Martin v Purnell

Federal Court of Australia|1999-06-29|Before: Higgins J, Finn JJ, Miles J

REASONS FOR JUDGMENT MILES J: 1 The appellant, Mr Gilbert Martin, who appears in person, appeals by way of a single notice of appeal dated 4 November 1998 against decisions of the Supreme Court of the Australian Capital Territory (Higgins J) in proceedings in that Court being SCA 87 of 1998 (SCA 87) and SCA 92 of 1998 (SCA 92). 2 By those decisions it was ordered that notices of appeal to the Supreme Court dated 29 September 1998 and 15 October 1998 respectively be struck out, and further, in SCA 87 only, that the appellant pay the costs of the three respondents. History 3 The notices of appeal to the Supreme Court related to proceedings commenced in the Australian Capital Territory Magistrates Court by the appellant. In those proceedings the appellant laid, or purported to lay, a number of informations against each of the three respondents. Four of those informations (there appear to be others) were sworn before the Deputy Registrar of the Magistrates Court on 26 August 1998 and allege against each of the respondents the following offences: CC98/40902 - Francis John Purnell - Crimes Act 1900, s 345 CC98/40903 - Barry Anthony Taylor - Landlord and Tenant Act 1949, s 91 CC98/40904 - Barry Anthony Taylor - Landlord and Tenant Act 1949, s 89(4) CC98/40905 - Malcolm Peter Brennan - Landlord and Tenant Act 1949, s 89(4) 4 Summonses were issued on the informations laid. On the return of those summonses before a Magistrate on 2 September, senior counsel, who appeared for all three respondents, sought orders that the proceedings be stayed as an abuse of process, and foreshadowed an application that each of the summonses be struck out as failing to disclose an offence known to law. The Magistrate indicated that he would hear submissions only on the application that the proceedings be stayed. The hearing was adjourned at the request of the appellant to 11 September. Owing to the state of the Magistrate's list, the hearing was brought forward to 7 September. Submissions were made and evidence relevant to the stay application was received. That evidence covered a long history of litigation in which the appellant was a party and various persons, including clients of the three respondents, were opposing parties. Submissions were also received on what was called the "fall back" position of the respondents, namely that none of the informations disclosed an offence known to law. On 8 September 1988 the Magistrate announced his decision and gave reasons. 5 After referring to the evidence before him and to authority, including Emanuele v Cahill (1987) 71 ALR 302 and DPP v Shirvanian (1998) 44 NSWLR 129, the Magistrate concluded: "I am satisfied that these charges warrant a stay order being made for an abuse of process for the reasons outlined. However, in any event the summonses will be struck out and dismissed for failing to properly plead offences known to the law. The final order will be therefore struck out and dismissed. I make the observation that the prosecutions are also an abuse of process but for the striking out orders would also ordinarily have been stayed." 6 The Magistrate reserved the question of costs. On 2 October 1992 the Magistrate heard submissions on costs and stated that he proposed to make a "specific order" as to costs against the appellant. The Magistrate then indicated that, subject to anything the appellant wished to say, the appellant was not to be permitted to file any further process in the Magistrates Court without the leave of a magistrate. After hearing the appellant, the Magistrate stated as follows: "I propose to make the following orders on matter number 903 and the same order will apply in the subsequent proceedings, 902 and 905. The informant is to pay the defendants' costs in the sum of $7,380. No further process is to be filed by the informant without the leave of a magistrate." 7 The orders of the Magistrate were not drawn up formally and taken out until 16 October 1998. They are set out in a single document in the following terms: "The Court orders that: Informations CC98/40902, CC98/40903, CC98/40904 and CC98/40905 be dismissed. The Informant pay the costs of the Defendants in the sum of $7,380. AND it is further ordered that no further process is to be filed by the Informant without first obtaining the leave of a Magistrate." 8 In the meantime, on 29 September 1998 a notice of appeal was filed in the Supreme court in SCA 87 purporting to be against "the following decision", that is: "That summons Nos. 98/40902, 98/40903, 98/40904 and 98/40905 be struck out and dismissed for failing to properly plead offences known to the law." 9 On 9 October 1998 the respondents took out a notice of motion in the Supreme Court in SCA 87 seeking an order that "The notice of appeal dated 29 September 1998 and filed herein be struck out", and consequential orders. 10 On 15 October 1998 a further notice of appeal was filed in the Supreme Court in SCA 92 purporting to be against "the following decision", that is: "1. That in relation to summonses Nos. 98/40902, 98/40903, 98/40904 and 98/40905 the appellant pay the respondent (sic) the sum of $7,380 as legal cost. 2. That the appellant file no further processes without the leave of a magistrate." 11 On 16 October 1998 the motion in SCA 87 was listed for hearing in the Supreme Court. The appellant appeared in person. The respondents were represented by senior counsel. The appellant sought an adjournment. That application was opposed. In hearing the appellant on the question of the adjournment, his Honour raised the matter of the appellate jurisdiction conferred on the Supreme Court by s 207(1) of the Magistrates Court Act 1930 (ACT) (the Magistrates Court Act). The appellant pressed his application for an adjournment. His Honour ruled that the attempt to appeal by way of notice of appeal was "totally incompetent" and that "a prosecutor in the Magistrates Court has a right of appeal against dismissal of an information only by way of order to review under s 219B(1) of the Magistrates Court Act". His Honour ordered that the notice of appeal in SCA 87 be struck out with costs. 12 At the invitation of counsel for the respondent, his Honour then turned his attention to the notice of appeal in SCA 92, which purported to initiate an appeal against the order for costs and the order prohibiting the appellant from filing further process without first obtaining the leave of a magistrate. That appeal was not before the Supreme Court for hearing or otherwise. It is not apparent from the transcript that the appellant consented to it being brought before the Court on that day for adjudication. Nor is it apparent that the order drawn up in the Magistrates Court on 16 October was before the Supreme Court on that day. His Honour indicated his view in the following terms: "Well, firstly there is no separate appeal against an order for costs, Mr. Martin. It either follows or does not from the substantive matter appealed from if there is an appeal from that, so if you have a right of appeal against the dismissal of the information which you do under s 219B then an order for costs can be made consequent upon that but it is a consequential order, it is not one that is appealable by itself. As to the direction that you file no further processes without leave of a magistrate, I doubt very much whether a Magistrate has power to give such a direction, but again it is not a matter that needs to be appealed." 13 After giving the appellant an opportunity to respond, his Honour ordered that the notice of appeal in SCA 92 be struck out with no order as to costs.

Was there procedural unfairness in the Supreme Court? 14 The first and major ground of appeal is that the appellant was denied natural justice in the Supreme Court in that he was refused an adjournment. It appears that on 16 October, the day on which SCA 87 was listed for hearing in the Supreme Court, and shortly before the hearing commenced, the appellant had been informed by those advising the respondents that the submission would be put on their behalf that no appeal lay by way of notice of appeal under Part 11 Division 2 of the Magistrates Court Actagainst the dismissal of an information and that the only way in which an informant could challenge the dismissal of an information was by way of order to review under Part 11 Division 3 of the Magistrates Court Act. That was, as indicated above, how his Honour eventually decided. 15 It is apparent that the appellant made known to his Honour that he wanted an adjournment to consider how he might respond to these matters. 16 Ordinarily an adjournment would be granted to a litigant who is caught by surprise by submissions of law, particularly those based on technical grounds. His Honour took the view, with which I agree, that it was unarguable that an appeal lay under Part 11 Division 2 against a dismissal of an information and that an adjournment could not cure that fundamental deficiency. 17 However, the competency of the appeal commenced by notice of appeal in SC 87 was not the end of the matter. His Honour expressed the further view, as had been submitted on behalf of the respondents, that if the appellant had any grounds for challenging the Magistrate's orders, then the challenge lay by way of order to review under Division 3. It is necessary to look at some of the statutory provisions. 18 Part 11 commences with Division 1, s 207, which is as follows: "207. Jurisdiction of Supreme Court (1) The appellate jurisdiction of the Supreme Court with respect to decisions of the Magistrates Court under this Act (other than a decision under Part 10) extends to the hearing and determination of the following appeals and to no others, namely: (a) appeals to which Division 2 applies; and (b) appeals from decisions of the Magistrates Court by way of orders to review made in accordance with Division 3." 19 Division 2 (ss 208 to 219) is concerned with appeals to the Supreme Court from certain decisions of the Magistrates Court. Section 208 specifies the decisions from which an appeal lies. It does not apply in the present case. 20 Division 3 (ss 219B to 219F) is concerned with appeals to the Supreme Court by way of order to review from certain other decisions from the Magistrates Court which are not specified in s 208. 21 The decisions from which an appeal by way of order to review are specified in s 219B(1), which provides as follows: "219B. Appeals by way of orders to review (1) Each of the following is a decision of the Magistrates Court from which an appeal by way of order to review may be made in accordance with this Division: (a) an order of the Magistrates Court dismissing an information dealt with by that court under Part 7 or 7A of this Act or under section 477 of the Crimes Act; (b) a conviction by the Magistrates Court for an offence dealt with by that court under Part 7 or 7A of this Act or under section 477 of the Crimes Act; (c) an order made under section 113 or 114 of this Act in proceedings dealt with by the Magistrates Court under Part 7 of this Act or under section 477 of the Crimes Act; (e) a decision of the Magistrates Court not to commit a person to the Supreme Court for sentence pursuant to section 92A; (f) a decision of the Magistrates Court to dispose of a case summarily pursuant to subsection 477(6) or (7) of the Crimes Act; (g) a sentence or penalty imposed by the Magistrates Court for an offence dealt with by that court under section 90A, Part 7 or 7A or section 255 of this Act or section 477 of the Crimes Act." 22 The procedure for applying for an order to review is governed by s 219C which requires, in the first instance, an application for an order nisi within 21 days of the Magistrate's decision or within such further time as the Supreme Court allows. It is now clear, although it does not appear to have been a matter raised in the Supreme Court, that the decision of the Magistrate having been made on 8 September, the appellant needed an extension of time in which to seek an order to review. 23 The appellant now submits that fairness to him in the Supreme Court demanded that his Honour should have indicated that it was open to the appellant to make an application for an extension of time in which to apply for an order to review. He also submits that his Honour should have indicated further that it was open to the appellant in addition to make an oral application for an order nisi to review in accordance with the procedure prescribed by o 81A of the Rules of the Supreme Court. 24 This is not a case in which to embark upon consideration of the appropriate role of a judge who presides over proceedings in which one or more parties are not represented by a lawyer. That is because, in my view, the order of the Magistrate dismissing the informations was not among the decisions subject to review under Division 3. In particular, and contrary to what seems to have been assumed in the Supreme Court, the order dismissing the informations was not "an order of the Magistrates Court dismissing an information dealt with by that Court under Part 7 or 7A of this Act or under s 477 of the Crimes Act" within s 219B(1)(a). I reach that conclusion for the following reasons. 25 Offences under s 89(4) and s 91 of the Landlord and Tenant Act 1949 (ACT) are punishable by imprisonment not exceeding six months. The Interpretation Act 1971 (ACT) provides in s 33 that an offence under any Act that is punishable by imprisonment not exceeding one year is, unless the contrary intention appears, punishable on summary conviction. An information alleging such an offence is therefore not an information dealt with by the Magistrates Court under Part 7 or 7A of the Magistrates Court or under s 477 of the Crimes Act 1900 (ACT), as those provisions are concerned with indictable offences punishable summarily, not offences punishable on summary conviction. 26 In short, the Magistrate's order dismissing the informations was not subject to appeal under Division 2 or to order of review under Division 3. The Supreme Court was therefore bound to rule that the purported appeal under Division 2 was incompetent. Further, the Supreme Court could be under no obligation to allow the appellant time to consider his rights under Division 3 because he had none. Accordingly there was no denial of procedural fairness in refusing the adjournment to allow the appellant to consider his position with regard to an order to review. 27 It is not appropriate to express a view about whether the legislature accidentally omitted to provide for a statutory avenue of appeal by way of order to review from a decision of a magistrate dismissing an information for an offence punishable on summary conviction. The question may commend itself to the legislature or the appropriate law reform body in the Territory.

Was the Magistrate's decision to dismiss the informations wrong in law? 28 The appellant submits further that the Magistrate's decision to dismiss the informations in SCA 87 was wrong in law and that he should be permitted even at this stage to pursue whatever remedy is available to set aside that decision. Counsel for the respondents submits that, regardless of the remedy, the Magistrate's decision was unarguably correct and that no purpose would be served in allowing that issue to be agitated at this late stage.

29 The fact is, however, that the issue has been agitated in this Court. It was not agitated in the Supreme Court for procedural reasons. In my view, this Court ought to decide the substantial question whether the Magistrate was wrong in dismissing the informations as disclosing no cause of action. It is not necessary to set out the contents of each of the informations. It is sufficient to say that in each case the description of the offence charged was not complete, that in some cases the information was duplicitous, and that in other cases the respondent was entitled to particulars of the allegations of fact relied upon to support the charges. But a court of summary jurisdiction is not a court of pleading and ever since Jervis' Act 1848 (11 & 12 Vict c 43, sec 1) it is common for legislation regulating courts of summary jurisdiction to provide that an information or complaint should not fail for formal defect: see Ex parte Lovell; Re Buckley & Another (1938) 38 NSWSR 153 at 167-168. Provided that the offence is identified and that the matter can proceed without unfairness to the defendant, the duty of the court is to hear and determine the information or complaint after a hearing on the merits in which the parties are given the opportunity to call evidence. 30 In the Australian Capital Territory the relevant provision is s 28 of the Magistrates Court Act, which is as follows: "28. Power of court to amend information (1) If at the hearing of any information or summons any objection is taken to an alleged defect therein in substance or form or if objection is taken to any variance between the information or summons and the evidence adduced at the hearing thereof, the court may make such amendment in the information or summons as appears to it to be desirable or to be necessary to enable the real question in dispute to be determined. (2) The court shall not make any such amendment where it considers that the amendment cannot be made without injustice to the defendant." 31 Section 28 in effect provides that fairness to the parties may require that, before the information is determined, the informant be given an opportunity by the Court to provide a further formulation of the offence charged or to provide particulars of the facts relied on or, where the charge as expressed is duplicitous, an election confining the charge to a single offence. 32 In Johnson v Miller (1937) 59 CLR 467 (a case of a single complaint alleging several offences) Dixon J said at 492:

"… where a complainant does not pursue one charge as he is entitled to do, but asks for a conviction upon a plurality and will not by election do otherwise, a conviction upon his complaint may be refused. This reasoning applies a fortiori where he persists in a refusal to identify the transaction upon which a conviction is sought." 33 At 498 Evatt J said: "… at the outset of the hearing, the prosecutor may be called upon to select his charge and particularize his complaint, and that in the absence of the necessary information, and, as a last resort, the court has inherent power to dismiss the complaint." 34 These principles have been recognized, followed and repeated many times, for instance, by Gallop J in Re Peterson; Ex parte Brick & Pipe Industries Ltd (1994) 76 A Crim R 291. In John L Proprietary Limited v Attorney-General (NSW) (1987) 163 CLR 508 at 528, Brennan J said that they save the criminal law "from the reproach of being crippled by technicality". 35 Far from being unarguable, I think that the appellant's submission is correct that the Magistrate was wrong in law in dismissing the informations without a hearing on the merits and without giving the appellant an opportunity to identify the facts upon which the charges were based and, where an information might have alleged a number of charges or had some other defect, to pursue a single charge on that information or otherwise amend the information to cure the defect. The informations were clearly not dismissed "as a last resort". The Magistrate proceeded without regard to s 28 of the Magistrates Court Act and, in my view, contrary to its provisions. 36 However, for the procedural reasons already given, it was correct for his Honour to regard the appeal in SCA 87 as incompetent and consequently to order that the notice of appeal be struck out with costs.

Orders for costs and restraining further process 37 With regard to the appeal in SCA 92 which sought to set aside the Magistrate's order as to costs and the order restraining the appellant from filing further process without the leave of a magistrate, I conclude for reasons expressed above that that appeal was bound to fail for incompetency and that the Magistrate's decisions were not subject to appeal under Division 2, nor to order to review under Division 3. However, it is clear that that appeal was not listed for hearing before the Supreme Court on 16 October and it follows on the face of it that without the consent of the appellant, the appeal should not have been the subject of decision on that date. There was, on the face of it, a lack of procedural fairness which encourages closer examination of what that appeal was about. 38 Clearly, the Magistrate had no power to make an order restraining the appellant from filing further process without the leave of a magistrate. Counsel for the respondents did not seek such an order and properly concedes that there was no such power. The making of that order is a substantial impediment against the appellant gaining access to justice and the appellant should not be bound by it. 39 Furthermore, I am of the view that the Magistrate had no power to make the order that "the informant pay the costs of the defendants in the sum of $7,380". The order that "informations CC98/40902, CC98/40903, CC98/40904 and CC98/40905 be dismissed" may be regarded as merely irregular and should be read, as it would have been better expressed, as four separate orders, each dismissing a singular identified information. However, the order as to costs is not capable of such liberal interpretation. The order as to costs can be read only as purporting to make the informant liable for a single lump sum representing the aggregate costs of all three respondents in four separate proceedings. 40 The Magistrate's power to award costs was conferred by s 244 of the Magistrates Court Act, the relevant provisions of which are: "244. Award of costs The power of the court to award costs and the award of costs by the court shall be subject to the following provisions: (a) … (b) where the court dismisses the information, or makes an order in favour of the defendant - it may in its discretion award and order that the informant shall pay to the defendant such costs as it thinks just and reasonable; (c) the sums so allowed for costs shall in all cases be specified in the conviction or order or order of dismissal; (d) any sum awarded or ordered to be paid by an informant or to a defendant for costs, may be recovered under Part 19 o the Magistrates Court (Civil Jurisdiction) Act 1982; …"

41 The power was to be exercised only in relation to each information. The Magistrate had the power to award a lump sum in respect of each information but did not exercise it. The order made was outside his power and the respondents should not be permitted to enforce it.

What is to be done? 42 Jurisdiction to hear and determine an appeal from the judgment of the Supreme Court of a Territory is conferred on this Court by s 24(1)(b) of the Federal Court of Australia Act 1976 (Cth). Pursuant to s 28(1), the Court may in the exercise of its appellate jurisdiction: "(a) affirm, reverse or vary the judgment appealed from; (b) give such judgment, or make such order as, in all the circumstances, it thinks fit, or refuse to make an order." 43 These provisions do not expressly confer upon this Court powers which were not exercisable by the Supreme Court. That Court has, as it is required to have, all original and appellate jurisdiction that is necessary for the administration of justice in the Territory: Australian Capital Territory (Self-Government) Act 1988 (Cth), s 48A, Supreme Court Act 1933 (ACT), s 20. Those sections are, in my view, wide enough to give the Supreme Court the power of supervision of inferior courts and tribunals in the Australian Capital Territory similar to that exercised by the Supreme Courts of the States and other Territories in Australia. The words "and to no others" in s 207 of the Magistrates Court Actdo not exclude the supervisory jurisdiction of the Supreme Court. That was the effect of the decision of this Court in Grey v Park (1986) 65 ALR 570 which was decided when the jurisdiction of the Supreme Court was defined in somewhat narrower terms by s 11 of the Australian Capital Territory Supreme Court Act 1933 (Cth). 44 That supervisory jurisdiction was exercisable when the present matters were before the Supreme Court. Because of the way in which those matters proceeded in the Supreme Court, and the absence of agitation there of relevant issues, it may have been that it was not appropriate for the Supreme Court to exercise the power conferred by the jurisdiction. The power is often, if not normally, exercisable by way of prerogative writ directed to the inferior tribunal. The authorization of the issue of a prerogative writ follows proceedings of a particularly formal kind; see Ex parte Lovell; Re Buckley at 175-176. Whether or not an order should be made involves a discretionary decision. There are several matters that would suggest that in the present case the discretion should not be exercised, such as the length of time since the alleged offences and the findings of the Magistrate (in accordance with the primary submissions on behalf of the respondents) that the informations constituted an abuse of process. Relief by way of prerogative writ may not have been appropriate to set aside the dismissal of the informations. On the other hand, the order as to costs and the order restraining the appellant from filing any further process without leave of a magistrate, are so clearly outside power that, in my view, it is the responsibility of this Court to say so authoritatively. An appropriate way to do that is by way of declaratory order. 45 I would order that: 1. The appeal against the judgment of the Supreme Court of the Australian Capital Territory given on 16 October 1998 in proceedings No SCA 87 of 1998 in that Court be dismissed. 2. The appeal against the judgment of the Supreme Court of the Australian Capital Territory given on 16 October 1998 in proceedings No SCA 92 of 1998 in that Court be dismissed. 3. Notwithstanding order 2 above, this Court declares that the orders made in the Australian Capital Territory Magistrates Court on 16 October 1998 that the informant (appellant) pay the costs of the defendants (respondents) in the sum of $7,380 and that no further process is to be filed by the informant (appellant) without the leave of a magistrate were made without power and are null and void. 4. All parties pay their own costs of the appeal to this Court. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Miles. Associate: Date: 29 June 1999

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY AG 108 OF 1998

R D NICHOLSON J: 46 I have had the advantage of reading in draft the reasons by Miles J. I agree with them and have nothing to add. I certify that the preceding paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson.

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY AG 108 OF 1998

FINN J: 47 I agree with the reasons of, and with the orders proposed by, Miles J. I certify that the preceding paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Counsel for the Appellant: Mr AG Martin in person Counsel for the Respondents: Mr G Richardson, SC Solicitors for the Respondents: Mallesons Stephen Jaques Date of hearing: 12 May 1999 Date of judgment: 29 June 1999

Landlord and Tenant Act 1949(ACT)

Interpretation Act 1971(ACT)

& 12 Vict.c.43, sec 1) Federal Court of Australia Act 1976(Cth)

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