Clarke, Pamela v Golden Egg Farm Pty Ltd
[1998] TASSC 145
•20 November 1998
145/1998
PARTIES: CLARKE, Pamela
v
GOLDEN EGG FARM PTY LTD
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 111/1997
DELIVERED: 20 November 1998
HEARING DATE/S: 17 November 1998
JUDGMENT OF: Underwood J
CATCHWORDS:
Magistrates - The hearing - Dismissal - General matters - Power to dismiss where proceedings unfair or an abuse of process - Exceptional remedy - Delay in prosecuting complaint - Proper exercise of the discretion.
Jago v District Court (NSW) (1989) 168 CLR 23; Williams & Ors v Spautz (1992) 174 CLR 509, applied.
Rona v District Court of South Australia & Anor (1995) 77 A Crim R 16, distinguished.
Aust Dig Magistrates [123]
REPRESENTATION:
Counsel:
Appellant: A M Blow QC
Respondent: P E Barker
Solicitors:
Appellant: Lowrie Blissenden Howarth & Tauber
Respondent: Avery Keal
Judgment category classification:
Court Computer Code:
Judgment ID Number: 145/1998
Number of pages: 5
Serial No 145/1998
File No LCA 111/1997
PAMELA CLARKE v GOLDEN EGG FARM PTY LTD
REASONS FOR JUDGMENT UNDERWOOD J
20 November 1998
The applicant seeks a review of orders made in a court of petty sessions on 12 November 1997 dismissing the complaint and ordering the complainant to pay the defendant's costs thereof.
Proceedings in the court below
On 11 July 1995, the applicant made a complaint to a justice that on 12 January 1995, the respondent committed three breaches of the Animal Welfare Act 1993. A summons was issued requiring the respondent to attend a court of petty sessions on 10 August 1995. As it was the first return date, the hearing of the complaint was adjourned to 19 September 1995 to enable the respondent to plead to the matters of complaint. On that day, pleas of not guilty to all matters of complaint were entered on behalf of the respondent by its solicitor. There followed numerous other adjournments. The following history is taken from the record of proceedings and the learned magistrate's notes of the hearing which led to the orders of dismissal and costs being made:
| Date | Material |
| 19 December 1995 | The solicitor for the applicant and the solicitor for the respondent agreed to make full pre-hearing disclosure of their cases. |
| 19 February 1996 | Each party agreed to exchange proofs of expert opinion evidence. The solicitor for the respondent produced its proof of expert opinion evidence on 8 March 1996. |
| 11 April 1996 | The solicitor for the respondent stated that it was intended to make an application for security for the respondent's costs. |
| 24 April 1996 | The application for security for costs was heard. |
| 2 August 1996 | The application for security for costs was dismissed and the hearing of the complaint adjourned to 23 August 1996. |
| 23 August 1996 | A video tape was handed into the custody of the court and the hearing of the complaint adjourned to 7 October 1996 for hearing and determination. |
| 16 September 1996 | The respondent's solicitor gave the applicant's solicitor a further proof of expert opinion evidence. |
| 20 September 1996 | The applicant's solicitor gave the respondent's solicitor a proof of expert opinion evidence. |
| 2 October 1996 | The applicant's solicitor sought an adjournment of the hearing scheduled for 7 October 1996, on the basis it was necessary to deliver another proof of expert opinion evidence. Over objection, the application for an adjournment was successful. The order was that "the case [be] adjourned sine die; to be relisted at the magistrate's discretion." |
Thereafter the proceedings remained dormant for almost a year. On 3 September 1997, the solicitor for the applicant asked "the Registrar" of the court of petty sessions to list the complaint for a hearing. On 29 September 1997, the applicant lodged an application in the court of petty sessions seeking orders:
"1That complaint No 37138/1995 be dismissed for want of prosecution.
2That the complainant Pamela Clarke pay the costs of and incidental to complaint No 37138/1995 and this application."
This application was argued on 15 November 1997. With respect to prejudice to the respondent, the learned magistrate was told by its solicitor (inter alia):
the delay affects the memories of witnesses; and
the delay had caused financial loss to the respondent in wasted counsel's fees and a wasted airfare for an expert witness in the sum of $747.40.
On 12 November 1997, the learned magistrate made the orders which are the subject of the motion to review. He handed down written reasons for those orders.
The law
It was common ground on the hearing of this motion that although a magistrate has no power to stay proceedings as an abuse of the process of the court, he or she may dismiss a complaint, the hearing of which will constitute such an abuse. See Lillico v McKenna & Ors (1995) 5 Tas R 147; R v O'Loughlin; ex parte Ralphs [1971] 1 SASR 219.
On behalf of the applicant, Mr Blow QC submitted that the learned magistrate's discretion miscarried in that he failed to consider whether the delay meant that a hearing of the complaint would be unfair from the respondent's point of view (ground 1). Further, Mr Blow submitted that the exercise of the learned magistrate's discretion miscarried in that he failed to consider whether the delay in prosecuting the matters of complaint had caused the respondent to suffer prejudice (ground 2).
There is no fixed class or classes of circumstances that will constitute an abuse of the process of the court. See Williams & Ors v Spautz (1992) 174 CLR 509; Rona v District Court of South Australia & Anor (1995) 77 A Crim R 16; Nicholas v Bantick (1993) 3 Tas R 47 at 84 et seq; I H Jacob, The Inherent Jurisdiction of the Court (1990) 23 Current Legal Problems 23.
The general principle was stated in the joint judgment in Spautz as follows at 520:
"As Lord Scarman said in Reg v Sang (1980) AC 402, at p 455, every court is 'in duty bound to protect itself' against an abuse of its process. In this respect there are two fundamental policy considerations which must be taken into account in dealing with abuse of process in the context of criminal proceedings. Richardson J referred to them in Moevao v Department of Labour (1980) 1 NZLR 464, at p 481 in a passage which Mason CJ quoted in Jago (1989) 168 CLR, at p 30. The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice. As Richardson J observed (1980) 1 NZLR, at p 482, the court grants a permanent stay:
'in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes ... that the Court processes are being employed for ulterior purposes or in such a way ... as to cause improper vexation and oppression'."
The circumstances that may constitute an abuse of the process of the court include:
those which will deny an accused person a fair trial;
the prosecution of litigation for an improper purpose;
the prosecution of proceedings that are patently groundless.
The above are but illustrations of the general principle and are not intended to suggest a closed category of cases.
Application of principle to the motion to review
In the present case it cannot be doubted that the applicant was guilty of considerable delay in the prosecution of the matters of complaint. Further, it cannot be doubted that there was no reasonable excuse for such delay. In his written reasons, the learned magistrate referred to this delay. He also referred to what he described as "case flow management" conducted by the court at the request of the parties and the applicant's failure to abide by management directions. I infer this to be a reference to the delays in furnishing proofs of expert opinion evidence upon which the applicant intended to rely. The learned magistrate then observed, "[t]hese charges are directed at the very business operated by the defendant. The defendant was entitled to have the charges heard and determined at an early opportunity." The learned magistrate then concluded his reasons for judgment as follows:
"Considering all of the issues referred to by Deane J [Jago v District Court (NSW) (1989) 168 CLR 23 at 61] above I am of the opinion the attitude of the complainant in failing to pursue this complaint on a more expeditious basis has amounted to an abuse of the process of this court. I do not believe the matter of the delay can be adequately and fairly dealt with at some future time at a hearing date that would have to be in excess of three years from the date of the alleged offences. The complainant sought to bring a private prosecution despite the DPP deciding against an action. I am concerned that all this prosecution has generated to date has been publicity which has obviously been detrimental to the defendant.
I believe the only appropriate course for this court to now take is to dismiss the action as an abuse of court process and to further order that the complainant pay the defendant's costs of the action. I will hear the parties as to the precise order as to costs."
The learned magistrate was referring to a passage he cited from the judgment of Deane J in Jago at 61 which sets out the matters which the court should take into account in a case of alleged abuse of process by delay. Deane J referred to:
the length of delay;
the reasons given by the prosecution to explain or justify the delay;
the accused's responsibility for, and past attitude to, the delay; and
proven or likely prejudice to the accused.
His Honour then added to the above the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime. However, the point of his Honour referring to those matters in a case of delay was, as he said, at 61:
"[because they] … provide convenient reference points for answering the question whether the effect of a delay in a particular case is such as to bring about a situation where any trial will necessarily be an unfair one from the accused's point of view or a situation where the continuation of proceedings would be so unfairly oppressive that it would constitute an abuse of process."
In his judgment, Mason CJ at 33 et seq adopted the same principle, namely, where delay is the sole ground of complaint, an accused person must be able to show that the lapse of time is such that he or she will be denied a fair trial. All of the members of the court agreed that there was, at common law, no right to the speedy trial of a criminal charge separate from a right to a fair trial.
I am satisfied that ground 1 of the motion to review is made out. The learned magistrate identified delay, but did not address the critical question of whether or not, by reason of such delay, the respondent would be denied a fair trial. Indeed, nothing was put to the learned magistrate in the court below to suggest that the delay meant that a hearing of the merits of the matters of complaint would be unfair from the complainant's point of view. It is true, as was submitted on behalf of the respondent by Mr Barker, that the respondent had been prejudiced in the financial sense from the delay by reason of the matters put to the learned magistrate by its solicitor. However, that prejudice is not sufficient to warrant the dismissal of the complaint. It is unnecessary to further consider ground 2.
Mr Barker submitted in the alternative that the discretion had not miscarried because there was material before the learned magistrate which would have entitled him to conclude that the proceedings were being prosecuted for an ulterior motive. This submission is based upon the following taken from the learned magistrate's notes of submissions made to him by the solicitor for the respondent in support of the application for an order dismissing the complaint:
"Why did the prosecution delay the case. Why won't they proceed now. Is there an ulterior motive.
We will recall the DPP would not run the case and accordingly this became a private prosecution ¾ perhaps it's merely to highlight the prosecution's attitude towards egg farming.
…
The complainant has recently ended her much publicised case on the Mainland relating to the Olympic 2000 logo and now wants to further her cause before the media through this case."
In reply, the respondent's solicitor said (inter alia):
"The prosecution concedes there's been a delay ¾ the facts speak for themselves. However has the delay amounted to saying it could be fairly said the defendant could no longer get a fair trial? The defence has covered motives, cost to date, breaches of commitments to supplying of documents ¾ all these are covered but he's failed to say that that would satisfy a Court that the defendant couldn't get a fair trial."
Mr Barker submitted that the applicant's solicitor's failure to challenge the assertions made by the respondent's solicitors constituted an admission of ulterior motive and warranted a finding that there was an abuse of process. I reject this proposition for the following reasons:
The reference to an ulterior motive is posed not as an assertion of fact but as a rhetorical question.
To court publicity for the proper prosecution of a complaint is not an ulterior motive.
Before ulterior motive for the maintenance of proceedings becomes an abuse of the process of the court, that motive must be the dominant motive, and there was nothing to suggest that. See Spautz at 529.
If a fact is asserted by one solicitor or counsel in court and the opposing solicitor or counsel does not agree with it, expressly or implicitly, then the fact asserted must be proved in the usual way in accordance with rules of evidence, unless there is some legislative provision which permits facts to be proved other than in the ordinary way. See Gardiner v R (1992) 62 A Crim R 370; Director of Public Prosecutions v Delaney 29/1998.
Even if there had been material tending to indicate that the applicant was prosecuting the matters of complaint predominately for an improper purpose, the learned magistrate did not take that into account in the exercise of his discretion.
Mr Barker also sought to defend the learned magistrate's decision by an application of the principle expounded in Rona v District Court of South Australia & Anor (supra). That case concerned an application for a permanent stay of proceedings in a District Court on an Information. The conduct of those proceedings was governed by case management rules; District Court Rules 1992 (SA). There was non-compliance with those rules, particularly in that the prosecutor, having stated at a status conference that the charges in the Information would "remain as they are", subsequently lodged a new Information containing different charges. The court held that a breach of case management rules could, in some circumstances, constitute an abuse of the process of the court. King CJ said, at 21:
"I think that the attempt by the DPP to depart from the unequivocal assurances given at the status conference that the Information on which the accused would go to trial was the false pretences Information, by proceeding on the Information for fraudulent conversion, was in the circumstances an abuse of the process of the Court which gave rise to a power in the Court to stay proceedings on that Information."
Rona is not authority for the proposition that any breach of case management directions entitles an accused person to a permanent stay or, in a court of petty sessions, dismissal of a complaint. It will depend upon the circumstances of each case whether the breach of case management directions constitutes an abuse of the process of the court. In the present matter, there was no such abuse of the process. There were no case management provisions. It is true that the parties agreed to abide by directions given by a magistrate and it is true that the applicant did not abide by those directions, but, in the circumstances of the case, it could not be said that the failure to abide by the agreement constituted an abuse of the process of the court. In Rona, Olsson J set out the relevant provisions of the District Court Rules at 25 et seq and observed:
"It is not being over dramatic to say that these concepts have proved to be vital in ensuring the orderly conduct of business in the criminal jurisdiction; and that an abrogation of them would lead to disastrous practical consequences to the court and the community alike."
No such observation could be made with respect to the present matter.
Conclusion
On the material before him, application of proper principle to the exercise of the discretion could have led the learned magistrate to only one conclusion, namely, that the application for an order dismissing the complaint should be dismissed. The motion to review succeeds. The orders made in the court below are quashed. In lieu thereof, it is ordered that the application for orders dismissing the complaint and that the applicant pay the respondent's costs is dismissed. There will be a further order remitting the matters of complaint to another magistrate for hearing in accordance with law.
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