New South Wales Supreme Court CITATION : Ballantyne v Riemer & Anor [2002] NSWSC 1156 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 12339/01 HEARING DATE(S) : 27 November 2002 JUDGMENT DATE : 2 December 2002 Trevor John Ballantyne PARTIES : Nicholas Riemer LCM Tania McGarritty JUDGMENT OF : Sperling J at 1 LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Riemer LCM JUDICIAL OFFICER : COUNSEL : The Appellant in person Mr D Burwood for the Second Respondent The Appellant in person SOLICITORS : Crown Solicitors for the First Respondent Short Flynn & Co Lawyers for the Second Respondent CATCHWORDS : No question of principle Justices Act 1902, s104, s104A, s109 Protection of the Environment Administration Act 1991, s3 LEGISLATION CITED : Protection of the Environment Operations Act 1997, s268 Suitors' Fund Act 1951 Supreme Court Act 1970, s69 Supreme Court Rules 1970, Pt51B r6 CASES CITED : Hill v Hodge (1993) 80 LGERA 54 DECISION : 1. Time for appeal from the order made on 5 December 2001 dismissing the amended summons extended to 31 May 2002 nunc pro tunc; 2. Appeal against order made on 5 December 2001 dismissing the amended summons allowed; 3. The orders made on 5 December 2001 for summary dismissal and for costs set aside; 4. The second respondent to have a certificate under the Suitors' Fund Act 1951; 5. Time for appeal from the determination of the Local Court on 20 February 2001 is extended to 27 July 2001 nunc pro tunc; 6. Appeal allowed in part; 7. The order for costs made by the local Court on 20 every 2001 set aside; 8. Proceedings remitted to the Local Court to rehear and redetermine the question of costs according to law; 9. Appeal otherwise dismissed; 10. No order as to costs in relation to the proceedings heard on 27 November 2002; 11. Liberty to apply for reconsideration of the question of the costs of the proceedings heard on 27 November 2002, any such application to be made within seven days from today's date. - 19 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Sperling J Monday, 2 December 2002 12339/01 Ballantyne v Riemer & Anor Judgment 1 His Honour: By complaint made at the Local Court, Ballina, on 30 November 2000, Trevor John Ballantyne (hereafter the appellant) asserted: That … between 1st September and 26th November 2000 at Lennox Head one J McGarritty (a female) was one of the occupiers of premises at 56 Sandstone Crescent which is affected by offensive noise, to wit, the intermittent noise of three toddlers and two elder children coming from a balcony overlooking the complainant's residence. 2 The complaint was not felicitously drawn. The balcony of the premises occupied by Ms McGarritty was close to and overlooked the property occupied by the appellant and his parents. It was intended to assert that the premises occupied by Ms McGarritty were the source of offensive noise rather than that they were affected by offensive noise. The complaint was so construed during the proceedings. 3 The complaint was made pursuant to s268 of the Protection of the Environment Operations Act 1997 which provides as follows: (1) The occupier of any premises may make a complaint to a justice of the peace alleging that the occupier's occupation of the premises is affected by offensive noise. (2) The justice may summon the person alleged to be making or contributing to the noise, or the occupier of the premises from which the noise is alleged to be emitted, before a Local Court. The person or occupier is called the defendant in this section. (3) If the Local Court is satisfied (on the balance of probabilities) that the alleged offensive noise exists, or that although abated it is likely to recur on the same premises, the Local Court may make an order directing either or both of the following: (a) directing the defendant to abate the offensive noise within the time specified in the order, (b) directing the defendant to prevent a recurrence of the offensive noise. Offensive noise is defined in the dictionary to the statute as follows, so far as is relevant: "offensive noise" means noise: (a) that, by reason of its level, nature, character or quality, or the time at which it is made, or any other circumstances: (i) … (ii) interferes unreasonably with (or is likely to interfere with) the comfort or repose of a person who is outside the premises from which it is emitted, or (b) … 4 On 20 February 2001, the complaint was heard by Magistrate N Riemer at the Local Court, Ballina. Having heard evidence and submissions, his Worship dismissed the complaint on the same date and ordered the appellant to pay Ms McGarritty's costs assessed at $3,695. 5 The appellant has acted without legal representation throughout these proceedings. 6 On 23 February 2001, the appellant instituted an all-grounds appeal in the District Court. I accept the appellant's evidence given before me that this course of appeal was taken on the advice of the registry at the Local Court, Ballina. That appeal came before Ducker DCJ on 6 April, 18 May, 27 July, 12 October and 19 October 2001. 7 I accept the appellant's sworn evidence given before me that, on the second occasion (which the appellant mistakenly thought was in April), Ducker DCJ advised the appellant that he could not deal with the substantive appeal and that the appellant should commence proceedings in the Supreme Court. I accept that, within a day or so, the appellant attended at the Supreme Court in Sydney, where he was advised to institute proceedings by way of a stated case. That he attempted to do but the procedure had since been abolished. Ultimately, he learned that the correct procedure was to file a summons and that was done, with a supporting affidavit, on 27 July 2001. 8 The affidavit of 27 July 1991 stated that the appeal was brought pursuant to s104(2)(b) of the Justices Act 1902, or, alternatively, pursuant to s69(1) of the Supreme Court Act 1970, and that the appeal was against the dismissal of the appellant's complaint by Magistrate Riemer. The affidavit sought an extension of the time prescribed for appeal. It also specified grounds of appeal which can be summarised as follows. (a) Apprehended bias on the part of the magistrate. (b) Error as to the meaning of "offensive noise" in s268. (c) The admission of hearsay evidence by the magistrate without satisfying the notice requirements of s67 of the Evidence Act 1995. The summons filed on 27 July 2001, is no longer on the court file and I have not seen it or a copy of it. 9 An amended summons was filed on 9 October 2001 specifying the following claim: A declaration that the respondent was mistaken in law in dismissing the appellant's application for a noise abatement order under section 268(3), Protection of the Environment (Operations) Act 1997 at Ballina Local Court on 20 February 2001. 10 The respondents to the amended summons and presumably to the original summons were Ms McGarritty and Magistrate Riemer. The latter has filed the usual submitting appearance. 11 On 19 October 2001, Ducker DCJ struck out the appellant's appeal to the District Court and ordered the appellant to pay costs assessed at $1000. 12 On 27 November 2001, Ms McGarritty filed a notice of motion in the Supreme Court claiming orders that the appellant's amended summons filed on 9 October 2001 be dismissed and, alternatively, that the appellant provide security for costs. The notice of motion came on for hearing before Master Harrison on 5 December 2001. 13 There was no appearance for the appellant. The notice of motion and supporting affidavit had been duly served on the appellant by registered post. However, the appellant had taken the position that he would not receive communications from Ms McGarritty or her solicitors otherwise than through the registry of the court. According to the appellant, the letter was returned unopened. In the result, the appellant had no actual notice of the process to strike out the amended summons for which, of course, he had only himself to blame. 14 Master Harrison decided the motion on the evidence before her. She noted that, notwithstanding earlier advice by Ducker DCJ, the appellant had not instituted an appeal by summons until 27 July 2001 and that the record of the proceedings in the Local Court had not been lodged as required by the Supreme Court rules. Service by registered post was proved. The Master had no explanation (such as it might have been) for the appellant's non-attendance at the hearing of the motion. She found that the appellant had not acted with due diligence in the Supreme Court proceedings and dismissed the amended summons for want of prosecution, with costs. 15 On 31 May 2002, the appellant filed a notice of motion which, so far as is relevant, sought an order that Master Harrison's order striking out the amended summons be quashed. I accept the appellant's evidence, given before me, that he filed that notice of motion as soon as he learned of Master Harrison's decision. 16 No notice of appeal has been filed in relation to Master Harrison's determination of 5 December 2001. However, the notice of motion is substantively to that effect and the procedural irregularity should be waived. However, it is to be noted that the appeal from Master Harrison's determination was lodged substantially out of time. 17 The appellant's notice of motion came before Adams J on 24 June 2002. He directed, in effect, that the proceedings as a whole should be listed for hearing and on the one occasion. 18 The proceedings came on for hearing before me on 27 November 2002. The appellant appeared in person. Ms McGarritty was represented by Mr Burwood of counsel. Competence 19 It was submitted on behalf of Ms McGarritty that the appeal to this Court was incompetent by reason of s104A of the Justices Act 1902, which provides that an appeal does not lie to the Supreme Court against a conviction or order made or sentence imposed by a magistrate in proceedings relating to an environmental offence, except with the leave of the Supreme Court. By definition in the Protection of the Environment Administration Act 1991, an offence prescribed by the Protection of the Environment Operations Act 1997 is an environmental offence. There is provision for appeal to the Land and Environment Court in relation to such offences. 20 Section 268 of the Protection of the Environment Operations Act 1997 does not prescribe an offence. Proceedings pursuant to that section are civil and not criminal in nature: Hill v Hodge (1993) 80 LGERA 54. 21 The appeal to this court is, accordingly, competent. Time for appeal against order dismissing the proceedings 22 The appeal was instituted substantially out of time. However, I have accepted the appellant's evidence that he instituted the appeal as soon as he learned of the decision. The order was made in his absence, albeit due to his own fault. There has been no prejudice to Ms McGarritty caused by delay in instituting the appeal. 23 In these circumstances, time for appeal should be extended nunc pro tunc. Appeal against dismissal of the proceedings 24 The appellant foolishly deprived himself of knowledge of the motion to strike out the amended summons. However, the fact is he was unaware of it and for the same reason, was unaware of the result. Ms McGarritty has not suffered prejudice as a result of the delay in instituting an appeal against the order for summary dismissal of the proceedings. In these circumstances, justice requires that time for appeal from that determination should be extended nunc pro tunc. 25 As for the appeal itself, I should confine myself to the evidence before the master, which consisted of an affidavit by Ms McGarritty's solicitor, Mr J W Perkins, sworn 23 November 2001, and an affidavit of service of process on the appellant. Mr Perkins' affidavit recounted the history of the District Court appeal. It mentioned the late commencement of the appeal in this Court and procedural deficiencies in relation to that appeal. The more detailed account of events given to me by the appellant in evidence was not fresh evidence in the relevant sense and should not be taken into account in the appeal from the master's determination. 26 There was a strong argument for summary dismissal of the proceedings. There had been delay for which there was no explanation. There were procedural deficiencies. The summons was filed without a return date. Nothing had been done to bring the proceedings on for hearing. Notwithstanding due service, the appellant did not appear on the hearing of the motion for summary dismissal of the proceedings. 27 On the other hand, it was apparent, however, that the appellant was not legally represented in the proceedings. There was no evidence of any notice by Ms McGarritty's solicitors to the appellant requiring him to cure the deficiencies in the proceedings or requiring him to take the steps necessary to bring the summons on for hearing. The procedural history of the matter was as consistent with ignorance as to what was required as with a contumelious disregard for a litigant's obligation to prosecute proceedings with due diligence. There was no evidence of prejudice having been suffered by Ms McGarritty as a result of the delay in bringing the appeal on for hearing. 28 Having regard to these considerations, I find myself in disagreement with the conclusion reached by the master. The appeal against the master's order for summary dismissal of the proceedings should be allowed. The orders for summary dismissal and for costs should be set aside. Ms McGarritty should have a certificate under the Suitors' Fund Act 1951. Time for appeal from the Local Court determination 29 Part 51B r6 of the Supreme Court Rules prescribes 28 days for appeal from a decision of the Local Court, and that the time may be extended by this Court. 30 Having regard to the appellant's evidence given before me, to which reference has been made, there is a reasonably satisfactory explanation for the delay in commencing the appeal within time. As will appear, there is merit in the appeal. Ms McGarritty has suffered no prejudice as a result of the delay in instituting the appeal. 31 In view of these considerations, the time for instituting the appeal from the determination of the Local Court on 20 February 2001 should be extended nunc pro tunc. The substance of the appeal from the Local Court Ground 1: apprehended bias 32 The appellant referred to a number of rulings made by the magistrate in the course of the hearing which, in the appellant's submission, were so patently wrong as to convey to the reasonable observer a reasonable apprehension of bias. Of these, only the magistrate's determination of the question of costs at the very end of the hearing warranted criticism. 33 It was also submitted that the magistrate's attitude to the appellant was one of incivility, hectoring and bullying throughout the hearing. There is no doubt that on many occasions in the course of the hearing the magistrate lost patience with the appellant and adopted a brusque manner towards him. It is, however, apparent from the record that the magistrate had considerable difficulty in keeping the appellant to the point at every stage of the hearing. 34 I do not think the appellant has any cause for complaint about the magistrate's response to the appellant's digressions. More particularly, I do not think that a reasonable person observing the proceedings might reasonably have apprehended that the magistrate had pre-judged the issues or was prejudiced against the appellant. Ground 2: the meaning of "offensive noise" 35 The gist of the appellant's complaint was that, on four occasions during the period specified, offensive noise emanated from Ms McGarritty's balcony, generated by the screams and shouts of three of her children and two visiting children, and by a tricycle or tricycles being ridden by the children over the wooden slats which formed the floor of the balcony. 36 The following is the substantive part of Magistrate Riemer's reasons for dismissing the complaint. Now there is no expert evidence before the Court as to the extent of the noise, the decibels produced by children playing or any measurement of noise and Mr Ballantyne says that is not required. I suppose it is not specifically required in the Act but the onus is on the complainant to indicate the extent of noise that is complained about, and one would have thought that that type of independent evidence would be helpful to the Court to ascertain the extent of noise. It is not there. We have the subjective assessment of that noise by Mr Ballantyne and his mother as being restricted only, his mother does not complain at all about any of the noise coming from the children, that is vocal noise presumably, but purely the noise of tricycles on the balcony, and Mrs Ballantyne says that it has been better since these proceedings initiated, and Mr McGarritty apparently removed one of the noisiest toys, that is a plastic wheeled contraption that apparently made more noise than others. Mr Ballantyne is aggravated by the noise and he says that it interferes with his – well you could say the quiet enjoyment of his premises I suppose. But the only information the Court has as to noise has been described as, by various people including Mr Huxtable, as he hears it, children playing. It does not appear to be of any concern to other neighbours, but as Mr Ballantyne says the other neighbours are not quite as exposed, as his premises are. There is a fact remains that there has to be proof, the onus on the complainant to make that proof, it is purely subjective, the evidence that has been to the Court here today that the children's noises is offensive. It obviously appears to be offensive to Mr Ballantyne but it is not obviously offensive to anybody else. Mr Ballantyne says it is offensive to himself and his mother and his father and that may be the case. But that is not the test. It has to be offensive per se to any reasonable person and I think the wording is, and referred to, to be harmful to interfere with the occupants of adjoining premises, a noise emanating from those premises to persons outside, likely to interfere with the comfort of others. Well I have heard evidence from others that that is not the case. And as I say there is absolutely no evidence of the quantification of the noise, other than that it is children playing and tricycles or scooters on the balcony to wit, that have been in part abated already. I am afraid Mr Ballantyne that I am not satisfied on any basis the complaint is dismissed. 37 The appellant submitted that the magistrate had introduced an irrelevant consideration into the concept of "offensive noise" in the legislation, namely, that the offensive nature of the noise had to be established objectively, by scientific measurement and to some unspecified objective standard. 38 I do not read the magistrate's reasons for determination in that way. It was a relevant observation that there was no evidence measuring the volume of noise emanating from the balcony, which could be related by a suitably qualified expert witness to the noise levels commonly experienced in ordinary daily life. In the absence of such evidence, it was true that the magistrate was dependent on the subjective assessment of the noise by the appellant and his mother. It was loud enough to trouble them but he was unpersuaded that it was loud enough to interfere unreasonably with the comfort of the appellant and his parents. 39 The approach did not imply that scientific proof of any particular noise level was necessary in order to establish that the noise was offensive within the meaning of the legislation. 40 I conclude that it has not been established that the magistrate erred in construing the phrase "offensive noise" in the legislation as is alleged. Ground 3: wrongful admission of hearsay evidence 41 The appellant relied on the following passage in the transcript of evidence in support of this ground of appeal. Flynn: Q. Sir you said in answer to the Magistrate's question of you in terms of your occupation that you are a superannuated academic, what do you mean by that? A. That was just self deprecating. Q. What do you mean by that sir? A. I'm no longer employed at any university because I have had ill health and I'm not able to work. Q. What is that ill health sir? A. I'll answer the question your Worship but with a-- Bench: Q. You will certainly answer the question, it's being put to you, you will answer it go on A. I will answer the – with the greatest of respect your Worship I will-- Q. I don't want to hear about your greatest respect just answer the question come on let's get on? A. All right the answer is to the question your Worship is that it is a heart condition which is inoperable, I've taken – in King Charles II's word "an unconscionable time a dying" but it's inoperable and it's a condition that affects the pulmonary valve to my heart and the thing that I was intending to put to your Worship was I do not consider this to be relevant to this application because I am saying that any reasonable man in my position would react in the same way that I have reacted. Bench: Now you've answered that question, yes next question. Flynn: Q. Do you have any other medical condition? A. No. Q. Do you consult a doctor? A. Yes. Q. Do you consult a psychiatrist? A. No. Q. Do you consult a psychologist? A. No. Q. Have you ever attended the Richmond Clinic sir? A. Never. Q. Are you sure about that? A. Never. Q. You deny that you do? A. I certainly do. My sister has yes, and hence the name Ballantyne, she's never gone to on the occasions that she's had to be there-- Bench: We're not interested in your sister don't-- A. All right the answer's no. 42 It became apparent at the hearing before me that the appellant regarded this passage as hearsay evidence that he suffered from a psychiatric condition. Bearing in mind that the appellant was not legally represented, that is understandable. His understanding is, however, incorrect. Questions are not evidence. There was no evidence arising from this passage of cross-examination that the appellant suffered from a psychiatric condition. No legally qualified person would think that the passage constituted such evidence, and there is no reason to believe that the magistrate so regarded it or might have done. 43 I would mention, in passing, that the line of questioning was understandably offensive to the appellant, but it was not illegitimate in principle. The cross-examiner was entitled to explore whether the appellant might have been inordinately sensitive to noise by reason of any condition of body or mind. In this regard, I assume that the cross-examiner had instructions that the appellant had attended Richmond Clinic so as to justify putting that to him as the fact (which is what was done). But, however that may be, there is no basis on which to think that this line of questioning had any effect on the result for the reason I have given, namely, that it did not constitute evidence that the appellant suffered from a psychiatric condition. Indeed, because the answers were in the negative, it did not constitute evidence of anything. Ground 4: costs 44 The appellant says he was not given a reasonable opportunity by the magistrate to examine Ms McGarritty's solicitor's claim for costs before the order for costs was made against him. He also challenges the quantum of the costs ordered. 45 No such ground of appeal was notified before the hearing. Properly, however, no objection was taken to the ground being advanced on the appeal. The following extract from the transcript of the proceedings on 20 February 2001 shows what happened in relation to costs. Flynn: I seek costs your Worship. Bench: Yes costs can be awarded. What quantification? Flynn: I can hand up a schedule your Worship, it includes the costs, the legal costs that have been incurred since this matter was referred to hearing and I was instructed, it also includes the costs incurred, babysitting expenses incurred by the defendant, and one witness who is a registered builder, Mr Nolan. They are the costs I seek. Bench: Have you given Mr Ballantyne a copy of this? Flynn: No I haven't but I'm happy to. Bench: Have you got a copy of it? Flynn: I haven't unfortunately no. Bench: Mr Ballantyne the Act provides specifically for costs to be awarded and the actual section is s273 "A Local Court … under this division". I am of the view that a costs order should be made because the case has not been made out. And it is a view of this Court the case has not been made out at all. An order for costs will be made, there has been a document produced which indicates a claim for costs being preparation for the hearing $750 that is professional costs, conference with witnesses $300, brief on hearing $2000, and regarding the particulars I take it that is-- Flynn: That's the prior work in relation to the particulars. Bench: Prior work yes, there is also a claim for witness' expenses in effect being the witness' expenses Mr Nolan who has attended here today and has not gone to work, at $125 and babysitting for the defendant to come to Court here today. And we have information of course that she has young children and babysitting a group would be a necessary expense probably. Do you have any comment to make on all of that? Complainant: I request a stay pending appeal to the District Court. Bench: Oh yes well that is a different issue, I mean what do you-- Complainant: I'm not commenting on those. Bench: --what the issues you take from here on are entirely up to you, I am asking you about the question of costs that is all. I mean as I understand you have already indicated there is going to be other litigation of some other form in relation to some other thing, so what you do from here is a matter for you. Complainant: I have not had the advantage of seeing that your Worship. It's the continued discourtesy that I have received from this other person at the Bar Table, and I am not prepared to make any submission until I have a detailed opportunity to examine those. Bench: Well it does seem to me to be within the parameters of reasonable costs at this point in time so I will make that order having regard to the fact that you are going to initiate other proceedings in any event. So I will not hold the matter up at this stage. The complainant is to pay the defendant's costs of $3,695 and I put within 21 days. 46 It is apparent that the appellant was not given a reasonable opportunity to examine the claim for costs and, accordingly, was denied a reasonable opportunity to be heard in relation to it. That was a denial of procedural fairness constituting an error of law. 47 The order for costs should accordingly be set aside. 48 I have the power to re-determine the matter of costs and to substitute such order as I think appropriate: Justices Act 1902, s109. However, this Court is not equipped by experience to make that assessment. Accordingly, the proceedings should be remitted to the Local Court to rehear and determine the question of costs according to law. If the appellant is dissatisfied with the order in relation to the quantum of such costs as may then be ordered, time will run afresh in relation to any appeal that may be available. I would encourage the parties to reach an accommodation on this aspect of the proceedings rather than incur further costs. Costs of the appeal 49 The appellant has succeeded, against opposition, in his application to extend the time for appeal against the summary dismissal of the proceedings by the master, in his appeal against that decision, and in his application to extend the time for appeal against the decision of the Local Court. The appeal against the decision of the Local Court has succeeded in part, namely, as to the order for costs. The appeal against the substantive order dismissing the appellant's complaint has failed. 50 Were the ordinary rule applied, namely, that costs follow the event, the appellant would be entitled to recover at least some part of his costs, having succeeded, against opposition, in the applications to extend time, in the appeal against summary dismissal of his appeal, and in relation to part of the appeal from the Local Court. 51 However, in view of the consideration that the major aspect of the appeal has failed, namely, the appeal against the order dismissing the complaint, the ordinary rule should give way. There will be no order for costs in relation to the proceedings heard by me, with the intent that each party will pay their own costs. 52 The parties have not been heard in relation to costs. There will be liberty to apply for reconsideration in that regard. Orders 53 I make the following orders: Time for appeal against order dismissing the proceedings 1. Time for appeal from the order made on 5 December 2001 dismissing the amended summons extended to 31 May 2002 nunc pro tunc. Appeal against dismissal of the proceedings 2. Appeal against order made on 5 December 2001 dismissing the amended summons allowed. 3. The orders made on 5 December 2001 for summary dismissal and for costs set aside. 4. The second respondent to have a certificate under the Suitors' Fund Act 1951. Time for appeal from the Local Court determination 5. Time for appeal from the determination of the Local Court on 20 February 2001 is extended to 27 July 2001 nunc pro tunc. The appeal from the Local Court determination 6. Appeal allowed in part. 7. The order for costs made by the local Court on 20 February 2001 set aside. 8. Proceedings remitted to the Local Court to rehear and redetermine the question of costs according to law. 9. Appeal otherwise dismissed. Costs of the proceedings heard on 27 November 2002 10. No order as to costs in relation to the proceedings heard on 27 November 2002. 11. Liberty to apply for reconsideration of the question of the costs of the proceedings heard on 27 November 2002, any such application to be made within seven days from today's date. -o0o- Last Modified: 12/02/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.