Appeal - Restraining Orders Act 1997 (WA) - Whether there is a right of appeal from a decision under s 42(1)(a) - Application to extend time to appeal - Principles to be applied

Magistrates Court (Civil Proceedings) Act 2004 (WA) s 40(3)

Restraining Orders Act 1997 (WA) s 42, s 43A, s 64

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172

Brocklehurst v Wolinski [2015] WADC 36

Butler v Bennett [2007] WADC 107

Dincer v Giancristofaro [2015] WADC 49

Glew v Frank Jasper Pty Ltd [2010] WASCA 87

House v R [1936] HCA 40; (1936) 55 CLR 499

Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338

Jones v Darkan Hotel [2014] WASCA 133

Laurent v Fates [2015] WASCA 226

Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65

Rayney v AW [2009] WASCA 203

Simonsen v Legge [2010] WASCA 238

Smart v Prisoner Review Board (WA) [2012] WASC 48

Tobin v Dodd [2004] WASCA 288

1 GETHING DCJ: Since the beginning of February 2015, the appellant, Fay Marie Armstrong, has been endeavouring to obtain a violence restraining order against the respondent, Caroline Saxby. The net result of a number of hearings in the Magistrates Court, in particular hearings which she did not attend, is that her application stands dismissed. By appeal notice filed 10 February 2016, Ms Armstrong commenced an appeal in this court. This is the second appeal to this court in relation to the matter, the first being dismissed by Eaton DCJ on 10 August 2015.

2 By application filed on 12 April 2016, Ms Saxby applied for orders that the appeal be struck out for want of jurisdiction. This application was listed for hearing before me on 20 May 2016.

3 For the reasons that follow, I am of the view that the District Court has no jurisdiction to hear the appeal, and it should be struck out.

4 In order to deal with the application, it is necessary for me to review the history of the matter.

5 The application for a violence restraining order was commenced by application dated 2 February 2015.

6 The same day, Ms Armstrong gave evidence before Magistrate Cicchini. The magistrate was satisfied that there may be some foundation for the making of a violence restraining order. The magistrate adjourned the matter to 3 March 2015 at 9.30 am, and issued a summons requiring Ms Saxby to attend on that day.

7 On 3 March 2015 the application came on for hearing before Magistrate Wheeler. For reasons which I do not need to go into, Ms Armstrong did not attend this hearing. The magistrate dismissed the application, and awarded Ms Saxby $1,000 by way of costs.

8 On 23 March 2015, Ms Armstrong filed an appeal notice in the District Court in relation to the decision of Magistrate Wheeler on 3 March 2015 (being appeal APP 23 of 2015). After some interlocutory hearings, the appeal was considered by Eaton DCJ on 10 August 2015 on an application by Ms Saxby to strike out the appeal. Ms Armstrong appeared in person at this hearing. Ms Saxby did not appear in person, but was represented by her lawyer. Judge Eaton struck out the appeal, delivering ex tempore reasons (the transcript of these reasons is annexed to the affidavit of Warnar Geert Spyker sworn 7 April 2016 and filed in support of the strike-out application in this appeal). The reason for striking out the appeal was that the District Court did not have jurisdiction. The reasons of Eaton DCJ may be summarised as follows:

(a) the appeal jurisdiction in Restraining Orders Act 1997 (WA) (ROA), so far as is relevant, only allows a person aggrieved by the decision of the Magistrates Court 'in relation to a final order' to appeal against that decision to the District Court (ROA s 64(1)(b));

(b) in the present case, Ms Armstrong's application was dismissed pursuant to ROA s 42(1)(a) on the ground that, having been notified of the hearing, she did not attend the hearing;

(c) a dismissal of an application pursuant to ROA s 42(1)(a) is not a 'final order' which may be the subject of an appeal to the District Court; and

(d) in any event, ROA s 43A allows an applicant to apply to set aside a decision dismissing the application pursuant to ROA s 42(1)(a).

9 Ms Armstrong returned to the Magistrates Court. By application filed 31 August 2015, she applied to set aside the dismissal of her application for a violence restraining order. She filed an affidavit in support of the application, sworn 31 August 2015. This application was listed for hearing on 2 October 2015.

10 The hearing date of 2 October 2015 was not one on which counsel for Ms Saxby was available. At a hearing on 29 September 2015, the hearing date of 2 October 2015 was vacated, and the application relisted to 16 October 2015.

11 By letter to the Magistrates Court dated 16 October 2015, and sent by facsimile, Ms Armstrong advised the court that she was not able to attend the hearing on 16 October 2015 'due to illness'. Her application was adjourned to 20 November 2015.

12 The application came on for hearing on 20 November 2015 before Magistrate Huston. Ms Armstrong did not attend the hearing. It appears from the transcript that on 20 November 2015 at 9.24 am Ms Armstrong telephoned the Magistrates Court and advised that:

She will not be attending court due to waking up with flu like symptoms and is feeling unwell. Will see the doctor today and send through a medical certificate as soon as possible. Requesting an adjournment.

13 The magistrate noted that this was the third time in the application to set aside the dismissal in which Ms Armstrong had failed to appear due to medical reasons, the prior two dates being 2 and 16 October 2015. I interpose here to note that, on my review of the file, the 2 October hearing was moved at the request of Ms Saxby's lawyer. The magistrate provided oral reasons, setting out the history of the matter. The magistrate then stood the matter down until 2:15 pm. During this time, the court did not receive any documentation from any medical practitioner or nurse practitioner on behalf of Ms Armstrong. Upon the court reconvening, the magistrate refused the application to set aside the orders made on 3 March 2015 pursuant to ROA s 43A, again articulating his reasons in open court, which are recorded on the transcript ('20 November Decision').

14 By a fresh application, dated 9 December 2015, Ms Armstrong again sought an order in the Magistrates Court setting aside the dismissal of her violence restraining order application. She filed an affidavit in support, sworn 9 December 2015. That application was listed for hearing on 30 December 2015.

15 The hearing on 30 December 2015 was again before Magistrate Huston. The magistrate noted that the court had received an email from Ms Saxby's lawyer stating that he was not able to attend court on that date. The magistrate adjourned the application to 20 January 2016.

16 On 20 January 2016 the application came before Magistrate Malone. Ms Armstrong appeared in person. Ms Saxby was represented by her lawyer. The magistrate dismissed the application.

17 As I have noted, by appeal notice filed 10 February 2016, Ms Armstrong sought to appeal from the decision of Magistrate Huston dismissing the application to set aside the restraining order. On its face, the appeal notice states that no extension of time is needed. However, given that the decision of Magistrate Huston under appeal was made on 20 November 2015, it is clear that the appeal was brought longer than 21 days after the decision, and that leave is required.

18 At a directions hearing on 5 April 2016, the issue of whether the District Court has jurisdiction to entertain the appeal under the ROA was listed for hearing before a judge on 20 May 2016 at 11.30 am. The court ordered Ms Saxby to file and serve any application that the appeal be struck out by 3 May 2016.

19 By application dated 7 April 2016, and filed on 12 April 2016, Ms Saxby applied for orders that the appeal be struck out for want of jurisdiction. Ms Saxby asserts that a refusal to set aside the dismissal of an application pursuant to ROA s 43A is not a 'final order' which may be the subject of an appeal to the District Court.

1. Is the 20 November decision one which Ms Armstrong may appeal to the District Court?
2. If it is, should she be granted leave to appeal out of time?

21 In dealing with these issues, I am cognisant of the fact that Ms Armstrong is a litigant in person. Especially with the extensive procedural history of this case, she should be afforded some latitude. Accordingly, I have approached the documents in which she articulates her appeal with some flexibility: Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J). She is entitled to some leniency in relation to compliance with the court rules: Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (reasons of the court). I need to be astute to ensure that, in a poorly expressed or unstructured document setting out her case, there is no case which, with appropriate amendment or permissible assistance from the court, could be put into proper form: 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). At the same time, I also need to ensure that any latitude given to Ms Armstrong is not unfair to Ms Saxby: Glew [10]; Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51] (judgment of the court).

22 At the hearing before me on 20 May 2016, there was an issue as to whether Ms Armstrong had received the service copy of the application to strike out the appeal for want of jurisdiction. Ms Armstrong also expressed a preference to make her submissions in writing. Accordingly, I allowed some time after the hearing for her to file and serve any further affidavit and written submissions in opposition to the application, and allowed Ms Saxby the opportunity to respond. I advised the parties that once this material was filed, I would finalise the application by way of written reasons.

23 Ms Armstrong filed a further affidavit sworn 26 May 2016. In it she stated that she had provided medical certificates to the Magistrates Court for each occasion she notified them she was sick. She also deposed that she had contacted the Fremantle Community Legal Centre for advice and, as at the date of swearing the affidavit, was awaiting a phone call from them.

24 Counsel for Ms Saxby filed submissions in response, dated 31 May 2016.

25 Given the history of the application and appeal, and the reasons which follow, I do not consider that I need to afford Ms Armstrong any further procedural fairness by way of a further adjournment to obtain legal advice.

Is the 20 November decision one which Ms Armstrong may appeal?

26 The decisions that may be the subject of an appeal to the District Court are set out in ROA s 64(1), as follows:

(1) A person aggrieved by the decision of a court -

(a) under section 23(1)(b) or 29(1)(b) to dismiss an application; or

may appeal against that decision in accordance with this section.

(a) made at a final order hearing; or

(b) that becomes a final order under section 32; or

(ba) made under section 40(3); or

(bb) made under section 41(1) at a mention hearing with the consent of the respondent; or

(c) made under section 49(1)(b) to vary a final order, being a replacement or additional final order made under that section; or

(d) that is a final order under section 63(4a) or 63A(3).

29 'Restraining order' is defined in ROA s 3 as a 'violence restraining order or misconduct restraining order'.

30 It is evident that the refusal by the court to make a restraining order is only able to be the subject of an appeal in the limited circumstances set out in ROA s 64(1)(a). There is no express statutory right to commence an appeal to the District Court from a decision pursuant to ROA s 43A to refuse to set aside a dismissal pursuant to ROA s 42(1)(a).

31 In Laurent v Fates [2015] WASCA 226 the Court of Appeal considered the issue of whether there is another basis aside from ROA s 64(1) on which an appeal could be brought in relation to an application under the ROA. In that case, the appellant, Mr Laurent, applied for a misconduct restraining order under the ROA. At an interlocutory stage, a magistrate struck out the application as being an abuse of process on the ground that it was outside the jurisdiction of the ROA and was frivolous and vexatious. Mr Laurent appealed to the District Court. The respondents applied to strike out the appeal on the ground that Mr Laurent had no right of appeal under ROA s 64. Birmingham DCJ found that Mr Laurent had no right of appeal and struck out the appeal. Mr Laurent appealed to the Court of Appeal. The Court of Appeal issued a notice to Mr Laurent to show cause why the appeal should not be dismissed pursuant to Supreme Court (Court of Appeal) Rules 2005 (WA) r 43(2)(g)(i). Following a hearing, the Court of Appeal struck out the appeal (McLure P and Murphy JA delivering joint reasons).

32 Three of the grounds of appeal were to the effect that Birmingham DCJ erred in dismissing the appeal on the basis that Mr Laurent had no right to appeal. The Court of Appeal could not conclude that these grounds had no reasonable prospect of success. However, the Court of Appeal nonetheless struck out these grounds on the basis that, even if they did have a reasonable prospect of succeeding, no miscarriage of justice would occur by striking them out (Laurent [52] - [53]).

33 The genesis for the argument that there may be a right of appeal stems from the fact that there is no power in the ROA to strike out an application as being an abuse of process. The power existed in either Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA) s 17(1)(d) (if the application for the misconduct restraining order could be regarded as a 'case statement' for the purposes of that paragraph) or in the implied power in the court to deal with an abuse of its process: Laurent [48]. An application under the ROA is, arguably, in the civil jurisdiction of the Magistrates Court: Laurent [45] - [47]. If this is correct, then a right of appeal exists to the District Court pursuant to MCCPA s 40.

34 In the present appeal, the decision under appeal, the 20 November Decision, was made pursuant to ROA s 43A. There is no basis for a submission that the 20 November Decision was made either under the MCCPA or using some implied power. There is thus no basis for the argument that Ms Armstrong may use the right of appeal in MCCPA s 40.

35 The fact that there is no express right of appeal in relation to a decision under ROA s 43A does not mean that a person aggrieved by a decision under that section has no avenue to have the decision reviewed by a superior court. Magistrates Court Act 2004 (WA) s 36 empowers a person who is aggrieved by a decision of the Magistrates Court to apply to have the decision reviewed by the Supreme Court. The review is in the nature of a judicial review, which is concerned solely with the legality of the decision, and is not a review or appeal on the merits: see generally Rayney v AW [2009] WASCA 203 [25] - [27] (McLure P, with whom Buss and Newnes JJA agreed). The existence of this parallel right of review undermines any argument that the limited right of appeal in ROA s 64(1) should not take effect according to the plain language of the section.

36 The plain language of ROA s 64(1) means that there is no right of appeal to the District Court from a decision of a magistrate pursuant to ROA s 43A. Accordingly, the District Court does not have jurisdiction in relation to the present appeal, and it should be struck out.

Should Ms Armstrong be granted leave to appeal?

37 In the hearing on 20 May 2016, Ms Armstrong foreshadowed an appeal to the Court of Appeal should this decision go against her. Accordingly, and given the inconclusive observations about the scope of the District Court's appeal jurisdiction in Laurent¸ in case I am wrong about the issue of jurisdiction, it is appropriate for me to express a view on whether, if the District Court did have jurisdiction, I would have been prepared to grant her leave to appeal out of time.

38 ROA s 64(2) relevantly provides that if the decision was made by the Magistrates Court, the appeal is to be made in accordance with MCCPA pt 7. MCCPA s 40(3) (which is in pt 7), provides that an 'appeal cannot be commenced more than 21 days after the date of judgment, unless the District Court gives leave to do so'. Thus, Ms Armstrong was required to have commenced the appeal from the decision of Magistrate Huston on 20 November 2015 by 11 December 2015. The fact that she did not means that she needs leave to commence the appeal out of time.

39 The principles governing the grant of an extension of time within which to commence an appeal in the Court of Appeal were considered by that court in Simonsen v Legge [2010] WASCA 238 [8] (judgment of the court):

The relevant matters to consider when a party seeks to extend the time for filing its notice of appeal include the following:

(a) on the expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for an extension of time is granted: Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, 459;

(b) the grant of an extension of time under the rule is not automatic; the object of the rule permitting extensions of time is to ensure that the rules which fix time for the doing of acts do not become instruments of injustice; and the discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties: Gallo v Dawson (459);

(c) nevertheless, the rules of court must, prima facie, be obeyed, and in order to justify a court in extending the time, there must be some material upon which the court can exercise its discretion: Gallo v Dawson (459);

(d) there are, generally, at least four major factors to be considered, although they are not necessarily exhaustive in each case:

(iii) the prospects of the applicant succeeding in the appeal; and

(iv) the extent of any prejudice to the respondent: Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, 198; In de Braekt v Powell [2007] WASCA 55 [11]; [2007] WASCA 55; (2007) 33 WAR 389;

(e) other factors may include whether the delay was intentional, or contumelious, or merely the result of a bona fide mistake or blunder, and whether the delay is that of the litigant or of its lawyers with which the litigant should not be saddled: City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120 [33];

(f) the length and reasons for the delay must be addressed by the applicant and the cogency of the explanation increases as the period of the extension sought increases: Girando v Girando (1997) 18 WAR 450, 454;

(g) in relation to the third matter referred to in subpar (d) above, the time for appealing will not be extended unless the proposed appeal has some prospect of success; the converse of that proposition is not that time must be extended if an appeal has any prospect of success, but rather, the fact that an appeal has some prospect of success is a factor which is to be taken into account, together with all other relevant factors: City of Canning v Avon Capital Estates (Australia) Ltd [17]; and

(h) similarly, it is not the law that, whenever an applicant demonstrates an arguable case, or even a strongly arguable case, in the absence of significant prejudice suffered by the respondent, an extension of time should be granted: City of Canning v Avon Capital Estates (Australia) Ltd [16].

40 These principles are apposite to an appeal to the District Court from the Magistrates Court: see for example, Dincer v Giancristofaro [2015] WADC 49 [8] - [11] (Bowden DCJ).

41 There are four factors in favour of the grant of leave.

42 First, the delay was in the order of six weeks (11 December 2015 - 10 February 2016, excluding the Christmas period). However, as counsel for Ms Saxby observed, whilst this may not be a long time in ordinary civil litigation, it is in the context of an application for a violence restraining order.

43 Second, as I have noted, as Ms Armstrong is a litigant in person, she is entitled to the latitude that I have set out above ([21]).

44 Third, there is no evidence that the delay in commencement has caused Ms Saxby any specific prejudice. She has, however, had the application hanging over her for over a year. Further, she has had to pay for counsel to appear on her behalf on 11 occasions, five in the Magistrates Court and six in the District Court.

45 Fourth, the reason for the delay seems to be that Ms Armstrong was attempting to have the matter resolved in the Magistrates Court, no doubt wary of commencing an appeal in the District Court which would be struck out as the last one was.

46 There is one compelling reason why leave should not be granted. This is that Ms Armstrong has little, if any, prospect of succeeding in the appeal.

47 The appeal is by way of a 'reconsideration of the evidence' that was before the Magistrates Court: DCR r 50(1). Unless the court gives leave, the appeal is to be determined on the evidence before the magistrate: DCR r 50(2). The court is not to grant leave unless satisfied that there are special reasons for doing so: DCR r 50(3). No order has been made in the present appeal granting Ms Armstrong leave to adduce further evidence.

48 An appeal by way of a reconsideration of the evidence is to be undertaken by way of a rehearing: Brocklehurst v Wolinski [2015] WADC 36 [14] (Derrick DCJ); Butler v Bennett [2007] WADC 107 [6] - [10] (Bowden DCJ). Thus, the appellate powers of the District Court are only exercisable if the appellant, Ms Armstrong, demonstrates that the decision made by the magistrate the subject of the appeal was the result of some legal, factual or discretionary error: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23] (Gaurdon, McHugh, Gummow and Hayne JJ). The onus is on Ms Armstrong as the appellant to demonstrate this error: Jones v Darkan Hotel [2014] WASCA 133 [31] (judgment of the court). Where, as in this case, the decision under appeal involves the exercise of a discretion, Ms Armstrong must show that some error was made in exercising the discretion; it is not sufficient for her to show that the discretion could have been exercised in a different way: House v R [1936] HCA 40; (1936) 55 CLR 499, 504 - 505 (Dixon, Evatt and McTiernan JJ).

49 The grounds set out by Ms Armstrong when she made her initial application on 2 February 2015 are:

Vexatious.

Stalking (watching my movements).

Harrassment [sic] (ignoring my letters).

Intimidation (making false allegations).

Threatening.

Creating a public nuisance (by coming to my property periodically) Talking loud in the street.

It is alleged that Caroline Saxby breached the Privacy Act (by divulging personal contents about a letter she plans to give me) to another party.

Caroline Saxby is trying to prevent me from taking action against 1 or possibly 2 of the doctors at South Lake Medical.

50 Ms Armstrong gave evidence under oath to Magistrate Cicchini on 2 February 2015. The following facts emerged. Ms Saxby is the manager of the South Lakes Medical Centre (Centre). Ms Armstrong has been seeking her medical records from the Centre, and by that time had written a number of letters to Ms Saxby. She had a lot of difficulty dealing with Ms Saxby in trying to get the records. The catalyst for the application appears to be that on the preceding Thursday and Friday the police had attended her house. She was not home when they came, but they left a card in her door for her to call them. When she rang the police, she was requested to go to the police station to collect the medical records. She stated that Ms Saxby was with the police when they attended her house. Ms Armstrong was told that Ms Saxby had to be present when she collected the records. It appears that Ms Saxby had involved the police in the endeavour to get the records to Ms Armstrong out of a concern that Ms Armstrong was stalking her. The police told Ms Armstrong that she was 'unwelcome at the clinic' (ts 4). In the end, Ms Armstrong did not obtain her medical records by this means.

51 Ms Armstrong went on to say that her concern is that Ms Saxby is trying to stop her making a complaint about two of the doctors at the Centre. Ms Armstrong says that she will not know whether she has a complaint about the doctors until she sees her medical records. She says that Ms Saxby is being vexatious by ignoring her, and hanging up on her on the phone (ts 6). She complains that Ms Saxby was stalking her by coming around more than once with the police (ts 6). The harassment complained of was ignoring letters and making accusations on the phone. The intimidation and making false allegations related to Ms Saxby going to the police. The threat was that: 'There's no way you're going to get these documents unless you pick them up from the police' (ts 7).

52 In the first District Court appeal, Eaton DCJ referred to the following statement by Ms Armstrong in an affidavit sworn 5 June 2015 and filed in that appeal (appeal ts 39):

I have never met Caroline Saxby but have spoken to her a few times on the phone and her dominant controlling manner is unacceptable in business dealings with her.

...

53 Ms Armstrong applied for a violence restraining order. The circumstances in which a violence restraining order may be made are set out in ROA s 11A:

11A. When violence restraining orders may be made

A court may make a violence restraining order if it is satisfied that -

(a) the respondent has committed an act of abuse against a person seeking to be protected and the respondent is likely again to commit such an act 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, reasonably fears that the respondent will commit an act of abuse against the person seeking to be protected,

and that making a violence restraining order is appropriate in the circumstances.

54 The term 'act of abuse' relevantly includes 'an act of personal violence': ROA s 3. The term 'act of personal violence' is defined in ROA s 6(2):

Act of personal violence means one of the following acts that a person commits against another person with whom he or she is not in a family and domestic relationship -

(a) assaulting or causing personal injury to the person;

(b) kidnapping or depriving the person of his or her liberty;

(c) pursuing the person or a third person, or causing the person or a third person to be pursued -

(ii) in a manner that could reasonably be expected to intimidate, and that does in fact intimidate, the person;

(d) threatening to commit any act described in paragraph (a) or (b) against the person;

(e) if the person who commits the act has an imagined personal relationship with the person against whom the act is committed, an act that would constitute an act of family and domestic violence if those persons were in a family and domestic relationship.

55 There is no evidence whatsoever in relation to the conduct in paragraphs (a), (b), (d) or (e). In relation to (c), there is no evidence that Ms Saxby has sought to pursue Ms Armstrong. On Ms Armstrong's evidence, on the occasions on which Ms Saxby went to Ms Armstrong's house she was in the company of police for a legitimate purpose, being to give Ms Armstrong documents.

56 I do not consider that the appeal has any prospect of success. Ms Armstrong has not identified any error made by the magistrate, nor any potential error that warrants closer examination by way of a hearing of the appeal.

57 If the District Court does have jurisdiction, then justice between the parties requires that no leave be granted so as to bring the appeal to an end.

58 The appeal should be struck out for want of jurisdiction.

59 At the hearing on 20 May 2016 I heard from the parties on costs, so I am able to make a costs order.

60 The appropriate costs order is that Ms Armstrong pay Ms Saxby's costs to be taxed if not agreed, including any reserved costs.