Novotny v Cropley & Ors [2005] NSWCA 30 (18 February 2005)

CITATION: NOVOTNY v CROPLEY & ORS [2005] NSWCA 30

FILE NUMBER(S):

40368/04

HEARING DATE(S): 18 February 2005

JUDGMENT DATE: 18/02/2005

PARTIES:

Jiri NOVOTNY v Jennifer CROPLEY & ORS

JUDGMENT OF: Mason P Hodgson JA Santow JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/12/0365

LOWER COURT JUDICIAL OFFICER: Dodd DCJ

COUNSEL:

Appellant: In person

1st Respondent: S Duke (Sol)

2nd, 3rd, 4th Respondents: Submitting

SOLICITORS:

Appellant: Self

1st Respondent: McCabe Terrill

2nd, 3rd, 4th Respondents: I V Knight (Crown)

CATCHWORDS:

APVO hearing - procedural fairness - power to restrict unnecessary or inappropriate questioning - failure of opportunity to lead relevant evidence in Local Court - District Court's duty to consider issues in appeal to it. ND

LEGISLATION CITED:

DECISION:

See par 24

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40368/04

MASON P

HODGSON JA

SANTOW JA

Friday 18 February 2005

Jiri NOVOTNY v Jennifer CROPLEY & Ors

JUDGMENT

1 MASON P: On 9 December 2004 certain orders were made, the effect of which was to convert appellate proceedings into administrative law proceedings. The adjourned proceedings come before us today. The claimant is Dr Novotny, the first opponent is Ms Cropley, the second opponent is the District Court of New South Wales and the third opponent is the Local Court at the Downing Centre. The Crown Solicitor has filed a notice of submitting appearance on behalf of the two Courts. That has occurred after the Registrar of this Court served on the Crown Solicitor various documents including our reasons for judgment on 9 December 2004.

2 The two active parties to these proceedings, namely the claimant and the first opponent, are in substance in agreement that the orders made in the Local Court and the District Court should be quashed because of the procedural irregularities about which the claimant complains. Since however it is the practice of this Court in matters such as this to proceed on the basis of its own understanding and findings, not merely on the basis of the consent of the parties, it will be necessary for some brief summary to be given of the underlying facts. The practice to which I referred is discussed in Fleet v District Court of New South Wales [1999] NSWCA 363 at [59].

3 The claimant was a scientist employed by the Victor Chang Cardiac Research Unit until he resigned on 15 September 2002. The first opponent was a co-worker. In September 2003 the first opponent filed a complaint and summons in the Local Court at Redfern seeking an apprehended personal violence order (APVO).

4 The matter came on for hearing on a final basis on 3 February 2004 before O’Shane LCM. On that day the claimant represented himself and the first opponent was represented by counsel. The claimant contends that there was a significant denial of natural justice in that he was prevented from cross-examining the first opponent or leading evidence prior to the making of the APVO. The transcript of the proceedings on 3 February 2004 is in evidence before us.

5 The first opponent, who was the complainant seeking the APVO, was represented and she gave evidence. The claimant indicated to the Magistrate that he wished to cross-examine, and commenced cross-examination. The Magistrate made a number of interventions and rulings, about which there is no particular complaint, in which she indicated the particular lines of question were not to the point. The transcript can basically speak for itself, but from about page 19 onwards there was an exchange between the Magistrate and Dr Novotny about the lines of questioning which would be permitted and the type of matters that could be explored.

6 Dr Novotny made it fairly clear that he did not really dispute that there had been instances where he had approached Ms Cropley, but his point was that these approaches were innocent, non-confrontational and that after all they were co-workers. There was clearly an issue about this and it was a matter that the present claimant was entitled to have addressed in the context of the hearing which was, as I have indicated, a final hearing for an APVO.

7 After the luncheon adjournment (see page 26) the Magistrate asked Dr Novotny whether his case was basically to a certain effect. He indicated general agreement but said that he still wished to ask some further questions, the purport of which he endeavoured to explain to the Magistrate. He was at pains to reiterate that he was at his place of employment on some of the occasions about which issue was well and truly joined.

8 At page 28 the Magistrate said that she thought that what was wanted to be asked was not to the point and she refused to direct the witness to return to the witness box to be further cross-examined. She proceeded to interrogate Dr Novotny about certain matters which he answered. But she made it clear that she was not going to permit him to call the witnesses that he wished to call and, although it was clear that Dr Novotny himself wished to lead evidence from himself and others, the stage was reached where the Magistrate refused his right to do that.

9 She ruled at pages 31 and 32 that on the basis of the evidence before her and in light of the matters she had clarified by her interrogation, that she was satisfied on the balance of probabilities of the matters necessary to ground the final orders, and those orders were pronounced.

10 Undoubtedly a court has power, indeed a duty to restrict unnecessary, inappropriate and harassing lines of questioning. But this was a situation where in my view the Magistrate clearly went further without giving the present claimant the opportunity to lead relevant evidence. She curtailed the proceedings and moved to final judgment.

11 There was an appeal to the District Court which came on for hearing on 3 May 2004 before Dodd DCJ. The transcript of that appeal shows that at a very early stage the question of whether Dr Novotny could lead further evidence was itself an issue in those proceedings. The right of appeal as pursuant to section 562WA(2) of the Crimes Act 1900 and Part 3 of the Crimes (Local Courts Appeal and Review) Act 2001. On my understanding this is an appeal by way of rehearing on the transcript before the Local Court, subject to the District Court having a power to permit fresh evidence or further oral evidence.

12 Dodd DCJ questioned Dr Novotny about the further evidence that he wished to rely upon. There was debate about whether or not he had properly signalled his intention to adduce additional evidence and as to whether or not it was an appropriate case for the court to exercise its discretion for the trial transcript to be supplemented.

13 If matters had stayed there then it is arguable that this Court would not have had any capacity to have made orders directed at the decision of the District Court. What happened was that, as it became apparent that further evidence was not going to be permitted in the District Court, Dr Novotny made it crystal clear that one of his grounds of appeal to the District Court was that he had been denied natural justice in the Local Court.

14 On my reading of his Honour’s reasons at pages 16 and 17, the judge effectively sidelined that issue, relying upon his earlier ruling not to permit further evidence to be adduced. It seems to me that the problems inherent in the orders in the Local Court were not addressed by the manner in which the District Court purported to exercise its appellate jurisdiction. There was in effect a refusal on the District Court’s part to exercise its jurisdiction, that refusal being itself of a nature that would attract the supervisory jurisdiction of this Court.

15 Dodd DCJ ordered the present claimant to pay costs which were assessed at $3,300. Those costs were paid. As indicated in my reasons on the last occasion, the claimant does not seek to have that part of the District Court proceedings quashed, overturned or reversed, and the matter has proceeded in this Court in the non-conflicting way it has on that basis.

16 After the District Court proceedings there were various applications before different magistrates in the Downing Centre on various dates in 2004. In fact some of those dates occurred before the District Court hearing. These were applications to vary the details of the apprehended violence order that had been made initially by Magistrate O’Shane and confirmed in the orders made by Dodd DCJ. It would appear that the magistrates dealing with these applications in accordance with usual practice confirmed the continuing effect of the APVO, whether or not it was varied in any minor detail.

17 It is common ground between the active parties to the proceedings that any order of the Court should make it plain that the quashing extends to these ancillary orders as well. There is no suggestion that there was a fresh hearing or that any of the problems to which I have referred were in any way cured by these ancillary applications.

18 Assisted by the attitude of the first opponent but nevertheless satisfied on my own reading of the material, I conclude that this Court should quash all of the orders in the lower courts. I have indicated that the substantial reason was what became a want of procedural fairness in the proceedings before Magistrate O’Shane and what was in effect a failure to address in a substantial way the issues raised in the appeal to the District Court.

19 The quashing of course really puts the parties back in the position they were at the time of the hearing before Magistrate O’Shane.

20 It is not necessary to decide whether strictly speaking the proceedings then pending are the ones that would now be heard and determined, or whether in truth the proper way to go is for fresh substantive proceedings to be commenced. Either way the quashing orders that I am about to propose will clear the path for that matter to occur. The unfortunate consequence of the irregularities to which I have referred is that there will have to be a further substantive hearing in the Local Court at which evidence will be given as on a final hearing basis.

21 Prior to the hearing before Magistrate O’Shane there were interim orders in place in accordance with the legislative scheme. Ms Cropley through her solicitor has indicated that she wishes to effectively reactivate that regime and to obtain the interim protection given by the legislative scheme pending the substantive hearing that will have to now take place some time in the future.

22 There was some discussion about whether or not the claimant would give an undertaking to this Court. I do not think that is the way to proceed, this Court not being equipped to deal with enforcement other than by the very dramatic and drastic regime of contempt of court. In any event the claimant does not offer any undertaking, and I hasten to add he is not obliged to, as I see the matter.

23 The way I think the interests of both parties can be met, and it is a way that I understand is acceptable to both parties, albeit that it is recorded that Dr Novotny makes no admissions generally, is for the orders that I am about to propose to be suspended for a couple of days, up to a particular time at which arrangements have already been made for Ms Cropley to approach a chamber magistrate to seek to reinstate the interim APVO orders in her favour. That is the reason why the particular order I am about to suggest is framed the way it is.

24 For those reasons I propose the following orders.

1. Grant leave to the claimant to amend the summons filed on 20 December 2004 by deleting the third opponent.

2. Quash the apprehended personal violence order made by O’Shane LCM on 3 February 2004 at the Local Court Downing Centre.

3. Quash the orders including the apprehended personal violence order but excluding the costs order made by Dodd DCJ in the District Court on 3 May 2004.

4. Quash any apprehended personal violence order or confirmation of apprehended personal violence order made in the Local Court Downing Centre by Schurr LCM on 8 March 2004, Bradd LCM on 29 March 2004 and 4 May 2004, Lyon LCM on 19 April 2004, Carney LCM on 26 May 2004 and Haskett LCM on 23 June 2004.

5. Remit the complaint in the Local Court of New South Wales Downing Centre proceedings 20332793/03/2 to the Local Court of New South Wales Downing Centre to be determined by that court in accordance with law by a Magistrate other than O’Shane LCM.

6. Direct that the orders for quashing and remittal take effect on and from 11.30am on 22 February 2005.

7. Each party to these proceedings to pay his, her or its own costs.

8. Order that these orders be entered forthwith.

25 HODGSON JA: I agree.

26 SANTOW JA: I agree.

27 MASON P: Gentlemen, is there anything about the form of the orders about which you wish to raise any matter? Have we covered all bases?

28 CLAIMANT: Yes, I guess I do wish to mention that I consider the original orders also to be an abuse of law on the basis of too restrictive conditions.

29 HODGSON JA: That’s a matter you can raise. They have been quashed as from 11.30 next Tuesday or whatever it is.

LAST UPDATED: 09/03/2005