Cooper v Sinnathamby (No 1)
[2006] WASCA 82
•23 MAY 2006
COOPER -v- SINNATHAMBY & ANOR (NO 1) [2006] WASCA 82
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 82 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:6/2006 | 23 MARCH 2006 | |
| Coram: | ROBERTS-SMITH JA | 23/05/06 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | First respondent properly joined as party | ||
| A | |||
| PDF Version |
| Parties: | BRADLEY DALE COOPER SANTHIRAMINI DEVI SINNATHAMBY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Appeal Wilful and unlawful damage by fire Compensation order made in favour of victim on application of State prosecutor under s 11 Sentencing Act 1995 (WA) Appeal against compensation order Victim named as first respondent State named as second respondent State filing notice it did not intend to take part in appeal Whether first respondent a party Whether first respondent properly joined |
Legislation: | Sentencing Act 1995 (WA), s 110, s 117, s 119 |
Case References: | Connolly & Ors v McCartney & Ors (1908) 7 CLR 48 Easterday v The State of Western Australia (2005) 30 WAR 122 Homestyle Pty Ltd v City of Belmont [1999] WASCA 59 News Limited v Australian Rugby Football League Ltd (1996) 64 FCR 410 Nicholson v The Queen, unreported; CCA SCt of WA; Library No 980698; 7 December 1998 R v Collins [1970] 1 QB 710 R v Fitzpatrick (2004) 146 A Crim R 332 R v Grein [1989] WAR 178 R v Jefferies [1969] 1 QB 120 R v Palmer [1969] 1 NSWR 484 Re His Honour Judge Gunning & Ors; Ex parte Connell (1993) 10 WAR 424 Kavia Holdings Pty Ltd v Werncog Pty Ltd [1999] NSWSC 839 Rondel v Worsley [1969] 1 AC 191 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : COOPER -v- SINNATHAMBY & ANOR (NO 1) [2006] WASCA 82 CORAM : ROBERTS-SMITH JA HEARD : 23 MARCH 2006 DELIVERED : 23 MAY 2006 FILE NO/S : CACR 6 of 2006 BETWEEN : BRADLEY DALE COOPER
- Appellant
AND
SANTHIRAMINI DEVI SINNATHAMBY
First Respondent
THE STATE OF WESTERN AUSTRALIA
Second Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : O'BRIEN DCJ
File No : IND 1687 of 2005
(Page 2)
Catchwords:
Criminal law and procedure - Appeal - Wilful and unlawful damage by fire - Compensation order made in favour of victim on application of State prosecutor under s 11 Sentencing Act 1995 (WA) - Appeal against compensation order - Victim named as first respondent - State named as second respondent - State filing notice it did not intend to take part in appeal - Whether first respondent a party - Whether first respondent properly joined
Legislation:
Sentencing Act 1995 (WA), s 110, s 117, s 119
Result:
First respondent properly joined as party
Category: A
Representation:
Counsel:
Appellant : In person
First Respondent : Mr D A Lenhoff
Second Respondent : Mr C J Henderson
Solicitors:
Appellant : In person
First Respondent : Holborn Lenhoff Massey
Second Respondent : State Director of Public Prosecutions
(Page 3)
Case(s) referred to in judgment(s):
Connolly & Ors v McCartney & Ors (1908) 7 CLR 48
Easterday v The State of Western Australia (2005) 30 WAR 122
Homestyle Pty Ltd v City of Belmont [1999] WASCA 59
News Limited v Australian Rugby Football League Ltd (1996) 64 FCR 410
Nicholson v The Queen, unreported; CCA SCt of WA; Library No 980698; 7 December 1998
R v Collins [1970] 1 QB 710
R v Fitzpatrick (2004) 146 A Crim R 332
R v Grein [1989] WAR 178
R v Jefferies [1969] 1 QB 120
R v Palmer [1969] 1 NSWR 484
Re His Honour Judge Gunning & Ors; Ex parte Connell (1993) 10 WAR 424
Case(s) also cited:
Kavia Holdings Pty Ltd v Werncog Pty Ltd [1999] NSWSC 839
Rondel v Worsley [1969] 1 AC 191
(Page 4)
1 ROBERTS-SMITH JA: On 31 October 2005 in the District Court at Perth, the appellant pleaded guilty to an offence of causing wilful and unlawful damage by fire. He had set fire to premises from which Dr Sinnathamby conducted her medical practice. There was extensive damage to the premises.
2 O'Brien DCJ made an Intensive Supervision Order with a programme requirement for a period 2 years.
3 On the application of the State prosector on behalf of Dr Sinnathamby, her Honour made an order pursuant to s 117 of the Sentencing Act 1995 (WA) that the appellant pay Dr Sinnathamby compensation in the sum of $101,000.
4 By an appeal notice filed 2 February 2006, the appellant sought leave to appeal against the compensation order.
5 The draft grounds of appeal set out on the appeal notice were that:
"1. The learned sentencing Judge erred in fact in finding that the victim had suffered a loss in the amount of $101,000.00 and subsequently making a compensation order in that amount.
1.1 The learned sentencing Judge misapprehended the facts and alternatively was misled by the material put by the victim in support of her claim for compensation order."
6 As the last date for appealing was 21 November 2005, the appellant needed an extension of time.
7 Also on 2 February 2006, the appellant filed an application for an order staying the execution of the compensation order and an affidavit in support of his application for both a stay and an extension of time.
8 At that stage the appellant was represented by Gibson Lyons Lawyers.
9 On 10 February 2006 the second respondent filed a Notice of Respondent's Intention stating that the second respondent did not intend to take part in the appeal and would accept any order made by the Court in the appeal, other than as to costs.
(Page 5)
10 On 15 February 2006 the first respondent filed a Notice of Respondent's Intention stating that she intended to take part in the appeal and that she would be legally represented.
11 On 24 February 2006 the appellant filed a Notice of Self-representation.
12 I made orders on the papers on 27 February 2006 that the appellant serve the first and second respondents with the application to stay the execution of the compensation order and for an extension of time, together with his affidavit of 2 February 2006.
13 The Appellant's Case was filed by the appellant personally on 1 March 2006.
14 On 9 March 2006 Dr Sinnathamby filed her own affidavit, deposing to various factual matters concerning the damage caused to the premises and consequential costs and loss occasioned to her.
15 The matter was listed for hearing before me on 9 March 2006, on which occasion the appellant appeared in person and Mr Lenhoff appeared for Dr Sinnathamby. There was no appearance for the second respondent.
16 Having heard the parties, I made an order that execution of the compensation order be stayed until further order, on the appellant's undertaking not to further encumber his property at 10/4 Chich Place, Cannington, beyond an additional amount to a limit of $60,000 and that a copy of that order be sent to the Registrar of Titles.
17 Prior to the commencement of an appeal under the Criminal Appeals Act 2004 (WA), Pt 3, an application to stay an order for the payment of compensation may be made to the superior court pursuant to s 121 of the Criminal Procedure Act 2004 (WA). In subs (1) of that section "stay order" is defined as meaning an order that stays the operation of various specified orders including one for the payment of compensation or another sum of money, by a convicted person.
18 By s 121(3) the application may be made by the convicted person, the relevant authorised officer or a person who is, or will be, affected by the order or statutory provision in relation to which the stay order is sought.
(Page 6)
19 Subsequent to the commencement of an appeal, such an order may be made under the corresponding provision in s 29 of the Criminal Appeals Act. That section provides that at any time after an appeal is commenced, and before it is concluded, the Court of Appeal may make any order that a superior court can make under the Criminal Procedure Act s 121, or amend or cancel any such order whether made by a superior court or by the Court of Appeal.
20 As this appeal had already been commenced, the order of 9 March 2006 was made pursuant to s 29 of the Criminal Appeals Act.
21 I then informed the parties that I would consider the appellant's case which had been filed and they would be advised of the outcome of that consideration in due course.
22 On 11 March 2006, I ordered that:
1. Time for filing the appeal notice be extended to 2 February 2006.
2. Leave to appeal is granted in respect to each ground on the appeal notice.
3. Pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA) the parties have leave to adduce further evidence relating to the compensation the subject of the order in the District Court on 31 October by O'Brien DCJ.
23 I subsequently directed the matter to be called on before me again on 23 March 2006, for consideration of the proper respondent(s) and representation on the appeal, and directions for the provision of additional evidence for the appeal.
24 On 14 March 2006 the appellant filed two further affidavits, one quite lengthy one and another of seven pages. He filed a further affidavit on 21 March 2006 with extensive documents annexed.
25 He filed another affidavit on 22 March 2006, also containing extensive attachments.
26 The Registrar issued a Notice Requiring Respondent's Answer on 21 March 2006. That notice stipulated that pursuant to r 33 of the Supreme Court (Court of Appeal) Rules 2005 (WA) the respondents were required to file and serve any answer to the appellant's case within 21 days, namely Tuesday 11 April 2006.
(Page 7)
27 The matter was listed for directions again before me on 23 March 2006. That was primarily because I had some concern about whether Dr Sinnathamby was properly joined as a respondent and as to how the matter might properly progress to, and be heard before, the Court of Appeal.
28 At that stage the appellant had been granted legal aid. He informed me that Mr Watters would be his counsel but was unable to be there that day. Mr Henderson, who appeared for the second respondent, informed me that the State maintained its position that it had no interest in the matter and should not be involved in it. Mr Lenhoff, for the first respondent, said he wished to maintain that Dr Sinnathamby was properly joined as she had an obvious interest.
29 In the event, I ordered that the date for the filing and serving of the respondents' answers be vacated and made further orders that written submissions be filed and served on the question whether the first respondent was properly joined as a respondent and on the position of the State in this appeal. I made certain programming orders, setting out a process to culminate in the filing of submissions by the appellant by 2 May 2006. I indicated there would be no oral hearing unless, having read the written submissions, I considered that necessary.
30 Having read the written submissions I did not require further oral submissions.
31 On 24 March 2006, Mr Watters filed a lawyer's notice of acting.
32 Pursuant to the programming orders, the first respondent's submissions on the question of joinder of the first respondent, were filed on 4 April 2006, together with an affidavit of Gary William Massey sworn that day. The second respondent's outline of submissions was filed on 18 April 2006 and the appellant's submissions on 11 May 2006.
33 In the meantime, on 26 April 2006, the appellant filed what he described as two affidavits, but which were in fact documents containing lengthy arguments and assertions of factual matters which were directed to having his conviction overturned. He filed another similar document on 28 April 2006 and a six page letter with annexures on 1 May 2006. These were all filed by him personally. None of these bear upon the issue of the appropriate parties to this appeal.
34 What presently falls for my determination is who is the proper respondent to this appeal, and in particular whether Dr Sinnathamby is
(Page 8)
- properly named as the first respondent and then, any directions needed to properly progress the matter for hearing before the Court of Appeal.
35 The facts surrounding the commission of the offence, or what happened in the District Court proceedings, are not presently material. Some further information as to the position of the first respondent is provided in Mr Massey's affidavit. He deposes that on 2 December 2005 the first respondent registered the compensation order as a judgment with the District Court pursuant to s 119 of the Sentencing Act. On 6 December 2005 the first respondent applied to the District Court for a property (seizure and sale) order pursuant to the compensation order which then stood as a judgment of the District Court. That order was issued on 15 December 2005.
36 The positions of the respective parties on this issue may be summarised as follows. The first respondent contends she is an appropriate party to the appeal, as the victim in whose favour a compensation order has been made under s 117 of the Sentencing Act. A certified copy of such a compensation order may be lodged in a court of competent jurisdiction and is then taken to be a judgment of that Court and is enforceable accordingly (s 116). It is submitted that it is apparent from the papers filed by the appellant that in reality he is appealing not only against the original compensation order, but also the civil judgment registered in the District Court. Thus, it is submitted, the stay order and the appeal affect the ability of the first respondent to enforce the judgment and so affect her rights. As the State is not a party to the civil judgment, the first respondent needs to be heard on the appellant's sentence appeal (albeit a sentence appeal confined to the making of the compensation order). The first respondent also relies upon O 18 r 6 of the Rules of the Supreme Court ("the Rules").
37 The second respondent concedes that as the appellant's appeal against the order is to be treated as an appeal against sentence (s 110(2) and (6) of the Sentencing Act) and "it is only appropriate" that the second respondent be joined as a respondent to the appeal. Nonetheless, the second respondent maintains its position as stated in its "Notice of Intention". So far as the first respondent is concerned, the second respondent submits that as the first respondent is the person in whose favour the compensation order was made and whose rights are affected by it, she should be entitled to be heard in opposition to the appeal and is appropriately joined.
(Page 9)
38 In his submission dated 2 May 2006, Mr Watters for the appellant submits both respondents are appropriately named as such in these proceedings and the matter should proceed accordingly.
39 Part 16 of the Sentencing Act deals with reparation orders. They are defined as meaning a compensation order or a restitution order made under that Part (s 109).
40 Section 110(1) states that a reparation order is in addition to, and not part of the sentence imposed upon an offender. Nonetheless, s 110(6) provides that despite s 110(1), an offender may appeal against a reparation order as if it were part of the sentence imposed on him or her.
41 Compensation orders are made under s 117 of the Sentencing Act. Under that section, such an order is one that the offender must pay an amount of money set by the court to the victim as compensation for the loss of, or damage to, the victim's property or any expense reasonably incurred by the victim, as a direct or indirect result of the commission of the offence.
42 In fixing the amount of money to be paid under a compensation order for loss or damage to property, it does not matter whether that loss or damage was reasonably foreseeable by the offender (s 117(3)).
43 The predecessors to s 117 and s 119 of the Sentencing Act were s 717 and s 719 of the Criminal Code. The latter were considered in R v Grein [1989] WAR 178.
44 Grein was a Crown appeal against sentence. The respondent had been convicted of a number of fraud offences for which he was sentenced to terms of imprisonment aggregating 4 years. He had fraudulently obtained a total of some $61,000 from an insurance company. The sentencing Judge made an order under s 717 of the Code for restitution of just under $17,000, which sum was actually in the possession or control of the respondent. Her Honour declined to make an order for compensation for the balance under s 719, on the basis that would be more appropriately dealt with in civil proceedings.
45 The Crown appeal against the sentences was on the ground that they were inadequate; there was also a ground against her Honour's refusal to order restitution of the whole amount actually received by the respondent.
46 Dealing with the issue of the compensation order, Malcolm CJ (with whom Wallace and Nicholson JJ agreed) noted that when submissions
(Page 10)
- concerning sentence were made to the sentencing Judge, the insurance company appeared by counsel. The insurance company made an application pursuant to s 717 of the Code for restitution of such of the moneys obtained from it as were in the possession or control of the respondent, and for an order for compensation in respect of the balance of the loss. Her Honour indicated she was only prepared to make an order for restitution of the moneys actually in the possession or control of the respondent and that was how the matter was left.
47 Commenting on the procedure followed, the Chief Justice said (at 186):
"At first blush, it may seem somewhat odd that it is the Crown which has appealed from the order of restitution on the ground that the learned judge should have ordered restitution of the whole amount actually received by the respondent, rather than only part of it. The application for the order was made by Prudential. The Crown is entitled to appeal from the order because it is the only party having a right of appeal from the sentence. An order for restitution or compensation is included within the definition of 'sentence' by s 703 of the Code."
48 His Honour then set out the relevant statutory provisions of the Code and observed that (at 188):
"The obvious purpose ss 717 of the Code is to provide a simple and summary procedure to assist in the recovery of property by way of restitution, or by way of compensation for loss suffered by the victims of crime. The amendments made to these provisions in 1985 were proclaimed on 1 September 1986. The amendments appear to have been intended to enlarge the scope for the use of the summary remedy of restitution and also to provide a supplementary and statutory right of the victims of crime to obtain compensation. Speaking generally, it is obviously desirable that if, in the course of a criminal trial resulting in a conviction or from the matters put before a sentencing judge, whether following a conviction after trial or upon a plea of guilty, material is put forward upon which it is possible to make an order for restitution or compensation, such an order normally should be made. There are, however, circumstances where it would not be appropriate to make an order. First, an order for restitution of property should not be made unless the court is satisfied upon the balance of
(Page 11)
- probabilities that the convicted person or a third person does have relevant property in his or her possession, as defined. Secondly, the consequences of non-compliance with the relevant order may be such that the discretion should be exercised against making it."
49 It is clear that the Civil Judgments Enforcement Act 2004 (WA) applies to a compensation order made under s 117 of the Sentencing Act (R v Fitzpatrick (2004) 146 A Crim R 332; R v Grein (supra)). That is because by s 5 of the Civil Judgments Enforcement Act, that Act applies to any judgment given in the civil jurisdiction by the Supreme Court, the District Court or the Magistrates Court; a compensation order made under s 117 and registered in one of those Courts stands as a judgment of that Court (s 119 Sentencing Act).
50 Notwithstanding that the first respondent has properly followed the enforcement procedure provided by the legislation, it does not follow that the appellant is appealing against the judgment of the District Court in its civil jurisdiction. The appeal is to the Court of Appeal against the compensation order made by O'Brien DCJ in the criminal jurisdiction of the District Court. Nonetheless, the ultimate effect would obviously be the same, because were her Honour's order to be set aside, then the basis for registration of it in the District Court would fall away and the first respondent would have no judgment to enforce. She therefore has the greatest possible interest in the outcome of the appellant's appeal.
51 I shall deal first with the position of the State.
52 Under the Director of Public Prosecutions Act 1991, s 13(a), it is a function of the Director to bring and conduct, or to conduct as respondent, any appeal or further appeal relating to a prosecution conducted by the DPP. The prosecution of the appellant in the District Court was conducted on indictment by the DPP. The indictment presented the charge against the appellant in the name of the State. The State is accordingly the proper respondent and the Director has the statutory responsibility for conducting the respondent's case. There is no statutory provision for any other party, not being a party to the original criminal proceedings, to act as a respondent in a criminal appeal.
53 Although a victim may make an application for a reparation order under Pt 16, there is nothing in the Sentencing Act nor elsewhere, so far as I am aware, which would make such a victim thereby a party to the prosecution. That view is consistent with Grein. In Grein, it was the
(Page 12)
- victim of the respondent's offences which wished to appeal the Judge's refusal to make a compensation order. However, the only right of appeal against that decision lay with the Crown. That problem was overcome by an amendment to the Sentencing Act in 2004.
54 A new s 114A was inserted by s 60 of the Criminal Procedure and Appeals (Consequential and other provisions) Act 2004 (WA). That section provides the victim of an offence with the right to appeal against a court's refusal to make such a reparation order, deeming such to be an appeal against an order as a result of a conviction. The section provides:
"(1) If a victim applies to a court for a reparation order and the court decides to make or to refuse to make a reparation order, the victim may appeal against the decision.
(2) The appeal must be commenced and conducted under Part 2 or 3 of the Criminal Appeals Act 2004, as the case requires, which, with any necessary changes, applies as if a reparation order were an order that might be made as a result of a conviction.
(3) This section does not affect the prosecutor's rights of appeal under the Criminal Appeals Act 2004."
55 The Second Reading Speeches in the Legislative Assembly and Legislative Council, both noted that s 114A was inserted in order to:
"… allow a victim of crime to appeal against a refusal of a superior court to make a reparation order. Presently, an appeal against such a refusal can be made only by the prosecution in superior courts".
- (Western Australian Parliament, Parliamentary Debates (Hansard) Vol 397, 5727 (26 August 2004, per the Attorney General, the Hon Jim McGinty, Member for Fremantle (Legislative Assembly), and Vol 395, 6383 (23 September 2004) Legislative Council per the Hon Kim Chance).
56 It can be seen therefore that the regime established by Pt 16 of the Sentencing Act is implemented for the benefit of victims of crime and designed to provide them with a "simple and summary procedure to assist in the recovery of property by way of restitution, or by way of compensation for loss suffered" (Grein, supra at 188). The victim is entitled to make such an application in their own name, independently of the State. The victim is now provided with a right of appeal where that
(Page 13)
- application is refused. A successful application for compensation can be enforced only by the victim, not by the State.
57 The legislature has recognised the victim's interest in having such reparation made, by providing the victim with a right to be heard at all levels of those proceedings. The obvious lacuna is the lack of any express statutory provision entitling a victim to be a respondent to an appeal against the making of a reparation order. The second respondent submits the only explanation for that can be oversight on the part of the legislature. I think that must be so. But the question then is, whether in the absence of any express legislative provision, Dr Sinnathamby can be a respondent to the appellant's appeal.
58 The Court of Criminal Appeal "being a creature of statute … has no powers beyond those conferred by Parliament" (per Steytler P in Easterday v The State of Western Australia (2005) 30 WAR 122 at [8], citing R v Jefferies [1969] 1 QB 120; R v Collins [1970] 1 QB 710, R v Palmer [1969] 1 NSWR 484 and Re His Honour Judge Gunning & Ors; Ex parte Connell (1993) 10 WAR 424).
59 As Steytler P pointed out in Easterday, there are important distinctions to be borne in mind. He discussed them at [13] - [16]:
"13 It is important, when considering questions of the kind which have arisen in this case, to distinguish between jurisdiction and power, and also between inherent and implied jurisdiction or power.
14 As to the first of those distinctions, while the words 'jurisdiction' and 'power' are often used interchangeably, they are conceptually different in the sense pointed out by Toohey J in Harris v Caladine (1991) 172 CLR 84 at 136. His Honour there said that:
'The distinction between jurisdiction and power is often blurred, particularly in the context of "inherent jurisdiction". But the distinction may at times be important. Jurisdiction is the authority which a court has to decide the range of matters that can be litigated before it; in the exercise of that jurisdiction a court has powers expressly or impliedly conferred by the legislation governing the court and "such powers as are incidental and necessary to the exercise of the
- jurisdiction or the powers so conferred": Parsons v Martin (1984) 5 FCR 235 at 241 ...'
- 15 As to the second distinction, Bowen CJ, in Jackson v Sterling Industries Ltd (1986) 12 FCR 267 at 272-273, said, in a passage approved on the appeal to the High Court (Jackson v Sterling Industries Ltd (1987) 162 CLR 612) by Deane J (with whom Mason CJ and Wilson and Dawson JJ were in agreement) (at 623-624):
'In relation to a statutory court ... it is wise to avoid the use of the words "inherent jurisdiction". Nevertheless a statutory court which is expressly given certain jurisdiction and powers must exercise that jurisdiction and those powers. In doing so it must be taken to be given by implication whatever jurisdiction or powers may be necessary for the exercise of those expressly conferred. The implied power for example to prevent abuse of its process, is similar to, if not identical with, inherent power.'
16 Similarly, in Grassby v The Queen (1989) 168 CLR 1 at 16-17, Dawson J said:
'However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise ... Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent. The distinction between inherent jurisdiction and jurisdiction by implication is not always made explicit, but it is ... fundamental.'"
61 Section 40(1)(l) of the Criminal Appeals Act 2004 (WA) empowers the Court of Appeal to exercise any power that the Supreme Court may exercise in a civil case. The wording of this section is substantially the
(Page 15)
- same as its predecessor, s 697 of the Criminal Code. Section 697 has been held to be "sufficient to bring into play" all the powers of the Full Court in civil appeals and "… the residual powers of the court in its inherent jurisdiction" (Nicholson v The Queen, unreported; CCA SCt of WA; Library No 980698; 7 December 1998 per Kennedy J, White and Scott JJ agreeing).
62 The Supreme Court, as a superior court, has the inherent jurisdiction to order joinder of interested parties in order to prevent injustice to a person whose rights will be affected by its judgment, without the opportunity of being heard in the proceedings. A person ought to be added as a party if any order which might be made in the proceedings would directly affect that person's rights against, or liabilities to, a party to the action (Homestyle Pty Ltd v City of Belmont [1999] WASCA 59).
63 The test whether or not a party ought to be joined in the proceedings involves matters of degree and ultimately of judgment, having regard to the practical realities of the case and the nature and value of the rights and liabilities of the third party which might be directly affected: News Limited v Australian Rugby Football League Ltd (1996) 64 FCR 410.
64 Connolly & Ors v McCartney & Ors (1908) 7 CLR 48 affords an example of the exercise of this power. There the appellants were beneficiaries of a Will. The respondents were the executors. A judgment adverse to the appellants was given in an action in which their interests had been represented by the respondents as trustees. The respondents refused to appeal. It was held that the appellants were "the parties interested, and they are entitled to have recourse to this Court, and, if any technical difficulty was in the way of their assertion of that right, it was the duty of the Supreme Court to remove it" (per Griffiths CJ at 50).
65 Dr Sinnathamby is clearly a party whose interests will be affected by the outcome of the appellant's appeal. Indeed, she is the only other party whose interests will be so affected. The interests of justice dictate that she be entitled to have recourse to this Court and any technical difficulty in the way of her assertion of that right - appearing as it does to be the result of no more than legislative oversight - must be removed by the Court in the exercise of its incidental power pursuant to s 40(1)(l) of the Criminal Appeals Act.
66 Further support for this position is afforded by the effect of s 28(6) of the Criminal Procedure Act, by which the Court of Appeal has the power to order an appellant to serve a copy of the application for leave to appeal
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- on any other person the Court thinks fit. That section would have little effect if there was then no power in the Court to order that any party so served with an application for leave to appeal pursuant to such an order, could not then be joined as a party to the appeal.
67 I am also of the opinion that the necessary power to order joinder of Dr Sinnathamby as a respondent is available under the Rules.
68 Order 5 of the Supreme Court (Court of Appeal) Rules 2005 (WA) provides that:
"(1) These rules must be read with the [Rules]."
69 Order 18 r 6 of the Rules provides that:
"(2) At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application -
…
(b) Order that any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, be added as a party, …"
71 For the foregoing reasons, the first respondent is properly joined as a party to this appeal. A formal order is probably necessary. I will make that order.
72 It will be necessary now to relist the appeal for further directions.
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