Corica v Shire of Mundaring
[2017] WASCA 211
•15 NOVEMBER 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CORICA -v- SHIRE OF MUNDARING [2017] WASCA 211
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 14 SEPTEMBER 2017
DELIVERED : 14 SEPTEMBER 2017
PUBLISHED : 15 NOVEMBER 2017
FILE NO/S: CACR 134 of 2017
BETWEEN: SALVATORE CORICA
MARILYN KAYE CORICA
AppellantsAND
SHIRE OF MUNDARING
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :TOTTLE J
File No :SJA 1073 of 2016, SJA 1092 of 2016, SJA 1094 of 2016
Catchwords:
Criminal law - Application for leave to appeal against decision of a single judge of the Supreme Court in appeals against decisions of a magistrate and in an appeal against conviction - Offence pursuant to Planning and Development Act 2005 (WA) - Use of land without approval contrary to local planning scheme
Legislation:
Criminal Appeals Act 2004 (WA), s 6, s 7
Planning and Development Act 2005 (WA), s 218
Result:
Application dismissed
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellants: In person
Respondent: Mr A Wadham
Solicitors:
Appellants: In person
Respondent: McLeods Barristers & Solicitors
Case(s) referred to in judgment(s):
Corica v Shire of Mundaring [2017] WASC 163
Corica v Shire of Mundaring [2017] WASCA 42
Corica v Throssell [2017] WASCA 209
Palmer v City of Gosnells [2014] WASCA 102
REASONS OF THE COURT: The appellants sought leave to appeal against decisions made by Tottle J on 29 May 2017: see Corica v Shire of Mundaring.[1] On 8 September 2017, the appellant filed an application in CACR 134 of 2017 seeking various orders.
[1] Corica v Shire of Mundaring [2017] WASC 163.
On 14 September 2017, we made the following orders:
1.The appellants' application filed 8 September 2017 seeking various orders is dismissed.
2.The appellants' application for leave to appeal is dismissed.
3.The appeal is dismissed.
At the time, we said we would publish our reasons at a later date. These are our reasons. As will be seen, they should be read in conjunction with the reasons we have today published in Corica v Throssell.[2]
[2] Corica v Throssell [2017] WASCA 209.
Background
Each appellant was charged by a prosecution notice issued by the respondent and filed in the Midland Magistrates Court with an offence contrary to s 218(a) of the Planning and Development Act 2005 (WA). The charge, as amended, read:
Between 20 August 2014 and 18 June 2015 inclusive [each appellant] used land within the Shire of Mundaring Local Planning Scheme No. 4 Scheme Area for the storage of materials without all approvals required by the Scheme having been granted and issued thereby contravening Clause 11.4(b)(ii) contrary to the Planning and Development Act 2005, s 218(a).
The appellants were convicted after trial of this offence. Each was fined the sum of $8,500 and was ordered to pay costs in the sum of $5,875.
The appellants brought three separate appeals before the General Division of the Supreme Court of Western Australia. SJA 1073 of 2016 and SJA 1092 of 2016 were in relation to decisions made by magistrates prior to trial. Tottle J found that neither decision was a decision within the meaning of s 6 of the Criminal Appeals Act 2004 (WA) and, accordingly, neither appellant had a right to appeal against the rulings, pursuant to s 7 of the Criminal Appeals Act.[3] Tottle J refused leave to appeal in SJA 1073 of 2016 and SJA 1092 of 2016. The reasons given by his Honour for the making of these orders are plainly correct and are not challenged in this appeal.
[3] Corica v Shire of Mundaring [4] ‑ [9].
The third appeal brought by the appellants, SJA 1094 of 2016, sought leave to appeal against their convictions. Before Tottle J, each appellant relied upon a document entitled 'Application in an appeal' which was filed on 16 November 2016. Tottle J treated this as an application for leave to appeal against conviction.
His Honour described the first section of this document, which comprised 19 numbered paragraphs, as 'containing a number of contentions disputing the authority of the Shire to bring the prosecution and the jurisdiction of the Magistrates Court to determine the charges'. His Honour found that none of these 'grounds' had any prospect of success and refused leave to appeal in respect of them. He found that the grounds repeated arguments which had been raised and rejected in Palmer v City of Gosnells[4] and Corica v Shire of Mundaring.[5] His Honour was correct to refuse leave to appeal in respect of these grounds for the reasons he gave.
[4] Palmer v City of Gosnells [2014] WASCA 102.
[5] Corica v Shire of Mundaring [2017] WASCA 42.
His Honour said that the application then listed a further 36 grounds. There were in fact a further 45 grounds in the document. This discrepancy is of no significance. It is clear from a reading of the reasons as a whole that his Honour considered all of the proposed grounds. His Honour noted that many of these grounds were of the same nature as the earlier grounds that he had found had no prospect of success.
His Honour dealt separately with grounds 27, 28 and 41. Grounds 27 and 28 concerned an application by the Shire to amend the prosecution notices just before the magistrate delivered his oral reasons for decision by substituting a reference to cl 11.4(b)(ii) for the reference to cl 11.4(a)(ii) of the Shire of Mundaring Local Planning Scheme No.4 as it appeared in the prosecution notice. The magistrate allowed the amendment. Tottle J found that the magistrate did not err in so doing because the error in the identification of the clause number in the Scheme involved no procedural unfairness and no prejudice to the appellants.
The appellants complained that they had not been provided with copies of the prosecution notices as amended in accordance with s 132(7) of the Criminal Procedure Act which provides:
A court that amends a charge, prosecution notice or indictment must ensure that the prosecutor and the accused are each given a copy of it.
His Honour found that this provision was not to be construed such that non‑compliance with the obligation to provide a copy invalidated the amendment. The appellants do not challenge the correctness of these decisions. For the reasons given by Tottle J, they are plainly correct.
Ground 41 before Tottle J alleged that the magistrate did not give the appellants an opportunity to give a closing address. By reference to the transcript of the trial, Tottle J found that this allegation was erroneous. Again, the appellants do not challenge the correctness of this decision. For the reasons given by Tottle J, his decision was correct.
Appeal to this court
The appellants' appeal to this court relies on the same 20 grounds of appeal relied upon by Salvatore Corica in Corica v Throssell. For the reasons given in that case, none of the proposed grounds of appeal have a reasonable prospect of succeeding.
Application filed 8 September 2017
The appellants have filed an application in the appeal which, in effect, alleges that the Shire of Mundaring has committed offences against the Crimes Act 1914 (Cth). The application is supported by an affidavit sworn by Mr Corica on 7 September 2017. The contents of the affidavit are frivolous, scandalous and vexatious. Moreover, this court has no jurisdiction to make the orders sought.
Conclusion
For these reasons, we made the orders set out at [2].
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4
2