Practice and procedure - Leave to file and issue proceedings - O 67 r 5 Supreme Court Rules 1971 (WA) - Whether proposed proceedings frivolous, vexatious or an abuse of process

(These reasons were delivered orally and have been edited from the transcript)

1 On or about 16 November 2012 the applicant, Mr Cameron Mansell, attempted to file by post an originating motion seeking relief in the nature of mandamus or an order in lieu of mandamus. The relief is sought in respect of stealing charges presently pending against the applicant in the Magistrates Court. A registrar directed that the documents not be accepted for filing without leave of a judge having been first obtained under O 67 r 5 Supreme Court Rules 1971 (WA).

2 On 18 December 2012, the applicant filed an application for review of the registrar's decision. In an affidavit filed in support of the application, the applicant refers to O 67 r 5. Whether the application is treated as an appeal from the registrar's decision, or an application for leave to file and issue proceedings, the essential issue is the same, that is whether the originating motion is an abuse of process of the court, or is a frivolous or vexatious proceeding.

3 The application was listed to be heard on 8 January 2013. The applicant sought and was then granted an adjournment to a date to be fixed. The reason the applicant sought an adjournment was that he was not ready to proceed on that day. However, McKechnie J pointed out some of the difficulties with the action the applicant was seeking to commence, and suggested that he may wish to give some thought as to whether he wished to proceed. A further adjournment was granted by me on 6 March 2013.

4 At the hearing today, the applicant has said that he wants to amend the documents he wishes to file. The amendment is to include an application for a declaration that he should have an opportunity to make offers of compensation to former friends and clients in respect of whom he has been charged with stealing. I will deal with that application to amend the originating motion in this decision.

5 The applicant says that what he is seeking is, effectively, the answer to a question, and that is whether it is lawful for him to approach the witnesses, that is the former friends and clients, who are the complainants in respect of the stealing charges, with a view to making them an offer of compensation. He says that the police have said that he should not make such an approach and that those people, that is the former friends and clients, are prejudiced because he would be able to make compensation to them. He suggests that the complainants are being used, effectively, as pawns in a greater game; that is to put him under pressure whilst he fights his conviction for murder.

6 There is, of course, as the applicant understands, no property in witnesses, and the persons who are to be called as witnesses against him on the stealing charges are not prevented from speaking to him or communicating with him, should they wish to do so. The concept of him offering them compensation, it should be understood, is not, however, any impediment or answer to the stealing charges. It would seem that the applicant assumes that if offers of compensation were accepted by those people, that they would not wish to proceed and that the charges would then be discontinued. Whether that is so or not is impossible to determine at this stage.

7 The applicant also argues that he has a defence to the stealing charges and that he had no fraudulent intent. He also says that the stealing charges are improperly motivated because he can't serve any additional time, in the event he is found guilty, because he is already serving a life sentence for murder. He questions the motivations for proceeding with the charges and whether the public interest is served by proceeding. In particular, he questions whether the interests of his former friends and clients are best served by the stealing charges proceeding.

8 Whether there is a public interest in proceeding with the charges in these circumstances is a matter for the DPP, as the prosecutor, to determine. Courts are loath to interfere with prosecutorial decisions. Those decisions are discretionary in nature and there may be good reasons to proceed with criminal charges, notwithstanding that any further prison sentence must be concurrent.

9 I should note that, in respect of a declaration, as with a prerogative writ, this is a discretionary remedy; that is, such remedies are not given as of right. It is within the discretion of the court as to whether they should be granted or not. Accordingly, the applicant would have to show not only that the proceedings that he wishes to bring are not frivolous or vexatious, but that there would be some possibility that the court would exercise discretion in his favour to grant a declaration or a prerogative writ.

10 The originating motion that the applicant wishes to file seeks that pending criminal charges against him be permanently stayed because he says that they are an abuse of process. He claims that the charges are flawed and cannot succeed because the necessary intent is incapable of being established. He also claims that the charges have been preferred and pursued by the police for an improper purpose.

11 The first thing to note is that a writ of mandamus is not available in respect of a magistrate: Section 35 of the Magistrates Court Act 2004 (WA). However, s 36 allows for review orders, which are the statutory replacement for prerogative writs. Though not framed as an application for a review order, I will give consideration to whether such an order could properly be sought here.

12 The second thing to note is that the use of prerogative writs to review interlocutory decisions in the criminal process has the effect of fragmenting that process. That is something that has been deprecated in many cases. It may also have the effect of exposing some decisions to appeal that have been excluded from the statutory appeal provisions. Appeals are only available from decisions which have a final character: See s 6 of the Criminal Appeals Act 2004 (WA). To readily permit judicial review of interlocutory decisions would subvert the legislative intent of the Criminal Appeals Act. Prerogative writs, as I have noted, are a discretionary remedy and these concerns are a powerful inhibition to exercising that discretion. These concerns apply equally to review orders and to declarations.

13 The availability of a review order would essentially depend on there being some jurisdictional error on the part of a magistrate. The applicant has not identified any such error in the papers that are before me.

14 The claims of improper purpose are not supported by any evidence. The first affidavit filed by Mr Mansell in support of the application is short and reads as follows:

1. I say this affidavit is in support of an Originating Motion seeking relief in the nature of mandamus or a supreme Court Order in lieu of mandamus for a permanent stay or order on these charges.
2. I say the clients authorities gave me permission and were instructions to take the actions that I took.
3. I say that these documents contradict and depreciate (sic) contrary assertions made in various statements relied upon by the State.
4. I say, in the interests of justice, the application for the Originating Motion should be successful.

15 Annexed to the affidavit are a number of documents. The applicant has confirmed today that he continues to rely upon those documents. The provenance, relevance or significance of those documents is not explained in the affidavit. However, even assuming that the documents are evidence that could support a defence to the criminal charges, that is no basis for commencing proceedings in this court. Until all the evidence is properly before a competent court and tested, no conclusion can be reached as to whether the prosecution on the stealing charges will succeed or fail.

16 If the evidence is insufficient to establish the charges, then the Magistrates Court has ample jurisdiction to dismiss them. If the charges are shown to be an abuse of the Magistrates Court, then that court can order that the prosecution be permanently stayed, pursuant to s 76 of the Criminal Procedure Act 2004 (WA).

17 The claim of improper purpose is also referred to in a second affidavit filed by the applicant. That affidavit reads as follows:

1. I say this affidavit is in support of an Originating Motion seeking relief in the nature of mandamus or a supreme Court Order in lieu of mandamus for a permanent stay order on these charges.
2. The affidavit is in support of an application to a single Judge or Master in chambers to review the Registrar's decision on this matter, pursuant to Order 67, Rule 5 of the Supreme Court Rules 1971.
3. I say in the interests of justice the application for the Originating Motion should be successful.

18 As with the first affidavit, what is said is assertion, not evidence.

19 The documents that the applicant wishes to file raise no arguable basis for a writ of mandamus or a review order under s 36 of the Magistrates Court Act, nor for a declaration.

20 The rule enabling a registrar to refuse filing documents which are an abuse of process or a frivolous or vexatious proceeding exist to enable the court to protect itself from unwarranted wastage of time and to avoid loss caused to those who would have to defend actions that have no substance: Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303, 312.

21 I have read the material filed by the applicant. There is nothing in it that shows any error by a magistrate that could be the subject of a prerogative writ or a review order, nor is there anything in it that would justify the court giving what, in effect, is an advisory opinion on the question of an offer of compensation by the applicant to witnesses.

22 The registrar was correct to refuse filing of the documents and the application is dismissed.