Barmettler & Anor v Greer & Timms

SUPREME COURT OF QUEENSLAND

CITATION: Barmettler & Anor v Greer & Timms [2007] QCA 170

PARTIES: RUDY BARMETTLER and ANGELA BARMETTLER / (plaintiffs/appellants) / v / GREER & TIMMS / (defendant/respondent)

FILE NO/S: Appeal No 10043 of 2006 / DC No 149 of 1998

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: District Court at Cairns

DELIVERED ON: 25 May 2007

DELIVERED AT: Brisbane

HEARING DATE: 26 April 2007

JUDGES: McMurdo P, Williams JA and Jerrard JA / Judgment of the Court

ORDER: 1. Appeal dismissed / 2. Appellants pay the respondent’s costs of the appeal assessed on the standard basis

CATCHWORDS: APPEAL AND NEW trial – New trial-in general and particular grounds – In general – Miscarriage of justice – Circumstances not involving miscarriage – Where new trial would lead to same result – Particular cases – where appellants contend that the respondent solicitors breached their duty of care in acting for the appellants in the purchase of a property – where appellants entered into possession of the property on 13 August 1992 but contend settlement occurred on 29 August 1992 – where appellants claim that between these dates they told their solicitors to "stop" the contract and that the failure of the respondent to do so caused the appellants damage – where there was an absence of evidence supporting the appellants' contentions – where jury was not asked directly to determine the actual date of settlement – where damages claimed were not properly established – where the appellants' case was under prepared and hopeless – whether the settlement date was 13 August 1992 – whether the respondent solicitors were negligent – whether there was a miscarriage of justice / Appeal and new trial – New trial-in general and particular grounds – In general – Miscarriage of justice – Circumstances not involving miscarriage – Where new trial would lead to same result – Particular cases – where the trial judge treated the appellants unfairly – where judge held the female appellant in contempt of court – where judge did not identify the part of s 129 District Court Act 1967 (Qld) under which appellant had been taken into custody – where judge did not specify the conduct forming the basis of the contempt charge – where judge failed to give the appellant an opportunity to answer the contempt charge – where appeal against the judge's decision to hold the appellant in contempt can only occur by application for an order of certiorari under the Judicial Review Act 1991 (Qld) – where judge threatened the male appellant with perjury and contempt of court – whether judge's conduct fell below the expected standard – whether re-trial should be ordered – whether conduct of trial occasioned a miscarriage of justice / District Court Act 1967 (Qld), s 129 / Judicial Review Act 1991 (Qld) / Uniform Civil Procedure Rules 1999 (Qld), r 472 / Bradshaw v A-G [1998] QCA 42; Appeal No 873 of 1998, 17 March 1998, applied / Bradshaw v Beenland [1998] QCA 224; Appeal No 873 of 1998, 7 August 1998, applied / Calin v Greater Union Organisation Pty Limited (1992) 173 CLR 33, applied / MacGroarty v Attorney-General (Qld) (1989) 86 ALR 513, applied / Makucha v Brian Tucker & Associates Pty Ltd [2005] NSWCA 397, considered

COUNSEL: A Barmettler appeared on her own behalf and on behalf of R Barmettler / M A Jonsson for the respondent

SOLICITORS: A Barmettler appeared on her own behalf and on behalf of R Barmettler / Miller Bou-Samra Lawyers for the respondent

THE COURT: This appeal is from orders made in the District Court on 31 October 2006 after a jury trial dismissing the claim of the plaintiffs appellants (Mr and Mrs Barmettler) against the defendant respondent (Greer & Timms, solicitors), and ordering that the Barmettlers pay the respondent's costs of the action, assessed on the standard basis. The Barmettlers claim against the respondent was for breach of the duty the respondent owed the Barmettlers when acting as their solicitors in the purchase of a house and takeaway food centre in Mount Molloy pursuant to a contract dated 30 July 1992. The plaint was filed on 24 July 1998, almost six years after the critical event, and heard and determined a little more than eight years later.

The essence of the Barmettlers' case at the trial was that they had entered into possession of a house and shop property in Mount Molloy on or about 13 August 1992, when in the process of purchasing that property. Settlement was on 29 August 1992, and between 13 August and 29 August they had clearly communicated instructions to the respondent to "stop" the contract, because of defects in both the shop and the house which they had intended to buy. Contrary to those clear instructions, the respondent proceeded to settle the purchase of the property and the plaintiffs were forced to complete the purchase at an over value. They suffered further damage and loss in having to effect repairs, and other consequential losses because of negligence by the respondent in other respects.

The essence of the respondent's case was that settlement occurred on 13 August 1992, in accordance with the terms of the contract and there were no instructions to "stop" the contract given until after settlement, if at all, and accordingly, too late. The respondent denied negligence in any other respects, and contended any claimed damages were too remote.

Flaws in the Barmettlers' case

At the end of the trial there were many difficulties with the Barmettlers' case. The first was that the Barmettlers did not lead evidence of any representations by the vendors about the condition of the premises, which might have formed the basis of a right to avoid or rescind. Mrs Barmettler had viewed the place before making an offer, and the defects the Barmettlers complained of should have been obvious on any thorough inspection. The contract had no relevant representations about the condition of the premises, other than that at settlement they would be in the same state as at the date of the contract. There was no suggestion that was a misrepresentation. So even if settlement was well after the Barmettlers took possession, and gave instructions to "stop" the contract, as Mrs Barmettler swore, there was no obvious basis on which it could lawfully be terminated by the Barmettlers.

Secondly, all of the documentary evidence supported the respondent's claim that settlement had been on 13 August 1992, the day the Barmettlers moved in. The contract of sale was dated 30 July 1992, and clause "Q" provided that the date for completion was 14 days from "the date hereof". The evidence of a Mr Bolt who handled the matter for the respondent, was that after an earlier meeting with the Barmettlers, he had given them a copy of the contract on 29 July 1992, for them to give to the vendors or the vendors' solicitor; that was done with the view to hurrying the contract along, in accordance with the Barmettlers' wishes. Mr Barmettler had retired from prior employment because of an eye injury, and the Barmettlers were keen to establish a source of income. A letter dated 29 July 1992, to the vendors' solicitors, enclosed a bank cheque by way of deposit for $14,000, and stated that the contract provided for the transfer to be effected 14 days following the execution of the contract (as it did); a letter that same date addressed to the Barmettlers from the respondent confirmed that they had executed that contract, that settlement was to be effected 14 days following the signing of the contract by the vendors, and that the contract was a "walk-in walk-out" contract, at $140,000. (The special conditions on the contract of sale apportioned that price between stock ($4,000), plant and equipment ($20,000), land ($20,000), dwelling/building ($60,000), business/building ($26,000) and good will ($10,000).)

A letter from the respondent to the Barmettlers dated 3 August 1992 referred to a telephone conversation with Mrs Barmettler on 31 July 1992, and confirmed the contract had been signed by the vendors, and that settlement was now scheduled to take place on Thursday 13 August 1992, with the balance of the purchase moneys being $126,500, required to be paid by that date. A trust account receipt dated 11 August 1992 recorded that that $126,500 was paid that day by the Barmettlers; a letter to them from the respondent on 18 August 1992 began: "We confirm that this transaction settled on Thursday, August 13, 1992", and provided a description of the $126,306.41.

Neither side put in any evidence of banking records, because neither now had any. The respondent had given over their copy of the file to the Barmettlers some time in 1997, at the latters' request, but Mr Bolt had substantially resurrected that file during the process of discovery. No documents were produced which challenged the contemporaneous record describing settlement on 13 August 1992, or supporting an intention that settlement be on 29 August 1992.

The Barmettlers relied on the fact that stamp duty was paid considerably later, and the fact that their title was registered later still, as evidence as that was when settlement occurred. But, as the learned judge repeatedly advised them, there was a difference between the date on which title passed from one land owner to the next, and the date on which the stamp duty was paid in respect of that transaction, or the date the new purchaser became registered as the owner or prior encumbrances were cleared from the title. The Barmettlers were understandably anxious that settlement not be on 13 August 1992, but the evidence that it was, was simply overwhelming. That was basically the short point on which the Barmettlers' case was founded, since their own evidence was that no instructions to "stop" were given before that date. Indeed, Mr Barmettler's evidence, like that of the Barmettlers' witness, suggested that the instruction to stop had been given on or about 17 August, after settlement and too late.

The respondent did not explicitly acknowledge or deny receiving even that instruction; Mr Bolt did agree that complaints about the condition of the property were made, which resulted in a letter being written by him on 28 August 1992 to the solicitors for the vendors, complaining about the condition of a grease trap, and requiring that the vendors pay the costs of the plumber to repair that. That letter advised:

"Our clients have advised us that prior to entering into the Contract, it was observed by them that the grease trap for the subject premises was faulty and the ground around the grease trap was soaked with water as the drainage was not effective. Mr and Mrs McNab agreed that they would fix the problem. Accordingly, our clients entered into the Contract and have settled on that basis."

That letter assists the respondent, and the Barmettlers did not suggest any of the letters were not genuine, contemporary documents. They establish a history fatal to the Barmettlers' case.

The questions to the jury

The jury was asked:

1(a)"Did the defendant fail to exercise due care and skill as solicitors for the plaintiffs in failing to act on the instructions from the plaintiffs to stop the contract?"

1(b)"Did the defendant fail to exercise due care and skill as solicitors for the plaintiffs in failing to inform the plaintiffs that previous owners owed $500 to Mareeba Shire Council for onsite parking as a result of a building permit issued by Mareeba Shire Council in respect of a property being purchased by the plaintiffs?"

1(c)"Did the defendant fail to exercise due care and skill as solicitors for the plaintiffs in failing to adjust the sum of $500 owed to Mareeba Shire Council at settlement of the plaintiffs’ purchase?"

1(d)"Did the defendant fail to exercise due care and skill as solicitors for the plaintiffs in having delayed in procuring the release of a mortgage on the property?"

1(e)"Did the defendant fail to exercise due care and skill as solicitors for the plaintiffs in having delayed in causing the plaintiffs to be registered as the property owners?"

1(f) "Did the defendant fail to exercise due care and skill as solicitors for the plaintiffs in failing to advise the plaintiffs that they might attend at the premises for seven days prior to settlement?"

1(g)"Did the defendant fail to exercise due care and skill as solicitors for the plaintiffs in failing to obtain from the vendors the keys for the cash register, the café and the house?"

1(h)"Did the defendant fail to exercise due care and skill as solicitors for the plaintiffs in failing to include in the contract between the plaintiffs and the vendors a special condition rendering the sale conditional upon the plaintiffs obtaining a satisfactory report concerning the state of repair of the improvements that comprised the property?"

1(i)"Did the defendant fail to exercise due care and skill as solicitors for the plaintiffs in failing to advise the plaintiffs of the need to undertake a stock take?"

1(j)"Did the defendant fail to exercise due care and skill as solicitors for the plaintiffs in failing to advise the plaintiffs of the change of settlement date from the 29th of August 1992 to the13th of August 1992?"

1(k)"Did the defendant fail to exercise due care and skill as solicitors for the plaintiffs in delaying payment of stamp duty until 23rd of September 1993?"

The jurors answered "yes" to questions 1(d), 1(e) and 1(k), and "no" to the rest. However, the jurors also found that the Barmettlers had suffered no loss or damage as a result of any of those three failures to exercise due care and skill.

The questions asked are open to criticism. The jury was not asked when it found settlement happened. That was the essential factual dispute litigated. But the questions assumed that dispute in 1(a) and 1(j) and reflected the contest in the evidence. A negative answer to the majority of the questions reflected, accurately, the relative strength of the cases advanced by each side. The evidence did establish a delay by the respondent in payment of stamp duty, delay in obtaining the release of the vendor's mortgage, and delay in the registration of the Barmettlers as property owners. The evidence also established that that cost the Barmettlers nothing.

Question 1(f) to the jury reflected evidence of a complaint that the respondent did not advise the Barmettlers of the terms of clause 6 of the special conditions of the contract, which permitted the purchaser to attend upon the premises for seven days prior to the date of settlement, on each working day; this was for the purposes of the vendors tutoring the purchasers in and about the conduct of the business. The evidence suggested that the Barmettlers actually went to the premises as soon as they could, and may have actually made some purchases of goods with which to stock the premises before 13 August 1992. Mr Bolt contended that the Barmettlers knew of that clause in any event.

Question 1(f) reflected a claim by the Barmettlers that the respondent, as their solicitors, ought to have included a term in the contract rendering the sale conditional upon their obtaining a satisfactory report about the state of repair of the improvements to the property. As to that, Mr Bolt's evidence was that it was a walk-in walk-out contract, and that he understood the Barmettlers had been considering the purchase for a long period of time. If the vendor had been required to repair any defects before settlement, the vendor would not have signed the contract, in Mr Bolt's opinion. Further, as the learned judge reminded the jury, it was for the Barmettlers to prove that the insertion of a condition in those terms would have resulted in their not sustaining a loss. That in turn would depend upon the timing of the events, and the evidence suggested that their unhappiness with their bargain had come too late in any event.

Another ground of complaint, reflected in question 1(g), was that the respondent had not ensured that the vendors would leave keys for the cash register, cafe and house; Mr Bolt's evidence suggests that perhaps, it being a small country town, there were no keys, and it was a contract in which the vendors walked out and the Barmettlers walked in. Finally, regarding the Barmettlers' complaint (question 1(i)) that the respondent did not advise them to undertake a stocktake, the evidence suggested that there had been negotiation between the vendors and purchasers about the stock and the jury could conclude the vendors were well aware the contract entitled them to $4,000 worth of stock on the premises.

Questions 1(b) and 1(c) reflected in part a claim for lost income, in the years 1996-1998. That claim depended on the proposition that some considerable time before the Barmettlers purchased the property, a previous owner had obtained a development permit which required that the then owner pay $500 to the local government. The permitted development had not occurred and the respondent's contention was that the permit had lapsed, as had the obligation of the then owner to pay the $500. The Barmettlers' contention was that the permit had not lapsed, and that when they applied for a liquor license for the premises in 1996, the local authority had demanded the payment of $500. Mrs Barmettler understood that was the same $500 which had been owed for many years, although the respondent contested that. The Barmettlers had disputed their liability to make that payment, and the delay as a result of that dispute had cost them in lost income. They pleaded that as a loss resulting from the solicitor's failure to advise them to have him search the local authority records.

The answers given by the jury were open on the evidence and reflected the Barmettlers' failure to prove their case. Even the damages they claimed were not properly established; they did not produce invoices or other proof of payment of the amount claimed to have been paid over the years to repair or rectify the property ($35,000); the valuer upon whom they relied for opinion that the property was worth $98,000 appears to have taken the sale price and deducted from that the assumed cost of repairs, plus another figure of $20,000, to arrive at what that valuer thought a prudent purchaser would pay. No comparable sales were analysed by the valuer. Finally, the claimed $60,000 for loss of trading occurring some years later was at best a claim for very remote damages, and very likely damages not in any way flowing from any negligence of the respondent.

The learned judge put both cases fairly to the jury and the Barmettlers do not complain about the questions the jury was asked, or the answers the jury gave. They simply asserted that settlement was on a date different to that appearing in the contemporaneous documents, and which date the jury appears to have accepted. They also complained about the conduct of the trial by the learned judge. It was admittedly brusque towards them on many occasions, and quite unnecessarily so, but the judge assisted them in putting the case that they did have to the jury for consideration.

The Barmettlers conducted their own case at the trial and on appeal. By their further amended statement of claim, filed in the registry on 17 October 2005¹ they exercised the right given by Uniform Civil Procedure Rules 1999 (Qld) r 472 to elect a trial by jury, and the orders made dismissing their claim with costs² followed the answers by the civil jury largely adverse to their case.³

The conduct of the trial

The questions posed to the jury were first drafted by Mr Jonsson, counsel for the respondent,⁴ who explained to the learned judge that the questions suggested drew on the Barmettlers' statement of claim. The learned judge established that Mrs Barmettler, who was conducting the proceedings on behalf of the Barmettlers, was aware that a civil jury was asked a set of questions,⁵ but the Barmettlers had not yet prepared any. After the civil jury was empanelled the judge told Mrs Barmettler that she had to finalise the questions, and that:

"I'm angry with you. You should've done it before you came."⁶

That reflected the tone of the communications by the judge to the Barmettlers throughout the trial. The learned judge was often impatient and occasionally rude. The judge gave the Barmettlers half an hour within which to prepare the questions,⁷ adjourned for that length of time, dealt with applications and appearances by persons served with subpoenas, and then discussed the contents of the questions with the Barmettlers and counsel for the respondent. That lengthy discussion⁸ also encompassed a consideration of the Barmettlers' pleadings, in which the learned judge reproved the Barmettlers for a lack of correct or comprehensible English in a portion of the pleadings.⁹ Spanish is Mrs Barmettler's first language, not English. Throughout that discussion the judge exhibited impatience with the Barmettlers' lack of proper preparation of their case, and that continued throughout the trial and the rest of that day, which was spent on establishing what evidence could be called and matters of disclosure.

It must be said however, that the judge did succeed during the trial in establishing from Mrs Barmettler the nature of the evidence she intended to call from herself, her husband, and the two witnesses whom the Barmettlers did call. The judge also largely succeeded in confining the evidence of those witnesses to evidence that was admissible, and the cross-examination to questions which were relevant, rather than speeches. The judge also spent considerable time endeavouring to establish a clear list of the invoices upon which the Barmettlers relied to establish proof of the cost of repairs and rectification to the property, claimed as part of their damages. The Barmettlers' case had begun very under, or ill, prepared, and the Barmettlers were not ready for the jury trial they had requested. The learned judge did considerably assist in ensuring that the trial was conducted largely in accordance with the pleadings and admissible evidence, and that the questions given to the jury reflected the evidence, the issues, and the pleadings. Regrettably, in so doing, the learned judge frequently gave way to anger.

On the first day of the trial in the absence of the jury, the judge attempted to ascertain whether it was common ground that Mr Barmettler had earlier signed for a copy of the respondent's file relating to the Barmettlers' purchase of the property. The following exchange occurred.

"HER HONOUR: Well, that's your signature? Be careful. Be careful.

PLAINTIFF R BARMETTLER: I thought maybe the - I - I ----

HER HONOUR: There's one - just - just - just everybody sit down---

PLAINTIFF R BARMETTLER: I can tell-----

HER HONOUR: Just stop. Everybody sit down. Everybody needs to know in this case that I unhesitatingly - that is, I will refer to the Director of Public Prosecution, any witness in any case I do, if I think they have perjured themselves.

PLAINTIFF A BARMETTLER: Okay.

HER HONOUR: I'm a very, very tough Judge on that.

PLAINTIFF A BARMETTLER: Yes.

HER HONOUR: I've probably reported more people than any other Judge.

PLAINTIFF A BARMETTLER: Yes.

HER HONOUR: I will not tolerate people perjuring themselves in my Court. Now, that's the other problem. So if you both give sworn evidence and I subsequently become satisfied you've perjured yourselves, I will, without hesitation, suggest you be prosecuted. The other thing that, in my experience is people will answer questions without listening to them. So far as I’m concerned, that is recklessness and I will not tolerate it. If you do not understand a question, ask me - it again, but if you answer a question a certain way and subsequently give another set of evidence, I will require you to explain to me whether you are in contempt of Court. Again, that is - again, that is punishable by imprisonment and I will unhesitatingly - and have, sent witnesses to jail for contempt of Court. Now, I would ask you, Mr Barmettler, to be very careful about this.

PLAINTIFF A BARMETTLER: Just show her one-----

HER HONOUR: Would you please keep quiet, Mrs Barmettler?

PLAINTIFF A BARMETTLER: Yes.

HER HONOUR: I am addressing your husband.

PLAINTIFF R BARMETTLER: Mmm.

HER HONOUR: I have one question: Is that your signature? I asked the Bailiff to show you the document and I'm asking one question: Is that your signature or you're not sure whether that is your signature-----

PLAINTIFF R BARMETTLER: I'm not-----

HER HONOUR: ---- or if that is not your signature?

PLAINTIFF R BARMETTLER: I'm not sure, your Honour, whether this is my signature.

HER HONOUR: Now, you're not playing ducks and drakes with me, are you? Does that look like your signature?

PLAINTIFF R BARMETTLER: It - it looks like it but I'm not sure whether it is.

HER HONOUR: Oh, come on. We all know our own signatures. I don't accept that. We all know our - you keep out of it. I'm not asking whether you signed it, I'm asking your husband; right?

PLAINTIFF A BARMETTLER: Yeah.

HER HONOUR: Now, I can pick my signature. Everybody can pick their signature. It either is or isn't your signature. I find it hard to believe you wouldn’t know your own signature. Are you saying you don't know whether that's your signature? So you've got, it is my signature, it is not my signature, I don’t know if it's my signature; which of those?

PLAINTIFF R BARMETTLER: It's not my signature.

HER HONOUR: Okay. Back to Mr Jonsson. Thank you. All right. I'll have to work – I'll have to work out what I have to do about that. I'll think about that overnight. What other documents are you missing? Let me just summarise that. The defendant has produced an acknowledgement signed in the hand of somebody. Mr Barmettler, after I had warned him of the consequences of both perjure [sic] and contempt of Court, says it's not his signature. The defendants will therefore have to require - be - call - call evidence to prove it is his signature. I must warn you that should they satisfy me that it is your signature and you have misled the Court, I will cite you for contempt of Court. If I think you have committed - perjury, I will cite you for prosecution. Sit down, please."¹⁰

A little later, still in the absence of the jury, in an attempt to clarify whether it was in issue between the parties that the respondent's copies of bank records relating to the Barmettlers' purchase of the property had been destroyed, her Honour said to Mrs Barmettler:

"… [Mr Bolt] swore - in other words he's rendering himself liable to contempt of Court or prejudice [sic] the way I have just warned your husband - he's saying, under sworn evidence, that those files were destroyed. Are you saying that he is lying?"¹¹

Mrs Barmettler did not make any concession to the judge but maintained her position that she required the respondent to prove this matter and it remained in issue.

On the second day of the trial there was further discussion of the questions drafted by Mr Jonsson and a draft proposed by Mrs Barmettler.¹² The learned judge disallowed some suggested by Mrs Barmettler, because they attempted to introduce matters not raised in the pleadings. Some changes were made to the questions suggested by Mr Jonsson. The debate on the questions concluded as follows, in a vein similar to many exchanges during the trial:

"HER HONOUR: Well that's not a question. Number 10 and number 11 is not a question. I keep saying it over and over again, it seems silly to keep saying it because you're obviously ignoring me. This piece of paper, question 10 and 11 is not a question, you've failed to give me a question, you seem to [sic] unwilling to give me a question. What do you suggest we do, should we just move on or do you want to give me a question or what?

PLAINTIFF A BARMETTLER: Your Honour it - what is I have say -----

HER HONOUR: Well, it's a stupid question and I don't understand it.

PLAINTIFF A BARMETTLER: Yep I try to -----

HER HONOUR: I'm not going to have stupid questions put to a civil jury in my Court.

PLAINTIFF A BARMETTLER: Your Honour, it's the best I can say to you -----

HER HONOUR: Well, look, try not wallow in self pity too much, Mrs Barmettler -----

PLAINTIFF A BARMETTLER: I not asking for pity.

HER HONOUR: ----- it doesn't - it doesn't - it doesn't move me. Okay, well I think we'll just move on and give the jury these questions. All right. Bring the civil jury in thanks. Parties have months and months and months and months to prepare for trial, if they fail to prepare for trial and leave it all to the last minute, be it on their heads. That advice to self represented people, plaintiffs, defendants and everybody who appears in our Courts. If the plaintiffs have not done their homework before Court that has consequences."¹³

The judge then began the trial before the jury, explaining the identity of the parties and the nature of the case. The judge took the jurors through the draft questions which had been prepared, and identified the witnesses who could be called and the general nature of their evidence. Those matters had been established with the Barmettlers in the absence of the jury. The judge then became impatient with Mrs Barmettler when the latter intimated that she wished also to add an issue of stamp duty to the list of questions, but ultimately clarified that the Barmettlers' case was that the respondent was negligent in delaying payment of the stamp duty until 24 September 1992. When the court resumed after the luncheon adjournment in the absence of the jury, the learned judge discussed with Mrs Barmettler photographs Mrs Barmettler wanted to put before the jury, which the respondent's solicitor said had not been previously provided to him. Mrs Barmettler said she had delivered them to the respondent's office; the judge said the judge would:

"… do the photos … when I’ve got more time".¹⁴

After a further brief exchange between Mrs Barmettler and the learned judge, the judge told Mrs Barmettler to:

"Try and concentrate on where we're at."

And Mrs Barmettler responded:

"Oh, this is no good."

The transcript continues:

"HER HONOUR: And, by the way, stop doing those asides to your husband when you sit down, because I tell you another thing I don't tolerate is any disrespect in this Court, Mrs Barmettler. Just don't talk to your husband when you sit down, unless it's to get instructions, but I'm sick and tired of the way that every time I speak you sit down and do an aside to your husband. Stop it. Stop it. And I don't require a response. Now sit down and watch your behaviour.

Right, contempt of Court. Hold it, Mr Bailiff. You did the very thing I said not to. Take Mrs Barmettler down to the cells. We're adjourning. She did the very thing I had just warned her not to do. She sat down and - and sprayed words at her husband. The very thing I have just said not to do. I hold her in contempt of Court. Mr Bailiff, take her to the cells. We'll adjourn.

The court adjourned at 2.40 P.M."¹⁵

Mrs Barmettler was then confined in the cells from 2.40 pm to 3.16 pm.

The following exchange then occurred in the absence of the jury.

"HER HONOUR: Mrs Barmettler, do you appreciate because you've just spent some time in the cells and I've held you to be in contempt of Court that I expect you to show me respect and when I say something is not to be done, you are not to do it? Do - do you understand that?

PLAINTIFF A BARMETTLER: Yes, your Honour.

HER HONOUR: I will not tolerate you completely ignoring my rulings. I say to you again I will not have you making side snide remarks to my - to your husband after I have made a ruling. If you do it again you will spend longer in the cells. I simply will not tolerate you acting in contempt of my Court. Have the jury in."¹⁶

The trial then continued in the presence of the jury with Mrs Barmettler giving her evidence in their case.

Contempt

The power to punish for contempt is in s 129 of the District Court Act 1967 (Qld), which reads as follows:

"129 Contempt (1)A person is in contempt of the District Court if the person –

without lawful excuse, fails to comply with an order of the court (other than an order mentioned in paragraph (e)), or an undertaking given to the court; or

wilfully insults a judge or juror, or a registrar, bailiff, or other court officer during the person's sitting or attendance in court, or in going to or returning from the court; or

wilfully interrupts the proceedings of the court or otherwise misbehaves himself or herself in court; or

unlawfully obstructs or assaults someone in attendance in court; or

without lawful excuse, disobeys a lawful order or direction of the court at the hearing of any proceeding; or

commits any other contempt of the court.

(2)A District Court judge has the same power to punish for a contempt mentioned in subsection (1) as a Supreme Court judge would have if the contempt were a contempt of the Supreme Court.

(3)If the contempt is in the face of the court, a bailiff or other court officer acting under the court’s order may, using necessary and reasonable help and force, take the person committing the contempt into custody and detain the person until the court rises.

(4)Before the court rises, the court may –

ask the person to explain why the person should not be punished; or

adjourn the matter to be dealt with on a stated date.

(5)If the court acts under subsection (4)(a), the court may deal with the person immediately."

The learned judge did not identify the provision or part of s 129 under which Mrs Barmettler had been taken into custody, and, it seems, convicted of contempt, nor did the judge specify the conduct which formed the basis of the charge, whatever the subsection under which it was laid. The judge did not give Mrs Barmettler any opportunity to defend the accusation of contempt, whatever it was. The record discloses only that Mrs Barmettler said, it appears, something to her husband, her co-plaintiff. There is no suggestion that the transcript is not an accurate and complete record of what transpired in court. In MacGroarty v Attorney-General*(Qld)* (1989) 86 ALR 513 at 516 the joint judgment of the High Court reads:

"It has long been settled that 'no person should be punished for contempt of court, which is a criminal offence, unless the specific offence charged against him be distinctly stated, and an opportunity of answering it given to him'. When what is involved is a charge of common law contempt, it may, depending on the circumstances, not be necessary to formulate the charge in a series of specific allegations, provided that the 'gist of the accusation' is made clear to the person charged. Where, however, the charge is of a particular statutory offence, the charge will, in the absence of a clear legislative intent to the contrary, necessarily be inadequate if it fails to identify, either expressly or by necessary implication, the particular statutory offence with which the accused stands charged. That requirement is not a mere matter of formal procedure. It is fundamental for the reason that the specific statutory offence must be identified if the person charged is to be informed of the elements of what is alleged against him and afforded an adequate opportunity of answering the charge." (Citations omitted).

Their Honours went on to remark that the then provisions of the District Court Act 1967 (Qld) demonstrated a legislative intent that the ability of the District Court to deal promptly and effectively with the statutory offences should not be unduly impeded by formal procedural requirements; but that there was nothing:

"...which would warrant the conclusion that it was the legislative intent to dispense with the fundamental requirement that a person should not be punished for a statutory offence of contempt of court unless the particular offence charged has been distinctly identified and he has been given an adequate opportunity of answering the charge."

A little later (at 517) their Honours added that:

"...the failure of the learned trial judge to identify the particular offence alleged against the appellant had the result that the appellant was not properly charged with a particular identified offence and thus was not accorded an adequate opportunity of defending himself against a charge that he was guilty of the offence for which he was fined."

A like insistence that a person charged with contempt by a trial judge be given an adequate opportunity of defending the charge, appears in the judgment of this Court in Bradshaw v Beanland [1998] QCA 224. In an earlier hearing in that same matter, Bradshaw v A-G [1998] QCA 42, this Court held that s 118(3) of the District Court Act no longer allowed for an appeal to this Court in circumstances such as those facing Mrs Barmettler; the correct procedure was to apply for an order of certiorari under the Judicial Review Act 1991 (Qld). Mrs Barmettler did not purport to appeal the finding of contempt, but can apply for a certiorari order under the Judicial Review Act, removing the matter of what appears to be a conviction for contempt into the Court of Appeal.

When the court resumed after Mrs Barmettler's confinement in the cells for what the judge apparently considered to be contempt in the face of the court, she immediately began her evidence-in-chief. Understandably enough, she did not present that well. The first part of her evidence-in-chief consisted of a very long answer which was somewhat disorganised in its content, and contrary to her own case that she had entered into possession on 13 August 1992, for a contract intended for settlement on 29 August 1992, and had given instructions in the intervening period to her solicitor to "stop the contract". Those dates did emerge more towards the end of her evidence-in-chief that afternoon.

The next morning (the third day of the trial) was entirely taken up with discussion about the admissibility of photographs Mrs Barmettler wished to exhibit, and an attempt by the judge to establish a list of invoices upon which Mrs Barmettler would rely in proof of her damages. The judge had requested that a list be prepared overnight; that had not been done. There was also discussion about the admissibility of evidence Mrs Barmettler wanted to call from a valuer. The following exchange occurred between the judge and Mrs Barmettler in the absence of the jury:

"HER HONOUR: Well, when did you get the - just stop for a moment, when did you get the liquor licence back?

PLAINTIFF A BARMETTLER: '98, two years they hold the licence because I - I don't even knew [sic] about the $500.

HER HONOUR: If you tell me once more about this $500-----

PLAINTIFF A BARMETTLER: Yes.

HIS HONOUR: -----I'm going to walk out that door.

PLAINTIFF A BARMETTLER: No, your Honour.

HIS HONOUR: It's not funny, it's not the slightest bit funny.

PLAINTIFF A BARMETTLER: Mmm.

HER HONOUR: Not the slightest bit funny because I've said more than once I don't want to hear about it again.

PLAINTIFF A BARMETTLER: Yeah.

HER HONOUR: Not at all funny, Mrs Barmettler, not at all. And if you think yesterday was a weary experience, Mrs Barmettler, one of the resident Judges was telling me that a visiting Judge recently put a party in jail for 14 days for contempt of Court so just bear that in mind. You have half an hour so treat me seriously, Mrs Barmettler and nothing's funny. No humour at all in this trial, I haven't been able to - raise a single laugh. Now, what you're saying is that there's a loss of trading because you should have had a liquor trading licence when you bought the business, is that right?

PLAINTIFF A BARMETTLER: No, your Honour.

HER HONOUR: That's not right?

PLAINTIFF A BARMETTLER: No.

HER HONOUR: Okay, so what are you saying?"¹⁷

Evidence finally resumed a little after 2.00 pm, with some relevant evidence from a Maria Van de Water, who had helped the Barmettlers move into the Mount Molloy property. She described defects in it, including a grease trap giving off a very bad odour, no key to the cafe, vinyl with large holes in it, an oven door that did not work, a fridge door that fell off, water damage "everywhere", rotten steps, and lights that flickered on and off. She telephoned Mr Bolt, the solicitor in the respondent firm handling the matter for the Barmettlers. Her evidence was that Mr Bolt said to her he would look into it and get in touch with the vendors. She also wrote to the Council on the Barmettlers' behalf, complaining about the premises.

Mrs Barmettler then continued her evidence-in-chief, giving evidence concerning a schedule of expenses annexed to her Statement of Claim filed on 17 October 2005, and with respect to various invoices which she produced. Mrs Barmettler was somewhat reluctantly driven by the learned judge to attempt to produce invoices in support of that schedule of expenses annexed to that Statement of Claim, when it was apparent that Mrs Barmettler preferred to rely on a different list dated earlier. The judge became impatient with Mrs Barmettler about that, in by then all too familiar terms (this time in the presence of the jury):

"Why do I think that's - you're not telling the whole truth when you give that sort of answer? -- I don't like it to offend nobody.

What? -- I don't like to offend anybody.

Offend anybody. Oh come on. That's just playing games with me. That's - you're not offended. Jurors are sitting there comfortably looking very interested and wanting to hear from you. Don't play that game with me, Mrs Barmettler. You've got a - you've got a schedule in front of you and you're dying to give it to them. I'm saying you can't give it to them in that form, but you can certainly tell them and me what's wrong with this schedule. I'm inviting you to do that. If you're not happy with this schedule, tell me why you're not happy with it? You've told us about one thing. Are there any other things you're not happy with? -- I have since then copies - the - from my - from the person so they are no here."¹⁸

On the fifth day of the trial, as the Barmettlers' case was drawing to a close, the following exchange occurred, in the absence of the jury, between her Honour and Mrs Barmettler:

"HER HONOUR: Okay. I'm totally unsatisfied and annoyed at the way Mrs Barmettler has - has ignored my constant invitation to present invoices and keeps giving them to me in dribs and drabs, which has caused me the greatest inconvenience and, for the first time in the many years I have been a lawyer - the many years I've been a Judge I've had to do work for the plaintiff because she has been unable or unwilling to do so herself. She could not have inconvenienced me more had she tried. Any other witnesses?

PLAINTIFF A BARMETTLER: No, your Honour.

HER HONOUR: Okay. We'll move on to the defendant's case. Mr Jonsson, do you need to raise any - sit down, Mrs Barmettler. Do you need to raise anything else before you call your first witness?

MR JONSSON: Yes, your Honour. I - I do-----

HER HONOUR: Oh, I - could I have that pile of invoices? I'm sorry, Mr Jonsson. I need to ask one more question. I'm probably wasting my breath but I'll give it a go. Stand up, Mrs Barmettler. Are there any more invoices?

PLAINTIFF A BARMETTLER: That's it, your Honour. The other one is-----

HER HONOUR: I asked you that question two days ago and you said yes. That was clearly not true. I'm asking you again and now it's getting serious, as in contempt of Court serious.

PLAINTIFF A BARMETTLER: No, the - the-----

HER HONOUR: Are you - listen to me. Are you still searching somewhere for other invoices?

PLAINTIFF A BARMETTLER: No, I just waiting for a - some invoices from the man that will finish up our place, the property.

HER HONOUR: Are you still searching for invoices from people?

PLAINTIFF A BARMETTLER: I said-----

HER HONOUR: It's a really [sic] question. Let's try for an answer.

PLAINTIFF A BARMETTLER: That is what they're like. They give it to me yesterday and they-----

HER HONOUR: Are you still asking people and searching for invoices?

PLAINTIFF A BARMETTLER: No, your Honour.

HER HONOUR: Is that your sworn evidence? Do I require you to go in the box to give sworn evidence to that effect or are you just giving me an answer off the top of your head?

PLAINTIFF A BARMETTLER: No, no. That's it, your Honour.

HER HONOUR: All right. If it proves to be untrue I will cite you for contempt of Court.

PLAINTIFF A BARMETTLER**:** Yes, your Honour.

HER HONOUR: Okay. This is intolerable, where I'm given documents like this. Absolutely intolerable. You've had an indulgence which no lawyer would ever have. Extraordinary indulgence to bring out different documents each day. What people with lawyers are required to, Mrs Barmettler, or even self-represented people who play a lot more fairly than you do, is that they present their - they prepare for trial and present them all on the first day. You want me to do work every night to help you in your case, don't you?

PLAINTIFF A BARMETTLER: Your Honour-----

HER HONOUR: Well you do. That's, in effect, your conduct. Sit down, please.

PLAINTIFF A BARMETTLER: Thank you."¹⁹

The judge's subsequent directions to the jury included the following:

"Now, trials involving self-represented parties, whether they're plaintiffs or defendants or accused, are difficult. They're particularly difficult for the parties who do represent themselves. They're increasing, they're now a significant percentage of our work. If, from time to time, I've seen to be cross that's not something you should take in any way against the Barmettlers, that was merely me trying to keep the case on track. And you should take into account the difficulties that they've had in presenting their case."²⁰

Mrs Barmettler said on this appeal that she had been scared or frightened of the judge, because of the judge's conduct of the trial, and had not produced a list of invoices upon which she wanted to rely. Although anxiety would be an entirely understandable reaction, the trial record shows that she was remarkably resilient in pursuing the Barmettlers' claim despite the judge's overbearing conduct towards them. It became clear on the appeal that the list of invoices on which she wished to rely had in fact been put in evidence by her before the jury - it was exhibit 30 - and Mrs Barmettler was recalled to give evidence about that list, and the invoices she produced in support of it. She was not able on the appeal to identify any evidence that she would have wanted to give in the trial, and which was not actually put in.

Mrs Barmettler was cross-examined for a lengthy period, and in essence her evidence described her disappointment with the property on close inspection, and her conviction that settlement had not been on 13 August 1992, the day she and her husband took possession. She agreed they had wanted to enter into possession as soon as possible, because they needed a source of income. She maintained that settlement nevertheless was on 29 August, and that she had given instructions to stop the contract before then.

Other matters raised in argument were that some documents she had wanted to exhibit were not tendered, but they were in fact made exhibits 7 and 17 respectively. Her essential case, made very clear by her in her cross-examination, was that settlement had not occurred on the 13th; she thought it happened on the 29th. That case was simply not supported by the other evidence. Mrs Barmettler also attempted to make something on the appeal out of an inaccuracy in the description of the property appearing in the contract of sale, but that matter had been remedied by the time title was transferred, and she bought the property she intended and agreed to buy.

Overall the position is that the Barmettlers underwent a trial in which Mrs Barmettler in particular was treated with unnecessary severity and ill temper, in the course of presenting what was in fact an under prepared and hopeless case. She was also confined in the cells for more than half an hour for what the judge apparently considered was contempt in the face of the court; the correct procedures for pursuing a contempt charge were not followed by the trial judge. This trial presented the judge with significant challenges in giving the self-represented Barmettlers the opportunity to put forward whatever case they had in the best way they could whilst balancing the respondent's rights and also ensuring valuable court time and community resources were not wasted. But that is often the lot of both trial and appellate judges. The Barmettlers were at times unfairly treated by the judge and, without apparent justification, threatened with perjury and contempt charges. Mrs Barmettler was actually sent to the cells for a time. The judge's overbearing conduct towards the Barmettlers during this trial fell below the standard of judicial conduct expected of judges in the court room. As Hunt AJA wrote in Makucha v Brian Tucker & Associates Pty Ltd [2005] NSWCA 397, at page 16:

"A litigant in person is always out of his or her familiar territory in court. Such a person quite naturally feels outgunned when the other party is legally represented. Litigants in person should not be treated as the adversaries of the judicial officers whose task it is to hold the balance between the parties."

The Council of Chief Justices of Australia's Guide to Judicial Conduct²¹ states that:

"It is important for judges to maintain a standard of behaviour in court that is consistent with the status of judicial office and does not diminish the confidence of litigants in particular, and the public in general, in the ability, the integrity, the impartiality and the independence of the judge. It is therefore desirable to display such personal attributes as … courtesy, patience, tolerance and good humour.

… the entitlement of everyone who comes to court - litigants and witnesses alike - to be treated in a way that respects their dignity should be constantly borne in mind.

…

A judge must be firm but fair in the maintenance of decorum, and above all even-handed in the conduct of the trial. This involves … observance of the principles of natural justice … ."

The irregularities in the conduct of this trial would ordinarily necessitate a new trial, and this Court gave Mrs Barmettler every opportunity to show a possibly viable cause of action on a properly conducted trial. None was shown. The transcript does not suggest that the judge's conduct interfered with the Barmettlers' robust pursuit of their barren claim against the respondent. The majority of the concerning exchanges occurred in the absence of the jury. The judge restored some balance in her jury directions set out above. It follows that despite the unfortunate conduct of the trial, the Barmettlers have been unable to establish that a substantial wrong or miscarriage of justice was thereby occasioned (Calin v Greater Union Organisation Pty Ltd (1992) 173 CLR 33 at 39, per Mason CJ, Deane J, Toohey J and McHugh J). In those circumstances the appeal should be dismissed, and the Barmettlers ordered to pay the respondent's costs of the appeal, assessed on the standard basis.

ORDER: Appeal dismissed with costs assessed on the standard basis.

Footnotes

1. At AR 1191. ↩

2. At AR 1249. ↩

3. The questions and answers are at AR 832-835. ↩

4. At AR 36. ↩

5. At AR 37 and 38. ↩

6. At AR 52. ↩

7. At AR 53. ↩

8. At AR 62-93. ↩

9. At AR 70, and AR 79. ↩

10. At AR 141-143. ↩

11. At AR 145. ↩

12. At AR 190-206. ↩

13. At AR 206. ↩

14. At AR 228. ↩

15. At AR 229. ↩

16. At AR 230.