Alexander Marcel Andre Sebastian Bayliss v Sharon Elizabeth Kelley [2000] ACTSC 43 (24 May 2000)

Last Updated: 16 October 2000

Publication subject to any restrictions imposed by s 206P of the Magistrates Court Act 1930

ALEXANDER MARCEL ANDRE SEBASTIAN BAYLISS v SHARON ELIZABETH KELLEY

and

ALEXANDER MARCEL ANDRE SEBASTIAN BAYLISS v MICHAEL SHIHOFF

[2000] ACTSC 43 (24 May 2000)

CATCHWORDS

COURTS AND JUDICAL SYSTEM - Magistrates Court - application for an interim restraining order and final restraining order - succession of interim restraining orders issued - whether orders valid - interim restraining orders tainted by procedural irregularities - interim restraining orders invalid - no findings or reasons provided with final restraining order - record of evidence required to determine whether final restraining order valid

COURTS AND JUDICAL SYSTEM - Magistrates Court - application for an interim restraining order and final restraining order - succession of interim orders issued - whether orders valid - interim restraining orders tainted by procedural irregularities -interim restraining orders invalid - final restraining order purportedly made by Deputy Registrar and signed by Magistrate in chambers - final restraining order invalid - original application for restraining order remitted to the Magistrates Court

Magistrates Court Act 1930, ss197(1); 204, 205, 206C(1), (3)(c), and (4); 206H(3), (4) and (5); 206J; 206Q(2)

Childrens Services Act 1986, ss 80, 81

R v Andrew Nicholas Sarri [1999] ACTSC 109

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 76 of 1999

No. SCA 78 of 1999

Judge: Higgins J

Supreme Court of the ACT

Date: 24 May 2000

IN THE SUPREME COURT OF THE )

) No. SCA 76 of 1999

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: ALEXANDER MARCEL ANDRE SEBASTIAN BAYLISS

Appellant

AND: SHARON ELIZABETH KELLEY

Respondent

IN THE SUPREME COURT OF THE )

) No. SCA 78 of 1999

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: ALEXANDER MARCEL ANDRE SEBASTIAN BAYLISS

Appellant

AND: MICHAEL SHIHOFF

Respondent

ORDER

Judge: Higgins J

Date: 24 May 2000

Place: Canberra

THE COURT ORDERS THAT:

1. In respect of the Final Restraining Order obtained by Dr Shihoff, a record of the evidence presented at the Magistrates Court hearing be provided to the Court. The appeal is to be relisted for hearing upon that record being made available.

2. In respect of the Final Restraining Order obtained by Sharon Elizabeth Kelley, the appeal is allowed. The order made is set aside as invalidly made. The respondent's application for a Final Restraining Order is remitted to the Magistrates Court to be heard according to law.

1. This was the hearing of two appeals. Each of the respondents had applied for and obtained what were or, at least, purported to be, various restraining orders against the Appellant.

2. I will deal with the history of each matter separately.

Michael Shihoff (Dr Shihoff)

3. Dr Shihoff is a General Practitioner conducting, as he has done for many years, a medical practice at Lyneham in the Australian Capital Territory.

4. On 21 May 1999, Dr Shihoff applied for a restraining order (RO) against the respondent [the Appellant]. He complained, in his application form:

"I believe the Respondent [the Appellant] has ... stole (sic) property destroyed it and threatened me and my staff distressed and frightened my patients ...

...left bizzare (sic) literature

HAS STALKED me at Night

...Damage business cards of my (illegible) Dr (illegible)."

5. There is a record of an order made on 21 May 1999 by Special Magistrate Symons. It recited that:

"A. Oral evidence on oath was given before the Court by the Applicant in support of the Application.

B. The Court finds it necessary to ensure the safety of the Applicant, namely Dr M Shihoff, Dr Robyn Jenkins and the children [names and birthdates of children] and the staff of the Applicant at his medical practice at 62 Brigalow Street, Lyneham, called "Medical Centre Lyneham".

C. IT IS ORDERED THAT ... [eight orders according to pro forma with addresses and distances inserted]."

6. The order was expressed to be an Interim Restraining Order, to continue until 28 May 1999 at 4.00pm. It was made ex parte and without any notice having been given to the appellant.

7. A Deputy Registrar signed a notice of hearing addressed to the Appellant described as "Alex Baylis (sic) (Buchanan)" for 10.30am on 28 May 1999. However, s 199 of the Magistrates Court Act 1930 (Act (MCA) empowers the Registrar (or Deputy) to fix a return date for the application "not more than 2 days after the date on which the application is filed". The form of the application is, however, apparently at variance with this statutory requirement in that the return date specified is more than two days after the application was filed. It was not, on its face, given an immediate return date so as to permit adjournment of the application to a later date by a Magistrate.

8. There was, on 28 May 1999, no evidence of service upon or appearance by, the appellant. Dr Shihoff appeared. Special Magistrate Symons further adjourned the proceedings to 12.00 noon on 4 June 1999. It was directed that the IRO "continue" to 4.00pm on that day. It does not appear that any evidence was given that day, oral or otherwise.

9. On 4 June 1999, Dr Shihoff was linked by telephone to the Court. Again, there was no appearance by, or return of service on, the Appellant. The proceedings were further adjourned to 10.30am on 10 June 1999, with the IRO to "continue" until 4.00pm that day.

10. On 10 June 1999, a similar situation obtained. The proceedings were adjourned to 12.00 noon on 24 June 1999. The IRO was directed to "continue" to 4.00pm on that day.

11. The latter entry on the Bench Sheet was signed by Magistrate Doogan though the entry is in the same handwriting as that previously signed by Special Magistrate Symons. I assume the entries were written by a Registrar (or Deputy) and then signed by a Magistrate in chambers, presumably by way of approval of the orders thereby proposed by the Deputy Registrar who made the entry.

12. Magistrate Somes, on 24 June 1999, after a phone call from Dr Shihoff, adjourned the proceedings to 12.00 noon on 22 July 1999, and continued the IRO until 4.00pm on that day.

13. An affidavit of Service, dated 9 July 1999 records service on the Appellant on that day of a "Notice of Proceedings", "Interim Restraining Order" and "Application for Restraining Order".

14. The latter was a copy of the originating process filed on 21 May 1999.

15. The IRO, in the form in which it was served, though the various notes on the Bench Sheet merely referred to it as being continued, differed in some respects from that originally made by Special Magistrate Symons on 21 May 1999. The IRO served on 9 July 1999 was expressed, not as an order made on 21 May 1999 and thereafter continued in force, but as if it was an order made for the first time on 24 June 1999. It recited that evidence was, on 24 June 1999, given on oath. It records a finding, apparently made that day, that it was necessary to make the IRO "to ensure the safety" of the persons named therein.

16. Named therein, as aggrieved persons was not merely "the Applicant" (Dr Shihoff) but also one of the two children named in the original IRO made on 21 May 1999 as "the child" in orders one, two, four and five therein. The process by virtue of which the originally made order was varied does not appear.

17. Of more concern however, is that the order was expressed as having being made:

"Before a Deputy Registrar on the 24^th day of June, 1999 with the order being signed by Magistrate Somes, in chambers in the absence of the parties."

18. It was not expressed to be made "by consent" (nor was it).

19. The order was authenticated by the seal of the Court and the facsimile signature of a Deputy Registrar (the "D" having been accidentally omitted from that title).

20. That the order was made after a hearing before a Deputy Registrar, not a Magistrate, was further supported by the form of each of the "Notice of Proceedings" which had issued. Each, but for the relevant dates, contained the same statement ie:

"The Application has been set down for determination by the Registrar on ... (date) ..."

21. The Notice of Proceedings for 22 July 1999 was in that form. That was the "Notice of Proceedings" which was served on the appellant on 9 July 1999. It gave notice of hearing for 22 July 1999.

22. On 22 July 1999 a note on the Bench Sheet was made and signed by Magistrate Fryar. It records:

"Applicant in person & Resp in person.

Application adj to 28/10/1999 at 10.00am for H

IRO extended to 4.00pm on 28/10/1999

AFP to arrange service."

23. On 28 October 1999 a note is recorded on the Bench Sheet in two parts. The first reads:

"Applicant in person/ Resp in person

refer to Court."

24. The second reads:

"...RO. granted for 12 months to 28/10/2000 in terms of application dated 21 May 1999."

25. The terms of the order issued and authenticated by a Deputy Registrar, however, were not in accordance with the application nor with the IRO as first made by Magistrate Symons. It accorded with the IRO most recently issued rather than the earlier and different version.

26. An engrossed copy of the order of 28 October 1999 was served on the Appellant on 9 November 1999. It was recited as having been made:

"Before Magistrate Madden, in court on the 28^th day of October 1999."

27. The Notice of Appeal in this matter was filed on 27 September 1999. It complained of the IRO of 22 July 1999. However, it was clear that, on the hearing of the appeal, the Appellant wished to have each of the interim orders made declared invalid and to have the RO made on 28 October 1999 set aside.

28. The appellant was self-represented. The matter was conducted by Dr Shihoff (and counsel for Ms Kelley) on the basis that the Appellant should be permitted to raise such legal objections as there may be to the validity of the various orders made. Whilst s 206Q(2) of the Magistrates Court Act 1930 (ACT) (MCA) prohibits an appeal from the making of an IRO, it does not purport to prohibit (nor could it) the jurisdiction of this Court to declare such an order invalid (if it be so) for lack of jurisdiction to make it or voidable by reason of procedural unfairness (eg. lack of natural justice, bias, lack of reasons, unreasonableness etc.) - see s 48A Australian Capital Territory (Self-Government) Act 1988 (Cth).

29. Accordingly, I dispense with all procedural irregularities and defects of form including lack of appropriate written notices and applications. Time is extended so far as it needs to be.

30. That is necessitated not only because the appellant was unrepresented (so also was Dr Shihoff), but also, as all parties accept, because the Appellant suffers a form of brain damage as a result of trauma. Indeed, his behaviour in consequence of that brain damage may have contributed to the matters complained of by both Dr Shihoff and Ms Kelley. I do not thereby suggest lack of responsibility in the Appellant for any offence or misconduct which might be proved against him but it does make it reasonable to ensure that the underlying issues are given consideration despite procedural deficiencies in the originating process (see eg. Archbishop of Perth v AA-JC (inclusive) (1995) 18 ACSR 333).

31. Any issue as to criminal responsibility would, in any event, only arise if the Appellant is alleged to have breached any term of any of the orders in question. It is not so alleged. The challenge is to the validity of the orders. It is important for all parties to know whether they may act or refrain from acting in reliance on the terms of the restraining orders.

32. I turn now to the second matter.

Sharon Elizabeth Kelley

33. On 6 September 1999, Ms Kelley made application for a restraining order (RO) and an interim restraining order (IRO).

34. The grounds cited in the application as requiring relief were that the Appellant was believed by Ms Kelley to have:

* Caused personal injury and/or damaged property in that:

"vehicles parked at my [Ms Kelley's] property have been damaged upwards of $600.00 repairs needed, items taken from vehicles."

* Engaged in conduct of an offensive or harassing nature in that:

"He has approached my property over twenty times, has entered my yard, interfered with washing on my line, kept my property and myself under surveillance, caused me to be frightened by suddenly appearing late at night."

35. Magistrate Symons on that day made and signed a form of IRO. This was said to be based on "oral evidence on oath given before the Court by the Applicant" and the need "to ensure the safety of the Applicant".

36. A conference before a Deputy Registrar was listed for 13 September 1999 at 11.00am. The orders were to remain in force until 4.00pm that day.

37. Eight conditions were included in the order made (those were the conditions requested). They included a prohibition on the Appellant being in the suburb of O'Connor or at the O'Connor Shops (apparently on the assumption that the O'Connor shops might be in a different suburb). Ms Kelley then lived at O'Connor. However, unless other allegations were made to Magistrate Symons additional to those referred to in the application form (and there is no record of them), it is difficult to see how the width of that order could have been warranted, even if some order to ensure the safety of Ms Kelley was necessary.

38. The original Application, the IRO dated 6 September 1999 and a Notice of Proceedings for 13 September 1999 were served on the Appellant on 8 September 1999. The Notice of Proceedings advised that the "...Application has been set down for determination by the Registrar..."

39. On 13 September 1999, Ms McDonald, solicitor, appeared for Ms Kelley. There was no appearance for the respondent. The Bench Sheet records:

"RO for 12 months in accordance with the interim

AFP to arrange service."

40. The order, as issued and authenticated, recited by way of preamble that the order was made:

"Before a Deputy Registrar on the 13^th day of September, 1999 with the order being signed by Magistrate MADDEN, in chambers in the absence of the parties."

41. An authenticated copy was served on the Appellant on 24 September 1999. That same day he filed Notice of Appeal to this Court complaining of the making of that order. He also now challenges the making of the interim order and, for the reasons already given, that issue will also be considered.

42. The evidentiary material upon which the various orders were made is not disclosed. There is, in the papers appearing on the Magistrates Court file and remitted to this Court, a document, headed "Private and Confidential Report". It contains a stamped endorsement:

"UNDER NO CIRCUMSTANCES

SHOULD THIS REPORT BE

DISCLOSED TO THE RESPONDENT"

43. If that endorsement reflected some kind of suppression order made by a Magistrate of the material in it, there is no record of that order. It contains twelve pro forma paragraphs. Some of the information added to them could have come from Ms Kelley. Other information may have come from police or some other source. It is not clear if it was merely a briefing note to police serving the order or if it was directed to the Deputy Registrar who (it seems) heard the matter or to the Magistrate who signed the order. It would, however, be a grave breach of the rules of natural justice for such material to be disclosed to the Court but not to one of the parties.

The Making of the Interim Restraining Orders

44. The power to make interim restraining orders is contained in s 206C MCA. That provides (relevantly):

"(1) Where-

(a) an application has been made; and

(b) the court is satisfied that it is necessary, in order to ensure the safety of the aggrieved person, to make an interim restraining order;

the court may make an interim restraining order whether or not the respondent has been served.

(2) The court shall not make an interim restraining order unless the application is supported by oral evidence on oath given by the applicant or the aggrieved person.

(3) An interim restraining order-

(a) shall restrain the respondent from engaging in conduct on which the application is based and-

(i) if the conduct consisted of causing personal injury or damage to property - from threatening to cause further injury or damage; or

(ii) if the conduct consisted of a threat - from carrying out the threat;

(b) may prohibit the respondent from being on premises on which the aggrieved person resides or works or which the aggrieved person frequents; and

(c) shall not contain any other prohibition or condition specified in section 205 unless the court is satisfied, by reason of the circumstances of the case, that it is necessary to do so to ensure the safety of the aggrieved person."

45. Subject to that latter satisfaction the prohibitions or conditions may (additionally) prevent, conditionally or absolutely, a respondent:

* from being in a specified "locality"

* from approaching within a specified distance of the aggrieved person

* from contacting, harassing, threatening or intimidating the aggrieved person (personally or through another).

46. Also relevant is s 206H(3) and (4) MCA:

"(3) A interim restraining order remains in force for the period (not exceeding 10 days) specified by the court in the order.

(4) Where-

(a) the court adjourns the hearing of an application; and

(b) an interim restraining order is in force;

the court may, with or without hearing further evidence, extend the period for which the order remains in force until the date fixed for the further hearing of the application."

47. The effect of that latter provision is far from clear. It may be that s 266H(3) MCA governs the power conferred by s 206H(4). That would be consistent with a legislative policy of avoiding lengthy adjournments. On the other hand, there is no express legislative provision requiring a hearing of an application to be within a specified period from its filing. (cf. Childrens Services Act 1986 (ACT s 80(4) and 81). Whilst, no doubt, Magistrates making, or extending the period of IROs will give careful attention to the need to avoid lengthy adjournments of applications of this kind and will ensure timely review of the need to continue an IRO it seems to me likely that it was intended that the discretion conferred by s 206H(3) is subject to s 206H(4) rather than otherwise. It is unlikely that it was intended that the IRO should be reviewed each ten days and otherwise lapse.

48. It may be noted, from the terms of s 206C MCA (offences of breach of restraining orders), that an order is "in force" irrespective of service on the respondent or presence of the latter when made, though proof of one or other of those latter circumstances is necessary for a breach of an order to be an offence.

49. As Crispin J pointed out in R v Andrew Nicholas Sarri [1999] ACTSC 109, a Registrar (or Deputy) has no power to make an IRO. A Registrar (or Deputy) may make a consent order, even without formal admissions from the respondent by virtue of s 206 MCA (as now amended). Absent consent, and there was none forthcoming in this case (even if it be assumed that the Appellant was competent to give consent), there was no power vested in a (Deputy) Registrar to make an IRO.

50. A Magistrate (special or otherwise) has no power to make an IRO unless he or she is satisfied "by oral evidence on oath given by the applicant or the aggrieved person" (s 206C(2) MCA) that such an order is "necessary"(s 206C(1)). It does not appear whether, on 21 May 1999, Special Magistrate Symons was presented with any evidence, oral or otherwise, to justify the making of the order purportedly made that day.

51. It may be that the Deputy Registrar referred to in the authenticated copy of the order heard "oral evidence" as the form of the order suggests. If so, he or she had no business doing so. It is possible in some cases to refer a matter to a referee for report. Even then, a Magistrate must not only exercise a judicial discretion as to whether or not to adopt the report in whole or part but must also give the parties an opportunity to understand and dispute the same and the reasons for it. That procedure is not appropriate under s 206C(2) MCA nor does that subsection authorise it. It is quite clear. A Magistrate, in order to have the authority to make an IRO, must hear the oral evidence referred to in s 206C(2) MCA.

52. As Crispin J observed in Sarri (supra), the requirements of s 206C MCA are not "mere" technicalities:

"16 ...The making of an interim restraining order may have serious implications for the person against whom it is made. Furthermore, it may be made without the other person having the opportunity to be heard and in some cases without even knowing that an application for such order has been made. The decision to make such an order is a judicial one which has properly been entrusted only to magistrates."

53. I entirely agree.

54. There is a further implication from his Honour's observation. That is that the "oral evidence" must justify not only the making of "an interim restraining order" but also the various prohibitions and conditions specified in it. It would be an abdication of the judicial function for a magistrate simply to make an order in whatever terms may be sought, leaving it to a respondent to seek to modify the IRO later pursuant to s 206J MCA.

55. An IRO may only be made if it is necessary to do so "to ensure the safety of the aggrieved person". It may be inferred from s 206C(3) MCA that "safety" is not to be so narrowly construed as to exclude the safety of property as well as personal safety. Nor would I exclude from its ambit the mental harm to an aggrieved person from acts of "stalking" or other harassment. However, the evidence of the respondent's conduct must be such as to be capable not only of being categorised as having been a threat to person or property but also such as to endanger the future "safety" of the aggrieved person. It is the danger of such conduct or other proscribed conduct being engaged in the future which is restrained by the IRO. Even then, the conditions specified in the order must go no further than is "necessary" for the purpose of ensuring the "safety" of the aggrieved person. No jurisdiction is conferred to lay down conditions that are not, at least arguably, necessary for that purpose.

56. Subject to that limitation a factual or judgmental error in making such an order will not affect its validity. It is non-appellable (s 206Q(2) MCA).

57. The order may only protect an "aggrieved person". Section 196 MCA defines an "aggrieved person" as "the person in respect of whom, or in respect of whose property, conduct or alleged conduct was engaged in".

58. I now turn to the particular orders made in these matters.

Dr Michael Shihoff - Interim Restraining Orders

59. Dr Shihoff was the "Applicant". He was a person entitled to make such an application (see s 198 MCA) on his own behalf, and/or on behalf of another "aggrieved person", but if, and only if, that aggrieved person was "a relative" or a child under eighteen of whom the applicant then was a parent or guardian. A spouse does not fall within the definition of "a relative", though a parent, child, brother or sister does.

60. It follows that the application could have been made by Dr Shihoff on behalf of himself and his children but not his spouse, staff or partners. Insofar as the original IRO purported to be made on behalf of any of the latter persons it was invalid.

61. Some of the conduct alleged by Dr Shihoff, if proved, is capable of justifying an IRO. Some would not. The allegation of damage to business cards, on the face of it, was not an allegation of damage to property of Dr Shihoff. It seems, though the writing is unclear, to have been property of another doctor. It would be possible to base an order on stalking if s 206C(3)(c) MCA could be satisfied. Leaving "bizzare (sic) literature", not itself containing any threat, could not, in my view, qualify as a ground for an order unless it was part of a series of events, likely to continue, constituting such harassment or "stalking" that the aggrieved person's "safety" was put at risk.

62. Nevertheless, as I have said, in totality, depending on the factual particulars of it, the alleged conduct was such as might support some form of RO and, if s 206C(1) MCA was satisfied, some form of IRO.

63. The difficulty is that there is no record of what, if any, factual matters were deposed to by Dr Shihoff in his oral evidence supporting the making of an IRO. It is not possible to assess whether the alleged threats, destruction of property, harassment and "stalking" were, in fact, capable, if accepted as prima facie true, of justifying the making of an IRO in the terms in which it was made.

64. It is, however, not necessary to consider that issue in these proceedings even if it was possible to do so. That is because the order of 21 May 1999 is invalid on its face. It is not expressed to have been made by a magistrate who heard "oral evidence" in support of "the application" as required by s 206C(2) MCA. The purported continuations of that order are, accordingly, also invalid. There was, therefore, no order "in force" as at 28 May, 4 June or 10 June 1999 when the original IRO was purportedly continued.

65. Further, the order made (purportedly) on 24 June 1999 appears, in some respects, to be a fresh order not a continuation of a previous order. It also suffers from the fatal defect that it purports to be heard by a Deputy Registrar and signed by a magistrate (Magistrate Somes) "in chambers in the absence of the parties". It recites that the "Applicant" gave "oral evidence on oath" in support of the application. It is headed "amended order". The process by virtue of which it became amended is not recited (eg. application by the Appellant, or by Dr Shihoff). How it was amended (ie. what terms were altered) does not appear.

66. It appears from the Magistrates Court file that the order was "amended" in that all additional persons protected, other than the child, Ben, (dob 29 January 1984) were deleted from the scope of the order as it was originally expressed. There does not seem to have been filed or served an application for variation of the original interim order as required by s 206J MCA.

67. If the "amended order" was a new order, however, it also offended s 206H(3) (MCA). An original IRO may only be made so as to be in force for a period not exceeding 10 days. The hearing of the substantive application was, on 24 June 1999, adjourned to 22 July 1999. The period for which an existing IRO is in force may be extended under s 206H(4) MCA. However, as at the date that the order of 24 June 1999 was made there was no valid IRO then in force. Nor had there been any order made even purporting to extend the period of the order of 24 June 1999 beyond ten days.

68. The fact that the Bench Sheet refers to the appearance of Dr Shihoff by phone and notes "I.R.O. to continue" makes it probable that there was no new order. The order of 24 June 1999 can only be construed as a purported extension of an existing invalid order in reliance on s 206H(4) MCA after purporting to vary its terms pursuant to s 206J MCA. The order as officially recorded is not, however, consistent with that construction.

69. The order which was issued and served, purporting to be the order made on 24 July 1999, therefore, was also invalid.

70. In any event, the grounds upon which it was thought necessary to amend the order are not recorded. It is impossible to discern what factual grounds supported the amendment of the IRO previously purportedly made.

71. On 22 July 1999, after service of the original application and the purported IRO, both parties appeared. A date for hearing was set. The purported further continuation of the IRO on 22 July 1999 was also invalid for the reasons already given. Had there been a valid order then in force, it would have been possible for an extension of it to be granted without further evidence being given. How that could be done on any rational basis, without knowing what facts had been given in evidence already or what, if anything, had since occurred of any relevance, however, is difficult to understand. A decision of that kind, including a decision not to require further evidence, can only be made judicially. It is not apparent that there was any consideration given by any judicial officer to the question whether those decisions should have been made

72. The substantive application was heard on 28 October 1999. It appears that it went first before a Deputy Registrar. No doubt the possibility of a consent order was explored. It was then referred "to court" ie. to a magistrate, to consider whether a final (ie. up to twelve months) RO should be made.

Ms Sharon Kelley - Interim Restraining Order

73. The IRO was made by a magistrate (Special Magistrate Symons). The "evidence on oath" referred to in the IRO as issued was, apparently, given before her, not a Deputy Registrar.

74. However, the content of that evidence does not seem to have been recorded. At least, there is no record of that evidence on the Court file. The allegations made in the application, if supported by such evidence, would be capable of supporting the imposition of some, at least, of the conditions forming part of the order.

75. Whether or not any IRO was warranted depended on the content, if any, of the evidence referred to in the IRO as having been given on oath. However, mere error of fact or judgment would not render such an order invalid (It is not appellable, see s 206Q(2) MCA).

76. The allegations made by Ms Kelley, whilst they could be described as involving damage to property and trespass, did not involve injury to the person nor any threat thereof, save insofar as the harassment complained of might cause or exacerbate psychological injury to Ms Kelley and thus threaten her "safety".

77. An order, insofar as it goes beyond what is capable of being regarded as "necessary" to ensure the "safety" of the aggrieved person is not authorised by s 206C MCA (whether, assuming it is possible to form such a judgment, such an order ought to be made, is not an issue which can be considered in these proceedings by reason of the terms of s 206Q(2) MCA (supra).

78. In the absence of any record of the evidence given by Ms Kelley, the question whether there was, in law, any arguable necessity for the terms of the IRO made cannot be determined.

79. It is, therefore, not possible to declare the IRO made on 6 September 1999 to be invalidly made without knowing what evidence was given and what reasons her Worship expressed for making the decision to issue it in the terms in which she did. The apparent width of some of those terms do raise doubts as to whether they could be warranted.

80. There is, however, no need further to inquire into that issue as the order ceased to be in force, either on the making of an RO on 13 September 1999 (if that latter order was validly made) or after ten days had elapsed from the date it was made even if the RO was not validly made (see s 206H(5) MCA).

The final Restraining Orders

81. The power to make a final RO (ie. for a period of up to twelve months) is contained in s 197 MCA. That section provides:

"(1) The Court may, on application and if satisfied on the balance of probabilities that-

(a) the respondent has caused personal injury or damage to property and, unless the respondent is restrained, the respondent is likely to cause further personal injury or damage to property;

(b) the respondent has threatened to cause personal injury or damage to property and, unless the respondent is restrained, the respondent is likely to carry out the threat; or

(c) the respondent has behaved in an offensive or harassing manner;

make an order restraining the respondent from 1 or more of the following:

(d) causing personal injury or damage to property;

(e) threatening to cause personal injury or damage to property;

(f) behaving in an offensive or harassing manner;

and may impose 1 or more of the prohibitions and conditions specified in section 205."

82. It does not follow that because a respondent to an application has (on the balance of probabilities) behaved in the manner referred to in s 197(1)(a), (b) and/or (c) MCA, that each of the orders referred to in s 197(d), (e) and (f) MCA should be made. Nor does it follow that each of the prohibitions and conditions referred to in s 205 MCA should be imposed.

83. The requisite nexus between the proven conduct and the form of the orders to be made is prescribed by s 204 MCA, that section provides:

"(1) When determining an application, the court shall have regard to the following:

(a) the need to ensure that the aggrieved person is protected from violence, threats or harassment;

(b) the welfare of a child affected, or likely to be affected, by the respondent's conduct;

(c) the need to ensure that property is protected from damage;

(d) any other matter that the court considers relevant.

(2) The court shall regard the matters specified in paragraphs 1(a) and (b) as being of primary importance."

84. The function of making a final RO is a judicial one. The observations of Crispin J with respect to IROs are equally applicable, if not more so, to final ROs.

Dr Michael Shihoff - Restraining Order

85. The order was made by Magistrate Madden. Both parties were before the court. The order is, therefore, apparently, validly made. No defect appears on its face. The form of the order appropriately recites the process by which it was made. There is, however, no record of what, if any, evidence was presented, what findings were made or what reasons were given for the RO being pronounced in the form in which it was.

86. Whilst the allegations made in the application, if proved, might well warrant some form of restraining order, it is necessary that a record of the evidence given be produced in order that a conclusion can be formed as to whether the making of the order was or was not warranted (this appeal is, after all, by way of rehearing). Further, it is a requirement of natural justice that allegations made and evidence given at any exparte application be recorded and notified to a respondent before the final hearing. That includes any "confidential" material unless there are proper grounds for the suppression of some or all of such material (eg. the name of a confidential informant).

87. In the event that any of these requirements are not met, the order made will be voidable. In any event, this Court must be satisfied that it was right to make the order in the form in which it was made, after giving due weight to the findings made and conclusions formed by the learned Magistrate who made the order. If this Court is not so satisfied it must set the RO aside.

88. I will give the parties an opportunity to be heard as to these issues.

Sharon Elizabeth Kelley - Restraining Order

89. On its face, the order was invalidly made. In form, it purports to be made by a Deputy Registrar, being signed in Chambers by a Magistrate in the absence of the parties. It must be set aside. Ms Kelley's application, however, may well have merit in the sense that the allegations made by her, if proved, may justify the making of some form of RO. Accordingly, her application for an RO is remitted to the Magistrates Court to be heard according to law.

I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins.

Associate:

Date: 24 May 2000

The Appellant appeared in person

Counsel for the Respondent (Kelley): Mr Claxton

Solicitor for the Respondent (Kelley): Stilling & Associates

The Respondent (Shihoff) appeared in person

Date of hearing: 13 December 1999

Date of judgment: 24 May 2000