Supreme Court of WA|2003-01-17|Before: Hasluck J, Pullin J

Hunter v Commissioner of Police [2003] WASC 10 (17 January 2003)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : HUNTER -v- COMMISSIONER OF POLICE [2003] WASC 10

Vexatious proceedings - Application for leave to commence proceedings

Justices Act 1902, s 136A, s 185(1) and s 187(1)

1 PULLIN J: I have before me three applications under s 6 of the Vexatious Proceedings Restriction Act 2002, whereby the applicant seeks leave to commence the proceedings described below.

2 On 2 August 2002, the Honourable Justice Hasluck made an order in accordance with s 3 of the Vexatious Proceedings Restriction Act 1930 ("1930 Act") that no legal proceedings should be instituted by the plaintiff in the Supreme Court, or in any inferior court, unless the plaintiff should first obtain the leave of the Supreme Court, or of a Judge thereof, after satisfying it or the Judge that the proposed proceeding will not be an abuse of the process of the court in which it is intended to be instituted and that there is prima facie ground for such proceeding.

3 Notice of this order was published in the Government Gazette on 16 August 2002.

4 On 28 September 2002, the Vexatious Proceedings Restriction Act 2002 ("2002 Act") came into operation and repealed the 1930 Act. However, s 12 of the 2002 Act provides:

"Where, before the day on which this Act comes into operation, an order has been made under section 3 of the Vexatious Proceedings Restriction Act 1930 that no legal proceedings shall, without the leave of the Supreme Court, be instituted by a person in the Supreme Court or in any inferior court, the provisions of this Act apply, with all necessary modifications, to and in relation to that order and that person as if an order had been made under section 4(1)(d) of this Act."

5 Section 4 of the 2002 Act authorises the court to make an order prohibiting a person from instituting proceedings without the leave of a court. Section 5 of the 2002 Act provides that proceedings are not to be instituted in contravention of an order under s 4(1)(d), and by reason of the transitional provision, that section has to be read as stating that proceedings are not to be instituted in contravention of the order of Hasluck J.

6 Section 6(1) of the 2002 Act provides that:

"An application for leave to institute proceedings, or proceedings ... that is required by an order under section 4(1)(d) is to be made ... to the Supreme Court ... and is to be accompanied by an affidavit in support of the application."

7 Section 6(3) states:

"The affidavit accompanying the application for leave is to list all the occasions on which the applicant has made an application for leave under subsection (1) and to disclose all facts material to the application, whether supporting or adverse to the application, that are known to the applicant."

8 Section 6(5) directs the court:

"To dismiss the application for leave if it considers that-

(a) the affidavit does not disclose everything required by subsection (3) to be disclosed;

(b) the proceedings are vexatious proceedings; or

(c) there is no prima facie ground for the proceedings."

9 "Vexatious proceedings" are defined in s 3 to mean:

(a) which are an abuse of the process of a court or a tribunal;

(b) instituted to harass or annoy, to cause delay or detriment, or for any other wrongful purpose;

(c) instituted or pursued without reasonable ground; or

(d) conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose."

10 "Proceedings" are defined in s 3 of the 2002 Act to include an appeal from a court of summary jurisdiction.

11 The originating summons filed in each of the three applications before me seeks an order that:

"There be leave to institute these proceedings for leave to appeal as titled pursuant to the Vexatious Litigant's Act and in the interests of justice and pursuant to the grounds and reasons set out in the Application for leave to appeal ..."

12 In each originating summons, the application for leave to institute the proceedings for leave to appeal is sought in relation to convictions recorded by Magistrates. In the originating summons in CIV 2646/2002, the applicant wishes to institute proceedings seeking leave to appeal against convictions identified by the charge numbers 2872 to 2880 of 1999; in CIV 2647/2002, the applicant wishes to institute proceedings seeking leave to appeal against the convictions identified by the charge number 3926RO/1999; and in CIV 2648/2002 the applicant wishes to institute proceedings seeking leave to appeal against the conviction identified by the charge number 6389/2000.

13 Each originating summons contains another 17 paragraphs setting out a number of other orders sought by the applicant. Paragraph 6, for example, seeks orders and declarations against various government departments and the Attorney-General, leave to issue subpoenas, and orders that the Attorney-General disclose information. During oral submissions, the applicant said that these additional orders were only sought to cover the possibility that the Attorney-General might appear to oppose the grant of leave. I explained to the applicant that this was an ex parte application at this stage, and as a result the applicant did not seek these other orders. I need not therefore pay any further attention to them.

14 I now return to discuss the order which is sought in par 1 of each originating summons, and which I have quoted above. When I read the papers before the hearing, I had a great deal of difficulty understanding what the applicant wished to achieve by the applications. This was partly explained by the fact that some documents upon which the applicant wished to rely had not been filed. A bundle of eight documents were sent to my Associate before the hearing. At the hearing, I spent some time with the applicant relating these additional documents to the three applications before me. It appears that some of the documents were in relation to other proceedings which the applicant had contemplated seeking leave to commence but had not done so. Those documents were returned to him and the remaining documents placed onto the three files. It was only once these extra documents were placed on the file and I had heard the applicant's oral submissions, that I was able to understand what proceedings the applicant wished to institute.

15 The proceedings which he seeks leave to institute are as follows:

(a) applications pursuant to s 185(1) of the Justices Act 1902 for leave to appeal against the convictions referred to above; or alternatively

(b) applications under s 136A of the Justices Act 1902 to set aside the three groups of convictions and have them reheard; and

16 These convictions are the subject of the application in CIV 2646 of 2002. On 1 October 1999, in the Court of Petty Sessions at Rockingham, Mr Tarr SM convicted the applicant of nine offences under the Dog Act. The charge numbers and the details of the charges are as follows:

Kept More Dogs Over 3 Months Old At Establishment Not Approved

17 Document 4 on the court file, which is entitled "Minute of Proposed Application for Leave to Appeal ...", sets out the proposed grounds of appeal.

18 To succeed on this application, s 6(5) of the 2002 Act requires me to dismiss the application if there are no prima facie grounds for the proposed proceedings. The ordinary meaning of the words prima facie is "at first sight; on the face of it; as appears at first sight without investigation": North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2; (1996) 185 CLR 595 at 615-616; Macquarie Dictionary. In the present context, the phrase "prima facie grounds" means, in my opinion, that there is a legal basis for the claim and that there is some evidence referred to in the affidavit in support of the application which, if accepted, would be capable of sustaining the proceedings: cf North Ganalanga (supra) at 639; May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654 at 658.

19 It is necessary for me to bear in mind in relation to the proceedings which the applicant seeks leave to institute under s 185(1) of the Justices Act 1902 that in such proceedings, by reason of s 187(1), the court must grant leave to appeal unless the court considers that the appeal is frivolous or vexatious or that the grounds of appeal advanced do not disclose an arguable case. An arguable case is not merely one which is capable of being argued, but one which has some prospect of success: Dempster v National Companies and Securities Commission (1993) 9 WAR 215 at 261. If prima facie grounds exist, then they will be "arguable".

20 The result is that I would grant leave to institute proceedings under s 6 of the 2002 Act if I were satisfied that there were prima facie grounds for the proposed application for leave to appeal, which grounds were not frivolous or vexatious and which are "arguable". The grounds must be supported by an affidavit disclosing sufficient facts to reveal the "prima facie" grounds.

21 However, before considering whether there are prima facie grounds for an application for leave to appeal, it is necessary to consider whether there are prima facie grounds for an extension of time in which to file the application for leave. This is necessary because there is a time limit for appealing against a decision made under the Justices Act. Order 65A of the Supreme Court Rules requires that an application for leave to appeal to be filed and served on the Clerk of Petty Sessions within 21 days after the day on which the decision to which the application relates was given. Where delay is substantial, an extension of time will only be granted where exceptional circumstances are shown or where there has been a substantial miscarriage of justice which would remain uncorrected if the extension were not granted: Lancaster v R [1989] WAR 83 at 85 and 91.

22 A court will ordinarily be satisfied that there has been a miscarriage of justice if a person has suffered an adverse order in circumstances where his or her failure to appear is adequately explained, unless it also appears that no different result would be reached on a re-hearing or that a re-hearing would work an irremediable injustice to the other side: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at [28].

23 The period of delay between the convictions and in taking steps to seek leave to appeal, exceeds three years.

24 The applicant, in his minute of proposed application for leave to appeal, says that the reasons for delay in seeking leave to appeal are that he did not have a licence or motor vehicle, that four computers and data and legal data and software were stolen or damaged on four different occasions between 1998 and the middle of 2002, that he was suffering "severe & serious trauma causing depression and constant illness and migraine headaches and post traumatic stress and constant nightmares as a consequence to my entire family of specially bred & valuable & dearly loved dogs being cruelly murdered in a spiteful, vindictive manner by Kwinana Shire", that on 11 August 2000 at Hazelmere, his documents and legal research and computer and photographs were stolen, and that there had been "more than 20 criminal acts against me by people, police, Shires & others ...". He then adds that the delay is also explained by "the conversion of fines to WDO (work and development orders - in about 2000), at that stage somewhat alleviating the need to appeal as a pragmatic approach".

25 In my view, because these convictions were recorded over three years ago, because the applicant made a deliberate decision not to appeal for "pragmatic" reasons, and because the other matters deposed to are lacking in particularity, I consider that these reasons do not provide prima facie grounds showing exceptional circumstances justifying an extension of time.

26 Therefore, unless there are prima facie grounds for showing that there would be a miscarriage of justice if an extension of time was not granted, then this application should be dismissed. In that regard, I turn to the proposed grounds of appeal. The first ground of the proposed application is that the Magistrate erred in fact or law by proceeding in the absence of the applicant "who had to attend Perth Court on the same time and date and had notified the Court of this and who attended after lunch at Rockingham Court". The ground also alleged that the applicant requested the Court adjourn the hearing so that he could prepare for his trial, that he had asked for an adjournment and had been denied an adjournment. Ground 4 is to similar effect.

27 The affidavit of the applicant in support, sworn on 31 October 2002, is a lengthy document containing 90 paragraphs. It contains a long history concerning the applicant's imprisonment, and contains complaints about his inability to examine warrants concerning his commitment to jail, complaints about lack of typing facilities in jail, complaints over a number of paragraphs about the decision of this Court declaring the applicant a vexatious litigant, complaints about loss of "legal research", references to conversations he claims to have had with the DPP, comments about the applicant's credibility and honesty, claims of bias and prejudice said to be endemic in the justice system, a reference to loss of assets, allegations against banks, a reference to the loss of his licence, an account about the difficulty of his living conditions, a reference to the fact that he has been arrested 50 times and amassed fines of $40,000, that he had "spent some 600 appearances in court", that over the last three years he had been in court two days per week, referring to threats to his life, and complaining about the Shire "murdering" his dogs, among other matters.

28 The affidavit does not contain any transcript of the proceedings, and it contains no particularised account about what happened on the day of the hearing. The affidavit does not explain how it was that the applicant "notified the Court" that he was attending another court, and does not depose to how he requested Mr Tarr SM to adjourn the hearing if he was not, in fact, at the court. The ground alleges that he was denied an adjournment, but the reasons for denying the adjournment are not revealed. If the applicant were to pursue an appeal based on the Magistrate's dismissal of the application for an adjournment, it would be necessary to show that the Magistrate's discretion miscarried. That would require it to be shown that the Magistrate had for example, taken into account irrelevant considerations or failed to take into account relevant considerations, or had made some other error of law. In short, one or other of the proper grounds for overturning the exercise of a discretion would have to be shown.

29 The 2002 Act requires a disclosure of facts material to the application. No such facts are disclosed in the affidavit. Just because the matter proceeded in the absence of the applicant, does not establish that the Magistrate erred in any way.

30 The other grounds in the minute of proposed application for leave to appeal are not relevant or sustainable grounds of appeal at all. For example, they complain about the applicant being traumatised by reason of the events, that he could not obtain a copy of the transcript without "an unreasonable charge" in advance, and that another Magistrate revoked the applicant's bail on another occasion. There is also a ground alleging that Mr Tarr SM should have disqualified himself or not heard the matter because he had, on some earlier occasion, refused the applicant bail in relation to a matter which is not detailed in the affidavit. The lack of detail amounts to a failure to comply with s 6(3) of the 2002 Act.

31 Further, and in the alternative, based on the affidavit material before me, no different result would have been reached even if the proposed appeal proceeded to hearing. That being so, the applicant has not shown that there would be a substantial miscarriage of justice if an extension of time were not granted.

32 The result is the applicant is not able to demonstrate prima facie grounds for the application for an extension of time, and therefore has not shown prima facie grounds for allowing the commencement of proceedings to seek leave to appeal. In those circumstances, s 6 of the 2002 Act directs me to dismiss the application for leave to institute such proceedings.

33 Similarly, any application under s 136A of the Justices Act 1902 must be made within 21 days next after the giving of the decisions on 1 October 1999. Clearly, an order would not be made under s 136A setting aside the decision of Mr Tarr SM unless an extension of time were granted. In my view, for the reasons mentioned above, there are no prima facie grounds for an extension of time.

34 I am therefore obliged to, and do, refuse to grant leave to the applicant to institute proceedings to apply for extension of time, or to seek leave to appeal against the convictions of 1 October 1999, or to apply for a rehearing of the charges under s 136A of the Justices Act.

35 This is the subject of the application in CIV 2647 of 2002.

36 The applicant seeks leave to institute proceedings to apply for an extension of time in which to seek leave to appeal and to commence proceedings for leave to appeal, or alternatively to apply under s 136A of the Justices Act to set aside, another conviction of Mr Tarr SM in the Court of Petty Session, Perth, on 11 February 2000 on charge number 3926RO/99. The description of the conviction on the warrant of commitment is "Person Liable For Dog Attacked A Person". The fine costs and fees totalled $3,266.70.

37 The applicant relies upon the same facts he relied on in CIV 2646 of 2002 to explain the delay (in this case a delay of about two years and nine months) and to justify his proposed application for an extension of time, either to appeal or to apply to set aside the conviction. For the reasons I have already given in relation to the earlier convictions, I consider that there are no exceptional circumstances warranting an extension of time.

38 It is therefore necessary to decide whether or not there are prima facie grounds that there would be a miscarriage of justice if an extension were not granted.

39 Again, the applicant complains in his proposed grounds of appeal that the Magistrate erred by proceeding in his absence. The applicant alleges that he advised the Court of his inability to attend and had sought an adjournment. The affidavit in support deposes that "on the day of the hearing in this matter I was not able to attend the court and this was explained and accepted and an adjournment requested". Again, the affidavit does not depose to when the application for adjournment was made, what submissions were made, and what reasons the Magistrate gave for refusing the adjournment. Section 6(5) of the 2002 Act directs me to dismiss the application if the affidavit does not disclose everything required by s 6(3). Again, it is necessary to bear in mind that on this ground it would be necessary to show that the learned Magistrate made an error in the exercise of his discretion in refusing the adjournment.

40 Other grounds allege that the learned Magistrate imposed an excessive penalty and erred in ordering that a dog be destroyed, and allege that the evidence put to the Magistrate "was false & fabricated" and that the "wrong dog" was "accused of the offence and further the jeans of the postie were deliberately torn in a fabrication of evidence, as was the provocation of the alleged victim", and that the dog did not attack the victim. These grounds are simply assertion, unsupported by any evidence, and do not allow any conclusion to be drawn that there are prima facie grounds showing that there would be any different result on a retrial. In my view, there are no prima facie grounds that there would be a miscarriage of justice if an extension of time were not granted.

41 As a result, I consider that there is no prima facie ground for the proposed proceedings to seek an extension of time or to seek leave to appeal for an application for an extension to an application for a re-hearing. Acting under s 6 of the 2002 Act, I would refuse to grant leave to institute the proposed proceedings.

42 This is the subject of the application in CIV 2648 of 2002.

43 On 24 April 2001, Mr Malley SM convicted the applicant of unlawful assault in the Court of Petty Sessions at Midland on charge number 6389/00. The total fine costs and fees was $929.70.

44 The same reasons are relied upon to justify the proposed application for an extension of time. The delay in this case is about 17 months. For the reasons given above, the explanation would not warrant any grant of an extension of time unless it could be shown that there would be a miscarriage of justice if an extension were not granted.

45 It appears that this case also was heard in his absence, because the applicant was attending some other hearing in the District Court. Again, the affidavit does not provide sufficient material to be able to form a view that the Magistrate erred. The applicant says that:

"On the day of the hearing in this matter I had to attend the District Court in Perth briefly, and informed the court in Midland that I would be there soon after.

Midland Court got angry and told me to go straight there, but I rang the superior court to check this and it was clear that took precedent (sic).

Both courts have access to all hearings on the system they created for themselves and further such system is directly linked to other data bases and ultimately the courts set the hearing dates not me.

... I notified Midland Court that I had to attend District Court first and did so, requesting the matter be adjourned til I arrived.

I arrived at Midland before lunch to find that the matter had been heard in my absence ..."

46 There is nothing in that account to say whether the Magistrate knew anything about the applicant's telephone call. This account reads as though the applicant expected information to be passed to the Magistrate as a result of the applicant's telephone calls and that the Court would itself search the listings in other courts before proceeding to a hearing. The foregoing reveals no prima facie grounds that the Magistrate erred in the decision he apparently took to proceed to a hearing of the charge which was listed on 24 April 2001.

47 The affidavit contains the applicant's account of what happened in relation to the charge. His account is that an altercation developed with a female complainant, that they struggled either side of a door, and in the applicant's view "I gave the door a good shove, and it shut and I then locked it". He then says in his affidavit "I did not touch Hall, I pushed the door. ... Apparently, because I did not open the door to look, Hall falsely claims I pushed her in the chest so that she fell on the ground. ... This could not be true as I did not touch her, but it is possible her heel tripped her when the door shut." He claims that he was convicted on fabricated evidence. There is no material to support his assertion that evidence was fabricated.

48 The proposed grounds of appeal allege that the Magistrate erred in not disqualifying himself because he had "ruled" against the applicant on two previous occasions. This is not supported by any evidence which would show prima facie grounds for such allegation. The applicant also alleges that the learned Magistrate was wrong for imposing "a penalty that was excessive given the alleged facts that the applicant 'pushed' the complainant, but such allegation was fabricated ..." As I have said, the allegation of fabrication of evidence is merely an assertion unsupported by evidence.

49 I therefore refuse leave to commence proceedings seeking to extend time in which to apply for leave to appeal, and I refuse to grant leave to file an application seeking leave to appeal.

50 Further, I consider that, for the reasons given earlier, there is no prima facie ground for an application for an extension of time in which to set aside the conviction under s 136A of the Justices Act.

51 As required by s 6 of the 2002 Act, I must refuse to grant leave to institute the proposed proceedings.

52 I will therefore make orders refusing the applicant's applications in CIV 2646/2002, CIV 2647/2002 and CIV 2648/2002 for leave to institute any of the following proceedings.

(a) Proceedings seeking an extension of time, proceedings seeking leave to appeal pursuant to s 185 of the Justices Act 1902 or proceedings under s 136A of the Justices Act 1902, concerning the convictions of the applicant on charge numbers 2872/99 to 2880/99, which convictions were recorded in the Court of Petty Sessions at Rockingham on 1 October 1999.

(b) Proceedings seeking an extension of time in which to seek leave to appeal pursuant to s 185 of the Justices Act 1902, proceedings for leave to appeal or proceedings under s 136A of the Justices Act concerning the conviction of the applicant on charge number 3926RO/99, which conviction was recorded in the Court of Petty Sessions at Perth on 11 February 2000.

(c) Proceedings seeking an extension of time in which to seek leave to appeal pursuant to s 185 of the Justices Act 1902, proceedings seeking leave to appeal or proceedings under s 136A of the Justices Act 1902, concerning the conviction of the applicant on charge number 6389/2000, which conviction was recorded in the Court of Petty Sessions at Midland on 24 April 2001.

Proceedings Restriction Act 1930

Proceedings Restriction Act 2002

Hunter v Commissioner of Police [2003] WASC 10

At a glance

Court

Decision date

Before

Catchwords

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Judgment (74 paragraphs)

Hunter v Commissioner of Police [2003] WASC 10 (17 January 2003)

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Legislation Cited (2)

Cases Cited (4)