Sherman v Condon[2014] QDC 189

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   Pursuant to an Originating Application filed on 20 June 2014, the applicants seek that the respondent be restrained from entering a residential property at 10 Alpinia Street, Sippy Downs (“the Property”).

2. [2]
   The first applicant is the registered proprietor of the Property and the second applicant (his 70 year old mother) resides at and is in possession of that property. The Application seeks orders in the following terms:

“1.An order pursuant to Section 68 of the District Court Act 1967 and pursuant to Section 9 of the Civil Proceedings Act 2001 that the respondent by herself, her servants and agents be restrained from entering onto the premises known as 10 Alpinia Street, Sippy Downs, in the State of Queensland, having title particulars being Lot 53 on SP186177 in the County of Canning, Parish of Mooloolah, Local Government Area of Sunshine Coast (“the Property”) while ever the applicant resides at the Property.

2. The respondent pay the first and second applicant’s costs of the Application.

3. Such other order as the Court considers appropriate.”

3. [3]
   The factual basis of the Application lies in the following circumstances:

1. (a)
   The first applicant has owned the property since early 2007 and since then, the second applicant has resided there, with his consent;^[1]

2. (b)
   The respondent has, since April 2007, resided in a neighbouring property on the opposite side of the street;^[2]

3. (c)
   Initially there was some social interaction, with the respondent being permitted to attend at the Property.  However and after some behaviour of the respondent, which was considered to be inappropriate and embarrassing, in mid 2009, the second applicant informed the respondent that because of that:

“I’m never going to let you in ever again because I do not like your behaviour.”^[3]

4. (d)
   Initially and before leaving the property, the respondent responded:

“All right, if you are going to be like that fuck you, you can all get stuffed.”^[4]

5. (e)
   Subsequently, it is described that the respondent’s conduct has been offensive and there is evidence that on 8 May 2014 and whilst the second applicant was absent from the Property, the respondent was observed, by a neighbour and over a period of about an hour, to be riding a bicycle back and forth on the street in front of the Property and heard to shout out in the direction of the Property the following words:

“(a)‘You’re nothing but a fucking bitch and I’m going to get you.’

2. (b)
   ‘You go near my kids I will kill you.’

3. (c)
   ‘You want to get out of the street, you need to move.’

4. (d)
   ‘Do you know what it’s like to be raped.’

5. (e)
   ‘I hate you fucking bitch.’”^[5]

6. (f)
   The neighbour contacted the police and when the shouting had ceased, observed that the respondent had walked into the front yard of the Property and describes seeing her:

“(a)Pull plants out of Dorothy’s garden;

2. (b)
   Turn over pot plants;

3. (c)
   Pulled an ornament from the wall.”^[6]

7. (g)
   Upon being contacted by her neighbour, the second applicant returned to the Property, to find that a number of pot plants in the front garden and patio areas, had been knocked to their side and that a butterfly ornament was on the ground, rather than hanging, as it had been when she had left that morning, on the side of the house (as depicted in photographs that were then taken).^[7]

8. (h)
   The second applicant saw the respondent with police, at her own house and describes that “she swore at me from across the road”.^[8]

1. (i)
   As a consequence, the second applicant left the Property and stayed with the first applicant, in Brisbane, until 23 May 2014 and she also deposed:

“35.Because of what the respondent has done I fear for my safety. I have not been able to sleep properly.”

4. [4]
   Further and as a consequence of this incident, an order was issued in the Magistrates Court at Caloundra, on 2 June 2014 and under the Peace and Good Behaviour Act 1992, requiring:

“1.That the defendant keep the peace and be of good behaviour towards the complainant for a period of 12 months.

2. Not approach to within 5 metres of the complainant, Dorothy Sherman.

1. 3.
   Not enter or remain on the premises (including the land) at 10 Alpinia Street, Sippy Downs.”^[9]

5. [5]
   On the return of the application, the respondent appeared herself and without legal representation and to resist the application. Her express and apparently bemused concern was to explain what had happened and in that regard she tendered (without objection) a letter from Dr Brian Jacobs, a consultant psychiatrist, dated 6 August 2014.^[10] In that letter Dr Jacobs refers to his involvement in the treatment of the respondent for a Bipolar Affective Disorder over many years, through the Sunshine Coast Mental Health Service, at which the respondent attends regular outpatient appointments and is case managed.  He states:

“At the time of the offences she was clearly unwell with symptoms of a manic episode.  This behaviour is out of character for her.  She was admitted to hospital on April 8^th, 2014, and treated under an Involuntary Treatment Order until her eventual discharge on July 17^th, 2014. 

The nature of her disinhibited behaviour and the reduced ability to control her behaviour which is subject to the current court appearance is totally consistent with her manic illness.  She does not usually participate in this sort of behaviour when she is well and I do not believe that she had the capacity to be responsible for her actions at this time.”^[11]

The application

6. [6]
   There can be no doubt that the applicants (at the very least in combination) are entitled to make this application.^[12]

7. [7]
   Although the applicants also rely on s 9 of the Civil Proceedings Act 2011 (“CPA”), the application of that provision depends on this Court first having “jurisdiction to hear an application for an injunction”.^[13]  Subject to the restriction as to the monetary limit also effected by s 68(1)(a) and (2), jurisdiction is provided by s 68(1)(b)(xii) of the District Court of Queensland Act 1967 (“DCA”), in the following terms:

“(xii)to restrain, whether by injunction or otherwise, any actual, threatened or apprehended trespass or nuisance to land, where the value of that land does not exceed the monetary limit, or, in lieu of or in addition to such an injunction, damages not exceeding the monetary limit;”

8. [8]
   In proceedings in the exercise of that jurisdiction, s 69 DCA provides that subject to the DCA and the rules of Court and for the purposes of exercising such jurisdiction, this Court has “all the powers and authorities of the Supreme Court” and, by s 69(2)(b), is expressly given the power to grant relief “by way of injunction, whether interim, interlocutory or final, in the proceedings”.  When such jurisdiction is engaged, s 9 CPA also provides a power to “at any stage of a proceeding” restrain by injunction, “a threatened or apprehended breach of contract or other wrongful conduct”, which, by reference to s 9(2) CPA, may be seen to include a threatened or apprehended trespass. 

9. [9]
   There is evidence that the property is valued at $140,000 by the Valuer General under the Land Valuation Act 2010^[14] and therefore this proceeding is within the monetary limit.^[15]

10. [10]
    The application is made on the basis of what is asserted to have been the actual trespass by the respondent on 8 May 2014, particularly in contravention of the possessory rights of the second applicant. It is contended that is because:

1. (a)
   a trespass is constituted by an unjustified entry directly by a person on land in the possession of another, which is carried out either intentionally or negligently^[16];

2. (b)
   with the revocation of any license or consent given by the second applicant to the respondent to enter onto the property, on or about June 2009 any entry by the respondent thereafter would be an unjustified entry and constitute a trespass^[17]; and

3. (c)
   trespass to goods takes place when there is an unlawful or unjustified act causing damage to the goods or destroying the goods.^[18]

11. [11]
    The applicants particularly rely on the following expression by Dixon J in Cowell v Rosehill Racecourse Co Ltd, as to the revocation of a licence to enter or be on land^[19]:

“A licence which is not coupled with or granted in aid of an interest is revocable at law. It operates as a bare permission to do what would otherwise be an invasion of the licensor’s rights. If the permission is terminated, further continuance of the acts it authorised becomes wrongful. A licensee does not become a trespasser until he has received notice that the licence is countermanded and until a reasonable time has elapsed in which he may withdraw from the land and remove whatever property he has brought in pursuance of the licence …”

12. [12]
    Although it must be observed that the evidence presented by the applicants is not expressly clear as to termination of any licence to enter the land, as opposed to the residence at the property, or as to any damage, as opposed to disruption of personal property there on 8 May 2014, it may be assumed for present purposes that the respondent trespassed there on that occasion, as has been described. Although and in the absence of obstruction by way of fencing or locked gates, an implication of general consent or licence to entry may be found, in the sense described by Lord Parker CJ, in Robson v Hallett^[20]:

“the occupier of any dwelling-house gives implied licence to any member of the public coming on his lawful business to come through the gate, up the steps, and knock on the door of the house”

 It is unlikely that the respondent could claim any licence or consent or belief as to such licence or consent and in respect of her conduct, as has been described.

13. [13]
    However, an obvious problem that then confronts the applicants is that what is relied upon is a past and completed occurrence rather than a continuing one, and in that sense there remains nothing in that regard to restrain. The power granted to this Court, in the exercise of its jurisdiction, is to grant an injunction “to restrain any actual, threatened or apprehended trespass to land”. In this context, the applicants’ contention that there does not have to be a continuing trespass to enliven the jurisdiction and power of the Court to grant an injunction or restraint, cannot be accepted. The jurisdiction and powers granted in the exercise of that jurisdiction are to “restrain” conduct. Clearly such a power may be exercised in relation to continuing or present conduct or future or prospective conduct (in the context of past conduct or otherwise). However, when the conduct is entirely past, there is nothing to restrain and to the extent that past conduct may relied upon the concern is with the prospect of repetition.^[21]

14. [14]
    Confronted with this difficulty on this application, the alternative contention of the applicants is as to a need to restrain threatened or apprehended trespass to the property. However, the evidence on this application does not establish any direct threat to trespass on the property in the future, although this could, but need not necessarily, be an implication from the verbal threats that are referred to above.^[22]  However, and in circumstances where it must now be necessarily clear that there is no longer any licence or consent for the respondent to enter onto the property, it would be sufficient for the applicant to establish an apprehended trespass, as a basis for any such restraint. 

15. [15]
    In s 68(1)(b)(xii) of the DCA, “apprehended” appears in the sense of an “entertained suspicion or fear or anticipation” of a future trespass.^[23]  However, and given that what may be sought is the authority of the Court in granting an injunction or restraint of the respondent, a mere subjective suspicion or fear or anticipation may not be sufficient and it is necessary that there be some objective likelihood or prospect that attaches to the apprehension.  In other words, the requirements are expressed in an objective rather than subjective sense and it is necessary that the Court shares an anticipation of future trespass or is otherwise satisfied that any such anticipation of an applicant is justified or well founded. 

16. [16]
    By way of comparison it can be noted that under the Peace and Good Behaviour Act 1982^[24] and whilst there is a requirement for a complainant to establish a relevant threat and that he or she “is in fear of the person complained against”, in Laidlaw v Hulett, Ex-Parte Hulett,^[25] Fitzgerald P observed:

“…. s 6(1) does expressly require the Magistrates Court to be satisfied that it is reasonable in the circumstances for the complainant to be in fear of the person complained against, and it is unnecessary for present purposes to determine whether such a requirement need always be met; however, it would ordinarily be inappropriate to make an order against a person complained against unless the complainant had a reasonable fear of that person.”

Whereas the approach of McPherson J, after he referred to historical incidents of binding over to keep the peace, as “a precautionary measure to prevent future crime, and not by way of punishment for something past”^[26], was summarised as follows:

“…. consistently with this approach to the jurisdiction, evidence of past events, although admissible, was relevant only as suggesting reasons why a breach of the peace was apprehended in the future.

It would not have been possible to regard proceedings begun and conducted in that way as criminal in character, which may explain why at the time there was no direct authority on the point in issue here.  The Peace and Good Behaviour Act 1982 now envisages a procedure in two stages, in the first of which the complainant is expected to establish ex-parte but on oath certain jurisdictional perquisites.  Although s 4 refers to a defendant ‘answering’ the complaint, the procedure contemplated by s 6(1) at the second stage is a hearing and determination of the ‘matter of complaint’.  That expression is used in s 4 to describe the pre-requisites for jurisdiction specified in paras (a) to (c) along with the further requirement that the complainant be shown to be ‘in fear’ of the defendant.  The requirement of s 4 that the fear must also be ‘reasonable’ appears to be a factor going more to the discretion to be exercised by the Justice of the Peace in deciding whether or not to summons the defendant rather than a jurisdictional element or ‘matter of complaint’ as such.”^[27]

His Honour otherwise concluded (as did all three Judges constituting the Court of Appeal) that whilst and despite the adoption of the procedures of the Justices Act 1886 to a complaint made under the Peace and Good Behaviour Act 1982, the criminal standard of proof did not apply, such a matter did attract the considerations or principles discussed in Briginshaw v Briginshaw.^[28]

17. [17]
    No question as to the application of the Briginshaw principles arose in the course of this hearing or was addressed in any of the submissions made to the Court.  Further, it can be observed that despite some of the evidence that has been relied upon in this application, the issue is not as necessarily concerned with the applicant being in fear in respect of any threat to assault or injure her or to destroy or damage any of her property, but rather as to any need to restrain an actual, threatened or apprehended trespass to the property. 

18. [18]
    The essential problems confronting this application are that first it was primarily brought on the misconceived basis, that the evidence of the single past and completed trespass would be a sufficient basis for the orders sought and secondly and to the extent that the evidence addresses any future or prospective issues, such are expressly addressed in terms more referable to the issues that may be addressed under the Peace and Good Behaviour Act 1982.^[29] Further and in circumstances where there has, since 2 June 2014, been the intervention under the Peace and Good Behaviour Act 1982 and the evidence relied upon is only as to the single past incident of unwanted entry onto the Property without any suggested repetition, it should not be concluded that a threatened or apprehended trespass has been established, so as to warrant any restraint of the kind sought. In short, it can be noted that there is a difference between a fear that a future trespass could or might occur and an apprehension or anticipation that such will or is likely to occur.

19. [19]
    Otherwise and in the exercise of the Court’s discretion, the existence of the orders made on 2 June 2014 and which include an equivalent restraint of the respondent, as is sought in this application, would stand as a powerful consideration militating against the further orders that are sought here. The application of the Peace and Good Behaviour Act 1982 would appear to have specific relevance to the issues which have been raised in this application and whilst and as has been pointed out, the orders made on 2 June 2014 will only have effect for 12 months, if there are grounds for an order having effect further into the future, that can be further addressed under that legislation by further complaint, which may be made by the applicants. 

20. [20]
    The further relevant considerations in this regard are that any such orders made under the Peace and Good Behaviour Act 1982, provide a basis of enforcement by way of police action for the offence which is provided under s 10 of that Act and in respect of any breach of such an order and that obviously presents as an entirely preferable alternative to the obviously more cumbersome and costly prospect of enforcement of any order made in this Court, on the basis of proceedings for contempt of court. 

Another Issue

21. [21]
    Before concluding, another issue should be noted. In this matter and after the hearing of the application and without seeking or being granted any leave to do so, counsel for the applicants forwarded written supplementary submissions to Court^[30].

22. [22]
    Whilst Practice Direction 2 of 2008 deals with the filing of written submissions in proceedings, that relates to submissions presented at (or prior to and for the purpose of) the hearing. The misconception that further material, such as written submissions, may be simply forwarded to a court, subsequently and at the will of a party, has been recognised in the High Court. In Eastman v Director of Public Prosecutions (ACT)^[31], McHugh J observed:

“[29]…But a party has no legal right to continue to put submissions to the Court after the hearing. In so far as the rules of natural justice require that a party be given an opportunity to put his or her case, that opportunity is given at the hearing.

[30] This is not the first time that this Court has had to emphasise that the hearing is the time and place to present arguments. In Carr v Finance Corporation of Australia Ltd [No 1]^[32], Mason J said:

‘The material was submitted without leave having been given by the Court. The impression, unfortunately abroad, that parties may file supplementary written material after the conclusion of oral argument, without leave having been given beforehand, is quite misconceived. We have to say once again, firmly and clearly, that the hearing is the time and place to present argument, whether it be wholly oral or oral argument supplemented by written submissions’”

Also and in the matter of In the matter of an application by the Chief Commissioner of Police (Vic)^[33], Kirby J observed:

“[54]Where leave has not been given publicly for supplementary submissions and evidence, the provision of such material to court registries without permission of the court, publicly signified, is a derogation from the principle of the open administration of justice. It should not occur. If new points of importance arise in the case whilst a matter stands for judgment, the proper course (unless statute or court rules permit otherwise) is for the proceeding to be relisted so that an application to enlarge the record can be made and determined in open court.”

23. [23]
    Notwithstanding those observations have been made in the context of the exercise of appellate jurisdiction, the essential principles are equally applicable to proceedings at first instance. However and in distinction to the situation in appellate proceedings generally, it may be considered that the granting of leave to supplement, clarify or enlarge upon submissions made in the hearing of proceedings at first instance, may be more readily achieved and more common, in practice.

24. [24]
    Although this communication came with an express request seeking leave to read and file the supplementary submissions, an essential problem in what occurred here is that the supplementary submissions were, apparently, forwarded without any reference to or knowledge of the respondent and it makes no difference that the respondent is not legally represented and it should not be simply assumed that any right for her to be heard in respect of any such further submissions, would be unproductive or a waste of time or that such a litigant should be treated any differently in relation to that right.

25. [25]
    It may also be noted that the principles to which reference has been made, are also recognised in the Barristers’ Conduct Rules^[34], which whilst recognising how an obligation may exceptionally arise, to bring any overlooked and critical authority or legislative provisions, to the attention of a court which has reserved judgment or decision:

1. (a)
   expressly, by rule 33, encapsulates the requirements of this being done with the knowledge and if necessary, consent of an opponent or on relisting of the case; and

2. (b)
   also expresses, in rule 53 and under the heading of “Duty to opponent”, a prohibition on unsolicited, unilateral communications with a court “concerning any matter of substance in connection with current proceedings” and outside of “an ex parte application or a hearing of which an opponent has had proper notice”^[35].

26. [26]
    Accordingly and in this context, I have perused the supplementary submissions, particularly having regard to the inclination as to the disposition of the matter, as has now been explained in these reasons and lest they draw attention to some important matter that might otherwise be overlooked and therefore warranted the relisting of the matter, on notice to the respondent. Having done so, I was satisfied that there was no need for this. Although there was reference to additional cases, the supplementary submissions only had the effect of seeking to reinforce the submissions that had been made at the hearing.

Conclusion

27. [27]
    Accordingly the application is dismissed.