Jenkins v Department of the Attorney-General and Justice [2017] NTCA 3

Jenkins v Department of the Attorney-General and Justice [2017] NTCA 3

[1] On 2 December 2016 the appellant lodged a document with the Supreme Court Registry in standard Form 85B. The document purports to be a Notice of Appeal in pursuance of r 85.09 of the Supreme Court Rules (NT).

[2] The document nominates as respondent to the appeal "AG dept, 4th flr, parliament house". That has been interpreted by Registry staff as a reference to the Department of the Attorney-General and Justice. It may be noticed at the outset that if that agency is the intended respondent to the appeal, it has no juridical personality and is not amenable to suit.

[3] The document goes on to specify that the appellant appeals from the judgment given by Master Luppino on 1 December. Although no year is nominated in the document, that is presumably a reference to 1 December 2016.

[4] Leaving aside the standard formal elements, the Notice of Appeal is handwritten. The grounds of appeal are in large parts indecipherable. So far as may be discerned, the document provides in that respect:

Luppino intimately involved with case mentioned by Sthwood should have stuck off didn't listen argument [indecipherable] broke protocol sit down Judge speak speaks you stand after you he says arrogant stand up all the time rubbish argumentative abusive arrogant treats indep litigants like trash ridicule [indecipherable].

[5] The Notice of Appeal was accompanied by a handwritten document titled "Affidavit" and executed by the appellant on 2 December 2016. The purpose of the affidavit is unclear. It is also indecipherable in part. So far as may be discerned, the document provides:

Luppino rude abusive didn't listen was intimately involved in case shouldn't have heard matter failed to let me speak flesh out truth unrep litigant stood over humiliated ridiculed protocol judge talks you sit down supposedly Luppino upends that to treat me like a child piece of shit tone abusive ridiculous filed all [indecipherable] etc

[6] Although the subject matter of the appeal is not apparent from the terms of the notice itself, a review of the Court file discloses the following relevant background.

[7] On 16 November 2016 the appellant filed an Originating Motion in the Supreme Court. That originating process named the Department of the Attorney-General and Justice as defendant. A handwritten document described as an affidavit which accompanied the Originating Motion suggests that the process is a challenge to a direction made by the Acting Chief Justice in April 2016 to place restrictions on the appellant's access to the Supreme Court Library. The nature and circumstances of that direction are discussed further below.

[8] The matter came on before the Master on 1 December 2016. The Master dismissed the application at that time. It can only be from that decision that the subject appeal is brought.

[9] This appeal was listed for directions before the Registrar on 20 January 2017. There was no appearance by the appellant at that time. The defendant had not been served, and so made no formal appearance in the appeal. That remains the case. However, as a matter of courtesy legal practitioners representing the Northern Territory of Australia attended at both the directions hearing on 20 January 2017, and the subsequent hearing conducted on 11 July 2017.

[10] During the course of the directions hearing conducted on 20 January 2017 the Registrar determined that the Notice of Appeal and the asserted grounds were indecipherable. An examination of the relevant documents bears out the accuracy of that assessment.

[11] Given the appellant's failure to attend the directions hearing, the failure to serve the appeal process on the purported respondent, and the difficulties identifying the nature of the appeal from the face of the notice, the Registrar adjourned the matter sine die. It has languished since that time.

[12] The appellant is a frequent and querulant litigant in this Court, the Supreme Court and the Local Court. In her Reasons for Judgment delivered in Jenkins v Todd [2017] NTSC 26, having determined the issues in contention, Kelly J made the following observations:

• [76] I want to add some remarks about the extraordinary amount of this Court's resources which are being devoted to Mr Jenkins. It is true that a society can be judged by the way it treats its most disadvantaged members, and Mr Jenkins would have to qualify as among those most disadvantaged. It is also true that doing justice in the case of unrepresented litigants will sometimes involve a patient consideration of submissions that would be given short shrift if they came from a lawyer, to ensure that the unrepresented litigant perceives that he or she has been given an full and fair hearing. However, Mr Jenkins is coming to take up a disproportionate amount of the time and other limited resources of a relatively small court to the detriment of other litigants waiting for their matters to be brought on or for reserved judgments to be delivered.

• [77] This is only one of the matters Mr Jenkins has before this Court - and there are others in the Local Court. This matter began as an appeal against three convictions recorded against Mr Jenkins in the Court of Summary Jurisdiction. That appeal was heard by Barr J over six days. The resulting 56 page judgment would necessarily have taken many days work. Barr J allowed the appeal against one conviction on what was essentially a technicality. I have read the transcript and can say that all or almost all of the contentions made by Mr Jenkins over those six days were utterly without merit. (The one aspect on which he succeeded was not advanced by Mr Jenkins but identified by his Honour.)

• [78] As a result of his behaviour during the hearing of that appeal, Barr J directed the Registrar to charge Mr Jenkins with contempt. The Registrar did so and this resulted in many directions hearings, an unsuccessful application by Mr Jenkins to dismiss the proceeding on the ground that I had no jurisdiction, a hearing and a sentencing hearing. I spent many, many days reading transcript, sifting through Mr Jenkins' handwritten submissions and bulk photocopied material, and many, many more days writing two judgments - one on the jurisdictional issue and one on the substantive contempt application - as well as sentencing remarks.

• [79] That was followed by this application that Mr Jenkins be dealt with for breaching his suspended sentence. Again this has involved multiple directions hearings, dealing with preliminary applications, sifting through a large volume of barely legible, barely comprehensible written material filed by Mr Jenkins trying to identify the substance of his contentions, and many, many days judgment writing dealing with contentions that by and large have no merit whatsoever. This is time I have not been able to spend writing other reserved judgments. Further, in addition to the Court time and judgment writing time involved, there has been a substantial allocation of resources in the registry and the library dealing with Mr Jenkins' special needs and problematic behaviour. This disproportionate allocation of resources cannot continue indefinitely.

[13] Those observations are temperate in nature and, if anything, understate the grossly defective nature of the materials which the appellant seeks to file in this Court and the Supreme Court; and certainly understate the level of disordered thought, misapprehension of the law, aggression, discourtesy, narcissism, paranoia, and bizarre and obsessional behaviours which characterise the appellant's appearances in this and other matters before the Supreme Court. That presentation notwithstanding, the appellant has been medically assessed on a number of occasions and those assessments have concluded that he has a personality disorder rather than a diagnosable mental illness.

[14] In those same Reasons for Judgment in Jenkins v Todd [2017] NTSC 26 at [19], Kelly J described in the following terms the circumstances surrounding the direction made by the Acting Chief Justice in April 2016 to place restrictions on the appellant's access to the Supreme Court Library:

In the "affidavit" of 27 January 2017 Mr Jenkins complains of lack of access to the Supreme Court Library. There is no automatic right for members of the public to use the judges' library. The Supreme Court Library is for the use of and within the exclusive control of the judges of the Supreme Court. It is located on a restricted private access floor which also houses the chambers of the judges and Master of the Supreme Court, and the judges of the Federal Court and the Federal Circuit Court. The judges of the Supreme Court have extended conditional use privileges to certain limited classes of people (including legal practitioners) as specified in the Access & Loans Policy. Prior to the hearing of the breach proceeding, Mr Jenkins was given the opportunity to use the Supreme Court Library on reasonable conditions on application to the Master but he refused to comply with those conditions. He has stated elsewhere that he has access to the Charles Darwin University library. In any case, this is not a reason to stay the breach proceedings. The breach proceedings do not require resort to a library. The issues are factual and discretionary: did Mr Jenkins breach the conditions of his suspended sentence and, if so, what should the consequences be?

[15] The position concerning the location, control and use of the Supreme Court Library described in that passage is indubitably correct. The reference to the appellant having opportunity to use the library on reasonable conditions stipulated by the Master reflects the fact that the direction made by the Acting Chief Justice provided expressly for access on terms specified by the Master. In pursuance of that mechanism, the Master has on a number of occasions authorised access to the library by the appellant, subject to appropriate conditions. The appellant has invariably failed to attend on the appointed day.

[16] The applicant asserts an entitlement to access to the library because "it is publicly funded" and because the "Supreme Court Orders provide an entitlement to access". As to the first contention, the fact that the library is publicly funded does not carry with it a public access entitlement. As to the second contention, there is no order, rule or policy providing for the entitlement the appellant asserts. The appellant has no right, entitlement or legitimate expectation that would ground a challenge to the direction made by the Acting Chief Justice concerning access to the Supreme Court Library.

[17] Section 51 of the Supreme Court Act (NT) provides for a right of appeal to this Court from a judgment given in the Supreme Court. Section 53 of the Supreme Court Act provides:

(1) A party to a proceeding may not appeal under section 51(1) from an interlocutory judgment except by leave of the Court of Appeal.

(2) An application for leave to appeal from an interlocutory judgment must be determined in the first instance on the papers by the Court of Appeal consisting of one Judge.

(3) If the application is refused, the party is entitled to have the application determined by the Court of Appeal consisting of not less than 3 Judges.

(4) An appeal from an interlocutory judgment of the Master or a referee must be heard by the Court of Appeal consisting of:

(a) one Judge - if leave to appeal is granted under subsection (2); or

(b) 3 Judges - if leave to appeal is granted under subsection (3).

[18] An order striking out a proceeding on a summary basis is interlocutory in nature: see Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423; Re Luck [2003] HCA 70; (2003) 203 ALR 1. For that reason, leave is required to bring an appeal from the Master's judgment. That leave may be granted by a single judge exercising the jurisdiction of the Court of Appeal and, if leave is granted, a single judge may exercise the jurisdiction of the Court of Appeal in the determination of the appeal.

[19] In the exercise of that jurisdiction I grant the appellant leave to appeal from the interlocutory judgment of the Master delivered on 1 December 2016, and I dismiss the appeal for the reasons described above.