Ragus v Stait[2011] QDC 284

[2011] QDC 284

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE DEVEREAUX SC

No 590 of 2011

BRISBANE

DATE 28/10/2011

JUDGMENT

HIS HONOUR:  This is an appeal under section 222 of the Justices Act against orders made by Magistrate Daley on 1February 2011.

The appellant Ms Ragus made two complaints under the Peace and Good Behaviour Act 1982 against Kevin Stait and Helen Stait, the respondents.

The complaint against Kevin Stait was filed on 6 December 2010.  The complaint against Helen Stait was filed on 8 December 2010 and both complaints were listed for hearing before her Honour on the 1st of February this year.  It's on that date that her Honour dismissed the complaints after hearing evidence.

The materials filed in the Magistrates Court before her Honour were two affidavits of Ms Ragus, one in respect of each of her two complaints; affidavit of Elizabeth Ponsaing, which was filed by the respondents; affidavit of Isabella Ragus who is the appellant's daughter and affidavit of Colin Balchin, filed for the appellant.

Her Honour heard evidence from the appellant Ms Ragus, Colin Balchin and the respondents Kevin and Helen Stait and two witnesses, their daughter Michelle Stait and Elizabeth Ponsaing.  At the end of the proceedings, her Honour dismissed the two complaints.

There are six grounds of appeal.  Before I address the grounds of appeal, I'll put on record the process of this appeal has taken.  The appeal came before me last week on Friday the 21st of October 2011.  In the days before that, the appellant contacted the court saying she was too ill to appear and she filed material.  She sought that the hearing be adjourned so that she could prepare some further submissions.

The respondents, Mr and Mrs Stait appeared in person and they have appeared again this morning.  Last Friday, I arranged for the Court to contact Ms Ragus by telephone and rather than adjourn the hearing both parties were heard for about 40 minutes with Ms Ragus on the telephone.

At the end of that hearing, I made orders that Ms Ragus could file further submissions by close of business on Monday the 24th of October and the Staits could reply by close of business on Thursday 27 October.  I then adjourned the further hearing of the appeal to this morning. 

Both parties did file further material.  Ms Ragus filed further submissions relating to the fourth and fifth grounds of appeal.  She did not seek to file any further evidence.

That prompted a reply by Mr and Mrs Stait simply to the effect that as there was no evidence, they did not file any further material or submissions.  I made plain to the parties last week that I had reached a certain view of the matter and I still have that view.

I'll come now to the grounds of appeal.  Ground 1 is that the learned Magistrate erred by failing to have regard to (a) section 4(1)(a) of the Peace and Good Behaviour Act 1982 which authorises a complaint to be made in respect of the conduct of the respondents in relation to a person in the care of the complainant; and (b) section 6(4) of the Peace and Good Behaviour Act 1982 which authorises the learned Magistrate to make an order imposing such terms on the respondents as the Magistrate thought appropriate.

Ground 2 is that the learned Magistrate erred by (a) failing to hear the appellant's complaint against the respondents as it related to the appellant's daughter as if it were a complaint authorised by section 4(1)(a) of the Peace and Good Behaviour Act 1982; and (b) failing to consider the evidence of the appellant and the appellant's daughter in respect of the conduct of the respondents towards the appellant's daughter.

I'll deal with those two grounds first because I am satisfied that was an error by the Magistrate.  At the outset of the hearing - I'll just pause in my reasons.

...

HIS HONOUR:  I resume my reasons.  At the outset of the hearing in February this year the learned Magistrate, having noted that Ms Ragus had taken out a separate complaint against each of the two respondents raised what her Honour called a preliminary point which she expressed this way, "And you now wish to have an order that includes your daughter as a complainant."

Her Honour asked Ms Ragus for authority for making a child under the age of 18 a complainant under the Peace and Good Behaviour Act.  Ms Ragus wasn't sure how to respond to that, understandably.  Her Honour continued that this was a proceeding under the Justices Act and her Honour would have to be shown authority for the making of a child a complainant under the Act.

Her Honour expressed it this way, "I'm asking for what authority I can join a 14-year-old to a complaint."  Her Honour wanted case law.  Then her Honour invited, in effect, the appellant to apply to amend the complaint to include her daughter as a complainant and when the appellant said she would like to do that, her Honour disallowed the application.

What followed from that was that her Honour seemed to consider that complaints relating to the daughter were not to be adjudicated.  Her Honour says at 1-4 about line 30, "Yes, okay.  Now in relation to that, now that the daughter is no longer a complaint, what does that narrow down your complaint to, so perhaps you can narrow that down to - is it, let me have a look at your summons and complaint.  So you're saying they destroyed a number of notices that you printed?"  Complainant, "Yes, your Honour."

What happened thereafter was that all the witnesses were called but the focus of the proceeding was - and, indeed, the only reasons for judgment given relate to - the events, principally, between Mr Stait and the complainant/appellant Ms Ragus.  So, in effect, the complaint against Mrs Stait wasn't adjudicated although the complaint was dismissed formally.

The learned Magistrate's reasons make this plain.  They commence, "Ms Ragus' complaint is pursuant to section 4 of the Peace and Good Behaviour Act in that Mr Stait has threatened to assault or do her bodily harm or to destroy or damage property of the complainant."

Her Honour's reasons then examine the three incidents giving rise to a complaint against Mr Stait, deal with the evidence relating to each incident and, ultimately, find that there's no basis for making an order against Mr Stait.

Having reviewed the record, I'm satisfied that it was open to her Honour to so assess the evidence and to so conclude and upon my own review of the record, I reach the same conclusion, that is, that no order should be made against Mr Stait.

It has concerned me that there is a serious procedural irregularity in the proceedings and it has concerned me whether it is open to me to hear the appeal and reach my own view on the record or whether it must, necessarily, be returned to the Magistrates Court for further adjudication.

The resolution of that comes from the provisions of the particular Acts.  The Peace and Good Behaviour Act section 4 provides in subsection 1,

"A person may make a complaint to a Justice of the Peace that a person has threatened

1. (a)
    to assault or to do any bodily injury to the complainant - or to any person under the care or charge of the complainant; or,

2. (b)
    to procure any other person to assault or to do any bodily injury to the complainant or to any person under the care or charge of the complainant; or

3. (c)
    to destroy or damage any property of the complainant; or

4. (d)
    to procure any other person to destroy or damage any property of the complainant and that the complainant is in fear of the person complained against."

It seems to me that all the appellant was trying to do was prosecute a complaint, properly, under section 4 which concerned threats to herself, as she perceived them, and to her daughter.  That was entirely proper under section 4 of the Act.  The appellant was not trying to join her daughter as a complainant and, in the circumstances, the Magistrate erred - and I am satisfied that grounds 1 and 2 of the appeal are made out.  That then led to the further error that the learned Magistrate did not adjudicate on the complaints against Mrs Stait as they related to Isabella, the daughter.

I am satisfied that I can deal with the materials because of the powers of this Court hearing appeals under the Justices Act.  Section 223(1) of the Justices Act 1886 provides that an appeal under s. 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the Justices. 

The powers of a Judge on hearing an appeal include confirming, setting aside or varying the appealed order or, "make any other order in the matter the Judge considers just": section 225(1).  Section 225(3) provides, "For subsection 1 the Judge may exercise any power that could have been exercised by whoever made the order appealed against."

In the circumstances it's open to me to consider the materials before the learned Magistrate and determine, in effect, the complaint.  It's a course which I hesitate to take but all of the parties in this proceeding are self-represented.

It seems to me in the interests of justice that the litigation be closed.  It's very important that the people who live where the appellant and the respondents live get back to living with each other as well as possible undistracted by litigation.

I also follow this course because I am entirely satisfied that the materials do not support the making of an order under the Peace and Good Behaviour Act against Mrs Stait.  I say that because an order under that Act is not to be taken lightly.  It is an order of a Court regulating the conduct of a person and affects the liberty of individuals.

Often enough, as I understand it, these orders are made by consent and there might be very good reasons for doing that, but they are, nonetheless, orders made by a Court and a breach of the order has criminal sanctions.

In order to make the order, every Court must be satisfied that the circumstances warrant the making of an order.  As I said, a breach of the order carries a criminal sanction.  The maximum penalty is 100 penalty units or imprisonment or one year. 

I'll come, in a moment, to the materials that were provided to support the complaint against Mrs Stait and why I'm satisfied that no such order should be made.

I've said already that Ms Ragus didn't appear in person last week except that she appeared by telephone.  I made it plain to the parties last week that although I expected further submissions to be made, it was not necessary for the parties to appear this week although they were welcome to.  Mr and Mrs Stait have appeared and I have discussed certain parts of the material but, principally, my concerns about what I consider to be procedural irregularities.

Ms Ragus hasn't appeared today.  I'm a little surprised by that but I guess it's to be expected since I made plain that it was not necessary for the parties to appear and I have received and considered her further material.

I don't take lightly the fact that she was only able to appear by telephone last week and has not appeared this week because an appellant has a right to be present pursuant to section 224A of the Justices Act.

Coming to the materials that the Magistrate should have considered relating to the complaint against Mrs Stait, the appellant's affidavit concerning Mrs Stait outlines a number of incidents.  One is that in November 2010, her daughter then aged 14 was playing with a friend aged 13 in the foyer area of the building.  The girls decided to go downstairs to the public internal garden area which is overlooked by the respondents' residence.

The girls picked some flowers and brought them back up to the foyer area.  Ms Ragus deposes that Mrs Stait came upstairs, grabbed the sculpture the girls had made and threw it into the garden, shouting, "Don't destroy other people's property."  The girls noticed that she had what appeared to be a camera pointed at them.  The girls were frightened and came inside and told Ms Ragus what had happened.

The second incident complained of is said to have occurred in January 2010.  That involved Ms Ragus's daughter playing with a three-year-old neighbour and a ball dropping over the balcony into the public garden directly in front of the respondents' unit.  Ms Ragus deposes that Mrs Stait grabbed the ball and threw it as far as possible into a park adjoining the units.

It's also said that on another occasion Mrs Stait said that whenever the daughter threw things over the balcony she, Mrs Stait, would take them.  The third significant incident involves, in March 2010, apparently, the Staits making a complaint to police alleging that Ms Ragus's daughter had sent a threatening note which the Staits found in their letterbox.

It seems that, after an investigation, the police decided that the daughter did not write the note.  Ms Ragus comments in her affidavit that this was one of a number of occasions on which police or others had suggested to her that she should seek a Peace and Good Behaviour order against the respondents. And so, Ms Ragus deposes that she and her daughter and friends were fearful of the respondent Mrs Stait. 

...

HIS HONOUR:  There is an affidavit in the materials by Ms Ragus's daughter.  It doesn't directly give evidence of the incidents I have just referred to but it does express her fear of Mr and Mrs Stait and her desire to live happily and freely in the unit block where they all live.

Now, the learned Magistrate, when dealing with the issues that her Honour did consider, made certain findings about Ms Ragus as a witness including that Ms Ragus was, "Quite emotive and gave her evidence in an accusing way.  I found her prone to exaggerate her evidence and it was my impression that she'd thought about the matter so much she'd reconstructed it in her own mind."  That is clearly a reference to one of the particular incidents relating to Mr Stait.

It seems to me that Ms Ragus has her daughter's welfare at heart and is quite distressed at seeing what she perceives to be her daughter's treatment by the Staits.  It is possible, on a hearing, that a Magistrate would have found - or would not have accepted, entirely, Ms Ragus's account as, indeed, the learned Magistrate in this case, did not seem to accept her account entirely of the incidents concerning Mr Stait.

Even if everything Ms Ragus said was to be accepted, I'm not satisfied that the incidents described sufficiently give rise to the need for an order under the Peace and Good Behaviour Act.  The evidence doesn't support, in my view, a finding that there are threats to assault or do bodily injury to Ms Ragus or her daughter by Mrs Stait nor that there is any reasonable  likelihood that Mrs Stait is likely to procure another person to assault or do any bodily injury to Ms Ragus or to her daughter; nor that Mrs Stait is likely to destroy or damage property of Ms Ragus or to procure any other person to destroy or damage any of Ms Ragus's property.

In the circumstances, conducting my own assessment of the materials before the Magistrate, I'm not satisfied that any error has occurred, ultimately, in the dismissal of the complaint against Mrs Stait.  Those findings are sufficient to deal with the remaining grounds of appeal but I will record them for the purposes of these reasons.

Ground 3 was that the learned Magistrate erred by failing to find that the weight of the evidence before her was such as to justify an order in respect of the respondents.

Ground 4, that the learned Magistrate erred by preferring the evidence of the respondents when the evidence before the Magistrate established that the respondents had incorrectly told Magistrate Hine at a hearing on 20 January 2011 that only Helen Stait had been offered mediation.

Ground 5, that the learned Magistrate failed to conduct the hearing in accordance with the rules of natural justice in that her Honour favoured the self-represented respondents at the expense of the self-represented appellant.

Ground 6, that the learned Magistrate erred by failing to conduct the hearing of the matter in accordance with the intention of Parliament in enacting the Peace and Good Behaviour Act 1982 namely to provide an efficient and expeditious mechanism for the resolution of neighbour disputes.

With respect to grounds 3, 4 and 5, I've already stated that upon my own review of the materials, it was open to her Honour to conclude, as her Honour did, with respect to the reliability and creditability of witnesses and the final order.

In her further submissions filed since last Friday, Ms Ragus refers to the evidence of her daughter relating to the question of mediation and information given to Magistrate Hine.  Also Ms Ragus refers to the fact that the witnesses called by Mr and Mrs Stait do not reside in the building and Ms Ponsaing had neither seen nor heard the incidents listed in Ms Ragus's affidavit.

Ms Ragus also complains that Magistrate Daley disregarded the fact that Mr Balchin heard, at least, part of the two incidents referred to in her affidavit.  Ms Ragus rejects any suggestion, which she considers the learned Magistrate implied, that she and Mr Balchin colluded to establish similar stories.  Ms Ragus informs me that she's a Justice of the Peace and understands the serious nature of making false allegations.

Having had quite some discussions with Ms Ragus last week by telephone in the hearing, I accept that she understands, completely, the importance of honesty and creditworthiness.  It doesn't take away from the fact that it was open to the Magistrate to draw her conclusions about the reliability of the witnesses and, more fundamentally, it doesn't overcome what I consider to be the insufficiency of the materials to support an order made under the Act.  That's really what it comes down to.

Ms Ragus makes further written submissions about the finding relating to Mr Stait jumping up from a garden.  The Magistrate considered it would be most unlikely that Mr Stait would be able to do the jump referred to in evidence.

Again, the incident referred to, even if it occurred precisely as Ms Ragus describes it, could not reasonably, in my view, support an order against Mr Stait.

Ms Ragus goes on to assert that she believes there wasn't any evidence of her being overly emotional or exaggerating or fabricating incidents.  She feels that the decision by the Magistrate has left her family vulnerable to intimidating and bullying behaviour by the respondents, particularly, in regard to her daughter.

She writes that the learned Magistrate disregarded the fact that Queensland Police and two lawyers had urged her to seek Peace and Good Behaviour orders and she worries that any further complaint she might make to police will not be given sufficient weight because of this result.

It may well have been proper for police officers and lawyers to make the suggestion that Ms Ragus seek an order under the Peace and Good Behaviour Act but a proper consideration of that Act and the materials do not support the making of an order in this case.

Ms Ragus made further submissions with respect to ground 5.  That relates to her Honour's refusal to grant an adjournment so that Ms Ragus could obtain legal advice in respect to the request for authority for joining of Ms Ragus's daughter as a complainant.  This is particularly so because given the overlap in the evidence relating to the two complaints, there was a resultant disadvantage in the prosecution of the complaint against Mr Stait.

I've already expressed my view that the Magistrate was wrong in that regard and I'm aware of the overlap that Ms Ragus is referring to and although I don't expect Ms Ragus to draw much comfort from this decision, I make plain that I've considered all of the material available to the Magistrate with respect to both complaints and I repeat that, fundamentally, it seems to me that given the nature of the order sought under the Act the materials were insufficient. It does not mean that Ms Ragus has no complaint about some of the past behaviour of Mr and Mrs Stait.  It might well mean that all the parties have to conduct themselves with great care and consideration for others in order to live happily in the environment that they live in, but as a matter of law, I'm not satisfied that any of the grounds of appeal is made out. 

More particularly, on my own review of the materials, I'm not satisfied an order should be made and the appeals are dismissed.