Seah v Ousby - [2011] WADC 54

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SEAH -v- OUSBY [2011] WADC 54

CORAM: WAGER DCJ

HEARD: 14 MARCH 2011

DELIVERED : 14 APRIL 2011

FILE NO/S: APP 83 of 2010

BETWEEN: EDMOND KAN HWEE SEAH
Appellant
AND
LYNNE DONNA OUSBY
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE LANE
File No  :PE 1723 of 2010

Catchwords:

Appeal from Magistrates Court - Out of time - Mandatory time limit - Should violence restraining order be set aside

Legislation:

Criminal Code
District Court Rules 2005
Magistrates Court (Civil Proceedings) Act 2004
Restraining Orders Act 1997

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: In person
Respondent: In person

Solicitors:

Appellant: Not applicable
Respondent: Not applicable

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

Lau v Chua [2009] WADC 172
McKeon v Knapton [2009] WADC 170
Wilson v Westpac Banking Corporation [2011] WADC 13

WAGER DCJ: By notice of appeal filed 1 November 2010, Mr Seah appeals against the decision of her Honour Magistrate Lane made on 5 October 2010 granting a violence restraining order to the respondent, Ms Ousby against Mr Seah for a period of two years.
Mr Seah's ground of appeal is that no reasonably instructed judge or magistrate with the evidence before the court could reasonably find that an act of family and domestic violence had occurred, namely the acts of intimidation and abuse pursuant to s 6(1)(d) of the Restraining Orders Act 1997.
Section 40 of the Magistrates Court (Civil Proceedings) Act 2004 provides that a party to a case that is not a minor case (and the current matter is not) may appeal to the District Court against any order made by the Magistrates Court in the course of proceedings in the case or against any judgment of the Magistrates Court in the case. The appeal must be commenced within 21 days after the date of judgment and be conducted in accordance with the District Court Rules 2005.
The District Court must decide the appeal on the material and evidence that was before the Magistrates Court and on any other evidence that it gives leave to admit provided that leave may only be given to admit other evidence in exceptional circumstances. Leave to admit additional evidence is not sought in this case.
There is no provision in the Act in relation to an extension of time in which to file an appeal.
The rules for appeals to the District Court are set out in Pt VI of the District Court Rules 2005. Rule 51 provides for the commencement of an appeal and sets out that a notice of appeal must be filed within 21 days after the date of the appealable decision.
Rule 57 sets out that the rule is subject to the written law that provides for the appeal made to the court. There is no provision within r 57 empowering the court to grant an extension of time to allow a notice of appeal to be filed later than 21 days from the date of the decision being appealed from.

Is there a discretionary power to extend the appeal period?

Recently in the decision of Wilson v Westpac Banking Corporation [2011] WADC 13, Braddock DCJ considered this issue and said [16] ‑ [21]:
The Bank (the respondent in the proceedings) relies upon the decision of McKeon v Knapton [2009] WADC 170. In that case, Sweeney DCJ considered the same issue in relation to an appeal from a Magistrates Court decision, arising out of a motor vehicle accident. Sweeney DCJ, having considered and contrasted various other appeal provisions in West Australian jurisdictions, including the Supreme Court (Court of Appeal) Rules 2005, the State Administrative Tribunal Act 2004 and the Criminal Injuries Compensation Act 2003 concluded that there was no power to extend time in relation to an appeal under s 40 of the Magistrates Court (Civil Proceedings) Act.
Sweeney DCJ also considered a previous decision of this court in Wise & Anor v The Proprietors of Strata Plan 21513 [2008] WADC 80, in which Keen DCJ came to a contrary conclusion. I am not persuaded by the reasoning of Keen DCJ and respectfully agree with Sweeney DCJ, that the mandatory 21 day time limit is prescribed by the principal legislation. It is not a period provided by subordinate legislation, such as the rules of the Supreme Court or the District Court, authorising the filing of the appeal. The primary legislation both creates the right of appeal and prescribes its operation by time. This is in distinction to the provisions of the other jurisdictions previously referred to, which may contain express power to extend time, for example, the Criminal Appeals Act 2004, s 28(3). Alternatively, the time limits are provided in the subsidiary legislation, for example, the Supreme Court (Court of Appeal) Rules 2005, which provide:
Unless another written law expressly provides otherwise, any other appeal to the Court of Appeal must be commenced within 21 days after the decision being appealed.
Those rules may be read in conjunction with r 5(4) and O 3 of the Rules of the Supreme Court 1971, which provide for extension of time.
Sweeney DCJ was assisted in her consideration of the issue by the case of Patterson and James v Public Service Board of NSW [1984] 1 NSWLR 237, where the right of appeal was found in s 54 of the Government and Related Employees Appeal Tribunal Act 1980, which provided that in s 55(1):
An appeal under s 54 shall be made within 21 days after the date of the tribunal's decision on the question of law the subject of the appeal and shall be made in accordance with the Rules of the Supreme Court.
Whilst reliance was sought to be placed by the appellants in that case on r 4(1) of the Rules of the Supreme Court of NSW, which provided for extension of time, the Court of Appeal found that Parliament had, by fixing a mandatory time limit, shown an intention contrary to the power to enlarge time contained within the rules and that s 55 of the Act was mandatory.
The provision of a statutory right of appeal, the placing of the time limit within the primary legislation, and the failure to made any express provision for the extension of time, in conjunction with that time limit, leads to the conclusion that there is no right of appeal after 21 days have elapsed.
I have also considered the judgment of Eaton DCJ in Lau v Chua [2009] WADC 172, however I agree with the reasoning of Braddock DCJ and Sweeney DCJ in McKeon v Knapton [2009] WADC 170.
The notice of appeal in this matter was filed 26 days after the decision was delivered. Although it is a relatively short time after the 21 day period, I do not consider that I have the discretion to extend the appeal period in order to determine this matter.
If however I am wrong in my application of the law, then I need to consider whether I would have given leave to extend the time within which to appeal. I must therefore consider the merits of the appeal.

The Restraining Orders Act 1997

Section 11A provides that a magistrate may make a violence restraining order if satisfied that the respondent has committed an act of abuse against a person seeking to be protected and the respondent is likely again to commit such an act against that person or a person seeking to be protected or a person who has applied for the order on behalf of that person reasonably fears that the respondent will commit an act of abuse against the person seeking to be protected.
Section 3 states that the word 'satisfied' means satisfied on the balance of probabilities. The onus is on the applicant for the violence restraining order to satisfy the magistrate to that standard; Lau v Chua [37].
Section 6 sets out the definition of family and domestic violence and acts of personal violence. Relevantly, s 6(1)(d) provides that behaving in an ongoing manner that is intimidating, offensive or emotionally abusive towards the person is behaviour that constitutes an act of family and domestic violence. Intimidate has the same meaning as in s 338D of the Criminal Code, that is, it includes to cause apprehension or fear in the person.
Section 12 of the Act sets out the matters to be considered by the court when considering whether to make a violence restraining order and the terms of the order. A court is to have regard to, amongst other factors:
12 (1a)the need to ensure that the person seeking to be protected is protected from acts of abuse;
(b)the need to prevent behaviour that could reasonably be expected to cause fear that the person seeking to be protected will have committed against him or her an act of abuse;
(ba)the need to ensure that children are not exposed to acts of family and domestic violence;
(c)the welfare of children who are likely to be affected by the respondent's behaviour or the operation of the proposed order;
(da)the past history of the respondent and the person seeking to be protected with respect to applications under this act, whether in relation to the same act or persons as are before the court or not;
(f)any family orders;
(g)other current legal proceedings involving the respondent or the person seeking to be protected;
(i)any previous similar behaviour of the respondent whether in relation to the person seeking to be protected or otherwise; and
(j)other matters the court considers relevant.

The evidence

Ms Ousby gave evidence herself and called her current partner, Mr MacIntyre and her aunt Ms Griffith as witnesses. Mr Seah gave evidence himself and called Mr Bodding as a witness.
The history of the parties is that Ms Ousby and Mr Seah were in a relationship for 4 1/2 years and separated in 2004. They have three daughters together. The children are the subject of Family Court orders in relation to the arrangements for parental contact.
In evidence Ms Ousby agreed to the proposition put by the magistrate that there had been aggression towards her at a school assembly on 30 July 2010. She did not particularise the aggression during the course of her evidence and Mr Seah in evidence‑in‑chief denied that there had been aggression at the school.
Ms Ousby said that Mr Seah had sent numerous text messages to her and called her names such as 'stupid' and sworn at her (ts 4).
Ms Ousby described an incident on 2 July 2010 when she had been required to pick up one of their children from his home. He had followed her to the car and had been quite forceful. She described the incident in terms that it made her frustrated (ts 4).
Ms Ousby said that Mr Seah made telephone contact up to 30 times a day on one instance in the school holidays and that this caused problems with herself, her partner and the kids because they are very stressed over it (ts 5). She said that she had talked to him in the past about leaving them alone but this had not occurred (ts 5).
Ms Ousby described an assault by Mr Seah when she was pregnant with her first son to Mr MacIntyre. The charge against Mr Seah did not proceed at Ms Ousby's request. In cross‑examination by Mr Seah she said that that was because of her concern of what he would do if the charge progressed (ts 8).
Each of Ms Ousby's allegations was challenged by Mr Seah in cross‑examination and denied by Mr Seah on oath.
Mr MacIntyre gave evidence that although he had not witnessed an alleged assault on Ms Ousby when she was pregnant he was aware of her subsequent stress and pregnancy difficulties. The magistrate directly asked Mr MacIntyre at ts 14:
Magistrate:Was there any brain damage to your son?
MacIntyre; Mr: No, but he has had learning difficulties which could be attributed to ---
Magistrate:Lack of oxygen ---
MacIntyre, Mr: The fact that he had been starved of oxygen for such a long time.
Mr MacIntyre described another occasion in April 2010 when he had overheard Mr Seah call Ms Ousby a degrading and offensive name. Mr Seah denied that this event had occurred and said in evidence that it was on this occasion that he was assaulted by Mr MacIntyre. Mr MacIntyre said at ts 17:
Some of the things that I have heard him call her are disgusting to say the least. He's called her, like as I said, 'stupid, retarded, deaf so and so'. A nutcase, and these are all things that are said in front of their children.
Mr Seah cross‑examined Mr MacIntyre in relation to this evidence, requesting an example of a threatening letter or text however Mr MacIntyre did not physically produce any examples in court but referred to a text that starts off 'I'm very angry' and finishes with 'I'm very angry'.
Ms Griffiths who is Ms Ousby's aunt, gave evidence of a barbeque in January (2010) when Mr Seah had arrived intoxicated and was not co‑operative in relation to the arrangements for the children. She believed it was about 4 pm when the collection arrangement was for 6 pm. Mr Seah denied being intoxicated and denied attending early to collect the children.
In denying the matters alleged Mr Seah stated at ts 26:
When I sent the letter to Lynne saying that – this was all connected to the holiday arrangement, that was part of it. Pick them up at 3.30 pm so I could receive uniforms, school bags, they could change their clothes. Because being a week about they would go to Mum's from the start of the week to the middle of the holidays. If the school uniforms weren't returned, because I was going to have them from the Friday following the school holidays and then through the first week of school, that I would be stuffed for no uniforms, no bags, etcetera. It was just a matter of changing clothes later and out you go.
At ts 31 Mr Seah was then questioned in relation to the school uniform issue by the magistrate as follows:
Magistrate:The point is very valid, Mr Seah. Are you saying that Ms Ousby would not take the children out of their school uniforms and wash their school uniforms and put them ---?---
Seah, Mr:No, I'm not saying that at all ---
Magistrate:back in their bags ready to go back to?
Seah, Mr:What I was saying that if they were forgotten on the return that they wouldn't have them for the first week of school is what I'm saying, your Honour.
Magistrate:No, but that is not what you are saying. You are saying that you need to get them into civilian clothes because it was the start of the school holidays and that is the reason you wanted Ms Ousby to attend your property?
Seah, Mr:No, so they would – I could receive the school bags and uniforms back in my possession.
Magistrate:What is the issue with that if Ms Ousby would wash the uniforms and clean up the school bags. No doubt she would not leave the squashed banana in the bag as some parents do during the school holidays?
Seah, Mr:Yes, your Honour.
Magistrate:Could you not trust her enough to know that she is capable of cleaning out a school bag and washing the school uniform?
Seah, Mr:It's a pretty loaded question, your Honour. How am I meant to respond to that?
Magistrate:It's not a loaded question. It's a straightforward question. Can you not accept ---?
Seah, Mr:No, I have no problems with her ---
Magistrate:that she can do washing in effect
Seah, Mr:She does it every weekend. But she's returning to school on Monday so they must be in their uniforms. If she returns them in the middle of the holidays and for some reason forgets in --- with five children running around her feet, the bags and or the uniforms, then we're at the school for the first week without those. And that's all it was, it was nothing more than that. There was no sinister 'she has to come to my place because I need to accost her'. Nothing like that at all.
Mr Bodding gave evidence of accompanying Mr Seah to Ms Ousby's house to pick up the children, arriving at 6 pm however he cannot give evidence of any interaction between the parties because he was distracted talking to an aunt.
At ts 36, Mr Seah asked the question:
Seah, Mr:… when you say that Lynn and I went around the side of the van, did she come running out screaming or return from the back of the van in a state that seemed anything bar ordinary?
Bodding, Mr: I suppose anxious.
In relation to the occasion when Ms Ousby collected the sick daughter from Mr Seah's house, Mr Seah asked Mr Bodding at ts 37:
Seah, Mr:Did you see anything on that day that suggested she could have had fear as a result of me being there?
Bodding, Mr: No, nothing.

The magistrate's decision

In making her decision, the magistrate referred to the relevant authorities and acknowledged that pursuant to s 31 of the Magistrates Court Act, the court's reasons for decision needed to identify the facts that the court has accepted in coming to its decision and give the reason for doing so (ts 44).
The magistrate said at ts 45:
I think it is ridiculous that the respondent will say that the children needed to go home and get out of their uniforms and get into civilian clothes and that the mother cannot wash the children's uniforms and have their bags cleaned and delivered back to him. Certainly she can do that.
It is not as convenient as the respondent changing the children, having their uniforms at home and their bags cleaned, but that is a matter for convenience rather than the mother not being able to handle that situation. Yes, she does have another two children at home and that would mean five children to look after but she is not incapable of doing that. That does show a controlling character.
At ts 47 the magistrate said:
She fears his controlling behaviour, and that is evidenced by the fact that he does not trust her to wash the girls' uniforms.
Mr Seah submits that the magistrate formed an adverse view about him on an incorrect assessment of his evidence in respect of the issue of uniforms and school bags that affected her assessment of his credibility. He asserts that the reason why contact in relation to school bags and uniforms was relevant was so that the children would have the correct attire if they were staying with him for a period that spanned the school holidays and the commencement of term time so that he could ensure that the children were ready to commence school while still residing at his home. I accept that this was not the magistrate's understanding of his evidence.
The issue is whether the magistrate's assessment of and understanding of the evidence has caused her to misdirect herself on her assessment of Ms Ousby's evidence of s 6(1)(d) allegations.
Mr Seah submits that the magistrate did not allow him to speak about matters that related to the Family Court and that this precluded him from fully cross‑examining Ms Ousby on matters that may have elicited prior inconsistent statements. I have read Mr Seah's cross‑examination of Ms Ousby (ts 5 – 13). Mr Seah raises a number of issues relevant to Family Court proceedings. I do not consider that the magistrate restricted Mr Seah's cross‑examination in a way that impacted adversely on her assessment of his evidence.
Mr Seah also submits that the magistrate should not have accepted Ms Ousby's evidence in relation to the contents of texts or letters sent by him to her when Ms Ousby did not produce the text or letters to the court. Mr Seah produced a letter from Ms Ousby to him in the course of his evidence in respect of the alleged uncleanliness of his home contributing to the health problems of their daughter. I accept that the magistrate properly found that this letter was not of significant relevance to the issues to be determined.
Mr Seah further submits that the magistrate elicited and accepted the evidence of Mr McIntyre in respect of the alleged assault on Ms Ousby when she was pregnant.
However, in giving her reasons for decision, the magistrate said at ts 45:
Much of what was said by Mr Macintyre in relation to the respondent has already been adjudicated in another jurisdiction. I allowed the witness to say all he wanted to say, because then the respondent can ask him questions, but quite clearly, what it does indicate to me is that the applicant and her current partner have tried to be amicable towards the respondent, but unfortunately the situation is that they were unable to reach any friend with one another and therefore it is not possible for that to occur.

I accept that the magistrate did not consider the irrelevant matters raised by her with Mr MacIntyre during the course of his evidence‑in‑chief in reaching her decision in this matter.
Mr Seah submits that the magistrate did not identify the act or acts of family and domestic violence that she accepted had occurred in order to reach her decision and that the decision is therefore contrary to legal principles.
In reaching her decision, her Honour said at ts 47:
The applicant asked for the court to confirm her interim violent restraint order, because she does not want to have any contact with the respondent, because he intimidates her, abuses her, and is offensive towards her. She has brought two witnesses to court in support of that application, one being her aunty and one being her current partner, and she has given evidence herself.
The respondent said that she should not have that fear, because he has not acted in that way towards her. He has given his evidence, and his friend Steve has come to give evidence of a number of incidents that he has been present, specifically picking up the children.
I have watched each witness give evidence, and heard their evidence, and formed an understanding of the situation between the applicant and the respondent. It is clear to me that the applicant fears the respondent. She fears his controlling behaviour, and that is evidenced by the fact that he does not trust her to wash the girls' uniforms.
…
The family law court will resolve any issues in relation to the children. I am only looking at the behaviour of the applicant and the respondent. In my opinion, the applicant has grounds for her fear, and it is a reasonable fear based on the past history of the applicant and the respondent that the respondent will commit an act of abuse against the applicant.
I am satisfied on the balance of probabilities, which is the civil standard of proof, that the applicant should be granted the interim restraining order and have it confirmed to a final order today.
Although the magistrate does not set out that she accepts the evidence of Ms Ousby in relation to each and every allegation that has been brought, it is clear from her Honour's comments that having had the opportunity to consider Ms Ousby's demeanour she has found the evidence of Ms Ousby to be credible and she has chosen to rely upon it.
Although the magistrate incorrectly understood the context of Mr Seah's evidence in relation to the school bags and uniforms, she ultimately reached her determination that the applicant fears the respondent based on the evidence and her assessment of the witnesses. Ms Ousby's evidence that was accepted by the magistrate is consistent with acts that come within the definition of family and domestic violence. The magistrate's decision on the balance of probabilities that a final violence restraining order should be made is based on the evidence she heard and determined.
Accordingly, even if I had the discretion to extend the time period in this appeal, I would not exercise my discretion to grant leave in this case.
The appeal is dismissed.