Walton v Gardiner (1993) 177 CLR 378; John Fairfax & Sons Pty Ltd v McCrae [1955] HCA 12; (1955) 93 CLR 351, Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75, applied.

Magistrates - Generally - Stay of proceedings and abuse of process - Whether a court of petty sessions has the power to set aside a witness summons issued in proceedings before it.

Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1; Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23;

Lillico v McKenna [1995] TASSC 32; (1995) 5 Tas R 147; Visser v Hodgetts [2002] TASSC 44; (2002) 10 Tas R 422, considered.

Judgment Number: [2023] TASSC 88

1 This was an application by the Attorney-General dated 14 November 2008 by which (as amended) orders were sought as follows:

• all applicable time limits be abridged to enable the application to be heard on 18 November 2008;
• all summons to witnesses issued by David James Plumridge JP in proceedings on complaint 33925/07 in the Magistrates Court in Launceston be set aside;
• that until further order the respondent be restrained from causing the issue of any witness summonses other than by the magistrate hearing the proceedings upon that complaint.

2 On 19 November 2008, I made certain orders and said that I would later publish reasons to the parties. These are those reasons.

3 The evidence establishes that Mr Plumridge on 10 November and 14 November 2008, issued, at the respondent's request, 86 witness summonses. In the course of the hearing, the identities of 83 of the witnesses were revealed. Included among those 83 were the Chief Justice and all other puisne judges of this Court apart from me, six magistrates, a number of the members of the Anti-Discrimination Tribunal, the Director of Public Prosecutions and a number of legal practitioner employees of his office, the police officer who laid the complaint (Inspector Lusted), and the legal practitioner conducting the hearing of the complaint before Magistrate Szramka, Mark Miller. Also included were a number of members of staff of the Supreme Court of Tasmania, the Magistrates Court and the Anti-Discrimination Tribunal.

4 For the purposes of these proceedings, I have assumed that all witness summonses were lawfully issued.

5 The applicant relied on affidavits of David James Plumridge, Robert Walker, Mark Miller, Paul Turner and Steven Bishop. On 18 November 2008, the respondent filed an unsworn affidavit. He was cross-examined on that affidavit, a prelude to which was that he swore the contents to be true and correct.

6 Complaint No 33925/07, as it presently stands, alleges that the respondent on 24 October 2006 at Launceston intimidated Anita Smith, a public officer exercising authority conferred upon her by the Anti-Discrimination Act 1998 by sending an email to the Tribunal which stated that if Anita Smith did not disqualify herself from the hearing of the complaint lodged by the respondent under that Act, he would be "in a position to lawfully kill the respondents" to that complaint.

7 Mr Miller's affidavit reveals that the hearing of the complaint has had a very protracted course, there having been a total of 18 appearances to date. Magistrate Szramka is the magistrate presently hearing the complaint, Magistrate Wilson having initially embarked on it but disqualified himself on the application of the respondent. The prosecution case closed on 25 July 2008 having called three witnesses. The matter was to resume on 4 November 2008. At that time the respondent successfully applied for an adjournment. It was adjourned to Wednesday 19 November at 2.15pm for mention, the purpose of the mention being to set a date for the resumption of the hearing.

8 Mr Miller deposed to the fact that from the tenor of the respondent's cross-examination in the proceedings thus far, two principal issues had emerged; whether Ms Smith was exercising authority conferred by the Anti-Discrimination Act, and whether there had been intimidation.

9 To convict the respondent of the complaint the magistrate would need to be satisfied beyond reasonable doubt that:

• the respondent;
• intimidated;
• a public officer;
• in the execution of her duty, or lawfully performing a duty imposed on her by an Act, or in the exercise of a public duty or authority.

10 The Attorney-General brings this application on the basis that the issue of the 86 witness summonses amounts to an abuse of process. A basic point underlying the application is the sheer volume of summonses issued, returnable within a relatively short timeframe and where the complaint was listed for mention only. More particularly however, the basis of the application is that none of the witnesses can give relevant and admissible evidence on the hearing of the complaint.

11 The application is made to this Court in its supervisory jurisdiction, the view having been taken that a magistrate sitting as a court of petty sessions had no power to set aside the witness summonses on the basis that the issue of them amounted to an abuse of process of that court.

12 As to the latter proposition, I need not finally determine the point, but I would observe that in my view a magistrate or two justices hearing and determining a complaint would have the power to set aside a witness summons issued in those proceedings, on the basis that the issue amounted to an abuse of process, or for some other proper reason.

13 In Lillico v McKenna [1995] TASSC 32; (1995) 5 Tas R 147, Zeeman J held that a court of petty sessions did not have the power to stay proceedings by reason of the fact that to permit them to continue would amount to an abuse of process, but the court was competent to grant relief on that basis, by way of dismissing the complaint. This decision was followed by Underwood J (as he then was) in Visser v Hodgetts [2002] TASSC 44, 10 Tas R 422. In both cases, the implied power to do whatever is necessary for the proper and effective exercise of the jurisdiction, was acknowledged. The reason a court of petty sessions could only prevent an abuse of process arising from the pursuit of a complaint by dismissing it, was that the court was limited by the applicable statutory provisions.

"By reason of the nature of a court of petty sessions, which only comes into existence when justices or a magistrate sit in petty session and has no independent existence, it is inappropriate for such a court to grant a stay."

15 In Lillico v McKenna and Visser v Hodgetts, the issue was the power to grant a stay. Leaving that aside, I do not see anything in either judgment nor in the cases discussed in those judgments, which would deny to a court of petty sessions an implied power to control its proceedings, and to take such steps as are within the confines of its general jurisdiction, to remedy any abuse of that procedure. In my view an implied power to control all incidental procedural matters is established on the authorities: see for instance Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1 per Dawson J at 16-17; Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 per Mason CJ at 28. On that basis I think it is at least strongly arguable that a court of petty sessions would have the power to set aside a witness summons issued in proceedings of which it was seised.

16 The reason I do not finally determine the point is that it is abundantly clear that this Court has a supervisory jurisdiction in respect of a court of petty sessions, with power to prevent an abuse of process in relation to proceedings before that court. In support of that proposition I refer to Walton v Gardiner (1993) 177 CLR 378 at 391-392, John Fairfax & Sons Pty Ltd v McCrae [1955] HCA 12; (1955) 93 CLR 351 at 363, Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 and Herron v McGregor (1986) 6 NSWLR 246 at 251. As can be seen from those cases, the original source of that power insofar as this Court is concerned, is the Australian Courts Act 1828.

17 In determining this application, I have regard to the whole of the evidence and to what emerged from exchanges with the respondent in the course of objections to his cross-examination and from his submissions.

18 I can discern from the material a number of issues about which the respondent wishes to adduce evidence in the hearing of the complaint. This list is not exhaustive but is comprised of the main issues which seem to emerge. It is, I think, indicative of the type of evidence sought to be led. Those issues are:

• the facts and circumstances surrounding an occurrence in 1987 which led to the respondent's conviction for "wilful and obscene exposure" in June 1988;
• the proceedings leading to that conviction, and a subsequent unsuccessful application to extend the time in which to file a notice to review the order of conviction;
• the alleged collusion between Crown Law and Tasmania Police relating to "interference" with his capacity to present a defence to the present complaint;
• an assertion that the present complaint was laid in order to prevent him proceeding with at least one complaint of discrimination;
• any discussions which may have taken place between Anti-Discrimination Commission and Anti-Discrimination personnel and Tasmania Police in relation to whether a complaint would be laid;
• what steps, if any, had been taken to increase court security (I assume in the magistrates court) after the complaint had been laid;
• the general merits of at least one, possibly more, complaints of discrimination made to the Anti-Discrimination Tribunal.

19 In short, the respondent seems to have a plethora of complaints concerning past injustices over a considerable period of time which he wishes to air and to weave into the fabric of the present hearing of the complaint. Many of the summonsed persons relate to the issues which I have just outlined. In the case of many other of the summonsed persons, it is well nigh self-evident that they can give no relevant and admissible evidence.

20 In the end result, I am satisfied that all of the 86 summonses issued by Mr Plumridge on 10 and 14 November 2008, should be set aside as amounting to an abuse of process. This is because of the number of summonses issued to people whose evidence would be, at best, of questionable relevance requiring them all to attend a mention hearing, and a large number of whom are involved in the day to day administration of justice in this State.

21 Moreover, I am satisfied that on the whole of the material and, as presently advised, it is simply not possible to see that any of the witnesses whose potential relevance to the proceedings was actually canvassed or touched on before, can give relevant and admissible evidence in relation to the issues which the magistrate is required to determine.

22 Further, having regard to the particular witnesses whose evidence was canvassed or touched upon, and to the whole of the material, including cross-examination conducted by the respondent and the various exchanges which occurred, I have no confidence at all that any of the persons summonsed can give relevant and admissible evidence. In fact, I am satisfied to the contrary. I repeat that of the 86 persons summonsed, the evidence of only 19 (on my assessment) was addressed by the respondent in his affidavit.

23 I accept that the respondent believes that the evidence from all of these persons is relevant and admissible on the hearing of the complaint. That is his view, and I am not satisfied that his conduct in having these summonses issued was not done in pursuit of that genuine view. However, the absence of bona fides is not necessary in order to conclude that the issue of a witness summons should be set aside as an abuse of process.

24 "What amounts to abuse of court process is insusceptible of a formulation comprising closed categories. Development continues"; see Batistatos v Road and Traffic Authority [2006] HCA 27, 226 CLR 256 at 265 [9]; and Botany Bay Instrumentation and Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100.

25 In any event, it is proper to set aside a witness summons simply where the court is not satisfied that the witness can give relevant and admissible evidence; R v Hove Justices; ex parte Donne [1967] 2 All ER 1253; Witness v Marsden [2000] NSWCA 52, 49 NSWLR 429 at 441-442 [54]- [60].

26 Additionally, I am satisfied that an order of restraint ought be made. The evidence reveals previous attempts to have summonses issued on a large scale. The order I propose to make will not preclude the respondent from making application to Magistrate Szramka in the course of the hearing, for the issue of any summonses. The magistrate would be in by far the best position then and there to determine whether or not it is appropriate to issue the summons sought. The respondent would not accordingly be denied access to justice in that sense. That is the most desirable and sensible course. That such orders are appropriate in certain cases is confirmed by Wentworth v Graham [2003] NSWCA 307 and Markisic v Department of Community Services (NSW) [2007] NSWCA 30.

1. That the requirements of the Supreme Court Rules 2000, Div 1, Pt 14, be dispensed with.
2. That the relevant requirements of the Supreme Court Rules 2000, Div 1, Pt 22, rr 542, 543, 545, 547, be dispensed with.
3. The use of affidavits relied on by the applicant be permitted notwithstanding any non-compliance with r 510(1).
4. All summonses issued by David James Plumridge, Justice of the Peace, on complaint number 33925/07 be set aside.
5. That until the final determination of complaint number 33925/07 in the Magistrates Court at Launceston, or until further order of this Court, the respondent is restrained from seeking, or causing the issue of, any witness summons in the proceedings on that complaint, except from or by the presiding magistrate, Magistrate Zygmunt Szramka.
6. That the respondent pay the applicant's taxed costs of the application.