Strapp v Haunold
[2016] WADC 177
•16 DECEMBER 2016
STRAPP -v- HAUNOLD [2016] WADC 177
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 177 | |
| 22/12/2016 | |||
| Case No: | APP:67/2016 | 16 DECEMBER 2016 | |
| Coram: | PARRY DCJ | 16/12/16 | |
| PERTH | |||
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Decision dismissing appellant's costs application set aside Cost application remitted to Busselton Magistrates Court for determination by a different magistrate | ||
| PDF Version |
| Parties: | SUZANNE PATRICIA STRAPP MICHELLE PETA HAUNOLD |
Catchwords: | Appeal from Magistrates Court Violence restraining order proceeding Costs application Whether denial of procedural fairness Magistrate adjourned costs application and granted leave for appellant's counsel to appear at further hearing by telephone Magistrates Court did not telephone appellant's counsel at commencement of further hearing Magistrate heard further submissions from respondent in absence of appellant and appellant's counsel and dismissed appellant's costs application |
Legislation: | District Court Rules 2005, r 50(2), r 50(3) Magistrates Court (Civil Proceedings) Act 2004 (WA), s 40(4), s 40(5), s 43(7) Restraining Orders Act 1997 (WA), s 64(1), s 64(2), s 69(1) |
Case References: | Hall v The University of New South Wales [2003] NSWSC 669 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Smith v Mandurah Auto Pty Ltd [2014] WADC 69; (2014) 86 SR(WA) 254 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
MICHELLE PETA HAUNOLD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE MILLINGTON
File No : MC/CIV/BUS/RO 169 of 2015
Catchwords:
Appeal from Magistrates Court - Violence restraining order proceeding – Costs application - Whether denial of procedural fairness - Magistrate adjourned costs application and granted leave for appellant's counsel to appear at further hearing by telephone - Magistrates Court did not telephone appellant's counsel at commencement of further hearing - Magistrate heard further submissions from respondent in absence of appellant and appellant's counsel and dismissed appellant's costs application
Legislation:
District Court Rules 2005, r 50(2), r 50(3)
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 40(4), s 40(5), s 43(7)
Restraining Orders Act 1997 (WA), s 64(1), s 64(2), s 69(1)
Result:
Appeal allowed
Decision dismissing appellant's costs application set aside
Cost application remitted to Busselton Magistrates Court for determination by a different magistrate
Representation:
Counsel:
Appellant : Mr R I M Bannerman
Respondent : In person
Solicitors:
Appellant : Bannerman Solicitors
Respondent : Not applicable
Case(s) referred to in judgment(s):
Hall v The University of New South Wales [2003] NSWSC 669
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Smith v Mandurah Auto Pty Ltd [2014] WADC 69; (2014) 86 SR(WA) 254
- PARRY DCJ: (This judgment was delivered extemporaneously on 16 December 2016 and edited from transcript).
Introduction
1 Ms Suzanne Strapp appeals, pursuant to s 64(1) of the Restraining Orders Act 1997 (WA) (RO Act), from the decision of Magistrate M Millington in the Busselton Magistrates Court made on 10 August 2016 dismissing Ms Strapp's application for costs of a violence restraining order application against Ms Michelle Haunold.
2 Section 64(2) of the RO Act provides that an appeal from the Magistrates Court is to be made in accordance with pt 7 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCP Act).
3 In such an appeal, the appellant must demonstrate that the magistrate's decision is the result of some legal, factual or discretionary error: see Smith v Mandurah Auto Pty Ltd [2014] WADC 69; (2014) 86 SR(WA) 254 [37].
4 The sole ground of appeal is that Ms Strapp was denied procedural fairness. A denial of procedural fairness involves a legal error.
Factual background
5 On 4 August 2016, following a lengthy hearing, the magistrate granted Ms Strapp's application for a violence restraining order against Ms Haunold for a period of two years backdated to 14 September 2015, which was the date on which an interim violence restraining order had been made, but reduced the distance that Ms Haunold must keep from Ms Strapp from 20 m to 5 m and did not include Ms Strapp's daughters, Lili and Izabella, within the scope of the violence restraining order, as had been the case in relation to the interim order.
6 Mr Richard Bannerman, counsel for Ms Strapp, then made an application for costs of the violence restraining order application. Section 69(1) of the RO Act states that:
A court may make such orders as to costs as it considers appropriate.
7 Mr Bannerman sought costs in the sum of $7,000 on behalf of Ms Strapp and made submissions in support. Ms Haunold made submissions in opposition to an order for costs being made. Ms Haunold was unrepresented in the hearing.
8 The magistrate asked Mr Bannerman for the relevant scale of costs which Mr Bannerman did not have to hand and the magistrate adjourned the hearing to check the scale himself. After returning to the courtroom, his Honour indicated that because of the computer system being down, he was unable to obtain the scale. Mr Bannerman also had been unable to find the information.
9 The magistrate said:
[A]t this stage I'm inclined to grant costs but what I would prefer is a breakdown from you (ts 146).
10 His Honour then adjourned the hearing to 10 August 2016 and expressly allowed Mr Bannerman, who is from Perth, to 'appear by audio link' (ts 146).
11 His Honour reconvened the hearing at 10.16 am on 10 August 2016. Ms Haunold was present in person. Although his Honour had granted leave to Mr Bannerman to attend by telephone, and although he acknowledged during the hearing on 10 August 2016 that he had done so, I find that the court did not telephone Mr Bannerman so that he could attend on behalf of Ms Strapp on that day. I will explain later in these reasons on what basis I have come to that finding.
12 The magistrate heard further submissions from Ms Haunold in the absence of Ms Strapp and her counsel and then refused the costs application for the following reasons:
Given that this - I did say on the last occasion that I (indistinct) inclined at the time to grant costs, but I wanted to have a look at the breakdown and the schedule provided by Mr Bannerman. That hasn't been provided. Further submissions by Ms Haunold today - I am now - I now consider that it's not appropriate to grant costs, considering all the issues that have been put before me today and the lack of appearance by Mr Bannerman or Ms Strapp and the submissions or the schedule from them. So the application for costs is refused (ts 5).
Did the Magistrates Court telephone Mr Bannerman during the hearing on 10 August 2016?
13 Section 40(4) of the MCCP Act enables leave to be granted to admit evidence on appeal that was not before the magistrate, but only, as stated in s 40(5), 'in exceptional circumstances'. Similarly, r 50(2) of the District Court Rules 2005 enables leave to be granted to adduce evidence on appeal that was not before the primary court, but only, as stated in r 50(3), if there are 'special grounds for doing so'.
14 Both parties filed an affidavit in the appeal. I grant leave to both parties to rely on their affidavit evidence on the basis that the ground of appeal, namely, an alleged denial of procedural fairness, requires the court to be appraised of the facts and circumstances pertaining to the hearings on 4 and 10 August 2016. In light of the ground of appeal, there are exceptional circumstances and special grounds for admitting that further evidence.
15 Ms Strapp gave evidence in the appeal, which I accept, that she is aware that Mr Bannerman has appeared by telephone, in particular, by his mobile telephone, on previous occasions in the Magistrates Court proceeding. And in particular she recalls that he did so on her behalf at Busselton courthouse on 27 July 2016. Ms Strapp also gave evidence, which I accept, that she did not appear in court on 10 August 2016:
expecting that Mr Bannerman would be contacted by telephone and he would attend on my behalf, as had been the case previously and as was indicated by his Honour on 4 August 2016.
16 Ms Strapp also gave evidence, which I accept, that:
The Busselton Court had Mr Bannerman's telephone number and I understand that they did not contact him at all. They also did not contact Bannerman Solicitors' office on that day.
17 Ms Haunold gave evidence in the appeal that Mr Bannerman:
was contacted on the morning of the hearing without success and was given fairness of natural justice.
18 She said to the court at the hearing of the appeal 'honestly, honestly' he was called. When asked by the court at what stage of the proceeding on 10 August 2016 Mr Bannerman was called, Ms Haunold indicated that it was shortly after the matter was called on when the magistrate was querying the pronunciation of her surname, which is right at the commencement of the transcript, or just after the commencement of the transcript of the hearing on 10 August 2016.
19 Ms Haunold said that she thinks that the court was telephoning Mr Bannerman, because the magistrate had indicated to Mr Bannerman that he could attend by telephone on 10 August and a telephone call was being placed at the commencement of the hearing. Ms Haunold told this court that it rang out for some time and that there was no response.
20 I do not accept that the court, that is to say the Magistrates Court, telephoned or sought to telephone Mr Bannerman during the hearing for three reasons. Firstly, there is no reference in the transcript to a call having been placed, much less to it having rung out. I would expect that there would be some indication in the transcript from the judicial support officer or by his Honour to the effect that a call was being placed and there was no response.
21 Secondly, his Honour clearly indicated during the course of the hearing on 10 August 2016 that he expected that Mr Bannerman would be the one contacting the court. At the beginning of the hearing, after the judicial support officer announced 'There's no appearance of Ms Strapp, your Honour', his Honour said: 'And have we heard anything further from Mr Bannerman[?]' (ts 2).
22 Later in the hearing on 10 August 2016 his Honour said:
I also said to Mr Bannerman that he could appear via audio-link if that suited him. There has been no contact at - it is now 20 past 10. There has been no contact from Mr Bannerman and we also have had no contact from Mr Bannerman regarding his schedule of costs (ts 5).
23 It is clear from his Honour's statements that he was expecting Mr Bannerman to be contacting the court, not the court contacting Mr Bannerman. His Honour's statement at the outset of the hearing 'And have we heard anything further from Mr Bannerman[?]' is inconsistent with the court during the course of the commencement of the hearing having placed a telephone call.
24 Thirdly, and in any case, even if there was some call placed by the judicial support officer at the commencement of the hearing, noting that there is no indication to that effect in the transcript, I find that any such call was not placed to the correct telephone number of Mr Bannerman or his office.
25 Mr Bannerman indicated that his office consists of some 20 staff and has a full-time receptionist. The day in question was a working day at 10.16 am and I find that if the court had telephoned the correct number it is certainly more probable than not that the number would have been answered, rather than not answered.
26 For these reasons I find that the Magistrates Court did not telephone or seek to telephone the correct telephone number of Mr Bannerman on the morning of 10 August 2016 during the course of the hearing notwithstanding that it had done so previously correctly on at least one other occasion during a hearing in the same proceeding.
Was there a denial of procedural fairness?
27 In Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 585 his Honour Mason J said as follows:
[T]he expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with the procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations.
28 As his Honour McClellan J observed in Hall v The University of New South Wales [2003] NSWSC 669 [68]:
A fundamental element of procedural fairness is the hearing rule or the 'right to be heard'. …
29 As his Honour explained, the elements of the right to be heard will vary in particular cases, but will generally include a reasonable opportunity to make submissions, the right to know the case to be answered and disclosure of material to be relied upon by the decision maker.
30 Ms Strapp was clearly denied procedural fairness in the decision to refuse her costs application of the proceeding as she was denied the right to be heard. Having granted leave to Mr Bannerman to attend by telephone at the further hearing on 10 August 2016, the court should not have heard submissions from Ms Haunold, much less made an actual decision in relation to costs, without having telephoned Mr Bannerman so that he could make submissions and hear any further submissions from Ms Haunold before a decision was made.
31 I find, for reasons I have given earlier, that the court did not telephone Mr Bannerman on a number that it had previously used, either his mobile telephone number or his office number, during the hearing on 10 August 2016.
32 The magistrate indicated an expectation that Mr Bannerman would telephone the court. However, that had not occurred previously when Mr Bannerman had been granted leave to attend by telephone and in any case it would be impractical to contact court during the course of the hearing and attend in that way.
33 The denial of procedural fairness in this case is all the more significant because the reasons for the rejection of the costs application, as I have said, included to quote his Honour:
… considering all the issues that have been put before me today and the lack of appearance by Mr Bannerman or Ms Strapp …
34 Neither Ms Strapp nor her counsel were there, because they had a reasonable expectation that the court would telephone Mr Bannerman for the purposes of the reconvened hearing as it had telephoned Mr Bannerman on at least one previous occasion for the purpose of appearing on Ms Strapp's behalf.
35 As Ms Strapp was denied procedural fairness in the refusal of her costs application, she has demonstrated that the decision made by the magistrate involved an error of law.
36 Furthermore, in my view, the error of law is so significant as to vitiate the decision of the magistrate in relation to the costs application.
37 Ms Haunold has referred to a number of matters in her affidavit and in her oral submissions to me on the basis of which she submits the appeal should be dismissed. Those matters include that she was partly successful in relation to the violence restraining order, that Mr Bannerman's correspondence to her during the course of the proceedings was excessive and that she has financial difficulties.
38 Those matters may well be relevant in relation to the exercise of the discretion as to costs or in relation to the assessment of costs or the amount of costs to be awarded if a costs order is made. They, however, are not relevant to the question of whether there was a denial of procedural fairness in the dismissal of the costs application, which is the sole ground of appeal before me.
Conclusion and orders
39 The magistrate's decision to refuse costs of the violence restraining order application involved and was vitiated by a denial of procedural fairness at the hearing on 10 August 2016.
40 Having granted leave to Mr Bannerman to represent Ms Strapp by telephone on that occasion, the court should have telephoned Mr Bannerman to enable him to appear as it had done on at least one previous occasion.
41 In consequence of the error, the appeal should be allowed and the decision of the magistrate to refuse the application for costs should be set aside.
42 Section 43(7) of the MCCP Act enables the court, on appeal, to make any order that the Magistrates Court could have made or order a new hearing in the Magistrates Court.
43 Given that the determination of the costs of the application before the Magistrates Court involves the exercise of a discretion and particularly given that it involves the exercise of a discretion in the context of an application for a violence restraining order, in relation to which the Magistrates Court has specialist experience, I consider that the appropriate outcome of the appeal is for the matter of the costs application to be remitted to the Magistrates Court for determination by a different magistrate.
44 I think it is appropriate that the court be constituted differently in relation to the hearing of the costs application given that his Honour has expressed a concluded view in relation to the costs application. It is regrettable that a further judicial officer will now become involved in relation to this matter. However, it is unavoidable.
45 [The appellant sought costs of the appeal and the court heard submissions from the parties.]
46 I note that the appellant, Ms Strapp, seeks costs of the appeal on the basis that she has been successful in the appeal. The application is opposed by Ms Haunold on the basis, primarily, that the error in this case was that of the Magistrates Court in Busselton and also that she is under financial difficulty being a single mother and also referring to the time of year.
47 In reply, it is submitted that the appellant is successful and is also out of pocket in relation to this matter.
48 I think that the costs should follow the result in relation to the appeal. Generally, costs follow the result. In this case, the appellant brought the appeal and was successful. The appeal was opposed by Ms Haunold who filed evidence in support of her opposition to the appeal. Frankly, the breach of procedural fairness in this case was obvious and although Ms Haunold is unrepresented, the appeal had high prospects of success from the outset.
49 Given all those circumstances, in my view, the appellant should be compensated for the costs of having had to pursue the appeal to a contested hearing today.
50 I certainly take into account Ms Haunold's financial circumstances. They are relevant to the exercise of discretion. However, ultimately, in my view, in the exercise of discretion, the successful appellant should have her costs of the appeal paid by the respondent.
51 The court makes the following orders:
1. The appeal is allowed.
2. The decision to dismiss the application for costs of the violence restraining order proceeding is set aside.
3. The application for costs of the violence restraining order proceeding is remitted to the Magistrates Court at Busselton for determination by a different magistrate.
4. The respondent is to pay the appellant's costs of the appeal as taxed if not agreed.
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