Altaranesi v Whalan

(1) If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case." 37 The section will also apply to an information which is bad for duplicity either on its face or because of the evidence led by the prosecution: Ex parte Williams (1909) 9 SR (NSW) 140. In such a case the magistrate ought to ask the prosecution to elect as to the particular offence relied upon either at the outset of the hearing or during the course of the evidence: Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467; Stanton v Abernathy. 38 Her Honour took the view that what was said by Campbell JA in Knaggs v Director of Public Prosecutions (NSW) [2007] NSWCA 83; (2007) 170 A Crim R 366 at [48] was sufficient to dispose of the plaintiff's application. However, with respect, her Honour did not reproduce the whole of the paragraph in his Honour's judgment from which the allegedly supporting words were drawn. The whole paragraph is as follows: "[48] Fourth , by reason of the extended meaning of 'indictment' given by section 15(2), section 16(2) applies to a CAN. The wording of section 16(2) is broad, and its reference to a defect in a CAN 'in substance or in form' is capable of applying, as a matter of language, to a failure to state the particulars of the alleged offence. It may be that, in some circumstances, there are deficiencies in a CAN so gross that as a matter of construction section 16(2)(a) would be read as not applying to them: cf The King v Hickman & Others; ex parte Fox & Clinton (1945) 70 CLR 598. There is no need to decide whether that is so, as the argument we are asked to consider in this application is whether, when the CAN identified all the elements of the offence, any failure to comply with section 175(3)(b) has the effect that the proceedings purportedly commenced by the CAN that breaches that requirement are void." 39 Moreover, his Honour's conclusion on the question he was then considering also casts the issue into a slightly different light. His Honour said this at [60]: "[60] In all these circumstances, and purely as a matter of construction of the legislation, I do not conclude that the legislature intended that a contravention of section 175(3)(b) would result in the invalidity of the CAN, and of any convictions that result in proceedings commenced by such a CAN." 40 In this case the issue cannot be determined without close attention to the form of the plaintiff's application. Bearing in mind the need to have regard for the fact that the plaintiff's first language is not English and to the fact that he appears without legal representation, it is difficult, although certainly not impossible, to make any sense of the application at all. The problems appear to be at least the following. First, there are several people named in the one application. The document does not make clear what is the relationship between or among them having regard to the various allegations that are made. This problem is seriously compounded when one has regard to the form of the proposed amendment to the application. 41 Secondly, there is no observable or obvious connection between the limited allegations of fact that are to be found in the application and the various sections of the several Acts cited as the sources for the offences charged. The application is simply very confusing. A named respondent ought easily and reasonably to be able to glean immediately what he or she is alleged to have done and when and by reference to specified events in which he or she was allegedly involved. In the present case there is an omnibus listing of various sections of several Acts followed by a statement of facts that are not related, and which are otherwise difficult to relate, to the sections concerned. Answers to the rhetorical questions, "What is the allegation against me?" or "What offence is it alleged I have committed?" are not readily capable of discovery. 42 Thirdly, it is not clear whether or not the same facts are alleged to give rise to more than one offence or which facts relate to which offences if not more than one. For example, s 62(1) of the Privacy and Personal Information Protection Act is in almost identical terms to s 68(1) of the Health Records and Information Privacy Act. Section 62(1) is as follows: "62 (1) A public sector official must not, otherwise than in connection with the lawful exercise of his or her official functions, intentionally disclose or use any personal information about another person to which the official has or had access in the exercise of his or her official functions.

Maximum penalty: 100 penalty units or imprisonment for 2 years, or both." 43 Section 68(1) is only slightly different but is as follows: "68 (1) A public sector official must not, otherwise than in connection with the lawful exercise of his or her official functions, intentionally disclose or use any health information about an individual to which the official has or had access in the exercise of his or her official functions.

Maximum penalty: 100 penalty units or imprisonment for 2 years or both." 44 The plaintiff's application does not make plain whether it is intended to charge two offences of disclosing personal information on the one hand and disclosing health information on the other hand upon the basis of different facts or whether the same facts are said to give rise to different offences. There are other instances of this. The application is embarrassing for these reasons alone. 45 The defendants made the following detailed submissions: " Failure to comply with the Criminal Procedure Act

It is clear on the face of both the original and second application that they do not comply with s175 (3)(e) of the Criminal Procedure Act.

It is clear on the face of both the original and second application that they do not comply with s175 (3)(a) and (b) of the Criminal Procedure Act.

It is clear that the original application in its Grounds does not comply with s175(3)(a) in respect to Ms Whalan, Ms Mills and the third paragraph dealing with Mr Harding. In fact, the grounds against Ms Whalan, Ms Mills and the third paragraph dealing with Mr Harding do not concern an offence contained within the Privacy and Personal Information Act 1998, Health Administration Act 1982 or Health Records and Information Privacy Act .

It is clear that the second application in its Grounds does not comply with s175 (3)(a) in respect to Ms Mills and Mr Leahy in respect to the first ground. In fact this ground does not concern an offence contained within the Privacy and Personal Information Act 1998, Health Administration Act 1982 or Health Records and Information Privacy Act or Industrial Relations Act .

It is clear that the second application in its Grounds does not comply with s175 (3)(a) in respect to Ms Whalan and Mr Leahy in respect to the second ground. In fact this ground does not concern an offence contained within the Health Records and Information Privacy Act or Health Care Complaints Act.

It is clear that the second application in its Grounds does not comply with s175 (3)(a) in respect to Ms Whalan in respect to the third ground. In fact this ground does not concern an offence contained within the Health Records and Information Privacy Act .

It is clear that the second application in its Grounds does not comply with s175 (3)(a) in respect to Ms Mills in respect to the fourth ground. In fact this ground does not concern an offence contained within the Health Records and Information Privacy Act.

It is clear that the second application in its Grounds does not comply with s175 (3)(a) in respect to Mr Harding in respect to the fifth ground. In fact this ground does not concern an offence contained within the Workplace Injury Management Act or Privacy and Personal Information Act 1998, Health Administration Act 1982 or Health Records and Information Privacy Act or Civil Liability Act .

It is also clear on the face the original application that it did not comply with s175 (4) of the Criminal Procedure Act because it failed to comply with Clause 17(2) Local Courts (Criminal and Applications Procedure) Rule 2003 .

In respect of the second application it is also clear on the face of the second application that in respect of the last grouping of grounds of the application that other than in respect to the first reference to Mr Harding it failed to comply with s 175 (4) of the Criminal Procedure Act because it failed to comply with Clause 17(2) Local Courts (Criminal and Applications Procedure) Rule 2003 ." 46 The defendants conceded that failure to comply with s 175(3)(b) did not by itself render the application void: Knaggs. They also conceded that failure to comply with s 175(3)(c) did not render the application void: Blight v Inspector Barber [2007] NSWSC 448 at [33]-[35]. The defendants supported the proposition that even without considering the question of duplicity the plaintiff's application was so deficient that it could not be saved by the operation of s 16(2). The defendants contended that her Honour fell into no relevant error in the way that she considered or applied the provisions of the Criminal Procedure Act, including her determination concerning s 16(2). 47 In my opinion, whether upon the basis that the application was duplicitous or was otherwise so difficult to comprehend as to amount to a denial of natural justice or procedural fairness, her Honour's conclusions were correct. The application does not conform to the common law rule that an information must identify the essential ingredients of the actual offence. The utilisation of s 16(2) can avoid the consequences of technical defects but cannot overcome the requirements of natural justice. The plaintiff's application is so offensive to this notion as to be incapable of being maintained or supported in its present form. 48 It follows in my opinion that her Honour's treatment of the plaintiff's application on these bases was not erroneous. 49 As earlier noted, the remainder of the so-called questions of law in respect of which the magistrate is said to have made errors are not easily identified. The plaintiff complained that his failure to include in the documents served on the defendants a statement that they were required to appear before the court at a specified date, time and place, and so forth, contrary to s 175(3)(d) of the Criminal Procedure Act or that failure to appear may result in their arrest or that the matter may be dealt with in their absence contrary to s 175(3)(e) of the Criminal Procedure Act should not have been treated as defects by the magistrate. Her Honour was satisfied that the application did not comply with s 175(3)(e), in that it did not inform the defendants that failure to appear may result in their arrest or that the matter may be dealt with in their absence. However, the defendants in fact appeared before her represented by counsel and the defect was inconsequential in those circumstances. Understandably, even though her Honour referred in terms to this "defect" she did not ultimately treat it or rely upon it as a defect that invalidated the plaintiff's application. The plaintiff's complaint in this Court about these matters does not identify any error by the magistrate. 50 Next, the plaintiff argued that he was entitled to some allowance for the fact that he was an unrepresented litigant and that in the circumstances of this case her Honour erroneously failed to take that matter into account. Putting to one side for the moment the issue of whether or not the plaintiff has identified a question of law, it is instructive to recall the terms of his written submissions on the topic. They were as follows: " 19. The lower Court failed into account the following consideration :

19.1 It is a burden is placed upon the court to give some assistance to the unrepresented litigant, especially when that litigant is faced by a competent legal opponent; and then there is the vexed issue as to the extent to which the tribunal can assist the litigant, whilst maintaining its impartiality. The court in its opinion that, if there is necessary to change the form, has to help unrepresented litigant to do that.

19.2 My English is not the first language, I requested local court to provide me with an interpreter but they failed to provide me an interpreter in the days of 10/6 and 8/7/2009, just only on the day of hearing the decision of the court 15 July 2009. And it is appropriate for the court to give some assistance to me in order to fulfil that duty.

19.3 In Damjanovic v Sharp Hume and Co [2002] NSWCA 407 critically dealt with the conduct of District Court Judge in relation to an unrepresented plaintiff, saying: 'Confidence in the judicial system plays a very important part in maintaining confidence in the orderly working of society. Confidence by a judicial officer, which may cause that confidence to be diminished, is to deplored. Judicial officers must have particular regard to the due performance of their functions in situations where a litigant is in person, and does not have English as his or her first language and, as in the present case, has shown a health scepticism for the legal system . Such people should not be made to feel that because they are appearing in person, as they are entitles to do, or do not understand the language fully, they are under disadvantage. Within the rules concerning helping litigants in person, the Court should observe with scrupulous fairness the duties to which we have referred'.

19.4 In interlocutory matters, the court will normally be slow to terminate proceedings summarily because of defective pleading by an unrepresented litigant, at least where it appears that there is a viable cause of action which, with appropriate amendment and a little assistance from the court could result in a pleading being placed in proper form: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536.

19.5 The applicant does not necessarily fail for want of an adequate explanation for the default. It depends on the circumstances. '[I]f merits are shown, the Court will not prima facie desire to let a judgment pass on which there has been no proper adjudication': Evans v Bartlam [1937] AC 473 at 489.

19.6 On 15 July 2009 when the interpreter came, I heard the decision, not giving me the opportunity to be asked for or make comments; subsequently I could not explain my vision for the time and date of offences as shown here, and the court made prejudice about these issues. I rely on: 'The absence of an explanation for the default, particularly it is coupled with prejudice to the plaintiff may justify the denial of relief, but only when considered with other relevant': Hope JA in Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503 at 506-507.

19.7 While the court dissatisfied with my application due to breach the procedure, I observed that court ignored the serious failure of the accused people to comply with s 137 (1)(b) of Criminal Procedure Act 1986 (Attached #26): 'after the accused person has been given notice of the case for the prosecution, the accused person is to give the prosecutor notice of the defence response to the case for the prosecution (referred to in this division as the defence response)'. As three accused haven't made any notice of the defence response to the case.

19.8 The lower court failed to explain, how I will arrest the accused persons (while I am private plaintiff) or how I find the time and the date of offences. The inadequate reasons is as an error of law (and a ground of judicial review) it is well settled in federal case law that a substantial failure to produce a proper statement of reasons itself constitute an error of law where the statement of reasons is a requirement of exercise under the statute of decision-making power Dornan v Riordan (1990) 24 FCR 546 [also generally, Smith 1992, Kirby 1994, Katzen 1993 and Bayne 1992].

19.9 I have not received the reasons for imposing cost order against me.

19.10 I take the opportunity to raise my voice to whom may be concerned; I, unrepresented litigant, who is not lawyer, who has financial hardship to afford fees of lawyer, Legal Aid doesn't look in these offences, Police refused to take the prosecution for these kind of offences, obeyed the registrar of local court in filing the form of application to the court, then the court dismissed the application due to the lack of procedure (as it see) particularly when I faced Counsel in front of court, which refused to give me little assistance in the just procedure, regardless the case, as mentioned above, has the merit case, then the Lower Court made an error of Laws.

19.11 What litigant, like me have to do, to implement the fundamental Human Right, as mentioned in Declaration of Human Rights (UDHR 1948): 'No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor attacks upon his honour and reputation. Everyone has the right to the protection of the Law against such interference or attacks' " . 51 The plaintiff has also emphasised in this context that English is not his first language. The plaintiff at the hearing placed considerable written material before her Honour. The only issue that she decided was the defendants' application to strike out the proceedings for want of compliance with formal requirements. In the course of the hearing on that issue the following passed between the plaintiff and her Honour: "HER HONOUR: So the orders you're seeking are formal apologies in the public and to pay for damages and compensation, to take steps towards correcting fault by writing to people saying they unlawfully disclosed information, to provide documents that you want and to pay fines for breach of the Act?

HER HONOUR: Okay. What do you say - and all your reasons for and the law you base this on is set out in your application?

APPLICANT: Yes your Honour, yes." 52 Even though legally unrepresented the plaintiff appeared to apprehend enough about his case to seek to amend it. The passage last quoted suggests that the plaintiff was content, and by inference understood, that her Honour was proceeding to reserve her decision on the defendants' preliminary point. The plaintiff's limited English, and the benefits of hearing him with the aid of an interpreter, would also have been obvious to all. In this last respect I note that he appeared before me assisted by an interpreter, Mr Selim, whose help he accepted only occasionally. After a short while the plaintiff appeared to prefer to conduct the hearing by himself and apparently did so quite adequately from my point of view. 53 It does not appear from the transcript in the Local Court that the plaintiff's abilities with English caused her Honour any concerns. There are some portions of the proceedings that were incapable of transcription because they were said to be indecipherable, which I take at least in part to be the result of an inability to understand the plaintiff when he spoke. But these instances are not many and are not contextually significant. Moreover, there is nothing that emerges from that transcript that suggests that the plaintiff was not given a fair hearing on the defendants' application to dismiss the proceedings. Her Honour did not fail to afford the plaintiff any proper concession to account either for his difficulties with English or his position as an unrepresented litigant in a way that offended the principles in the cases upon which he now wishes to rely, particularly Evans v Bartlam [1937] AC 473 and Damjanovic v Sharpe Hume & Co [2001] NSWCA 407. 54 Furthermore, the plaintiff's application was in the form it was in for some time before the proceedings reached her Honour. She ultimately dismissed the proceedings on what were essentially matters of form. The plaintiff's application to amend was not directed to the critical formal defects upon which the defendants finally prevailed. There does not appear to be any tangible or practical relationship between the plaintiff's limited English or his unrepresented status and the dismissal of his application. The difficulties for a reader in understanding the plaintiff's documents as a result of his limited English or lack of legal training or assistance did not invalidate them and her Honour did not take so limited a view of them as to dismiss his case in a formal sense by reason of any such difficulties. The formal problems with the application far transcended the plaintiff's limited English or self-represented status, as her Honour's reasons make plain. 55 It will also be apparent that the plaintiff contends that her Honour fell into error because she failed to give proper or adequate reasons for her decision concerning costs. Although I was not referred to authority on the points that the plaintiff may have wished to emphasise in this regard, and bearing in mind that his written submission was limited to the single assertion that he had not received reasons for the costs order being imposed upon him, I will proceed to deal with the contention on basic and well understood principles. 56 After delivering her reasons for judgment her Honour said this: "HER HONOUR: So I have dismissed the application for form, I note that that form issue was raised on 10 June, and when the matter was adjourned to 8 July Mr Altaranesi presented a new application. I note that this new application I found to be not in proper form for several reasons, so I have dismissed the application.

There is an application then for costs on behalf of the respondents. I note that the matter first came for mention on 10 June, it was adjourned for further mention on 8 July. Mr Altaranesi has been putting his material forward for some time. There were brief submissions made on behalf of the respondents on that day addressing the obvious issue of form and the matter was adjourned today for decision only, so there have been three appearances. Mr Britt states that he is involved with other litigation involving some of these parties.

SO I PROPOSE TO MAKE A COSTS ORDER AND PROPOSE THE COURT HAS DISCRETION FOR WHAT IS JUST AND REASONABLE. SO TAKING INTO CONSIDERATION CAPACITY TO PAY AND THE NATURE OF THIS CASE I PROPOSE TO MAKE AN ORDER FOR $2000 TO BE PAID WITHIN TWENTY-EIGHT DAYS." 57 In Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 444, Meagher JA said this: "Another question, which need not presently be decided, is whether the failure to provide reasons or the provision of inadequate reasons constitutes either an error of law or some other appealable error. This was a question which Hope A-JA noted but found unnecessary to decide in Mifsud v Campbell (at 729). It is sufficient to note that most cases have assumed the error is one of law.

Lastly, it is noted that an appealable error arising from inadequate reasons does not necessarily mean that a new trial is required. An appeal court is entitled to consider the matter and, if appropriate reasons are given, may itself decide the matter. Thus, if the only conclusion open on the evidence available at trial was the conclusion reached by the trial judge, then, notwithstanding an inadequate statement of reasons, the matter need not go to a new trial: NSW Insurance Ministerial Corporation (formerly GIO of New South Wales) v Mesiti (Court of Appeal, 1 December 1994, unreported)." 58 I note that the plaintiff did not at any stage contend that he was not given an opportunity to be heard on the question of costs. Having regard only to the submission that her Honour gave insufficient reasons for her costs order, I can see no basis for concluding that in the particular circumstances of this case her reasons were less than required. The form of the plaintiff's application was fundamentally flawed. This was through no fault of the defendants. They took no point on the failure of the plaintiff to serve them personally as required or his failure to serve an affidavit in support in the time provided by the rules. They attended on more than one occasion to argue that the applications were bad in form. That argument succeeded, as it must have. The economy of her Honour's reasons for decision does not bespeak an error of law. In my opinion the only conclusion open on the evidence available at trial was the conclusion reached by her Honour. Conclusions 59 Despite the fact that I am of the opinion that her Honour fell into none of the errors promoted by the plaintiff, I am mindful that the plaintiff might reasonably have anticipated that he would have been given an opportunity to make an election or to amend the application so as to put it into a proper form, in the sense referred to earlier. Section 16(2) has the purpose of overcoming formal and technical objections being taken to the statement of the charge. It cannot operate in the present case to prevent the defendants asserting, as I have found they are entitled to assert, that they would in effect be denied natural justice if committed to a defence of proceedings initiated by so offensive a document. 60 This says nothing, however, that is inimical to the plaintiff's right and ability to put the application in proper form if it is capable of such treatment. As I have indicated, the magistrate had an implied power to direct the furnishing of particulars or to require the prosecution to elect to charge the appellant in a more limited or constrained way. Nothing that was said in Knaggs appears to me to limit or restrict the power of the Court to consider or to permit an amendment even, or on one view especially, where the problems or defects are so gross that s 16(2)(a) does not operate to save them. Despite the depth and breadth of the defects afflicting the plaintiff's application, he should be afforded an opportunity to attempt to correct the defects if that is possible. In my view, her Honour's failure to give the plaintiff that opportunity amounted to error. 61 In S v The Queen [1989] HCA 66; (1989) 168 CLR 266, Gaudron and McHugh JJ said this at 286-287: "[11] Prejudice is the focus of consideration when the question is whether some order should be made as to the conduct of the trial to avoid difficulties which may be occasioned by reason of uncertainty as to what precisely is charged. Ordinarily, those difficulties will be averted by ordering particulars, by amending the indictment, or by putting the prosecution to its election and appropriately confining the evidence to the offences charged. See Johnson v. Miller, at pp 480-481, 486, 497-498 and 501. However, when a trial proceeds without an order averting those difficulties, the question is whether there has been a blemish on the trial amounting to a substantial miscarriage of justice..." 62 I consider that these principles should inform the approach that I take to the determination of this case. In these circumstances, therefore, I propose to direct that the plaintiff furnish a draft of any proposed amended application to the defendants within a specified time for consideration by them and to appoint a date before me when any argument upon any such proposed amended application, and upon whether the plaintiff should be permitted to proceed upon it, can be heard. Such an approach falls within the general power of the Court provided by the terms of s 59 to make "such other order as [the Court] thinks just". Orders 63 In the circumstances I will make the following orders: 1. Set aside the orders made by Magistrate Schurr on 15 July 2009.

2. Direct the plaintiff within 21 days to serve upon the defendants, if so advised, any proposed draft amended application upon which he proposes or intends to rely.

3. In the event that the plaintiff complies with order 2, appoint such day as the parties arrange in consultation with my Associate for the hearing of argument upon the question of whether or not the plaintiff should be permitted to file and to rely upon the proposed draft amended application.

4. In default of compliance with order 2, order that the proceedings be dismissed.

5. Stand over the question of the costs of this application and of the adjourned hearing to such date as may be arranged. Some further matters 64 It will be apparent that the circumstances that give rise to these proceedings are somewhat unusual although by no means unique. As I have already noted, the plaintiff seeks some degree of recognition and vindication for the hurt he feels he has suffered at the hands of others who have been unfair to him. He told me that he had been punched and victimised and that when he reported these matters he was ignored or fobbed off. He sought redress in the Government and Related Employees Appeal Tribunal but apparently without success. I am informed that he was dismissed for misconduct but no details of that assertion are before me and it would appear to be contentious. The plaintiff has also instituted proceedings under s 84 of the Industrial Relations Act, presumably contending that his dismissal was harsh, unreasonable or unjust. He has in addition commenced a number of matters against the Sydney Southwest Area Health Service alleging breaches of the Health Records and Information Privacy Act and the Privacy and Personal Information Protection Act in the Administrative Decisions Tribunal. Some of those matters have been heard and the complaints have been dismissed. Some of them are concerned with issues that are referred to in the plaintiff's application filed in the Local Court which was heard by her Honour and which is the subject of the plaintiff's case before me. 65 The plaintiff plainly demonstrated that he is emotionally very troubled by all that has beset him. He became upset in my Court. He reiterated that what he really wanted was an apology. I have assumed that in the context of these several pieces of litigation, the notion that the defendants might apologise to the plaintiff has either been overlooked or intentionally disregarded. I recognise immediately that those from whom an apology is sought may themselves quite properly or at least understandably feel that one is neither called for nor warranted and should not be offered. I am in no position to express any view about this and I do not do so. And yet the proceedings continue. 66 The plaintiff's attempts to achieve some appropriate outcome or closure by the commencement of criminal proceedings against the defendants may appear to some to be incongruent and inappropriate and considerably less than the most suitable course to pursue towards that end. I refrain from expressing a view about that as well. I certainly consider that the plaintiff would profit from some professional legal advice and assistance about the wisdom of continuing to prosecute these proceedings to their ultimate but as yet uncertain conclusion. I can presently have no reasonable anticipation or expectation of what that conclusion may be or when it will arrive. I can say, however, that the physical and emotional toll of this type of adversarial litigious pursuit, which is so often driven by highly commendable but typically elusive matters of principle, is generally if not inevitably more destructive than restorative. 67 I trust that the plaintiff and the defendants will consider these matters, as well as the terms of s 56 of the Civil Procedure Act 2005, in the weeks ahead as they contemplate what steps they will next take in this case.

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