Nora Preston v Robert Brice [1998] ACTSC 162 (4 March 1998)

  
  
  
  

  
   

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   MILES CJ

  

  

   PRACTICE AND PROCEDURE
- "no case to answer" - to be distinguished from
dismissal of claim on basis that evidence is not persuasive - claim not to be
dismissed
on latter basis until evidence is complete - appellant not invited
to address on whether there was a prima facie case - procedural
error.

  

   EVIDENCE - credible claim that voice on telephone was that of respondent
and known to appellant - failure to cross-examine
appellant to suggest that
voice was not that of respondent - claim dismissed before respondent elected
whether or not to give evidence
- no evidence to contradict appellant.

  

   COSTS - costs of appeal could have been avoided by mutual undertakings
offered by
appellant - respondent to pay costs of appeal to date - avoidance
of further costs of remittal for further hearing - not to be relisted
until
parties have consulted mediation service.

  

   Magistrates Court Act 1930 , Part X

   Magistrates Court (Civil Jurisdiction) Act 1982 , s.201

  

   May v. O'Sullivan [1955] HCA 38;  (1955) 92 CLR 654

   Myers v. Claudianos [1990] ACTSC 12;  (1990) 100 FLR 362

  

  

   CANBERRA, 5 and 6 February 1998 (hearing), 4 March 1998 (decision)

   #DATE 04:03:1998

  

  
Appearances

   Counsel for the appellant: K. Hubert

   Solicitors for the appellant: Capon & Hubert

  

   Counsel for the
respondent: A. Hughes

   Solicitors for the respondent: pappas j. - attorney

  

  

  

   Order:

   1. The appeal be upheld.

  

   2. The decision of the Magistrate on 22 September 1997 dismissing the
appellant's application and ordering her to pay costs
be set aside.

  

   3. Consideration of the making of further orders be stood over generally,
not to be re-listed unless made upon
the order of a Judge on notice of motion
and supporting affidavit. I direct the parties to seek the assistance of the
ACT Dispute
Resolution Service before re-listing.

  

   4. The respondent pay the costs of the appeal to date.

  

   5. There be no order
as to costs of the application before the Magistrate.

  

  

  

   MILES CJ

  

   1. This is an appeal from a Magistrate's decision
dismissing an application
for a restraining order applied for pursuant to Part X of the Magistrates
Court Act 1930 .

  

   2. The applicant, now the appellant, is Ms. Nora Preston, who lives at 17
Drysdale Circuit, Kambah. The respondent, Mr.
Robert Brice, lives next door at
15 Drysdale Circuit. There have been strong differences between them over a
long time.

  

   3.
The appellant represented herself at the hearing below but had the
advantage of legal representation on the appeal. The respondent
has been
represented throughout.

  

   4. The application was made in accordance with what appears to be a
prescribed or statutory
form. In it the appellant set out as "facts relied
upon" a number of matters which appear to be irrelevant. In the absence of an
order or direction under s.201 of the Magistrates Court (Civil Jurisdiction)
Act 1982 (the Civil Jurisdiction Act), the Magistrate
was bound to apply the
rules of evidence. The form of the application itself was not evidence, nor
were the allegations in it. Similarly,
the fact that an interim restraining
order was apparently made on an earlier date, was no part of the evidence
before the Magistrate.
The essential allegation which the Magistrate had to
determine was set out in the application and amounted to an allegation that
the respondent made a threatening telephone call to the appellant in the early
hours of 9 August 1997.

  

   5. The hearing commenced
by the Magistrate inviting the solicitor for the
respondent to open the case. This was an unusual course, since it is usually
the
party seeking an order who commences the case. However, in view of the
fact that the appellant was unrepresented, and the reliance
that the
Magistrate could no doubt place upon a member of the legal profession to state
concisely and fairly what he saw the issues
in the case to be, the course so
taken was not necessarily against the appellant's interests. There followed a
good deal of discussion
amongst those in court about what the case was about.
There was discussion of previous proceedings in particular, and eventually
the
Magistrate announced that he would not allow any evidence relating to anything
other than the events which were alleged to have
occurred on 9 August 1997.
There is no suggestion in the appeal that this was other than a proper ruling.

  

   6. The appellant
then gave evidence that on 9 August 1997 a message was
recorded on her telephone answering machine. She described the message,
accurately,
as a death threat. She produced the tape from the answering
machine. The tape was played out aloud in court, but not on the machine
upon
which it had been recorded simultaneously with the uttering of the words over
the telephone service. A transcript of what was
said was prepared by the
appellant from what she heard replayed on the answering machine. The
transcript appears in the appeal book.
Counsel on the appeal agree that it is
accurate. As I understand it, the transcript was not part of the evidence
before the Magistrate.
I have not heard the tape myself. The appellant gave
evidence before the tape was played in court that the voice she heard when she
played the tape on her answering machine was the voice of the respondent.

  

   7. Immediately after the playing of the tape in
court, there was an
exchange between the Magistrate and the appellant during which the appellant
said, "It's his voice, he's drunk
and he's staggering his words". The
solicitor for the respondent cross-examined the appellant. That
cross-examination went essentially
to establishing that the appellant had made
previous applications for restraining orders against various persons, all of
them apparently
persons living in the neighbourhood of the appellant. The
appellant acknowledged in the cross-examination that she had begun previous
proceedings of that nature. She also claimed that those proceedings were
brought initially by the other party and that she reciprocated
in each case.
The appellant was then cross-examined about entries in her diary, a copy of
which was in the possession of the respondent's
solicitor. This somewhat
unusual situation was explained at the appeal. I was told by the solicitor
that he had obtained the diary
himself from the respondent. In any event, the
cross-examination established that the diary recorded what the appellant
claimed was
harassing and annoying conduct on the part of the respondent on
previous occasions. The cross-examination appears to have been at
odds with
the Magistrate's ruling that he would not allow evidence of events on
occasions other than on 9 August 1997.

  

   8.
The appellant was asked as to how the respondent would have her
telephone number which was a silent or listed number. She said that
she had
given it to the respondent's daughter on her request.

  

   9. During cross-examination it was suggested to her that she
had no way of
knowing that the voice was that of Mr. Brice. She responded, "Yes, I do .....
Because it's his voice". It was not positively
put to her that the voice was
not or might not have been the voice of Mr. Brice.

  

   10. After the cross-examination the appellant
was invited by the Magistrate
to leave the witness box and she did so. She was not asked whether she wanted
to give any evidence
in the nature of re-examination.

  

   11. When the appellant had returned to the body of the court, the hearing
of the application
concluded as follows:

  

  

   "His Worship: That is all the evidence you have as I understand it in
relation to the identity
of the person who made the phone call?

  

   Ms. Preston: Yes your Worship.

  

   His Worship: Well I could not be satisfied
on that evidence Ms. Preston
that it was Mr. Brice. The application will be dismissed."

  

   12. The solicitor for the respondent
immediately made an application for
costs. His application for costs was found principally upon a submission that
the appellant was
vexatious and that a court order for costs against her would
"be a dissuasive factor" against the bringing of further proceedings
by her
against his client.

  

   13. The Magistrate asked the appellant if she wanted to respond, and the
final exchange between
them was as follows:

  

  

   "His Worship: Do you want to say anything about that Mrs. Preston?

  

   Ms. Preston: Your Worship,
you heard the tape. It was not vexatious. I was
fearing for my life and I still am.

  

   His Worship: Well I think the fact that
you put all of that material in an
application when it had already been considered by the Court and dismissed, I
think is vexatious,
Ms. Preston. The applicant is to pay a (sic) defendant
respondent's costs. Now we need to set some scale I suppose."

  

   14.
The appellant's case on appeal is essentially that on her uncontested
evidence it was the respondent's voice which she heard on the
answering
machine and that on that evidence the Magistrate was bound to make an order.

  

   15. The respondent's case on appeal
is that it was open to the Magistrate
to decide whether or not he accepted the evidence of the appellant to the
extent that it proved
on the balance of probabilities that the voice heard on
the answering machine was that of the respondent. There is no issue that
whoever spoke on the telephone in the early hours of 9 August 1997 had acted
in a way which deserved a restraining order to be made
against him.

  

   16. However, apart from what was argued on the appeal, there was a claim in
the notice of appeal that the appellant
had not received natural justice in
the court below. It is on this latter ground that I think the appeal should be
determined.


 

   17. The Magistrate appears to have dismissed the application in the belief
that the respondent had no case to answer. Otherwise
there is no explanation
for the absence of a call by the Magistrate upon the solicitor for the
respondent to indicate whether or
not he wished to call evidence on behalf of
the respondent. If there had been proper consideration of the no case issue,
it would
have resulted in a decision favourable to the appellant because it is
clear, in my view, that there was evidence before the Magistrate
that the
voice heard by the appellant was that of the respondent. The Magistrate should
not have determined at that stage whether
or not he accepted that evidence,
unless and until he had been told that the evidence was complete. These are
well established principles
endorsed by the High Court as long ago as May v.
O'Sullivan [1955] HCA 38;  (1955) 92 CLR 654 and followed by this Court in, for instance,
Myers v. Claudianos [1990] ACTSC 12;  (1990) 100 FLR 362.

  

   18. Moreover the appellant was not given the opportunity to address on
whether or not there was a prima
facie case. Perhaps, as a litigant in person,
she may not have known what to say if asked on that issue, but that is hardly
to the
point. The no case to answer issue needed to be addressed if the
application was to be dismissed without calling upon counsel for
the
respondent to indicate whether or not he wished to go into evidence. If the
issue had been addressed, perhaps both the Magistrate
and counsel for the
respondent would have realised, first, that there was evidence which, if
accepted, might entitle the applicant
to succeed, and, secondly, that the
application could not be dismissed until the evidence was complete.

  

   19. What effect the
respondent's evidence, if called, would have had is a
matter of speculation. However, bearing in mind the absence of such evidence,
the failure of counsel for the respondent to positively put to the appellant
in cross-examination that the voice was not that of
the respondent, and the
near absence of cross-examination on the appellant's capacity to recognize the
voice as that of the respondent
(together with the consideration that the
appellant was unrepresented), I am of the view that the Magistrate fell into
such procedural
error that the dismissal of the application was unlawful and
cannot be allowed to stand.

  

   20. Although the ground on which
I think the appeal should succeed was not
at the forefront of the submissions put on appeal, the notice of appeal is,
perhaps fortuitously,
wide enough to encompass it. The appropriate course
would, on the face of it, appear to remit the matter to the Magistrate for
further
hearing in accordance with these reasons. Unfortunately that would
involve further delay and costs in proceedings which the legislature,
in its
undoubted wisdom, intended to be cheap and quick. I indicated to counsel that
I would be glad to entertain any application
for some other appropriate
outcome and that I would also hear counsel on costs.

  

   21. Having heard counsel on these other matters,
it is, in my view,
relevant to observe that the threatening telephone call to the appellant was
made as long ago as 9 August 1997.
Despite the obvious long-standing and
continuing ill will between the appellant and the respondent, there is nothing
before me to
indicate that the appellant has any reasonable cause for
continuing to fear similar telephone calls, no matter who it was that made
the
call of which she reasonably complains. The making of a restraining order is a
discretionary matter, and even if the appellant
were to make out her case on a
further hearing, whether here or on remittal to the Magistrate, I think it
highly unlikely that a
restraining order would be appropriate at this stage of
the history of the relationship between the parties. The appropriate
disposition
of the matter is, in my view, to uphold the appeal, set aside the
Magistrate's order dismissing the application, but otherwise to
stand the
matter over generally not to be restored without the order of a Judge made on
notice of motion and supporting affidavit.

  

   22. I recommend the parties seek the assistance of the Dispute Resolution
Service provided free of charge by the ACT Government
before any application
is made to restore the matter for hearing. Speaking for myself I would be
reluctant to re-list the matter
until assured that the parties had taken the
advantage of such assistance and that such assistance had, unfortunately,
failed. No
doubt the case is of great importance to the parties, but
reasonable efforts must be taken by both sides to try to contain costs
and
demands on the time of the courts.

  

   23. It is necessary now to say something further about the question of
costs. Counsel
for the respondent applied for and obtained an order for costs
before the Magistrate. It follows from my setting aside the order
of dismissal
that the order for costs must likewise be set aside to await the final
determination of the application. To this it
must be added that I would set
aside the order for costs in any event on the material presently before me. I
will be brief but firm
in my reasons. The submission was put to the Magistrate
that costs should be awarded as a deterrent to further proceedings by the
appellant and that the appellant brought the application in question
vexatiously. In apparent acceptance of that submission, the
Magistrate stated
that part of the application was vexatious and he made the order for costs
against the appellant accordingly. However,
a conclusion that the application,
or any of it, was vexatious, was a serious conclusion and one that was not
justified on the paucity
of evidence available before the Magistrate. As to
the appellant being a vexatious litigant, that is not a matter for the
Magistrate,
but a matter for this Court and then only on application by the
Attorney-General or other holder of high public office. The respondent
might
be well advised to apply to the Attorney-General if his allegations have
substance, but I repeat that it is not a matter for
this Court at this stage
and not a matter for an adverse order for costs against the appellant unless
it was established on the evidentiary
material before the Magistrate that the
particular application was vexatious. There was an absence of such material.

  

   24.
Bearing in mind the relevant legislation, I would make no order as to
the costs of the proceedings before the Magistrate. As to the
appeal, however,
I have regard in particular to the letter written without prejudice save as to
costs by the appellant's solicitors
to the respondent's solicitors on 22
January 1998. That letter offered disposition of the matter between the
parties by mutual undertakings
and by each party shouldering his and her own
costs. That offer was rejected. It was a reasonable offer. The appeal has been
successful.
In my view the respondent should pay the appellant's costs of the
appeal.

  

   25. The formal orders of the Court are as follows:

  

  

   1. Appeal upheld.

  

   2. Decision of Magistrate on 22 September 1997 dismissing the appellant's
application and ordering
her to pay costs is set aside.

  

   3. Consideration of the making of further orders is stood over generally,
not to be re-listed
unless made upon the order of a Judge on notice of motion
and supporting affidavit. I direct the parties to seek the assistance of
the
ACT Dispute Resolution Service before re-listing.

  

   4. The respondent is to pay the costs of the appeal to date.

  


  5. No order as to costs of the application before the Magistrate.