Uyan v Tasyurdu
[2020] WADC 26
•4 MARCH 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: UYAN -v- TASYURDU [2020] WADC 26
CORAM: GETHING DCJ
HEARD: 10 FEBRUARY 2020
DELIVERED : 4 MARCH 2020
FILE NO/S: APP ALB 1 of 2019
BETWEEN: FIRAT UYAN
Appellant
AND
ALI TASYURDU
Respondent
FILE NO/S: APP ALB 2 of 2019
BETWEEN: FIRAT UYAN
Appellant
AND
GAY LOIS TASYURDU
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE JOHNSTON
File Number : ALB/RO/175 of 2019
Catchwords:
Appeal from Magistrates Court - Restraining orders - Whether an assault constitutes personal violence - Exercise of discretion to make a restraining order
Appeal from Magistrates Court - Restraining orders - Whether appellant should be permitted to adduce additional evidence in the appeal - Scope of discretion to order a new trial
Legislation:
Criminal Code (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Restraining Orders Act 1997 (WA)
Result:
Appeal dismissed
Representation:
APP ALB 1 of 2019
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr A E Eyers |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | Oswald Legal |
APP ALB 2 of 2019
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr A E Eyers |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | Oswald Legal |
Case(s) referred to in decision(s):
1110 Hay Pty Ltd (as trustee for The Hay Street Trust) v Metso Minerals (Australia) Ltd [No 2] [2018] WASC 227
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158
Avsar v Binning [2009] WASCA 219
Badran v Public Transport Authority of Western Australia [2017] WASCA 28
Balenzuela v De Grail [1959] HCA 1; (1959) 101 CLR 226
Blenkinsop v Holland [2018] WADC 146
Brocklehurst v Wolinski [2015] WADC 36
Brown v Churchill [2006] WASCA 17
Butler v Bennett [2007] WADC 107
Buttarelli v Perpetual Ltd [2013] WASCA 254
East Metropolitan Health Service v Martin [2017] WASCA 7
Galvans v Microworld Computers Pty Ltd [2016] WADC 115
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290
HAR v The State of Western Australia [No 2] [2015] WASCA 249
House v The King [1936] HCA 40; (1936) 55 CLR 499
Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338
International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319
Jones v Darkan Hotel [2014] WASCA 133
Kamleh v The Queen [2005] HCA 2; (2005) 79 ALJR 541
Lourey v Legal Profession Complaints Committee [2012] WASCA 112
Lydon v Lydon [2008] WASCA 8
MIB v JAP [2019] WASCA 175
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
Myles v Carroll [2003] WASCA 160
Neil v Nott [1994] HCA 23; (1994) 68 ALJR 509
Nobarani v Mariconte [2018] HCA 36
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513
Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148
Remic v Department of Planning and Infrastructure [2006] WADC 213
RKT v The State of Western Australia [2017] WASCA 13
Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 331 ALR 550
Rowe v Stoltze [2013] WASCA 92
Shilkin v Taylor [2011] WASCA 255
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Smart v Prisoner Review Board (WA) [2012] WASC 48
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141
Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96
Tobin v Dodd [2004] WASCA 288
Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402; (2005) 79 ALJR 1816
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Woodley v Woodley [2018] WASCA 149
Yazarloo v Assadi [2003] WASCA 326
Zollo v Shine IT Cleaning Services [2018] WADC 166
GETHING DCJ:
For some years, Ali Tasyurdu[1] and Gaye Tasyurdu[2] have been in partnership running the Istanbul Kebab and Turkish Bakery (Bakery) in Albany. Mr Tasyurdu knew Friat Uyan[3] through family connections. In early 2019 there were discussions between Mr Tasyurdu and Mr Uyan about the latter becoming a partner in the Bakery. The content and effect of those discussions are very much in issue. On the materials before the court it does appear that Mr Uyan paid a significant amount of money to Mr and Mrs Tasyurdu in early 2019 and that, as at June 2019, there was some form of commercial arrangement between them relating to the Bakery. This is most clearly evidenced in the banking records and ASIC material before the court. However, it is not necessary for the purpose of determining this appeal to make any formal determination as to the nature of this commercial arrangement.
[1] The respondent in appeal ALB APP 1 of 2019.
[2] The respondent in appeal ALB APP 2 of 2019.
[3] The appellant in each appeal.
In the weeks prior to 18 June 2019 Mr Uyan worked at the Bakery, though it is in dispute as to how often he worked. At some point in this period, the relationship between the parties broke down. On 18 June 2019 there was an incident at the Bakery involving Mr and Mrs Tasyurdu, and Mr Uyan. The incident was captured on CCTV which is in the materials before the court. The following day Mr Uyan obtained an interim violence restraining order (VRO) against Mr Tasyurdu.[4]
[4] Albany Magistrates Court file CIV 170 of 2019.
A few days later both Mr[5] and Mrs[6] Tasyurdu obtained interim VROs against Mr Uyan.
[5] Albany Magistrates Court file CIV 175 of 2019.
[6] Albany Magistrates Court file CIV 174 of 2019.
There was a second incident on 2 August 2019 in which Mr Uyan attended the Bakery and sought to take money. The 2 August 2019 incident is also captured on the CCTV material which is before the court.
Each party challenged the interim VRO, and so a trial was held before Magistrate Johnson (Magistrate) on 29 and 30 October 2019 to determine whether the interim orders should be made final. The Magistrate delivered her decision on 1 November 2019 (Decision), delivering oral reasons, the transcript of which is before the court. In line with the Decision, the Magistrate made mutual misconduct restraining orders (MRO) against Mr and Mrs Tasyurdu, and Mr Uyan, restraining each from communicating with, or being the in presence of, the other. Critically, the orders were framed so that Mr and Mrs Tasyurdu, and not Mr Uyan, could have access to the Bakery while the MROs were in force.
Mr Uyan challenges the making of the MROs made against him in this appeal. For the reasons which follow, the appeal is to be dismissed, with the effect that the MROs will continue according to their terms.
Statutory framework
The circumstances in which the Magistrates Court can make a VRO are set out in s 11A of the Restraining Orders Act 1997 (WA) (ROA). Those circumstances are:
11A. When VROs may be made
A court may make a VRO if it is satisfied that -
(a)the respondent has committed personal violence against a person seeking to be protected and the respondent is likely again to commit personal violence against that person; or
(b)a person seeking to be protected, or a person who has applied for the order on behalf of that person, has reasonable grounds to apprehend that the respondent will commit an personal violence against the person seeking to be protected,
and that making a VRO is appropriate in the circumstances.
Paragraphs (a) and (b) set out facts which the applicant must prove on the balance of probabilities.[7] The concluding clause grants to the Magistrate a discretion as to whether or not to make a VRO, notwithstanding the existence of the facts in paragraph (a) or (b).[8]
[7] ROA s 3 (definition of 'satisfied'); Myles v Carroll [2003] WASCA 160 [12] (EM Heenan J).
[8] Blenkinsop v Holland [2018] WADC 146[322] (Gething DCJ).
The ROA in s 12 sets out a number of matters which the Magistrate is to have regard to in exercising the discretion as to whether to make a VRO and, if so, the terms of the VRO. Relevantly for the present appeal, those matters include:[9]
(a)the need to ensure that the person seeking to be protected is protected from personal violence;
(b)the need to prevent behaviour that could reasonably be expected to cause the person seeking to be protected to apprehend that they will have personal violence committed against them.
These matters are 'of primary importance'.[10] Another matter, not expressed to be of primary importance, is any hardship caused to the respondent if the order is made.[11]
[9] ROA s 12(1)(a), s 12(1)(b).
[10] ROA s 12(2).
[11] ROA s 12(1)(e).
In making a VRO a court may impose such restraints on the lawful activities and behaviour of the respondent as the court considers appropriate to prevent the respondent 'committing … personal violence against the person seeking to be protected' or 'behaving in a manner that could reasonably be expected to cause the person seeking to be protected to apprehend that they will have personal violence committed against them'.[12] A 'restraint may be imposed on the respondent on such terms as the court considers appropriate'.[13] Relevant to the present appeal, 'a VRO may restrain the respondent from entering or remaining in a place, or restrict the respondent's access to a place, even if the respondent has a legal or equitable right to be at the place'.[14] The ROA thus gives a Magistrate, who has determined that it is appropriate that a VRO be imposed, a wide discretion as to the specific restraints which are appropriate.
[12] ROA s 13(1)(a), s 13(1)(b).
[13] ROA s 13(3).
[14] ROA s 13(4).
On an application for a VRO, if the court determines that it is not appropriate to make the VRO sought, it may make a MRO.[15]
[15] ROA s 43(1a)(b).
As to when the court may make a MRO:[16]
[16] ROA s 34.
34.Grounds for misconduct restraining order
A court may make an MRO if it is satisfied that -
(a)unless restrained, the respondent is likely to -
(i)behave in a manner that could reasonably be expected to be intimidating or offensive to the person seeking to be protected and that would, in fact, intimidate or offend the person seeking to be protected; or
(ii)cause damage to property owned by, or in the possession of, the person seeking to be protected; or
(iii)behave in a manner that is, or is likely to lead to, a breach of the peace;
and
(b)granting an MRO is appropriate in the circumstances.
As with a VRO, the applicant must prove the facts in subparas (i), (ii) or (iii) on the balance of probabilities, which then enlivens the discretion in para (b).
Where ROA s 34(a)(ii) is relied on, when considering whether to make an MRO, and the terms of the order, a court is to have regard, among other factors, to the need to ensure that the person seeking to be protected is protected from intimidatory or offensive behaviour.[17] Where ROA s 34(a)(iii) is relied on, when considering whether to make a MRO, and the terms of the order, a court is to have regard, among other factors, to the need to ensure that the public is protected from breaches of the peace.[18] In each case, any hardship caused to the respondent is also a relevant matter.[19] As with a VRO, the court has a wide discretion as to the specific restraints to be imposed pursuant to a MRO.[20]
[17] ROA s 35(1).
[18] ROA s 35(2).
[19] ROA s 35(1)(d), s 35(2)(d).
[20] ROA s 36.
Magistrate's Decision
There is one aspect of the conduct of the trial which is the subject of challenge in this appeal. This is the decision by the Magistrate to not allow Mr Uyan to adduce in evidence a recording of a telephone conversation between him and a person by the name of Pierre. Pierre is the proprietor of the security business which supplied CCTV services at the Bakery. The Magistrate was informed that Pierre consented to the conversation being recorded. Counsel for Mr and Mrs Tasyurdu objected to the admissibility of the recordings. The Magistrate ruled that the evidence was not admissible as Mr Uyan was not going to call Pierre to give evidence about the conversation. Her Honour noted that Mr Uyan had himself given evidence that he had been restricted from obtaining security footage from the business.[21]
[21] Magistrates Court (MC) Transcript, 29 October 2019, pages 84 ‑ 87, pages 92 ‑ 95, pages 115, 128.
At the outset, the Magistrate recognised that the determination of the applications under the ROA was taking place in the context of a commercial dispute between the parties, observing:[22]
From the outset, it is apparent that one of the main reasons why each of the parties have pursued restraining orders is to gain an advantage in the business, the ownership of which is very much in contention and is very much, as well, not something for determination within restraining order applications.
… [T]he purpose of this trial is not to determine who has the rightful ownership or running of the business.
[22] MC Transcript, 1 November 2019, pages 21, 23.
The Magistrate recognised that Mr Tasyurdu and Mr Uyan cannot work harmoniously together:[23]
Mr Tasyurdu says he is lawfully entitled to work at the shop. Mr Uyan says he is lawfully entitled to work at the shop. It is common ground that they both have a commercial interest in the business. It may well be that they are both lawfully entitled to work at the shop. That does not mean they can do so harmoniously and without fear of violence and intimidation. Clearly, they cannot work harmoniously together.
[23] MC Transcript, 1 November 2019, page 23.
The first major factual issue considered by the Magistrate was the incident on 18 June 2019. The Magistrate reviewed the evidence of Mr Uyan and Mr Tasyurdu, as well as staff members present. Her Honour also analysed the CCTV footage, concluding:[24]
It's apparent from the footage that Mr Uyan was walking around the kitchen without anyone questioning his attendance for at least a short period until Mr Tasyurdu approached him. That's consistent with his assertion that he was working at the shop that day. It's also not consistent with the evidence of Mr and Mrs Tasyurdu. They gave evidence that he came into the shop that day and was immediately angry. He was pacing up and down and was agitated. The footage shows Mr Tasyurdu actually approaching Mr Uyan first, however, once he does, Mr Uyan does not back down in fear. They're both clearly angry with each other.
As I have said, neither back down and both are speaking. Neither one looks concerned about the other in terms of safety and they both appear agitated with each other. Ultimately, I do find that Mr Tasyurdu and Mr Uyan were arguing with each other in Turkish about the business. I accept there were threats made to each other in terms of each of them having ownership of the business. … I find, consistent with the evidence of Mr Uyan, Ms Tasyurdu and the cross-examination of Mr Tasyurdu, that Mr Tasyurdu did say to Mr Uyan to go through his lawyer, but this was done in an agitated state.
Mr Uyan claimed Mr Tasyurdu made the threats that I have outlined, and Mr Tasyurdu claimed that Mr Uyan was saying words to the effect of 'fuck you guys'. I cannot ultimately find what specifically was said. They have each made claims inconsistent with each other and I cannot accept one over the other. As the respective applicants, it is for them to show on the balance of probabilities what was said. Therefore, I'm unable to say that the words that each of them uttered to the other amounted to a threat of violence and, therefore, I'm unable to find that the words were an act of personal violence either way.
However, I'm also not satisfied that the parties acted in a manner that actually intimidated each other at that time. Clearly, they both stood their ground, but I accept the manner in which they spoke, their denigration of each other, and the denigration of each other's claims to the business and their body language was such that their respective conduct did offend the other. I'm also satisfied that the argument, which was clearly of some volume, given that it drew the attention of other staff, could have breached the peace if the other staff did not intervene.
[24] MC Transcript, 1 November 2019, pages 26 ‑ 27.
The Magistrate then turned her attention to the incident on 2 August, concluding:[25]
Turning to the incident of 2 August, Mr Uyan attended the shop at a time when he knew Mr Tasyurdu was not going to be there. He said he did this because he believed he would not be in breach of the order imposed on him and to check on the business. He clearly went in with purpose, arming himself with his phone to record. I accept he did that for his protection, as he aware he was not welcome in the shop and was alert to the possibility of an employee confronting him. I accept he also did this to record his movements.
I note the evidence of Mr Bilvich [an employee of the Bakery], which was that Mr Uyan was assertive and not fearful. I accept that evidence. It is consistent with the video footage. I also accept that Mr Bilvich was a credible witness. He accepted the propositions of Mr Uyan in cross‑examination and did not appear to pre-empt questions or the answers to them. He appeared to be objective in his assessment of Mr Uyan's actions. He was objective in his descriptions of what Mr Uyan did and it was consistent with Mr Uyan following the other people in the shop as displayed on the video footage, which also made it clear that Mr Uyan was not there for repercussions that Mr Tasyurdu may have imposed upon him.
In going to the shop, he was not concerned about his actions incurring the wrath of Mr Tasyurdu. He must have known Mr Tasyurdu would become aware of his attendance. If he was so concerned about threats he perceived Mr Tasyurdu to have made to him about killing him, raping him and so forth, it is inconceivable he would not only attend the shop, but take money even if he was entitled to it. Under the eye of an employee, he knew to be loyal to Mr Tasyurdu. I make no finding as to whether Mr Uyan was entitled to take the money, as that requires a determination as to the ownership of the business. However, he was not scared of personal violence being committed upon him by Mr Tasyurdu, or Mr Tasyurdu causing someone else personal violence upon him when he went to the shop.
[25] MC Transcript, 1 November 2019, page 27.
The Magistrate then considered the evidence of Mr Tasyurdu in which he described an incident on 24 June 2019 in the carpark of the Bakery in which he says Mr Uyan made threats towards him and his wife. Mr Uyan gave evidence to the contrary. The Magistrate concluded that she was unable 'given the conflict in the evidence of the witnesses, to prefer one version over the other and, therefore, … unable to be satisfied on the balance of probabilities that it did occur'.[26]
[26] MC Transcript, 1 November 2019, page 28.
As regards Mrs Tasyurdu, the Magistrate considered the interaction between her and Mr Uyan as set out in the CCTV of the 18 June 2019 incident. Her Honour concluded that while the actions of Mr Uyan did not constitute an act of personal violence against Mrs Tasyurdu, his actions did show his animosity towards her.[27] Her Honour also considered Mrs Tasyurdu's evidence about being followed by Mr Uyan and that she had changed the locks on the Bakery as she was scared for her safety. Her Honour ultimately concluded that 'there is insufficient material before me to establish that there has been an act of personal violence on the part of Mr Uyan towards Ms Tasyurdu or Mr Tasyurdu'.[28]
[27] MC Transcript, 1 November 2019, page 28.
[28] MC Transcript, 1 November 2019, page 29.
As to the position as between Mr Tasyurdu and Mr Uyan, the Magistrate found that neither had established the factual prerequisite for the making of a VRO:[29]
Similarly, I'm not satisfied on balance that there has been an act of personal violence towards Mr Uyan by Mr Tasyurdu. However, I need to consider the second test for a violence restraining order is that the party has reasonable grounds to apprehend that there will be an act of personal violence committed, even if there has not actually been an act of personal violence committed. Each party has made it clear that they believe they are entitled to a share of the business and are entitled to be present at the shop, and that the other should not be at the shop.
It's apparent that in the absence of a restraining order, each of the parties will go to the shop. The same situation as that which unfolded on 18 June will surely eventuate if the parties are all present at the shop. I have already found that what occurred on 18 June did not amount to personal violence. Therefore, I am not satisfied the parties have reasonable grounds to apprehend that there will be an act of personal violence in the future.
Therefore, I do not find that any of the parties have satisfied me on the balance of probabilities that a violence restraining order is appropriate …
[29] MC Transcript, 1 November 2019, pages 29 - 30.
The Magistrate was, however, persuaded that there was a factual basis for the making of MROs:[30]
In relation to Mr Tasyurdu's application against Mr Uyan, it is apparent that unless restrained Mr Uyan will attend the shop that he has not worked at since June, albeit … largely because of the restraining orders. If he does, a confrontation will certainly erupt. In other words, unless Mr Uyan is restrained from being in the company of Mr Tasyurdu, he will be in a manner that could reasonably be expected to intimidate or offend Mr Tasyurdu and will, in fact, intimidate or offend him.
… The same rationale applies to Ms Tasyurdu's application, particularly given that Mr Uyan bears the same resentment towards Ms Tasyurdu as he does towards Mr Tasyurdu in perception of their wrongful conduct. Mr Uyan's perception may well be justified. It's apparent he has invested some form of money, if not a significant amount of money, in a venture that at first glimpse seems to be entirely - or inadequately documented. He is very troubled by that.
His troubles may be understandable however it is those very troubles and that very stress that he has experienced because of those troubles that mean that he is likely to act in a manner that is likely to intimidate or offend. Even in the course of making submissions at the end of the evidence of this trial on Wednesday, his upset and anger was apparent in his demeanour. Mr Uyan therefore needs to be restrained from contact with Mr Tasyurdu and Ms Tasyurdu. I also consider Mr Uyan's application using the test for a misconduct restraining order.
It's apparent that Mr Tasyurdu harbors resentment towards Mr Uyan. His conduct on 18 June, although not meeting the test for personal violence, was at the very least offensive. The business issue is entirely unresolved, but Mr Tasyurdu assets he is in the right and Mr Uyan is frustrating his efforts to run the business. Should there be contact between them, Mr Tasyurdu, I accept, and I believe, will act in a manner similar to the manner in which he did on 18 June, therefore he should similarly be restrained from having contact with Mr Uyan.
For the same reason, I am satisfied that Ms Uyan should be restrained from having contact with Ms Tasyurdu. So, in other words, I am satisfied that each of the applicants, each of the three parties, has made out their grounds for a misconduct restraining order, but I need to consider the terms of those orders. Clearly, they can't be restrained from each other if they are all permitted to enter the shop. On the other hand, if they're all restrained from entering the shop, the business will suffer if not be entirely unsustainable.
[30] MC Transcript, 1 November 2019, pages 30 ‑ 31.
The critical issue then became who should be excluded from the Bakery. Her honour considered that it should be Mr Uyan:[31]
Something has to give for the sake of the business. It employs staff who rely on their income from the business. Mr Uyan and the Tasyurdus have some form of interest in the business. The precise amount of interest is not for this court to determine in these proceedings, but they obviously do have some commercial interests. They've all accepted that in the course of this trial. It is in their interests that the shop continues to run and continues to operate, but it cannot operate with both Mr Uyan and Mr Tasyurdu being present.
I appreciate that if any of the parties are restrained from entering the shop, that will affect their first-hand knowledge of how the shop is operating, but it does not prevent them from taking legal action to assert their claim to the business. It was apparent by June, if not by March, that there was an issue with the ownership of the – or the question of the ownership of the business. It is up to the parties to take the appropriate legal action in relation to that, and as I have said the restraining order is not the appropriate legal action to determine … who owns the business.
As I've said, because they cannot work together, one party has to be restrained from the shop to ensure that they will not act in a manner outlined in a misconduct restraining order test. The issue is who must be restrained. It comes down to a matter as simple as this: Mr Tasyurdu and Ms Tasyurdu owned the business for several years before Mr Uyan's arrival. They have current running knowledge of the shop and its staff. Those staff are clearly loyal to them, particularly given the manner in which some of those staff gave evidence. Mr Uyan must be the person to be restrained from the shop. It is the only workable solution to allow the business to continue to run immediately. That restraint does not mean that he does not have a legal in the business.
I am not suggesting that he does not have any interest in the business. I'm also not suggesting that he is not lawfully entitled to be in the shop, but in order for there to be no intimidation or offending conduct on the part of any of the parties, Mr Uyan must necessarily be restrained from entering the shop. As I say, that does not mean he does not have a legal interest in the business. It means it is necessary for Mr Uyan and the Tasyurdus to remain apart for that to occur.
[31] MC Transcript, 1 November 2019, pages 31- 32.
Accordingly, at the conclusion of the hearing on 1 November 2019 the Magistrate made four formal orders.
The first formal order was an MRO against Mr Tasyurdu in favour of Mr Uyan (A Tasyurdu MRO). The essence of that order was that Mr Tasyrudu was restrained from communication with Mr Uyan, entering or remaining on any place where he lives or works, behaving in an intimidating or offensive manner towards him or behaving towards him in a manner that is likely to lead to a breach of the peace. The restraint on entering or remaining on any place where Mr Uyan works expressly excluded the Bakery.[32]
[32] MC Transcript, 1 November 2019, pages 32 - 35.
The second formal order was a MRO against Mrs Tasyurdu in favour of Mr Uyan. This was in identical terms to the A Tasyurdu MRO (G Tasyurdu MRO).
The third formal order was an MRO against Mr Uyan in favour of Mr Tasyurdu (First Uyan MRO). Again, the essence of the First Uyan MRO was that that Mr Uyan was restrained from communication with Mr Tasyurdu, entering or remaining on any place where he lives or works, behaving in an intimidating or offensive manner towards him or behaving towards him in a manner that is likely to lead to a breach of the peace. The restraint on entering or remaining on any place where Mr Tasyurdu works expressly included the Bakery.[33]
[33] MC Transcript, 1 November 2019, pages 35 - 37.
The fourth formal order was a MRO against Mr Uyan in favour of Mrs Tasyurdu (Second Uyan MRO), which was in identical terms to the First Uyan MRO. Specifically, the restraint on entering or remaining on any place where Mrs Tasyurdu works expressly included the Bakery.[34]
[34] MC transcript, 1 November 2019, pages 35 - 36.
Each order was for a duration of 15 months from 1 November 2019.
The net effect was mutual MROs, with Mr and Mrs Tasyurdu in effective possession of the Bakery.
District Court appeal
On 19 November 2019 Mr Uyan lodged two appeal notices in the District Court against each of Mr and Mrs Tasyurdu. In each case, the decision appealed from is expressed to be the MRO made against the respondent, that is, Mr and Mrs Tasyurdu. In essence, Mr Uyan says that the Magistrate erred in not making an order to the effect that Mr and Mrs Tasyurdu be restricted from entering or remaining upon the Bakery. So his appeal is in effect from each of the four orders made.
A decision of a Magistrate to make, or refuse to make, a final VRO or MRO under the ROA may be the subject of an appeal to the District Court.[35] The scope of the appeal right thus includes the decision of the Magistrate not to make the VROs sought by Mr Uyan. In my view, it also includes a challenge to the imposition of the term in the MROs made restraining Mr Uyan, but not Mr and Mrs Tasyurdu, from entering and remaining in the Bakery.
[35] ROA s 64(1)(b)(ii).
The appeal is to be made in accordance with Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA) pt 7.[36] Mr Uyan commenced both appeals within the time limit set for and appeal governed by MCCPA pt 7.[37]
[36] ROA s 64(2).
[37] MCCPA s 40(3).
On 17 January 2020 Mr Tasyurdu and Mrs Tasyurdu each filed a Notice of Respondent's Intention in which they advised the court that each would take part in the appeal and argue that the Decision should be upheld on the grounds relied on by the Magistrate.
At a directions hearing on 28 January 2020 the registrar ordered that the appeals be heard together.
On 5 February 2020 counsel for Mr and Mrs Tasyurdu filed written submissions in opposition to each appeal.
The District Court must decide the appeal on the material and evidence that was before the Magistrates Court.[38] The court can give leave to admit other evidence, but only in exceptional circumstances.[39] By application dated 19 November 2019, the appellant applied in APP ALB 1 of 2019 to adduce additional evidence in the appeal. On 28 January 2020, a Registrar ordered that this application be heard with the hearing of the appeal. The additional evidence which Mr Uyan seeks to adduce in the trial is contained in an affidavit filed 3 February 2020 (Additional Evidence). I will address the issue of leave to adduce the Additional Evidence after considering some of the issues which arise in the appeals on the materials before the Magistrate.
[38] MCCPA s 40(4)(a).
[39] MCCPA s 40(4)(b), s 40(5).
Each appeal is by way of a 'reconsideration of the evidence' that was before the Magistrates Court.[40] It is not the role of the appeal court to retry the facts or to substitute its own view of the facts for that of the Magistrate.[41] Rather, the appeal is to be undertaken by way of a rehearing.[42] The fact that Mr Uyan is disappointed with the result does not mean that this court hearing an appeal can intervene. Rather, Mr Uyan must demonstrate that there has been an error of a recognised genre that falls to be corrected and which entitles him to the orders that he seeks.[43] Specifically, the appellate powers of the District Court are only exercisable if the appellant demonstrates that the decision made by the Magistrate the subject of the appeal was the result of some legal, factual or discretionary error.[44] The onus is on Mr Uyan, as the appellant, to demonstrate this error.[45]
[40] District Court Rules 2005 (WA) (DCR) r 50(1).
[41] Blenkinsop [14]; Yazarloo v Assadi [2003] WASCA 326 [9], [35] (Scott J).
[42] Blenkinsop [14]; Brocklehurst v Wolinski [2015] WADC 36 [14] (Derrick DCJ); Butler v Bennett [2007] WADC 107 [6] ‑ [10] (Bowden DCJ).
[43] Avsar v Binning [2009] WASCA 219 [37] (Owen JA, with whom Miller and Newnes JJA agreed).
[44] Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550 [43] (judgment of the court); Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23] (Gaudron, McHugh, Gummow & Hayne JJ); Blenkinsop [14].
[45] Jones v Darkan Hotel [2014] WASCA 133 [31] (judgment of the court); Blenkinsop [14].
Issues arising for determination
The grounds of appeal set out in each appeal notice are detailed and repetitive, and are more in the nature of submissions. Having reviewed the grounds of appeal and heard oral submissions from Mr Uyan, six issues arise for determination in this appeal:
•Did the Magistrate err in not allowing Mr Uyan to tender the recording of the telephone conversation between him and Pierre?
•Did the Magistrate err in fact in not finding that Mr Tasyurdu committed an act of personal violence against Mr Uyan?
•Did the Magistrate err in the exercise of her discretion in imposing MROs on Mr Uyan with a condition preventing him from accessing the Bakery?
•Did the Magistrate err in declining to admit the Additional Evidence before handing down her decision?
•Should Mr Uyan be permitted to adduce the Additional Evidence in the appeal?
• What final orders are appropriate?
In dealing with these issues, I recognise that Mr Uyan is a litigant in person. As such, he is entitled to some leniency in relation to compliance with the court rules.[46] I approach the documents in which he articulates his appeal with some flexibility.[47] I need to be astute to ensure that, in a poorly expressed or unstructured document in which he sets out his case, there is no viable case which, with appropriate amendment or permissible assistance from the court, could be put into proper form.[48] I recognise that a 'frequent consequence of self‑representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy'.[49]
[46] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (reasons of the court).
[47] Wentworth v Rogers(No 5) (1986) 6 NSWLR 534, 536 - 537 (Kirby P), 543 (Hope JA, with whom Samuels JA agreed); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J).
[48] Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338 [21] (Beech J); Tobin v Dodd [2004] WASCA 288 [15] (EM Heenan J, with whom Murray & Le Miere JJ agreed).
[49] Neil v Nott [1994] HCA 23 [5]; (1994) 68 ALJR 509, 510; (1994) 121 ALR 148, 150 (Brennan, Deane, Toohey, Gaudron & McHugh JJ); Ibrahim [21]; Glew [10]; Tobin [14].
At the same time, I also need to ensure that any latitude given to Mr Uyan as a litigant in person does not deprive Mr and Mrs Tasyurdu of their rights to procedural fairness and a fair hearing.[50]
Did the Magistrate err in not allowing Mr Uyan to tender the recording of the telephone conversation between him and Pierre?
[50] Nobarani v Mariconte [2018] HCA 36[47] (Kiefel CJ, Gageler, Nettle, Gordon & Edelman JJ); Woodley v Woodley [2018] WASCA 149 [76] (judgment of the court); Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51] (judgment of the court).
This contention is set out in ground of appeal 5 in Albany APP 1 of 2019:
Magistrate did not listen the telephone conversation evidence with the CCTV Company. This conversation is an evidence to show the respondent has blocked appellants access to CCTV cameras to stop appellant from obtaining any evidence. CCTV cameras has unlawfully been blocked without appellant's consent as appellant is a director of the company, and had been worked the company since the physical attack has happened towards to the appellant on 18th of June 2019.
As I have noted above [15], the Magistrate did not allow Mr Uyan to adduce the recording of the conversation between him Pierre.
The Magistrate made no error in refusing to allow Mr Uyan to adduce this recording. Mr Uyan was entitled (and did) to give oral evidence of what he said to Pierre and of the effect of Pierre's response. However, he was not entitled to give specific oral evidence as to what Pierre told him so as to prove the truth of what Pierre told him, as this is impermissible hearsay.[51] Nor was he entitled to circumvent the rule against hearsay by tendering an audio recording of the conversation. The recording was clearly inadmissible. If Mr Uyan wished to adduce evidence of what Pierre told him he had to call Pierre.
[51] Kamleh v The Queen [2005] HCA 2 [12]; (2005) 79 ALJR 541, 544 (Gleeson CJ & McHugh J); RKT v The State of Western Australia [2017] WASCA 13 [54] (Mazza JA, with whom Buss P & Newnes JA agreed).
Ground of appeal 5 is not made out.
Did the Magistrate err in fact in not finding that Mr Tasyurdu committed an act of personal violence against Mr Uyan?
This contention is set out in grounds of appeal 6 and 7 in APP ALB 1 of 2019. It is sufficient to quote the following portion from ground 7:
Magistrates has clearly stated that the responded has attacked to the appellant. However, she said there is not enough kicking force in the CCTV footage. There is no less powered kick or high powered kick. It is clear that in the CCTV footage respondent threatens the appellant by trying to push his both punches against his face, and then after couple of seconds he walks on to the appellant kicks his feet forcefully and threatened him to rape and killing if the appellant does not get out from the business premises. A kick is a physical attack no matter how hard it is. There is not any scientific way that magistrates will determine the level of the causing of pain of the kick just by looking at it from the CCTV. Moreover, this CCTV evidence provided the Magistrates Court to show the kick has happened, and to prove the respondent's barbaric behaviour towards the appellant, but not to prove hardness level of the kick as there is no one can prove how painful was the kick except the appellant who directly has experienced it. Furthermore, this does not guarantee that the appellant won't get even more serious or fatal physical attacks by respondent at or out of his business if he remains unprotected. It is clear on that CCTV footage that the respondent has propensity to physically harm the appellant. Appellant has felt physically unwell after this kick and psychologically unwell during this whole process …
The relevant finding by the Magistrate was that she was not satisfied on the balance of probabilities that there had been an act of personal violence towards Mr Uyan by Mr Tasyurdu.[52]
[52] MC Transcript, 1 November 2019, page 29.
The term 'personal violence' in ROA s 11A is defined in ROA s 6(3). So far as is relevant to the present case, it means 'assaulting or causing personal injury to the person' or threatening to do so. Given the context of the ROA, the term 'assault' in the ROA should be defined in the same terms as defined in the Criminal Code (CC).[53] In CC s 222, 'assault' is relevantly defined in the following terms:
A person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent…, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault.
[53] Lydon v Lydon [2008] WASCA 8 [33] (Le Miere AJA with whom Pullin JA agreed).
I have watched the CCTV footage of the incident on 18 June 2019. Both Mr Tasyurdu and Mr Uyan are wearing shoes. Mr Tasyurdu kicks Mr Uyan, the toe of Mr Tasyurdu's shoe making contact with the sole of Mr Uyan's shoe, at the side. There is little if any backswing on Mr Tasyurdu's kick. It is more in the nature of a tap. I agree with the Magistrate's observation that the 'video clearly shows contact, but it was not prolonged or particularly forceful'.[54] However, the fact of deliberate contact is sufficient for there to be an assault for the purposes of CC s 222 - a 'person who … touches … the person of another … without his consent' - and thus the definition of 'personal violence' in ROA s 6. Having found that there was contact between Mr Tasyurdu and Mr Uyan, there was a clear basis for the finding that Mr Uyan had established on the balance of probabilities that Mr Tasyurdu had committed an act of personal violence against him. The Magistrate erred in not making this finding. However, on the scale of deliberate contact that may constitute assault, the contact which Mr Tasyurdu's shoe made with Mr Uyan's shoe is, in my view, about the lowest possible contact that could technically constitute an assault.
[54] MC Transcript, 1 November 2019, page 24.
The issue then arises as to the consequences of this error. I will return to this issue at the conclusion of these reasons.
Did the Magistrate err in the exercise of her discretion in imposing MROs on Mr Uyan with a condition preventing him from accessing the Bakery?
Grounds of appeal 2, 3, 4, 7 (in part), 8, 12, 13, 14, 16 and 17 Albany APP 1 of 2019 are in essence contentions that the Magistrate erred to the exercise of her discretion to impose a MRO on Mr Uyan with a condition preventing him from accessing the Bakery premises. As is each ground of appeal in Albany APP 2 of 2019. There is a considerable degree of repetition in these grounds of appeal, so it is sufficient to quote grounds 2, 3 and 17 from Albany APP 1 of 2019:
2.The respondent has deprived the liberty of the appellant at the appellant's own business premises, caused an injury, steal the appellant's and his family's money, fraudulently steal the business from appellant, fraudulently paid the kebab shop workers to witness on behalf of him, threatened the appellant by rape & killing in many occasions, blocked the appellant to have CCTV recordings from the appellants own work place for his own security, physically attacked and assaulted the appellant to kick the appellant from the business to take over the business from appellant, said lie to the Albany Justice complex to get a VRO against the appellant, his wife also threatened the appellant to kick him out of the country, she has applied fraudulently to obtain a VRO against the appellant and she said lie to the Albany Justice complex to support the respondent to fraudulently kick the appellant from his own work place, block his entry to his work place and business, steal his money, steal his business, steal his dividends and steal his wages.
3.There are plenty of evidence proves that appellant who is a 50% shareholder and the director has been kicked from his own premises by the respondent unlawfully. Video footage shows that the respondent has attacked and kicked the appellant to kick him out from the business premises.
…
17.In conclusion, appellant ONLY WANTS JUSTICE. Appellant believes that he must return back and operate his shop safely and securely without being afraid of his life. Since 18th of June appellant is unfairly been restricted to enter his shop. ALI TASYURDU and his wife are occupying the business and collecting 100% of the profit. GAYE TASYURDU is not a director or an employee of the business, she must not be there in the first place other that a customer, since she sold his all shares in the business to the appellant. Appellant wants this unfair final misconducts restraining orders restraining orders restraining him must be immediately terminated. Appellant believes that he has already unfairly been restricted to enter his shop since 18th of June 2019, and he does not deserve for further restriction to enter the shop, the reason of this it is not just protecting the appellant from their further harms, but also this should give a fair time frame to compensate appellants physical, psychological and economical loss since 18th of June 2019. Appellant claims that ALI TASYURDU & GAYE TASYURDU must be restricted to enter and remain in the business where appellants should be operating for at least 24 months.
As I have observed above, the making of a MRO, and, if it is to be made, the nature of the specific restraints imposed, involve the exercise of a judicial discretion. The precondition of the exercise of the discretion was a finding that, unless restrained:
(a)Mr Uyan was likely to behave in a manner that could reasonably be expected to be intimidating or offensive to and that would, in fact, intimidate or offend, each of Mr and Mrs Tasyurdu; and
(b)each of Mr Tasyurdu and Mrs Tasyurdu was likely to behave in a manner that could reasonably be expected to be intimidating or offensive to and that would, in fact, intimidate or offend, Mr Uyan.
The Magistrate so found. To the extent that there was a challenge to this finding, I am of the view that it was clearly open on the evidence. An appeal court should not interfere with a Magistrate's findings of fact unless they are demonstrated to be wrong by 'incontrovertible facts or uncontested testimony', or they are 'glaringly improbable' or 'contrary to compelling inferences'.[55] Mr Uyan has not satisfied me that it was attended with any such error of fact, nor any error of law.
[55] Robinson Helicopter [43]; Badran v Public Transport Authority of Western Australia [2017] WASCA 28 [65] (reasons of the court); East Metropolitan Health Service v Martin [2017] WASCA 7 [99] (reasons of the court); Woodley [154].
The Magistrate then had a discretion to the effect that that she 'may' make a VRO if satisfied that granting one was appropriate in the circumstances[56], and then a further discretion as to the specific restraints imposed.[57] As set out above ([9]), there are certain factors which the court is to have regard to. Mr Uyan did not suggest that the Magistrate failed to have regard to a factor that she was bound to take into account, nor is there any basis for such an assertion.
[56] ROA s 34(b).
[57] ROA s 36.
The Magistrate's reasoning may be summarised as follows (considering Mr and Mrs Tasyurdu as one party for ease of expression):
(a)the purpose of the trial was not to determine who has the rightful ownership or running of the business;
(b)both parties have some form of commercial interest in the Bakery;
(c)it may well be that each party is lawfully entitled to work at the Bakery;
(d)the parties cannot work harmoniously together;
(e)each party will experience hardship if they are shut out of the Bakery;
(f)the parties cannot be restrained from each other if they are all permitted to enter the Bakery;
(g)if both parties are restrained from entering the Bakery, the business will suffer if not be entirely unsustainable;
(h)something has to give for the sake of the business of the Bakery;
(i)it is in the interests of both parties that the Bakery continue to run, but it cannot operate with both parties being present;
(j)one party has to be restrained from the Bakery to ensure that they will not act in the manner which justified the imposition of a MRO;
(k)the issue is who must be restrained;
(l)Mr and Mrs Tasyurdu owned the Bakery for several years before Mr Uyan's arrival, have the current running of the Bakery and the loyalty of the staff; and
(m)in this context, the only workable solution to allow the Bakery to continue to run immediately is that Mr Uyan must be restrained from entering it.
The principles as to what constitutes an error in the exercise of a discretionary power are well established.[58] They were recently summarised by the Court of Appeal in Strzelecki Holdings Pty Ltd v Jorgensen:[59]
An appellate court is not entitled to substitute its own decision for the decision under appeal merely because it would have reached a different decision, or because it considers that a different result would be more just and equitable. Instead, before it intervenes, an appellate court must be satisfied that the order made stands outside the limits of a sound discretionary judgment. In order to establish that that was so, an appellant must establish either an express error (namely that the primary judge acted upon a wrong principle, mistook the facts, took into account an irrelevant consideration, or failed to take into account a relevant consideration) or demonstrate that an error can be inferred. An error may be inferred if the order under appeal is shown to be unreasonable or plainly unjust.
[58] Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201, 212 (Mason CJ, Deane & McHugh JJ); Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 518 - 519 (Mason & Deane JJ); House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505 (Dixon, Evatt & McTiernan JJ); Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96 [43] (judgment of the court); MIB v JAP[2019] WASCA 175 [39] (judgment of the court); Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158 [124] - [129] (judgment of the court).
[59] Strzelecki [43] (footnotes omitted).
The broadest ground of challenge to the exercise of a discretion is that the ultimate decision is 'unreasonable or plainly unjust', in which case the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. Given that Mr Uyan is in person, I will treat the grounds of appeal as asserting that the ultimate decision of the Magistrate was so unreasonable or unjust that error can be inferred.
On the totality of the evidence before the Magistrate, Mr Uyan has not satisfied me that the Magistrate's decision was so unreasonable or unjust that error can be inferred. The facts and analysis which I have identified in the preceding paragraphs are a cogent basis for the exercise of the discretion in the manner in which the Magistrate did.
Mr Uyan has not established that the Magistrate erred in the exercise of her discretion in imposing the MROs in the terms in which she did.
Did the Magistrate err in declining to admit the Additional Evidence before handing down her decision?
Grounds of appeal 1, 9, 10 and 11 in Albany APP 1 of 2019 are to the effect that the Magistrate erred in not allowing Mr Uyan to adduce additional evidence after the conclusion of the trial. It is evident from the transcript of the hearing on 1 November 2019 that Mr Uyan unsuccessfully sought to adduce additional evidence before the Magistrate handed down her decision.[60]
[60] MC Transcript, 1 November 2019, pages 19 - 20.
From the description in the grounds of appeal, I proceed on the basis that the evidence which Mr Uyan sought to adduce before the Magistrate was the Additional Evidence (that is, the evidence set out in his affidavit of 3 February 2020). The Additional Evidence primarily comprises downloads from the Google Maps application on Mr Uyan's mobile telephone.
The issue of whether the Magistrate erred in not allowing Mr Uyan to adduce the Additional Evidence is issue is one of procedural fairness. As to this, in International Finance Trust Co Ltd v New South Wales Crime Commission French CJ observed:[61]
Procedural fairness or natural justice lies at the heart of the judicial function … It requires that a court be and appear to be impartial, and provide each party to proceedings before it with an opportunity to be heard, to advance its own case and to answer, by evidence and argument, the case put against it. According to the circumstances, the content of the requirements of procedural fairness may vary.
[61] International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 [54]. See also [88] (Gummow & Bell JJ), [141] - 146] (Heydon J); Rowe v Stoltze [2013] WASCA 92 [51] (Newnes JA, with whom Pullin & Murphy JJA agreed).
The principles to be applied in determining whether a party should be permitted to adduce further evidence after the conclusion of a trial were summarised by Derrick J 1110 Hay Pty Ltd (as trustee for The Hay Street Trust) v Metso Minerals (Australia) Ltd [No 2]:[62]
[62] 1110 Hay Pty Ltd (as trustee for The Hay Street Trust) v Metso Minerals (Australia) Ltd [No 2] [2018] WASC 227 [31] – [36] (Derrick J), citing Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290 [182] ‑ [185] (Pritchard J). See also: Blenkinsop [203] - [204].
A court has the power to re‑open a case after a hearing has concluded but before judgment is delivered for the purpose of hearing additional submissions or admitting new or additional evidence.
A variety of factors will be relevant to the exercise of the discretion to re‑open.
The guiding principle is whether the interests of justice are better served by allowing, or rejecting, the application to re‑open.
Other factors which are relevant to the exercise of the discretion include:
1.The time at which the application is made (leave to re‑open will be more readily given where the application is made after judgment has been reserved and before judgment has been given);
2.The likely prejudice to the party resisting the application;
3.The public interest in the finality of the litigation and the clear expectation that parties will advance all of their arguments at the time of the hearing; and
4.Case management principles, especially the need for the court to manage litigation efficiently, having regard to the limited resources of the courts and the demand for those resources.
Further, in a case like the present where the application is to re-open to admit additional evidence, additional factors relevant to the exercise of the discretion will include:
1.Why the evidence was not adduced at the hearing, and in particular whether a deliberate decision was made not to adduce the evidence, or whether the evidence would have been available had reasonable diligence been exercised; and
2.The materiality of the evidence to the issues in dispute and whether the admission of the evidence may produce a different result.
A relevant consideration is any explanation as to why the Additional Evidence was not led at the trial. In his affidavit of 3 February Mr Uyan does not provide any explanation as to why the Additional Evidence was not led before the Magistrate. It is evident from my review of the material from the Magistrates Court file that he had ample opportunity to do so. Mr and Mrs Tasyurdu filed Statements of Intended Evidence for themselves and each witness they called at the trial. So Mr Uyan was clearly on notice before the trial that the issues addressed in the Additional Evidence were in contention in the trial. Moreover, the Additional Evidence is evidence which could, with reasonable diligence on the part of Mr Uyan, have been led at the trial.[63] In submissions on the hearing of the appeal, Mr Uyan said that he did not lead the evidence as he did not want to let Mr and Mrs Tasyurdu know the address of where he was living (something which he says is evident from the Google Maps printouts). However, this information could have been easily redacted without compromising the relevant portion of the evidence. I am satisfied that he had ample opportunity to lead the Additional Evidence at the trial.
[63] Remic v Department of Planning and Infrastructure [2006] WADC 213 [12] (Schoombee DCJ).
In addition, the imperatives of bringing the litigation to an end and efficiently managing the limited resources of the court readily justified the decision of the Magistrate not to allow Mr Uyan to adduce the Additional Evidence.
For these reasons, I conclude that Mr Uyan was not denied procedural fairness by the Magistrate denying him the opportunity to adduce the Additional Evidence at trial.
Should Mr Uyan be permitted to adduce the Additional Evidence in the appeal?
As set out above, Mr Uyan requires the leave of the court to adduce the Additional Evidence, which may only be granted in exceptional circumstances.[64] A heavy onus lies on an appellant who seeks to have new evidence admitted in an appeal.[65]
[64] MCCPA s 40(4)(b), (5); Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148 [89] (Newnes JA, with whom Pullin & Buss JJA agreed); Shilkin v Taylor [2011] WASCA 255 [68] (Newnes JA, with whom Pullin & Buss JJA agreed).
[65] Shilkin [67].
Again, a relevant consideration is any explanation as to why the Additional Evidence was not led at the trial.[66] My comments at [65] apply equally to the issue of whether Mr Uyan should be permitted to adduce the Additional Evidence in the appeal.
[66] Shilkin [67] - [68].
A central consideration is the importance of the Additional Evidence to the facts in issue in the trial. 'Ordinarily new evidence will not be admitted on appeal unless it would have led to a different outcome if it had been put into evidence at trial'.[67] 'That is because unless that condition is satisfied it will seldom, if ever, be in the interests of justice to deprive the respondent of the orders made below and to put that person to the expense, inconvenience and worry of a new trial'.[68]
[67] Rankilor [91]; Shilkin [66] - [67]; Galvans v Microworld Computers Pty Ltd [2016] WADC 115 [18] ‑ [34] (Parry DCJ).
[68] Shilkin [67].
To address this issue, it is necessary to go into the Additional evidence in more detail. The Additional Evidence goes to three topics. The first is whether Mr Uyan was at the Bakery on 24 June 2019. The 24 June 2019 incident was relied on by Mr Tasyurdu in support of his application for a VRO. Mr Uyan says that the printouts from the Google Maps application for 24 June 2019 contained in the Additional Evidence show that he was not. It is difficult for me to discern exactly what the printout for 24 June 2019 shows as the copy in the materials before the court is poor. I will assume favourably to Mr Uyan that it shows that his mobile phone was not at the Bakery on 24 June 2019. This is consistent with his evidence at trial that he did not go to the carpark that day.[69] However, to make the point sought, Mr Uyan would need to give oral evidence that he had his mobile phone with him that day, so the issue remains one of competing oral evidence as to what occurred. In relation to this incident, the Magistrate concluded that, given the conflict in the evidence, she was unable prefer one version over the other, and was not satisfied on the balance of probabilities that it did occur. The Magistrate thus did not take the 24 June 2019 incident into account in determining whether to grant a MRO to Mr Tasyurdu. It follows that had the Additional Evidence been before the Magistrate, it would not have made a difference to the outcome of the trial.
[69] MC Transcript, 1 November 2019, page 28.
The second topic addressed in the Additional Evidence is the dates on which Mr Uyan attended the Bakery in June 2019. He produces screenshots which he says are to the effect that his phone was at the Bakery on 10 June, 11 June, 12 June, 13 June, 14 June, 15 June, 16 June, 17 June and 18 June 2019. Again, I will assume favourably to Mr Uyan that it shows that his mobile phone was at the Bakery on these dates. As with the first topic, for this material to make the point sought, it would need to be coupled with oral evidence from Mr Uyan that he had his phone with him on these dates. The salient portion of the Magistrate's Decision is as follows:[70]
There were several issues not in contention. [T]he Tasyurdus owned a business some time from 2014. There was some commercial arrangement put into place between Mr Uyan and Mr Tasyurdu in 2019. Mr Uyan worked there for a period, either up until 18 June, based on his evidence, or three or four weeks beforehand, based on other evidence, or intermittently, based on other evidence. But he did work there at least for a period, if not up until including 18 June.
[70] MC Transcript, 1 November 2019, pages 23 - 24.
Beyond that, the issue of what dates Mr Uyan worked in June 2019 did not have a bearing on the outcome of the trial. The Magistrate clearly accepted that he did work at the Bakery for some period prior to and including 18 June 2019. I am not satisfied that had the Additional Evidence, in so far as it relates to the dates on which Mr Uyan worked in June 2019, been led at trial it would have led to a different outcome.
For these reasons, as to the first and second topics, Mr Uyan has not established that exceptional circumstances exist so as to warrant the court considering the Additional Evidence in the appeal.
The third topic in the Additional Evidence is some bank statements for the Bakery in November and December 2019. This is in a different category as it arises after the conclusion of the trial. The evidence goes no further that confirming that the funds are continuing to go into the Bakery account. That this would occur is perhaps a self-evident effect of the MROs made. I do not consider that Mr Uyan has established any exceptional ground in relation to this evidence to justify the admission of this evidence in the appeal.
What final orders are appropriate?
The reasons set out above identify one error of fact by the Magistrate, being that the Magistrate erred in not finding that Mr Uyan had established on the balance of probabilities that Mr Tasyurdu had committed an act of personal violence against him.
It does not automatically follow from the finding that the Magistrate made an error that the Decision should be set aside and a retrial ordered in the Magistrates Court. Rather, pursuant to MCCPA s 43(7), where an error has occurred, the court 'may … set aside all or part of the lower court's judgment … [and/or] 'order a new hearing in, or trial of, the case to be held in the Magistrates Court'. The word 'may' means that the court has a discretion as to whether to not to make orders in these terms.[71] There is no statute or rule which qualifies this discretion.[72] So, for example, it is well established that if the error is in the nature of the wrongful rejection of evidence[73] or a denial of procedural fairness[74] the appeal court may, but not must, order a retrial.
[71] Blenkinsop [241]; Zollo v Shine IT Cleaning Services [2018] WADC 166 [41] (Gething DCJ); Pearce D, Statutory Interpretation in Australia (9th ed, LexisNexis Butterworth) pars 11.5 - 11.7.
[72] See by way of relevant contrast: Brown v Churchill [2006] WASCA 17 [41] (Pullin JA).
[73] Balenzuela v De Grail [1959] HCA 1; (1959) 101 CLR 226, 232 (Dixon CJ); Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [17] (judgment of the court); Blenkinsop [243] - [244].
[74] Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145 (judgment of the court); Buttarelli v Perpetual Ltd [2013] WASCA 254 [34] (judgment of the court); Lourey v Legal Profession Complaints Committee [2012] WASCA 112 [112] (Murphy JA, with whom Pullin & Buss JJA agreed).
At a general level, '[o]rdering a new trial is in all cases a deplorable result and an appeal court should properly turn its attention to how, within the powers conferred on it, such a deplorable result might properly be palliated'.[75]
[75] Brown [39]; Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402; (2005) 79 ALJR 1816 [36] (Kirby and Heydon JJ).
As to the exercise of the discretion, the factors which the court is entitled or bound to consider or take into account, and any factors which the court is not entitled to consider or take into account, are to be ascertained by implication from the subject matter, scope and purpose of MCCPA s 43(7) as a whole.[76] One obvious and important factor is whether a miscarriage of justice occurred as a result of the error.[77] This is reflected in MCCPA s 43(4)(c) which allows an appeal court to strike out any ground of appeal (prior to the hearing) if 'although it has a reasonable prospect of succeeding, no miscarriage of justice would occurred by striking it out'.
[76] Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39 - 40 (Mason J); HAR v The State of Western Australia [No 2] [2015] WASCA 249 [96] (Buss JA with whom Mazza JA & Hall J agreed).
[77] Blenkinsop [247].
As I have said above ([50]), on the scale of contact that may constitute assault, the contact which Mr Tasyurdu's shoe made with Mr Uyan's shoe is, in my view, about the lowest possible contact that could technically constitute an assault. This being the case, and given all the other circumstances, it would have been readily open for the Magistrate to have found that, while Mr Tasyurdu did technically commit an act of personal violence against Mr Uyan, in all the circumstances, the making of a VRO was not appropriate. This course would have been open to the Magistrate pursuant to ROA s 11A as a matter of law, and, in my view, would have been an exercise of discretion not open to challenge on the basis that it was unreasonable or plainly unjust.
The error identified does not impact on the following findings by the Magistrate:
(a)that, unless restrained, Mr Uyan will attend the Bakery and, if he does, a confrontation will certainly erupt;[78]
(b)that, unless restrained, Mr Uyan was likely to behave in a manner that could reasonably be expected to be intimidating or offensive to, and that would, in fact, intimidate or offend, each of Mr and Mrs Tasyurdu;[79]
(c)that, unless restrained, each of Mr Tasyurdu and Mrs Tasyurdu was likely to behave in a manner that could reasonably be expected to be intimidating or offensive to, and that would, in fact, intimidate or offend, Mr Uyan.[80]
[78] MC Transcript, 1 November 2019, page 30.
[79] MC Transcript, 1 November 2019, page 30.
[80] MC Transcript, 1 November 2019, page 31.
Nor does the error impact on the findings as to discretion set out at [56] and my conclusion that the exercise of the discretion was not unreasonable nor plainly unjust.
For these reasons, I do not consider that the error identified has led to any miscarriage of justice.
In these circumstances, notwithstanding the error which I have identified, I am not persuaded that the Decision ought to be set aside and the matter sent back to the Magistrates Court for retrial.
The appeal will be dismissed.
As I have found an error of law in the Decision, I am of the preliminary view that there should be no order as to the costs of the appeal. However, I will hear from the parties on this issue.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JM
Associate3 MARCH 2020
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