRS ROBERTS:   Then it was also said that there was no points of law.  There are points of law because rejection of evidence is an error of law.  Even in the Court of Appeal the same thing happened.  In the Court of Appeal, when I went to put forward that there was a seal - that it being a sealed document, it should have been accepted, even though it was a photocopy, I was told, “Oh, don’t worry about that now.  Don’t worry about the time issue.  What’s your points of law?” 

So, I went ahead and started to give the points of law of rejection of evidence; accepting hearsay evidence; not being able to fully complete my case; been refused the right to make submissions and then I was asked to pass up my transcript and so forth, and then he came back and made a decision without giving me time to argue on the - that it was not out of time and that, if you look, was the point that he made, “You are out of time.” 

He then would not let me argue, and I did try to argue it which was not right of me, I believe, but I still tried to argue after he was saying this, and he said, “Well, I’ve got other people to have their case”, and so I was again, as an unrepresented person, not given time to be heard in spite of the fact that if you read it right at the commencement of the hearing - I think it was about page 3 - when I went to give evidence regarding this particular document, he said, “No, don’t worry about that at the moment.”  You know, “Well, that’s not important at the moment”, but after saying that he never gave me the opportunity at any time to come back to this document - - -

HIS HONOUR:   Now, let me ask you again, because your time is running:  what you are seeking this morning is the order you want in this summons filed on 8 December, namely:

that:  the professional costs and the fencing application orders made at Manly Local Court 21.11.1995 be stayed until the appeal to -

this Court -

is determined.

Now, I ask you again:  what is the immediate risk of enforcement of those orders?  It has not happened between 8 December 1997 and today.  What suggests to you that it is going to happen in the immediate future?

MRS ROBERTS:   First:  well, for the very fact is that I am being further pressed for the fact of the fire danger and also my own personal health because the tick infestation - I have already got blood samples sent away because it is possible now I have developed Lymes disease and I do not want to have - I have been getting, what, 50 or more ticks off me, and so the moment I go and do what is legally right for me which I have been wanting to do now for two years - I was told that I am legally right - able to remove that tree back on to their property but I know at the moment I do that - because as I was saying a while ago, I was even going to try and do something about the other fence that they erected without any authorisation or notice, and that was the letter I got back - was about the enforcement of this order.

So, I know that the moment I get a crane in and have someone cut this big monstrous, this sized tree chopped up and put back on to their property I know what will happen.  By doing that, it will take away my main purpose, I guess, of this special leave application because if I have to pay the judgment ‑ well, even as a vendetta, even since the hearing, they said three months, and within three weeks - less than three weeks - they had erected - they had already put a fence along here and then within three weeks of that application, even though they said about three months, they came in and they put the fence straight up and completely enclosed their tree on my property.  That is what I heard them say.  When the tree first came down I heard them say to their contractor - he said something to the effect, “What are you going to do?”, and they said, “We’ll cut off the root and we’ll leave her the tree.  She’s got no money so the tree will stay there.” I know it is a straight out personal vendetta by them because they know I have not got the money to remove it and so I have had to suffer it all this time.  Now, as I say, they put the fence up, enclosed their 40 feet tree on my place, and as far as they are concerned it can stay there forever.

The moment I go to take that out and return it to them, which I am told I am legally able to do, I know what will come, because that would be another vendetta because they know I have not got the money and then they will take action to sell my house or get it some other way because they just know that I am pushed financially.  So, that is the whole thing, and by, which I do believe that if I am granted leave in the other one I would win because the whole - I mean, even as it is, it is even worse than not being able to do a stated case because while I have been preparing for the stated case I discovered that even if I had have got a stated case I would not have been able to have a rehearing because the exhibits have not been kept by the court.  So, that is another failure by the Magistrate - which I have documentation here.  I wrote to the Attorney‑General’s Department regarding it and I am told that Magistrate Molan directed that the exhibits be returned, and I understand that not keeping proper records is a prohibition.  So, the case should be quashed.

So, I should win it both by points of law, which there are many there, even though I may not have done my draft stated case very well because I could not obtain any assistance but according to statute, that is no reason for either the Supreme Court or the Appeals Court to reject it to going back to - having the case stated because it is during the settlement time that all that should have been fixed up.  Again, Magistrate Molan listed it before the Local Court, which I have documentation here of, for argument on point of law as to whether he should or should not state a case and yet apparently, or from what I can see in precedent cases and the Supreme Court Rules, there is no jurisdiction for the Magistrate of the Local Court to list in the Local Court a stated case or draft stated case for argument, whether it has points of law or otherwise, particularly - well that is one part.  But even in the Supreme Court the judge, as I see it - I think I saw it in Judge Lederland- I cannot pronounce his name - case where, if something has not been brought up by the other party, it cannot be argued on. 

Yet, there was no objection raised at any time by the other party that the draft stated case had no points of law or any other reason and yet the Magistrate was so biased that he actually brought argument and he put the arguments forward himself.  He actually became the other party.  He put forward the arguments on behalf of the other party, and I think that is most unethical and most unjust.  So, how can I not win and how can I not be granted special leave to appeal when all of this has taken place?  I mean, how does one unrepresented person get any help, any assistance by the court and, furthermore, in a - - -

HIS HONOUR:   It is not the function of the courts to provide assistance to unrepresented persons, I am afraid.  That is the task of the executive government to provide a legal aid system.  Of course, courts try and do their best on certain occasions but their task is to be impartial between two sides, you see.

MRS ROBERTS:   That did not happen.

HIS HONOUR:   You may complain about that but that is what the law is.

MRS ROBERTS:   That did not happen and the fact - - -

HIS HONOUR:   As you will understand.

MRS ROBERTS:   But the fact - - -

HIS HONOUR:   Just a minute.  Let me hand back to you your statutory materials.

MRS ROBERTS:   Sorry.  The fact is that the - - -

HIS HONOUR:   Now, we are reaching the end of 20 minutes.

MRS ROBERTS:   Okay.  The fact is that the Magistrate was not impartial.  He was extremely biased.  If you read the transcript - - -

HIS HONOUR:   Now, look, I am not going to debate that with you, Mrs Roberts.  Now, please sum up what you want to put in your remaining two or three minutes.

MRS ROBERTS:   Okay.  Well, I was just going to say, regarding, sir, in what you just said, here is a case by Willing v Hollobone - Justice White said in that.  He:

Held:  (1) Unrepresented persons must be treated with courtesy and compassion, and must be advised of the whole range of their rights and of the appropriate alternative courses of action open to them.

Whereas, Magistrate Molan, he took hearsay evidence and when I tried to cross-examine on various aspects of it the evidence was rejected.  He accepted everything they said, even so far as the dividing fence being crooked, which it is not.  The only reason why it is crooked is because of their interference.  If this case was heard, I mean, if I was granted, it would have no subsequent - it would not have any great effect on the second respondent; definitely not the first because I would only be seeking an order until the special case was heard.  I have already made two applications in the previous lower courts and I feel that I should be able to obtain this special leave to be able to remove this tree so that I do have the right still to be able to carry on my special leave.  Otherwise, it just means that I have to leave the tree there and suffer the ill effects of more tick infestation or the threat of my house.

HIS HONOUR:   Yes, very well, Mrs Roberts.

MRS ROBERTS:   Thank you, sir.

HIS HONOUR:   The Court has before it today a summons filed after an application for special leave to appeal.  The special leave application was filed on 17 November 1997 and the stay application on 8 December 1997.  The subject of the application for special leave to appeal is the judgment and orders of the New South Wales Court of Appeal of 20 October 1997.  The Court of Appeal refused leave to appeal.  What is sought of this Court is a grant of special leave to appeal against that refusal of leave.  The summons today seeks an order that

the professional costs and the fencing application orders made at Manly Local Court 21.11.1995 be stayed until the appeal to the High Court of Australia -

meaning, I think, the application for special leave to appeal and any subsequent appeal -

is determined.

There is, in my view, no significant prospect of success of the application for special leave to appeal.  That is a significant factor in assessing whether the order sought in the summons should be made.  Mrs Roberts feels strongly about the matter.  However, having listened to what Mrs Roberts has said and read the materials in support of the summons, I also am not sufficiently satisfied that there is the necessary immediate and imminent risk of enforcement which would call for a stay of the orders in question. 

Accordingly, I dismiss the summons filed 8 December 1997.  It is the task of Mrs Roberts now to proceed as expeditiously as she may with the prosecution of her application for special leave.

I will now adjourn.

AT 10.48 AM THE MATTER WAS CONCLUDED