Conomy v Maden

[2016] HCATrans 117

[2016] HCATrans 117

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P20 of 2016

B e t w e e n -

JERROD CONOMY

Applicant

and

CHRISTOPHER MADEN (WA POLICE)

Respondent

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 17 MAY 2016, AT 9.29 AM

Copyright in the High Court of Australia

HIS HONOUR:   On 13 February 2013, the Magistrates’ Court, Mandurah, Western Australia issued an interim Violence Restraining Order restraining the applicant, inter alia, from communicating or attempting to communicate with the “Person Protected” by any means whatsoever, including SMS or text messages or any other electronic means.  The order was served on the applicant the same day and at all relevant times thereafter remained current.  On 13 August 2013, in breach of the Violence Restraining Order, the applicant sent the following SMS text messages to the Person Protected:

“I miss you!

97.3

I’ll be at the quarry tomorrow between 1 pm and 1.30 pm.  If your [sic] not there I’ll know I need to forget you and move on…”

Following a trial in the Magistrates’ Court on 16 January 2015, the applicant was found guilty of so breaching the Violence Restraining Order and sentenced therefore to a fine of $1,268.  The applicant appealed against the conviction to the Supreme Court of Western Australia but, on 29 May 2015, Justice Martino dismissed the appeal.  In comprehensive reasons published that day[1], his Honour identified why each of the applicant’s grounds of appeal was without relevant substance.

[1] Conomy v Western Australian Police [2015] WASC 178.

The applicant sought leave to appeal to the Court of Appeal of the Supreme Court of Western Australia but, on 18 February 2016, the Court of Appeal, constituted by Justices of Appeal Buss and Mazza and Justice Mitchell, refused leave to appeal.  In reasons published that day their Honours stated[2] that having reviewed the evidence and the applicant’s grounds of appeal and submissions before the Court of Appeal, and before Justice Martino, they were satisfied that none of the applicant’s grounds of appeal had a reasonable prospect of success.

[2] Conomy v Western Australian Police [2016] WASCA 31 at [14].

On 10 May 2016, this Court made an order that the applicant’s proposed application for special leave to appeal against the orders of the Court of Appeal, dated and lodged on 17 March 2016, be accepted for filing as of 10 May 2016 and that the time prescribed by rule 41.02.1 of the High Court Rules 2004 (Cth) for filing the application for special leave be dispensed with.

Notwithstanding that enlargement of time, in breach of rule 41.10.3(c), the applicant then failed to file a written case within 28 days of filing the application for special leave and thus, perforce of rule 41.10.4(1), the application for special leave was deemed to have been abandoned as of 7 June 2016.

By summons dated 7 April 2017, the applicant applied for an order reinstating the application for special leave to appeal and an extension of time in which to comply with rule 41.10.3 but, on 19 April 2017, Justice Gordon ordered that the summons be dismissed.  In reasons for judgment published that day, her Honour concluded it would be futile to order reinstatement and enlarge time for compliance with rule 41.10.3 because the application for special leave to appeal would enjoy no prospect of success.  Her Honour also observed that the applicant’s explanation of why he did not file his written case within the time required by the Rules of the High Court was less than satisfactory.

The applicant now applies by summons dated 26 April 2017 for the following orders:

“1.The applicant requests that this summons be decided without a hearing or written response from the respondent.  Refer to the supporting Affidavit (Affidavit D).

2.The applicant requests that this summons application be decided on the papers.  Refer to the supporting affidavit (Affidavit D).

3.Without suggesting blame for the handling of the prior summons, the applicant requests that the Registrar be ordered to ensure that all 371 pages of Affidavit A, as previously filed in support of my previous summons filed on the 7th of April 2017, is made available to the Judge deciding this summons and that all pages and exhibits of Affidavit D in support of this summons are also before the judge.

4.With the greatest of respect to the honourable Justice Gordon, the applicant requests that, given the circumstances, this summons application be decided by a different Judge to avoid any possibility of a conflict of interest.

5.Due to specific parameters of this matter and to avoid potential procedural unfairness and breaches of commonwealth human rights legislation, the applicant requests that, in relation to the determination of the following requested orders, the question of whether the proposed docs for satisfying rule 41.10.3 should be accepted for filing only be a consideration of the readiness of such documents for filing and to the explanation for the lateness of such.  Please refer to the supporting Affidavit for the justifications.

6.As a result of an unexpected process taken by the honourable Justice Gordon in processing my previous summons application and to present further fresh medical evidence previously unavailable to the applicant, the applicant requests orders that this matter be re-instated and that an extension of time be granted for me to comply with rule 41.10.3 and that the proposed documents for satisfying rule 41.10.3, as have been lodged for filing be accepted for filing and that a proposed amended form 23 for rule 41.01.1, being the application for special leave, be accepted for filing and that the primary copy of Affidavit B, as previously lodged for filing on the 7th of April 2017, replace the documents on file for rule 41.01.2.  The justifications for these orders are set out in Affidavit D and the previously filed Affidavit A and all relevant exhibits thereto.”

In an affidavit sworn on 26 April 2017 in support of the application, and in exhibits to that affidavit, the applicant deposes more comprehensively to the circumstances, particularly his attenuated psychological state, the consequence, inter alia, of his lack of success in this and a related matter, which caused him to fail to comply with the time limit for the filing of his written case.

In accordance with the applicant’s request, I direct that his application be determined pursuant to rule 13.03.1 without it being listed for hearing.  I also acknowledge the extent of the additional evidence provided in the affidavit of 26 April 2017 and that it provides a further substantive explanation of why the applicant failed to file his written case within the time prescribed.  I add, nonetheless, that in my judgment there is not the slightest reason to doubt the correctness of Justice Martino’s rejection of the applicant’s appeal against conviction, or the correctness of the Court of Appeal’s refusal of leave to appeal.

Contrary to the applicant’s written submissions, it was not incumbent on the Court of Appeal to deal individually with each and every one of the applicant’s myriad of grounds and sub‑grounds of appeal.  It was entirely appropriate to group them under the headings of the four issues which were specifically identified in the reasons for judgment and reject them for the reasons given.

Further, and in any event, this application is, in effect, an application for redetermination of the application already rejected by Justice Gordon.  For that reason it is both incompetent and an abuse of process. 

Accordingly it is ordered that:

1.The application be dismissed.

2.Pursuant to rule 6.07.2, the Registrar be directed to refuse to issue or file any further document tendered by the applicant for issue or filing in this proceeding without the leave of a Justice first had and obtained by the applicant.

AT 9.36 AM THE MATTER WAS CONCLUDED