Supreme Court of WA|2010-05-07|Before: Heenan J

TEY -v- CITY OF GOSNELLS [2010] WASC 96 (7 May 2010)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : TEY -v- CITY OF GOSNELLS [2010] WASC 96

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Criminal Law Application for leave to appeal and appeal Practice and procedure Request for particulars Opportunity to be heard - Denial of procedural fairness Prosecution for contravention of s 33(1) of the Bush Fires Act 1954 (WA)

The charge be remitted for trial before a different Magistrate on a date to be fixed by the Magistrates Court

The respondent have liberty to apply in writing for a certificate under s 10 of the Suitors' Fund Act 1964 (WA)

Australian Broadcasting Tribunal v Bond ('Bond Media case') [1990] HCA 33; (1990) 170 CLR 321

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

Re Colina; Ex parte Torney [1999] HCA 57; (1999) 200 CLR 386

Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342

SAAP v The Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Tobin v Dodd [2004] WASCA 288

1 EM HEENAN J: On 13 August 2009 Mrs Kok Yong Tey (Mrs Tey) was convicted in the Magistrates Court at Armadale of the charge that she had failed to comply with a notice given under s 33(1) of the Bush Fires Act 1954 (WA) (Bush Fires Act). The particulars of the charge were that on 10 December 2008 she failed to comply with a notice requiring action to plough or clear fire breaks to prevent the outbreaks or spread of bush fires at vacant land at Tarradee Circuit, Thornlie. The conviction was entered by the learned Magistrate pursuant to s 55 of the Criminal Procedure Act 2004 (WA) (Criminal Procedure Act) because of the absence of the appellant.

2 However, Mrs Tey had appeared in the Magistrates Court before his Honour L H Jones on that day and it is the circumstances which led to her leaving the court following which the conviction was imposed in her absence which have resulted in this application for leave to appeal. The orders of the court were that she be convicted of the charge; fined $750; and pay costs of $2,500.

3 The appellant's appeal notice by which she sought leave to appeal from this conviction was filed on 3 September 2009. Among the orders and directions made by Jenkins J on 4 December 2009, her Honour directed that the application for leave to appeal and the hearing of the appeal be listed for hearing at the same time. These came on for hearing before me on 12 March 2010 and at the end of that hearing I granted leave to appeal, allowed the appeal, ordered that the conviction and other orders should be set aside and directed that the prosecution should be remitted for hearing before a different magistrate on a date to be fixed. I also reserved liberty for the respondent to apply in writing for a certificate under the provisions of the Suitors' Fund Act 1964 (WA) (Suitors' Fund Act). When doing so I gave brief oral reasons for my decision indicating that more detailed reasons would be provided later. These are those reasons and they take into account my earlier oral reasons but are more extensive.

4 Section 9 of the Criminal Appeals Act 2004 (WA) (Criminal Appeals Act) provides that leave of this court is required for each ground of appeal and that leave should not be given unless the court is satisfied that the ground had a reasonable prospect of succeeding. This requirement is to ensure that unmeritorious appeals are not pursued: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [55] - [61]. The grounds of appeal proposed by the appellant in her notice of 3 September 2009 reveal the obvious fact that Mrs Tey is not legally trained or qualified and does not have a full appreciation of the nature and requirements of the content of the notice of appeal or a realisation that some, rather than other, proposed grounds of appeal have arguable prospects of success. Nevertheless, the proposed grounds of appeal do show quite clearly the basis upon which Mrs Tey claims to be aggrieved and the grounds upon which she sought to challenge the decision of the Magistrates Court. They are:

I [the appellant] was denied natural justice - the learned magistrate was prejudiced because he issued a conviction order against me and refused to disqualify himself before the trial commenced on 13 August 2009.
The prosecution witness Sarah Miriam Wilkins was allowed to stay in court at the commencement of the trial while my witness Jason Tey was asked to leave the courtroom.
The conviction order was in contravention of the law and the facts.
There was an attempt by two Armadale Magistrates Court orderly officers on 13 August 2009 to stop me from re-entering the courtroom while my son Jason Tey was waiting outside at the car park.
The learned magistrate wrongly stopped evidence being given while in court and refused to accept them.
The learned magistrate did not properly decide some procedure matter such as refusing an adjournment as evidenced in the court transcripts of proceedings.
The notice of conviction (copy enclosed) issued by the Armadale Magistrates Court on 13 August 2009 show the following errors:

(a) the prosecuting authority as City of Armadale and should have been the City of Gosnells;

(b) the prosecution notice no 09/927702 was omitted on the notice;

(c) using the same court order number AR6390/09 which was squashed by an application to the court made by the appellant on 26 June 2009.

On the day of the trial 13 August 2009, the case, name and number were not listed for hearing on the court listing board.
The appellant reserves her right to add to or amend these grounds of appeal after consideration of the transcript of proceedings. The appellant reserves her right to add or add to or amend her submissions before the commencement of the hearing of this appeal in the Supreme Court of Western Australia.

5 It can be immediately be said that the alleged errors on the notice of conviction and the allegation that the case name and number were not listed on the court listing board on the date of hearing do not provide any arguable basis upon which to grant leave to appeal. There is no suggestion that Mrs Tey was not informed of, or able to attend, the hearing listed for 13 August 2009 or, because of the alleged lack of notice, failed to do so. If there be any errors in the notice of conviction in relation to any of the particulars alleged that my provide grounds for correcting the notice of conviction but not for setting aside the convictions. In the event, neither proposed grounds 7 or 8 were pursued by Mrs Tey at the hearing before me.

6 The real issues, as they emerged on the hearing of the application arise from a combination of proposed grounds 1, 5 and 6 of the proposed grounds of appeal which, once the basis for them was made clear by Mrs Tey, in effect accommodated and incorporated proposed grounds 3, 4 and 5. In the manner in which the appellant's argument was ultimately developed and refined the essential basis upon which leave to appeal was sought and the appeal pursued was that:

The learned magistrate wrongly refused to disqualify himself from presiding over the trial on 13 August 2009 in circumstances where he had previously imposed and ordered the conviction of the appellant in her absence when the prosecution had come before the court earlier on 12 June 2009 which conviction had later been set aside by the Registrar and relisted for a further hearing on 8 July 2009;
The learned magistrate had refused a request by the appellant that the respondent should provide further particulars of the charge as earlier requested, and also refused an adjournment of the trial to allow the appellant more time to consider information recently provided by the respondent which was said to be sufficient disclosure in lieu of particulars.
That the appellant was deprived of the opportunity of advancing her case because directions from the learned magistrate which included notification that if she persisted she would be dealt with for contempt of court, which led her to leave the courtroom and to be prevented by court staff from returning, whereupon she was convicted in her absence without the respondent's evidence in support of the charge, or any evidence in defence being heard and the charge determined according to the merits.

7 Other features of the grounds listed in the application for leave to appeal were not pursued. This made it necessary to examine the course of events which led to the listing of the charge for trial in the Magistrates Court at Armadale on 13 August 2009 and the course of proceedings which led to the conviction. These include events at a directions hearing on 8 July 2009.

8 Unrepresented litigants can impose burdens on the time, resources and attention of all courts and no doubt, in a busy Magistrates Court, the obligations of dealing with many litigants who are self-represented, to an extent unfamiliar with the court process, must cause considerable practical difficulties. Nevertheless, the right of a litigant in person to a hearing according to law, which includes the observation of all due procedural safeguards, is no less than that of a litigant who is represented by the most experienced, astute and emollient counsel.

9 There are many instances in which the considerations which arise when dealing with unrepresented litigants have needed attention by the courts. One such example is the decision of Tobin v Dodd [2004] WASCA 288 which was a decision of Murray, Le Miere JJ and myself in which it was necessary to collect some of the authorities dealing with the cases in which a litigant had appeared in person. There at [13] - [14] I made the following observations:

Many of the difficulties presented at the hearing of the application before the learned Master, and in this litigation generally, stem from the lack of knowledge and experience of the appellant who, as a layman, is conducting this litigation on his own without the benefit of legal advice or assistance. He has openly disclosed to the court previously, and at the hearing of this appeal, that he is unable to afford legal assistance and is trying his best to comply with the rules of procedure relating to civil actions. This has resulted in counsel for the respondents submitting to this Court that the fact that the appellant is an unrepresented litigant is a misfortune and not a privilege. While there may be some authority for that proposition I prefer to view the situation on the footing that the appellant is an individual who is exercising his personal rights to resort to the jurisdiction of this Court and is entitled to all, but no more than, the rights of any other litigant who wishes to have a grievance determined according to law.

The extent to which a court should act to ensure a fair trial when there is an unrepresented litigant was examined by the Full Court of the Federal Court of Australia in Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 166 ALR 129. In my respectful view the situations which can arise in those circumstances were very fully addressed by the decision of Sackville, North and Kenny JJ in that case at [26] - [30]. As it is possible that this action may proceed with the appellant unrepresented it is appropriate to set out these passages in full. Their Honours said:

'[26] Unrepresented litigants present difficult issues for courts and for individual judges. As the majority observed in Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 at 415; [1994] HCA 14; 120 ALR 385 at 391:

"While the right of a litigant to appear in person is fundamental, it would be disregarding the obvious to fail to recognise that the presence of litigants in person in increasing numbers is creating a problem for the courts."

Increasing attention is being devoted to the policy issues created by the increasing numbers of litigants in person. See, for example, Australian Law Reform Commission, The Unrepresented Party (Background Paper 4, December 1996).

[27] In Neil v Nott [1994] HCA 23; (1994) 68 ALJR 509; 121 ALR 148, the High Court considered whether the trial judge's exercise of discretion to refuse an extension of time for lodging an application for maintenance and support under the Administration and Probate Act 1958 (Vic) [had miscarried]. The court observed (at 510 and 150) that a

"frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy."

In Abram v Bank of New Zealand [1996] FCA 1650; (1996) ATPR 41-507 at 42,347, a Full Federal Court, faced with an unrepresented litigant's claim that the trial judge had not given him appropriate assistance to present his case, made this comment:

"What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case."

We respectfully agree with this observation. Because the duty of the judge varies according to the factors identified by the Full Court in Abram, the duty to assist an unrepresented accused in criminal proceedings is likely to be more extensive than that imposed on a judge hearing civil proceedings in which one or more of the parties are not legally represented: cf MacPherson v R [1981] HCA 46; (1981) 147 CLR 512; 37 ALR 81; D A Ipp, 'Judicial Intervention in the Trial Process' (1995) 69 ALJ 365, at 369-70.

[28] The general principles governing the role of the judge in civil proceedings involving an unrepresented litigant have been stated in Rajski v Scitec Corp Pty Ltd (CA(NSW), 16 June 1986, unreported). Samuels J said this (at 14):

"In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent."

"Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done."

These comments have been referred to with approval in subsequent cases: see In the Marriage of Johnson (1997) 139 FLR 384 (Fam Ct/FC), at 406 (and cases cited there); Morton v Vouris (1996) 21 ACSR 497 at 513-14 per Sackville J. There is nothing in Neil v Nott inconsistent with what was said in Rajski v Scitec Corp.

[29] A trial judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 (NSW CA), at 397 per Kirby P. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial: Panagopoulos v Southern Healthcare Network (SC(Vic), Smith J, 15 September 1997, unreported) at 6.'

10 Many more observations to similar effect can be found in other authorities but the foregoing makes it clear, beyond any doubt, that civil or criminal proceedings involving unrepresented litigants should proceed on the footing by which the court ensures that, so far as it is possible to do so, the unrepresented litigant has a comprehending appreciation of what the proceedings involve, what his or her rights, including procedural rights may be and that, due to a lack of understanding no substantive or procedural right or entitlement is overlooked which may have an influence on the proceedings.

11 It is also the case that the Magistrates Courts Act 2004 (WA) (Magistrates Court Act) imposes specific duties upon the court in the case of self-represented parties requiring them of the need when cross-examining a witness to ask questions in relation to evidence which is to be adduced and which might contradict that witnesses' evidence and the consequences of not doing so: s 30.

12 The original prosecution notice alleging the offence against Mrs Tey contrary to provisions of the Bush Fires Act was dated 23 April 2009 and notified Mrs Tey that if she wished to plead 'not guilty' she should send a written plea of not guilty to the court in which case she would not need to attend the court on the first hearing day which had been listed for 12 June 2009. In that eventuality, the appellant was to be given notice of another hearing date at which the case would be listed and at which he should attend if she wished to hear any evidence or adduce evidence herself. Mrs Tey responded to that prosecution notice by letter of 6 May 2009 advising that she intended to plead not guilty and, consequently, she expected to receive, in due course, notification of a later eventual hearing date. In that written plea by the accused, Mrs Tey added a request that there should be a change of venue for the hearing from Armadale to the Perth registry of the court and that there be a pre-trial conference. She sent an 'affidavit' supporting her request for a change of venue with that letter.

13 Despite this, the matter came on for hearing before his Honour Magistrate J R Packington on 12 June 2009 in the absence of Mrs Tey. For some reason which has not been explained, his Honour was not notified of the previous written plea of not guilty and counsel for the respondent applied to proceed with the prosecution in the absence of the appellant under s 55 of the Criminal Procedure Act, having proved service. His Honour was given a short recitation of the alleged facts, then imposed a conviction in default of appearance and ordered the payment of a fine of $450 and costs of $566.20. The first Mrs Tey heard of this was when she was later notified of the conviction fine and costs order by the court dated 12 June 2009.

14 Upon hearing this and making inquiries as to her rights, Mrs Tey then applied to the Magistrates Court to set aside the conviction pursuant to s 71(2) and s 72 of the Criminal Procedure Act. That application was heard by the Registrar in chambers and on the papers on 26 June 2009, with the result that the conviction was set aside and the prosecution notice listed for a further hearing on 8 July 2009.

15 The hearing on 8 July 2009 in the Magistrates Court at Armadale was before his Honour Magistrate L H Jones evidently for directions. That hearing got off to a bad start because the appellant asked his Honour to declare whether or not he was the same magistrate who presided over the matter on 12 June 2009 when the conviction was imposed. His Honour refused to respond to that question saying that it was not relevant. It became apparent that the appellant then wished to raise some matter dealing with whether or not his Honour had been the magistrate who had dealt with the earlier conviction and concerning the date on which the matter was to be heard. Unfortunately, his Honour does not seem to have been disposed to address any of those questions and moved directly to setting down the matter for trial on 13 August 2009 for hearing. It is evident that there was some degree of impatience shown because of Mrs Tey's attempts to pursue the question of a different date for hearing whereupon the following exchange occurred:

HIS HONOUR: Ms Tey, I will have you arrested for contempt of court in a moment.

TEY MS: Why your Honour?

HIS HONOUR: Because you are showing contempt to the court. I am setting this matter down for hearing to 13 August. I have set aside 2 hours for the hearing. A prosecution notice will issue. Thank you.

16 This somewhat abrupt interchange was followed by Mrs Tey asking for a change of venue and for the case to be heard in Perth. But, without exploring any reasons, that application was immediately rejected and, despite Mrs Tey's persistence, no reason was given why the hearing had to take place in that court and could not be transferred to another court.

17 It is the case, however, that the court may sit at any place where it has a registry: s 8(1) Magistrates Courts Act. Although the Act does not expressly deal with applications for a change of venue, and the Magistrates Court Regulations 2005 (WA) do not address that question either, there would seem to be no reason why the chief magistrate could not authorise a matter to be transferred from one court to another if sufficient cause were shown. That such a change may occur is expressly provided for by s 135 of the Criminal Procedure Act. At least the question whether or not that could and should be done would seem to have been raised by the subject of Mrs Tey's application to his Honour but the application was simply refused without investigation or explanation.

18 The next step was that the prosecution notice came up for hearing on the day appointed of 13 August 2009 again before his Honour Magistrate L H Jones. Mrs Tey duly appeared and, after asking and being granted permission to speak, asked the learned magistrate to disqualify himself from the hearing saying:

Well, I've written to you a letter and ask that you please disqualify yourself, because on the day when I was up here on 8 July I meant to come to the court and appear in front of you, or whoever presiding the case, to ask for pre-trial disclosure statements, because I was given by the Legal Aid - I was given some help by the Legal Aid. They just happen to be in the courts, in one of the Perth courts. So they gave me a statement. It says when I am representing myself I am entitled to ask at least 14 days before the trial date to ask for pre-trial disclosure statement.

So, on that day unfortunately I was chased out of court. That's why I asked that you disqualify, because in every litigation matter all litigants are entitled to full evidence, full disclosure. Then also I wrote to the opposition on 29 July - sorry, my apology, on 27 July and I said to them, 'Please take note' and the opposition is represented by my clerk (indistinct) and they are the very top lawyer and local council in Perth and I wrote to them and see they are representing the prosecutor the City of Gosnells.

19 Mrs Tey then went on to explain that she had asked the solicitors for the prosecution to provide her with a pre-trial disclosure document and any document which they had previously disclosed to the court including witness statements. She went on to explain that she had only received a bundle of documents unsigned and unverified on 10 August 2009 and that she needed more time to consider the materials and respond before the trial starts.

20 Counsel for the prosecution confirmed that disclosure in that form was given on 6 August 2009 and submitted that there was no need to exchange affidavits because it was a fairly simple and straightforward case. Mrs Tey persisted in her application for an adjournment. His Honour indicated that he considered that Mrs Tey had had received sufficient notice, that the case was not complex and that she should be in a position to present her case properly and coherently saying that he was not prepared to grant the adjournment on that basis.

21 Thereupon Mrs Tey renewed her application for his Honour to disqualify himself. Despite being asked to look at some document proffered by Mrs Tey, his Honour declined to do so whereupon she read out a statement which adverted to the hearing on 8 July 2009 and submitted that she had been denied rights to be heard and rights to remain inside the courtroom, rights to request an extension of time and rights to request an order for pre-trial disclosure. She also complained that she had been denied a request for a change of venue which had been supported by an affidavit which she had sworn on 5 May 2009.

22 His Honour declined the application to disqualify himself whereupon Mrs Tey renewed her application for a change of venue. His Honour responded by saying that it was too late for a change of venue. From that point on, the proceedings took an unfortunate turn. Mrs Tey persisted with her application that his Honour should disqualify himself and objected to the matter proceeding. His Honour indicated that he had already given a decision refusing to disqualify himself and that he was of the view that the matter should proceed. Again Mrs Tey protested saying that she had written to the chief magistrate to complain whereupon Mrs Tey announced that she would leave and would appeal to the Supreme Court.

23 She left the courtroom and, in her absence, the matter proceeded pursuant to s 55 of the Criminal Procedure Act and was determined without evidence. In the process Mrs Tey attempted to return to the courtroom to hand his Honour a letter which she duly did and then withdrew from the proceedings finally. What followed was, in substance, a short reprise of the application to adjourn the trial but his Honour considered that it should proceed whereupon Mrs Tey left the court and the conviction was then recorded. It is to be noted that the fine of $750 imposed on this occasion was significantly greater than the fine of $450 previously imposed for the same offence on 12 June 2009.

24 The written material provided by the solicitors for the City of Gosnells to Mrs Tey in response to her demand for disclosure, was dispatched under cover of a letter of 6 August 2009 which, according to Mrs Tey (there is no evidence to the contrary), was received by her on 10 August 2009 - just three days before the hearing. The material comprised:

(a) a proof of evidence of the ranger of the City of Gosnells, the principal witness for the prosecution;

(b) photographs of 45 Taradee Circuit Thornlie taken on 10 December 2008 showing the absence of firebreaks;

(d) the rates notice for 45 Taradee Circuit for the 2008/2009 financial year showing Mrs Tey to be the proprietor;

(e) correspondence from Mrs Tey to the City of Gosnells dated 19 September 2008.

25 On the occasions when Mrs Tey was seeking a change in venue of the court to the hearing, the disqualification of the learned presiding magistrate and/or the adjournment of the trial, there does not seem to have been any attention given to an attempt to identify the reasons relied upon for the adjournment or why Mrs Tey was asserting that she had had insufficient time to prepare. She was not asked and did not volunteer the basis upon which she sought to defend the action or what evidence she wished to adduce in her defence whether in order to evaluate whether such matters bore on the merits of the application for an adjournment or otherwise.

26 At the hearing of this appeal, however, it appeared that Mrs Tey did have reasons of her own which she wished to advance in defence of the charge, although they may be inadequate or misguided. I will say nothing further in that regard because my ultimate decision to allow this appeal may well mean that the merits of those reasons may need to be canvassed by another magistrate in the future. I have certainly not heard or seen all the evidence which Mrs Tey apparently wishes to rely upon. Nevertheless, her explanation is that in the previous bush fire season - the 2007/2008 summer - she had been the owner of the same land and had received a work notice from the City of Gosnells or some form of default notice pointing out that she had failed to comply with the requirements of the fire break notice published in the local area earlier and was being given a limited time to comply with that obligation before being subject to proceedings in default such as prosecution. She says that she discussed the matter with the local ranger or other officer of the authority and that she and her son thereupon cleared fire breaks on the land and complied with that notice. She says that she was thereupon told by the ranger or officer of the City that she did not then have to worry about clearing the land again until the next year - the 2009 year.

27 For that year - the 2008/2009 year - Mrs Tey again apparently failed to comply with the requirements of the bush fires notice which was published by the local authority and included in communications sent to ratepayers. This time she was not given any warning notice by the City. That explanation may or may not be supported by evidence but it does reveal that there were issues of fact that Mrs Tey wished to raise and have determined. Whether, if they were established, such alleged facts would have amounted to a defence to the charge does not arise because no investigation was undertaken as to whether or not Mrs Tey had sufficient reasons to seek an adjournment. It would seem from his Honour's observations that the court took the view that there was, in effect, no defence to the charge and that it would be pointless time-wasting to indulge in further examination of the question or in granting the adjournment.

28 Counsel for the respondent submitted that no ground had been established which would have required the learned magistrate to have disqualified himself from presiding over the trial. These submissions proceeded on the basis that it was his Honour who had imposed the earlier conviction on 12 June 2009 in the absence of the appellant in circumstances where a plea of not guilty had not been brought to the court's attention. However, closer examination of the record shows that this was not so, because, as earlier indicated, the hearing of 12 June 2009 was conducted entirely by a different magistrate. However, even assuming that it was his Honour who dealt with the application on 12 June 2009, the submissions from the respondent are that this could not have given rise to any reasonable apprehension that his Honour would not decide the trial of the charge impartially or without prejudice because the charge was a simple offence and when convicting the appellant in her absence, the learned magistrate had not heard any evidence or been required to decide any issues of fact in relation to the charge - Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342. When the application to set aside that conviction had been made, it was granted without opposition by a Registrar on the papers. I accept that submission. I do not consider that any possible involvement by the learned magistrate who ultimately disposed of this case, in the hearing of 8 June 2009, could possibly give rise to any reasonable apprehension of bias or require the learned magistrate to excuse himself: see Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488; Re Colina; Ex parte Torney [1999] HCA 57; (1999) 200 CLR 386; and Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337.

29 Furthermore, it is clear that his Honour Magistrate L H Jones had not presided over the case on 12 June 2009. This makes it the more surprising that his Honour declined to declare this to Mrs Tey when she inquired about that on 8 July 2009.

30 That, however, does not appear to be the only basis upon which the application for disqualification was advanced. When it was persisted with by Mrs Tey on 13 August 2009, she included in her grounds the role of the learned Magistrate during the course of the hearing on 8 July 2009 when she was threatened with contempt of court and when her application for a change of venue was summarily rejected. She also seems to have included a ground for that application, the refusal by the learned magistrate on 13 August 2009, to adjourn the trial because of allegedly late disclosure of written materials by the respondent and refusal of her renewed application for the change of venue.

31 With respect to the contention that the appellant had had insufficient time to consider documents disclosed by the prosecution, counsel for the respondent has submitted that pursuant to s 60(5)(a) and (b) of the Criminal Procedure Act, a Magistrates Court may order a prosecutor to provide disclosure in relation to a charge such as was the topic of this prosecution but that no order for disclosure had been made. Should the court make such an order for disclosure, it is also empowered to make an order that the prosecutor comply with s 61 and in such event must adjourn the charge to a new court date which allows a reasonable time for the prosecutor to comply with such order.

32 The appellant's point is that because of the course which proceedings took on 8 July 2009, when she was threatened with committal for contempt, she was effectively prevented from then making an application for disclosure whether under s 60(5)(a) and (b) or s 61. On 13 August 2009, she complained that the disclosure which she had received was too late, being only three days before the trial. In this respect, it is to be noted that by s 61(6) of the Criminal Procedure Act, any requirements for disclosure resulting from an order made under s 61(5) must be complied with as soon as practicable and in any event at least 28 days before the trial date.

33 It is the appellant's contention, in substance, that because the course of proceedings as directed by his Honour on 8 July 2009, she was effectively excluded from making an application for disclosure under s 60 or s 61 but had she done so and been successful, the disclosure which would have resulted would have afforded her a longer opportunity to consider the materials disclosed.

34 I do not doubt that there are many pressures on busy magistrates in courts with heavy lists and that pressure of business demands a certain rigour in the conduct of proceedings to achieve efficiency and dispatch. However, with all respect, I do not consider that there was justification for the litigant in person to be threatened with proceedings for contempt as Mrs Tey was on 8 July 2009 and that the effect of that occurring very probably prevented or discouraged her from developing her applications for an order for disclosure or for a change of a venue. With all respect I consider that the summary rejection of both those applications by his Honour on 8 July 2009 was an erroneous denial of procedural fairness and contributed to an apprehension by Mrs Tey that she was being denied procedural fairness again at the hearing on 13 August 2009.

35 I consider that the application for the adjournment of the trial on 13 August 2009 required more considered investigation and that such process also required an evaluation of whether or not disclosure which had been given by the respondent's solicitors only three days before was adequate or timely. The refusal of the court to enter upon those matters meant that procedural rights which the appellant had, that is to seek an order for disclosure in accordance with the Criminal Procedure Act and to have that determined on the merits; and to seek an adjournment of the trial in order to render any order for disclosure adequate and useful, were wrongly determined.

36 The procedural relief which Mrs Tey was seeking was not unorthodox, indeed there was a statutory basis entitling her to make such applications but these rights were simply not adequately recognised and examined. The proceedings on 8 July 2009 had involved the rejection, without consideration or reasons of an application for a change of venue and, in effect, a refusal by the learned magistrate to hear other matters which the appellant sought to raise. That provided some basis for a consideration of the application for disqualification made in the latter stages of the hearing on 13 August 2009 but again, that was not addressed or considered.

37 It may appear to be a luxury to have the opportunity to consider the merits of such applications many months afterwards when far more time is available for analysis and reflection and that is no doubt true. However, if one is to act quickly and decisively without greater opportunities for consideration, there is no reduced obligation to identify the issues and determine them according to law than if more time were available. Summary action, therefore, carries with it a greater risk of precipitate decision and that unfortunately has occurred in this case.

38 Mrs Tey was entitled to advance her applications for a change of venue of the trial, for an order for disclosure by the prosecution pursuant to s 60 and s 61 of the Criminal Procedure Act and, in the circumstances, for an adjournment of the trial. The refusal of the learned magistrate to consider what was, in substance, an application for disclosure meant that the determination of the application for an adjournment proceeded on an erroneous and inadequate basis. The application for a change of venue seems to have been lost in the process and was not pressed but its summary rejection also no doubt contributed to the application for disqualification. That initial application was dealt with, I am satisfied, adequately correctly. But the renewed basis was never addressed. This has led to an unsatisfactory decision in which there was a summary refusal without examination or reasons of important procedural relief. The appellant then wilfully absented herself from the trial. This cannot be excused. A litigant disappointed with a decision on an interlocutory basis cannot be allowed to gain, by unjustified methods, the practical advantage which the unsuccessful application had sought to secure. A court cannot be allowed to have its procedures frustrated by the refusal of a litigant to participate. Nevertheless, if the interlocutory relief was wrongly refused or not considered, then that refusal or lack of consideration, if sufficiently material, can supply the basis upon which redress can be given against an eventual outcome.

39 There is a well-established distinction between procedural errors and substantive errors of law. But that does not mean that errors of the former category are necessarily less significant or capable of redress on appeal. The long history of the criminal law has shown the importance of rules of procedure in safeguarding and ensuring the fairness of a trial, and hence, the reliability of the judgment or verdict eventually reached. It is by observance of the rules of procedure that a fair trial is secured and by means of which access to relevant material and the provision of an adequate opportunity to answer the charge or allegation against one is delivered. Impairment of procedural rights reduces these protections and the result may be that, no matter how apparently obvious the substantive rule which is applicable to the case in hand may be, one party or, the other is, by denial of procedural fairness, denied or limited in her opportunity of making the answer which that party would wish to make, if he or she could avail of those procedural rights.

40 There are, of course, a vast number of authorities dealing with the content of the requirements of procedural fairness and many of these relate to statutory or administrative tribunals and often the content of procedural requirements are rendered applicable by specific statutes. One example in the latter class is SAAP v The Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 dealing with the requirements of fairness to be observed by the Refugee Review Tribunal. Another case dealing with the requirements of fairness relating to a statutory tribunal is Australian Broadcasting Tribunal v Bond ('Bond Media case') [1990] HCA 33; (1990) 170 CLR 321. This is not surprising because the rules of procedural fairness applicable in civil or criminal courts are well-established, and consequently there is less scope for suggesting that any one or other rule need not apply in civil or criminal cases.

41 Nevertheless, in the Bond Media case Deane J had occasion to refer to the requirements of the rules of procedural fairness generally and in the common law context. At (366 - 367), his Honour said:

As has been often said, the precise content of the obligation of a statutory tribunal to act judicially or to observe the requirements of natural justice or procedural fairness may vary according to the statutory framework of the particular proceedings and the circumstances of the individual case: 'the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth' (per Tucker LJ, Russell v Duke of Norfolk [1949] 1 All ER 109 at 118). That being so, the content of the obligation is not susceptible of precise definition otherwise than in the particular circumstances of a given case. The most that one can do is identify its ordinary incidents. Obviously enough, those incidents include the absence of the actuality or the appearance of disqualifying bias and the according of an appropriate opportunity of being heard. In the following paragraph, I identify what I see as the other more important incidents of the obligation. In so doing, I have treated what are sometimes referred to as 'Wednesbury principles' (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at 229 - 233 as encompassed by the obligation to act judicially in cases where that obligation exists (but cf, for a contrary approach, Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 410 - 411, 414 - 415).

If a statutory tribunal is required to act judicially, it must act rationally and reasonably. Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to decide arbitrarily, irrationally or unreasonably. It requires that regard be paid to material considerations and that immaterial or irrelevant considerations be ignored. It excludes the right to act on preconceived prejudice or suspicion. Arguably, it requires a minimum degree of 'proportionality' (cf the CCSU Case (supra at p 410)). When the process of decision-making need not be and is not disclosed, there will be a discernible breach of such a duty if a decision of fact is unsupported by probative material. When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact. Breach of a duty to act judicially constitutes an error of law which will vitiate the decision.

42 In this case, on 8 July 2009, no reasons were given for refusing to deal with the appellant's application for a change of venue, and by the further conduct of proceedings that day the appellant was effectively prevented from pursuing her intended course of applying for an order for disclosure. On 13 August 2009, the appellant complained about the late disclosure of the materials which she had been seeking from the respondent but no examination was conducted of the significance or potential significance of the late disclosure, of the handicaps which it might cause, nor of the incongruity between the time which had elapsed from the disclosure actually given and the time for consideration of disclosed materials that would have been necessary had an order for disclosure under s 60 and s 61 of the Criminal Procedure Act been made.

43 At the hearing on 13 August 2009, the application for disqualification of the learned magistrate insofar as that depended upon his alleged participation in the entry of a conviction in the absence of appearance on 12 June 2009, was correctly addressed and rejected. However, the proceeding continued and a renewed application for disqualification was made on the basis of the learned magistrate's conduct of the hearing on 8 July 2009 and also immediately beforehand on 13 August 2009. Those applications were not separately addressed or considered and, at least and insofar as the applications related to the hearing on 8 July 2009 they should have been considered in sufficient detail to address the points of the objections.

44 As a result, the appellant was wrongly deprived of the due determination according to law of the applications to invoke procedural rights for which she was expressly entitled to apply. Although it does not seem to have been appreciated at the time, this constitutes a breach of the duty to act judicially and that constitutes an error of law which I am satisfied vitiated the ultimate decision. This conclusion is not affected by the fact that the ultimate decision followed from the appellant's unjustified withdrawal from the proceedings because, by that stage, there had been a lack of procedural fairness which was of itself an error of law sufficient to set aside the ultimate decision.

45 Accordingly, I concluded that the conviction of the appellant and the orders for payment of the fine and costs should be set aside and that the prosecution notice should be remitted to the Magistrates Court for hearing before a different magistrate according to law.

46 This requirement means that any application which Mrs Tey may seek to make for an order for disclosure or other procedural rights should be heard and determined according to the merits on such evidence or other material as is suggested to be relevant to the issue or issues to be decided. If in the end, the evidence adduce to support the charge is accepted or it is decided that the matters which Mrs Tey wish to raise in defence of the charge do not amount at law to a defence, none of that will reduce her entitlement to plead not guilty to the charge and to have the charge heard and determined according to law - including such procedural rights and safeguards as exist or may be invoked to secure that end.

47 At the request of the respondent, I have granted it liberty to apply in writing for a certificate under s 10 of the Suitors' Fund Act.

Court Regulations 2005

TEY -v- CITY OF GOSNELLS [2010] WASC 96 (7 May 2010)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (92 paragraphs)

TEY -v- CITY OF GOSNELLS [2010] WASC 96 (7 May 2010)

Legislation Cited (8)

Cases Cited (13)