Tetlow v Parn
[2005] WADC 232
•31 August 2005 typed from tape and edited by Trial Judge
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: TETLOW -v- PARN & ANOR [2005] WADC 232
CORAM: YEATS DCJ
HEARD: 31 AUGUST 2005
DELIVERED : Delivered Extemporaneously on 31 AUGUST 2005 typed from tape and edited by Trial Judge
FILE NO/S: CIVO 143 of 2004
BETWEEN: DESMOND TETLOW
Appellant
AND
MARTY PARN
PAUL KENNEDY
Respondents
ON APPEAL FROM:
Jurisdiction : LOCAL COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE WHITELY
Citation :PLAINT NO 17940 of 2003
Catchwords:
Appeal - Unrepresented appellant - Failure to understand rules of evidence - Predicament of unrepresented litigant as to costs
Legislation:
Nil
Result:
Appeal dismissed
Representation:
Counsel:
Appellant: In person
Respondents : Mr A J Prentice
Solicitors:
Appellant: Not applicable
Respondents : Mossensons
Case(s) referred to in judgment(s):
Legione v Hateley (1983) 152 CLR 406
Case(s) also cited:
Nil
YEATS DCJ: This is the appeal by the defendant from the decision of his Worship Mr Whitely in the Local Court delivered on 27 May 2004 in which it was found that the defendant was liable, under a lease agreement, to pay to the respondents the sum of $16,000 in rent owed.
There have been delays in hearing the appeal. On the last occasion it was set down for hearing, there were special orders made. The reason for much of this delay and the special orders arises from the fact that the appellant was unrepresented both at trial and on this appeal. That is not a matter that the court can do anything about. The court does its best to hear the cases brought before it by unrepresented appellants but this can slow down the procedures of the court and make many of the day‑to‑day matters about pleadings and appeal grounds very, very difficult.
In this case on the last appearance on 29 June 2005 the appellant was ordered to provide particulars with respect to the first ground of appeal and he provided a document with that heading but he has essentially failed to do what was ordered by the Commissioner who was sitting at that time. I do not consider he did that through any fault of his own but as an unrepresented appellant, he did not understand what was required when particulars were ordered.
An appeal from the Local Court is by way of rehearing. The court has power to affirm, reverse or modify the judgment order or other decision or determination appealed from, and to give or make such judgment order, decision or determination as ought to have been given or made in the first instance, and to review any finding of fact, and to draw inferences of fact, and may order a new trial in the appropriate circumstance. The court is also allowed to make any other order on such terms as the court thinks proper to insure the determination on the merits of the real question in controversy between the parties or the real merits of an application and may make such order as to costs as it shall think just (s 111 Local Courts Act 1904).
The appeal grounds were produced; there are now five grounds of appeal where there had only been three grounds before. The grounds of appeal continue to be in breach of O 8 r 4 of the District Court Rules which provides that it is not sufficient to allege that a judgment or order is against the evidence or the weight of the evidence or that it is wrong in law; the notice must specify the particulars relied on to demonstrate that it is against the evidence and the weight of evidence and the specific reasons why it is alleged to be wrong in law. Grounds 1, 2 and 3 are in general terms and have not particularised what the appellant alleges. The respondent could have objected and moved to strike out the grounds of appeal based on failure to comply with the order made by the Commissioner.
I could have struck out ground 1 because the appellant was ordered to provide particulars in relation to that count and he has failed to do so although he has provided a document with that heading. However, it seems to me that it is important that when we are dealing with an unrepresented appellant that the Court do its best to get to the heart of the matter and to ensure that any issue raised by an appellant is looked at and reviewed.
Ground 1
Ground 1 is in these terms:
"The continual unnecessary interjections by the Magistrate during the trial prevented the appellant from presenting or pursuing his defence and counterclaim and tendering exhibits in support of his counterclaim."
I have been taken by the appellant to a number of pages in the Local Court transcript, pp 33, 36, 89, 97 and 98, 101 and 102, 114, 174, 175, 176, 209 and 210, 238, 253, to 54, 297 and, finally, at 304 to 305. What one finds on virtually all of these is the Magistrate doing his very best, it appeared to me, to instruct the appellant as to the rules of evidence governing his carriage of the case. Many of what are called interjections occurred in the course of the appellant's cross‑examination of witnesses and most related to relevance. Others related to the question of whether it is appropriate to go into matters with one witness when anything he said could have no bearing on the general question of the terms of the lease agreement between the appellant and a Mr Parn.
It is very difficult for any court to deal with an unrepresented litigant. In this case the appellant Mr Tetlow appears to me to be a man of integrity and a man who has worked very hard on his appeal but he is a man who comes to this Court without any basic concept of proof in a court of law, rules of evidence or issues of relevance and admissibility. I found time and time again that the Magistrate was trying to keep him on point or the Magistrate was instructing him on these rules. I have not found any of the pages I have been referred to, to contain unnecessary interjections. On each occasion the Magistrate, who was bound by the rules of evidence and the rules of law that apply in courts of law, was required to intervene and to interject in order to keep the trial on a proper legal basis.
It is not an easy task for a Magistrate. With some of the matters one could say, "Well, he could have let that go", but it is a matter in the Magistrate's discretion. In reading through all of these, as I have done in the course of this appeal it is clear that the Magistrate was himself of good faith, trying his best to keep the Local Court action on track and to ensure that he received evidence relevant to the claim by the plaintiff and the counterclaim by the defendant. For these reasons, ground 1 cannot succeed.
Ground 2
Ground 2 of the appeal is in these terms:
"The continual non‑allowance by the Magistrate of documented evidence of the appellant as presented either to be marked for identification or submitted as exhibits, even if he, the appellant, was the source of those evidential documents, is in complete contradiction to that privilege allowed the respondent's presentation of similar documented material."
The Court can see the basis on which the appellant feels aggrieved, but, again, it arises from the unrepresented appellant's failure to understand the rules of evidence. On many occasions, such as at p 258 and p 215 and 216, 219 and 220, the appellant was attempting in the course of his cross‑examination to tender documents which were not the documents of the person being cross‑examined. The Magistrate refused to allow him to do that because a witness cannot put in a document unless it is her/his document.
Some things happened in the course of the trial that would be understood by lawyers which the appellant simply could not grasp. He noticed that there was a document tendered (exhibit 9) at p 132 by a Ms Bowers that was a Ray White document and she was allowed to put it in, although she did not create that document. The appellant feels hard done by, but, as a matter of law, Ms Bowers was employed by Ray White and it was a Ray White document, and as a person who had access to the documents of the Ray White Realty agency she was able to produce a document from that agency in the court. That rule could not apply to the appellant. He was not an organisation; he was merely himself, and his documents had to be put in during his own sworn evidence. He feels aggrieved by the fact that a photograph which he showed to Mr Parn during cross‑examination by the appellant was then tendered through Mr Parn in re‑examination, and that was a photograph with handwritten dates on it. Later when he tried to put his photos in he was refused permission to put them in with his handwriting on them. They had to be erased. The rules of evidence of what can be done in re‑examination when the appellant has, in his cross‑examination, put a document to a witness are quite different from the rules of evidence about the tendering of documents through a witness in his evidence‑in‑chief. One can understand the frustration that the appellant may have felt in what seemed to him, as he describes it, a complete contradiction.
I have examined in great detail the matters that he has raised with me and reviewed what was done in the course of the trial by reviewing the transcript at the pages I have been referred to. On no occasion was the Magistrate's non‑allowance (as it is referred to in ground 2) improper or in any way contrary to law. The comparisons that the appellant makes are with matters that were exceptions to the general rule that had been expressed by the Magistrate. As a person who does not know the law of evidence he could not know these things. Therefore, although I understand his grievance because of how he perceived the way the rules of evidence were applied in the court, having reviewed what the Magistrate did, there is nothing on which I could allow ground 2 of the grounds of appeal and therefore that ground of appeal is dismissed.
Ground 3
Ground 3 is quite a complex ground and would be struck out if the appellant were represented. The ground is in these terms:
"The Magistrate, having based his decision on his perceived assumption of the credibility of the appellant's memory, also then wrongfully interpretated –"
(I think normally one would say "interpreted" but it says "interpretated" here ) –
"the events as claimed by the appellant and his witness in favour of the respondent's version of those events or their witnesses."
First of all, I would say that I have reviewed the Magistrate's findings on credibility. The Magistrate had before him a number of witnesses who appeared over a prolonged hearing lasting three and a half days. The Magistrate discussed in some detail the problem of memory because witnesses were trying to remember back two or three years. He made findings in that regard. The Magistrate accepted the evidence of the witness called by this appellant, Mr Butterworth, on the issue of waiver. Mr Butterworth's evidence on that point did not support the appellant's case. The reasons certainly do not show that the Magistrate in any way wrongfully interpreted events or always interpreted them in favour of the respondent's version. It was Mr Butterworth's evidence that was accepted on the important issue in the trial. For that reason ground 3 does not succeed.
Grounds 4 and 5
I am going to consider grounds 4 and 5 together. They are in these terms:
"Ground 4:
The Magistrate, having found that the respondents agreed to waive the appellant's liability for rent deemed owing, erred in deciding that the waiver was not enforceable.
Ground 5:
The Magistrate should have found that the waiver of rent was agreed by the respondents in consideration of the appellant's agreement to vacate the leased premises prior to settlement of the sale of the premises and that the appellant did so vacate the premises prior to settlement taking place of the sale of the premises."
Ground 4, standing alone, would have to be struck out if it did not stand with ground 5. The heart of the appellant's appeal lies in these two grounds and they are not properly drafted. There was no waiver found by the learned Magistrate. The learned Magistrate found there was a conditional waiver. When grounds 4 and 5 are read together it is clear that the appellant is relying on the conditional waiver found by the learned Magistrate.
I note that as a matter of law it is essential to a conditional waiver that the promise be unequivocal, clear and unambiguous (Legione v Hateley (1983) 152 CLR 406). The circumstances in this case were that the appellant was in substantial breach of the lease agreement as he had failed to pay his rent for a considerable time. The lessor wished to sell the property and a valid notice to vacate was served on the appellant requiring him to vacate the premises by 11 August (exhibit 6). The appellant did not vacate the premises and the conditional waiver was made by the lessor on 12 August. The learned Magistrate relied on the evidence of Mr Butterworth, a witness called by the appellant, and found that the lessor offered to forego the rent owed if the appellant would give vacant possession. The evidence established that $16,000 in rent was owed and that on 12 August the lessor was obliged, under a contract of sale, to give the purchaser vacant possession on 25 August. Mr Butterworth's evidence was that the appellant did not do anything when this offer was made, did not indicate his agreement, and his lack of response surprised Mr Butterworth. In the event, the appellant did vacate the premises but not until 31 August and he now believes that was full compliance with the lessor's condition and he feels aggrieved that the learned Magistrate has found that he continues to owe rent of $16,000 to the lessor.
When the evidence of what occurred on 12 August is considered the lessor's offer to forego the rent could not be relied upon as a conditional waiver because the condition was not clearly stated. There was uncertainty and ambiguity in the condition. When did the appellant need to vacate the premises? It is not clearly stated, nor is there any evidence that the appellant accepted any such offer by the lessor or, that there was any agreement as to what he would do. The appellant may have believed he complied but as a matter of law, any condition was too uncertain. This particular condition was too uncertain as to amount to a waiver which would relieve the appellant of his obligation to pay rent owing. It would have been possible for there to have been a waiver if the conversation had continued to the point of saying, "If you are out by 1 o'clock tomorrow afternoon, I will waive your back rent," or something that was specific, but, in the circumstances of the comment made by the lessor (whom the Magistrate described as a man who, when he met obstacles, tried to make an offer to get around them, to resolve them, to move on, a man who had all this rent owing but now had a contract to sell and was frustrated by the fact that he had served his notice to vacate but the appellant was still there) the Magistrate thought it was not surprising that he would offer to forego the rent if the appellant would leave and vacate the premises but unless the appellant said to him, "I will do that. When shall I be out?" - unless there was an agreement as to details, I consider that waiver offer to be too uncertain to amount to a conditional waiver that would relieve the appellant of his obligation to pay the rent. For these reasons grounds 4 and 5 fail.
Costs of the appeal
This appeal shows the terrible dilemma that faces unrepresented persons in the District Court. I commenced the appeal by asking the appellant if he wished to continue with his appeal without being legally represented and he said he wanted to do that. He explained that he has another action going and somebody is representing him in the Supreme Court. This Court has an obligation when a person brings an appeal to deal with it under the laws that apply in Western Australia, applying the legal rules that are appropriate. But it is very frustrating to see a decent man, like Mr Tetlow, who has in a sense in good faith brought an appeal that could never succeed, work as hard as he has done to bring his appeal before me and for the Court to realise that he cannot succeed. It is unfortunate that he did not have proper legal advice. The outcome for Mr Tetlow becomes one where he has chosen not to pay counsel to appear for him and he has ended up having to pay the costs of the respondents' counsel. It is a bad result, but that is the risk that people take who approach this Court without legal representation, particularly in a matter such as this involving some legal complexity. Mr Tetlow assured me he understood this when the hearing commenced.
For these reasons, the appellant's appeal is dismissed and I order the appellant to pay the respondent's costs of the appeal to be taxed if not agreed.
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