Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157

Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1

Murcia & Associates (a firm) v Grey [2001] WASCA 240; (2001) 25 WAR 209

Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435

Re Rules of the Supreme Court 1971 (WA); Ex Parte Frigger [2024] WASC 7

Rowe v Stoltze [2013] WASCA 92

The State of Western Australia v Demali [No 2] [2019] WADC 140

Williams v Grainger [1999] WADC 133

1. Late in the afternoon of 4 June 2024, Angela Cecilia Theresa Frigger (the Offender) was found guilty of one count of making a false statement contrary to Criminal Code (WA) s 169. This followed a 10-day trial before a jury over which I presided. A judgment of conviction was recorded.
2. The Offender was bailed on strict terms to appear in the District Court at 10.00 am the following morning, 5 June 2024, at which time she was to surrender her passports. The Offender was scheduled to be sentenced on 7 June 2024.
3. The Offender did not answer her bail nor appear at the hearing on 5 June 2024. Consequently, I issued a bench warrant for her arrest. The court subsequently received information to the effect that the Offender had left the country by air in the early hours of 5 June 2024 bound for Singapore, final destination unknown.
4. On 11 June 2024, a firm of lawyers, Janssen + Maluga Legal (with offices in both Nedlands and Düsseldorf) sought to file a Criminal Procedure Rules 2005 (WA) Form 3, Notice of Acting on behalf of the Offender. In the period prior to the trial, and at the trial, the Offender had appeared in person. The purpose of the Notice of Acting was, according to its terms, to 'request access to ecourts and proceedings of the matter, for the purpose of filing an appeal/ leave to appeal application'.
5. Registry staff referred the Notice of Acting to me for a direction as to whether it should be accepted for filing and, if so, how the court should respond to the request embedded in it.
6. At the time of publishing this decision the bench warrant remains outstanding.
7. The jurisdiction of the District Court includes 'all powers and authorities incidental to the exercise of the jurisdiction'.[1] More specifically, in the exercise of its statutory powers, the District Court is able to call upon and exercise such powers as are reasonably required for the proper carrying out of its functions.[2] The full limits of the incidental jurisdiction of the District Court have not been explored.[3] The incidental jurisdiction at least empowers the court to prevent an abuse of its processes.[4]
8. In a recent decision, Seaward J summarised the principle in the following terms:[5]

What amounts to an abuse of the court's processes is insusceptible to a formulation comprising closed categories ... However, in abuse of process cases one or more of the following three characteristics are likely to be present: the invocation of the court's processes for an illegitimate or collateral purpose; the court's procedures being used in a manner that is unjustifiably oppressive to a party, or the court's procedures being used in a manner which brings the administration of justice into disrepute ...

1. For example, in Demali I held that the incidental power of the District Court extended to compel a law firm acting for an accused who had not answered his bail immediately prior to trial to disclose to the court any information in its possession as to the whereabouts of the accused. This followed a determination that these communications were not protected by legal professional privilege.
2. In the civil jurisdiction, there is a well established practice of the court not accepting for filing a document which, if accepted, would abuse its processes.[6] The practice is embedded in Rules of the Supreme Court 1971 (WA) O 67 r 5.
3. In my view, it would be an abuse of the processes of the court to accept the Notice of Acting on behalf of the Offender for filing. The Offender cannot both refuse to participate in the criminal justice system in this State by failing to answer her arrest warrant and then seek to continue to participate in the criminal justice system by requesting access to court records to facilitate an appeal. To do so would allow the court's procedures to be used in a manner which brings the administration of justice into disrepute.
4. I have given some thought as to whether I should afford the Offender procedural fairness before coming to this decision. However, as I would only be prepared to hear from the Offender, or a lawyer on her behalf, if she had answered her arrest warrant and appeared in court in person, there was no point in doing so.
5. Accordingly, I have directed Registry staff to not accept any document which the Offender seeks to file in these proceedings, whether through lawyers or personally. Specifically, I have directed the Registry to not accept for filing the Notice of Acting submitted by Janssen + Maluga Legal.
6. I have also directed Registry staff that the Offender should not be permitted to have any access to documents on the court file or in the court record. The Offender's access to the court's electronic case management system (ECMS) will also be removed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

[1] District Court of Western Australia Act 1969 (WA) s 6(1); Murcia & Associates (a firm) v Grey [2001] WASCA 240; (2001) 25 WAR 209 [16] (Steytler J, with whom Wallwork J agreed) (Murcia); Rowe v Stoltze [2013] WASCA 92 [28] (Newnes JA, with whom Pullin & Murphy JA agreed).

[2] Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157 [52] (Gaegler J); Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435 [50] - [51] (Gaudron, Gummow & Callinan JJ); Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1, 16 - 17 (Dawson J); The State of Western Australia v Demali [No 2] [2019] WADC 140 [21] (Gething DCJ) (Demali); Williams v Grainger [1999] WADC 133 [15] (Viol DCJ).

[3] Murcia [16]; Demali [21].

[4] Murcia [16]; Demali [21].

[5] Re Rules of the Supreme Court 1971 (WA); Ex Parte Frigger [2024] WASC 7 [32] (references omitted).

[6] See for example: Re Rules of the Supreme Court 1971 (WA); Ex Parte Frigger.