ADAMS v ROBINSON No. SCCIV-00-1208 [2001] SASC 35

1 GRAY J. This is an appeal against the refusal of a magistrate to grant a restraining order.

2 Deborah Jennifer Adams, the appellant, applied for an order against Kelly Ann Robinson pursuant to s 99 of the Summary Procedure Act 1921 (SA). The case was heard on 20 October 2000. The learned magistrate ("the magistrate") delivered ex tempore reasons. Both parties were unrepresented at trial and on appeal.

3 The application involved a long history of broken relationships between Ms Adams, Ms Robinson and others. Details of those relationships, and their relevant developments, are set out in the magistrate's reasons. Problems between Ms Adams and Ms Robinson began in 1996 and have continued. Considerable animosity exists between them.

4 The magistrate's reasons carefully trace the relevant history. They dealt with each incident said to support the making of an order. The provisions of the Summary Procedure Act were considered by the magistrate. He said:

"In assessing whether a restraining order should be made the Court is obliged of course to hear the evidence of the parties and determine whether intimidating or threatening behaviour has occurred and whether on the balance of probabilities an order is required to be made to prohibit or prevent the probable re-occurrence of such behaviour."

5 The magistrate reviewed all of the evidence. He explained the basis of his acceptance and rejection of that evidence. He concluded:

"Both the applicant and Ms Robinson have a strong point of view about the conduct, character and behaviour of the other. In my view neither point of view is at times particularly objective.

In my view a restraining order should not be granted in these circumstances. Ms Adams has failed to satisfy me that alleged incidents have occurred. Indeed I accept Ms Robinson's assessment that the recent contact between the parties has occurred as a result of litigation initiated by Ms Adams at which Ms Robinson was obliged to attend.

I cannot be satisfied that Ms Adams has pointed to any matters in addition to those rejected as being not proved that could give rise to the finding that Ms Robinson was likely to engage in any conduct that was likely to arouse in Ms Adams an apprehension of fear of intimidating or offensive behaviour. In the circumstances I am obliged to dismiss this application."

6 Ms Adams submitted that she was not accorded procedural fairness. She complained that the magistrate failed to:

- explain the manner in which the trial was to proceed, the order in which witnesses could be called, the right to cross-examine, and the right to call witnesses in rebuttal;

- advise of the "procedures relevant to the litigation, in particular the submission of relevant police incident reports";

- advise of the right to object to the tender of evidence;

- make available copies of the evidence presented;

- warn of the repercussions of not cross-examining an under aged witness;

- advise about seeking legal advice before proceeding;

- clarify the substance of submissions of the other party.

7 A review of the transcript shows that the magistrate was both helpful and patient with both parties.

8 Ms Adams demonstrated considerable ability in leading evidence from witnesses. She elicited evidence in a clear, coherent and orderly manner. The magistrate intervened on occasions, for example, to assist in clarifying possible hearsay issues. At one stage, during a debate concerning relevance, Ms Adams was able to justify her question.

9 At the conclusion of Ms Adams's case, the magistrate found a case to answer.

10 Ms Adams cross-examined Ms Robinson and her witnesses in an appropriate manner. She tested the evidence and put her case. In several respects, where the magistrate was concerned that Ms Adams's case had not been fully put, he did so on her behalf. On one occasion, he assisted her to put a document to a defence witness. He facilitated the leading of evidence by both parties.

11 The magistrate made it clear that he would not allow the proceedings to develop into a rehearing of earlier Family Court proceedings. In my view, he was correct.

12 The magistrate faced difficulty in determining a dispute between unrepresented parties. As was said in Neil v Nott[1] at 510:

"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."

13 The magistrate needed to be astute to ensure that the unrepresented parties were able to present their cases fairly. The role calls for patience and tolerance in difficult circumstances[2].

14 Ultimately, what was required of the magistrate was dependent upon the litigants, the nature of their case and their understanding of the issues.[3]

15 As Brennan J observed in R v MacPherson[4], any advice given to an accused:

"depends upon the circumstances of the particular case and of the particular accused. What can be said is that if it is necessary to give any advice, the necessity arises from the judge's duty to ensure that the trial is fair. That duty does not require, indeed it is inconsistent with, advising an accused how to conduct his case; but it may require advice to an accused as to his rights in order that he may determine how to conduct his case."

16 All such considerations are subservient to a magistrate's overriding duty to ensure that both parties are accorded a fair trial.

"In assessing the evidence I take into account that both parties have elected to proceed before the Court without representation of counsel. Perhaps therefore all of the pertinent matters that might have been put before the Court have not been put. There has been a large number of irrelevant matters brought up. I have endeavoured to give each party an opportunity to best present their case and if any irrelevant material has come forward in the evidence I have endeavoured to divorce it from my mind and only take into account matters which are legally pertinent."

18 I have reviewed the transcript of evidence, and the magistrate's ex tempore reasons. I have been unable to discern any basis for suggesting that Ms Adams was denied procedural fairness. No material was put before this court sufficient to justify any of her assertions.

19 Two documents were produced to the magistrate at trial, an affidavit and a letter. Neither was received as evidence. Ms Adams, the author of both documents, did not ask to see either of them. The magistrate returned both documents. He did not refer to them in his reasons. Ms Adams now complains that she was not shown the documents. In the circumstances, I do not consider her complaint valid. The Magistrate acted appropriately in the circumstances.

20 During the hearing of the appeal, Ms Adams sought to introduce evidence from her daughter and a police officer. No attempt was made to satisfy the rules for the reception of fresh evidence.

21 My inquiries of Ms Adams established that the proposed evidence was not fresh. It appeared, that she had made a decision not to lead the evidence at trial. Ms Adams also referred to a determination of the Police Complaints Authority concerning a complaint she had made. I do not consider this determination to be relevant. I decline to receive the proposed evidence.

22 It became apparent during the course of the appeal that Ms Adam's primary concern was to retrieve a copy of her affidavit from Ms Robinson. At my suggestion, Ms Robinson agreed to retrieve the document (apparently now held by a third party) and bring it into court. Ms Adams agreed that it could be held by the court, in a sealed envelope, with access being subject to the approval of a Judge or Master of the court. The document has now been produced. It has been sealed on the terms indicated.

23 All of the magistrate's findings were open on the evidence. The magistrate had the advantage of observing the witnesses and hearing their evidence. In my view, none of his findings as to credibility should be disturbed.

24 As was said by Brennan, Gaudron and McHugh JJ in Devries v Australian National Railways Commission[5]:

"More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbably'."

25 None of the grounds of appeal advanced by Ms Adams have merit. Accordingly, the appeal is dismissed.

1 [1994] HCA 23; (1994) 68 ALJR 509 at 510

2 Rajski v Scitec Corporation Pty Ltd NSW (CA) 16 June 1986 unreported

3 Abram v Bank of New Zealand (1996) 18 ATPR 41-507

4 [1981] HCA 46; (1980-1981) 147 CLR 512 at 547

[1994] HCA 23; (1994) 68 ALJR 509 at 510

[2] Rajski v Scitec Corporation Pty Ltd NSW (CA) 16 June 1986 unreported

[3] Abram v Bank of New Zealand (1996) 18 ATPR 41-507

[4] [1981] HCA 46; (1980-1981) 147 CLR 512 at 547