Corica v Shire of Mundaring
[2017] WASCA 42
•9 MARCH 2017
CORICA -v- SHIRE OF MUNDARING [2017] WASCA 42
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WASCA 42 | |
| THE COURT OF APPEAL (WA) | 09/03/2017 | ||
| Case No: | CACR:175/2016 | 28 FEBRUARY 2017 | |
| Coram: | BUSS P MAZZA JA MITCHELL JA | 28/02/17 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | SALVATORE CORICA MARILYN KAYE CORICA SHIRE OF MUNDARING |
Catchwords: | Leave to appeal Whether grounds of appeal had reasonable prospect of succeeding Where appellants convicted of failure to comply with direction issued by local authority, contravention of provisions of local planning scheme and undertaking building work without a building licence Planning and Development Act 2005 (WA) s 214, s 218 Building Act 2011 (WA) s 9 Where appellants contend that primary judge failed to deal with their grounds of appeal in General Division Where appellants challenge authority of State courts and local governments to exercise their functions Application in an appeal Where application that respondent's case 'be Strikeout' and 'The Respondent pay Damages for commencing a[n] Unlawful Prosecution' on the basis that respondent filed its notice of intention to take part in appeal late |
Legislation: | Nil |
Case References: | Corica v The Shire of Mundaring [2016] WASC 356 Palmer v City of Gosnells [2014] WASCA 102 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CORICA -v- SHIRE OF MUNDARING [2017] WASCA 42 CORAM : BUSS P
- MAZZA JA
MITCHELL JA
- First Appellant
MARILYN KAYE CORICA
Second Appellant
AND
SHIRE OF MUNDARING
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : TOTTLE J
Citation : CORICA -v- THE SHIRE OF MUNDARING [2016] WASC 356
File No : SJA 1017 of 2015
Catchwords:
Leave to appeal - Whether grounds of appeal had reasonable prospect of succeeding - Where appellants convicted of failure to comply with direction issued by local authority, contravention of provisions of local planning scheme and undertaking building work without a building licence - Planning and Development Act 2005 (WA) s 214, s 218 - Building Act 2011 (WA) s 9 - Where appellants contend that primary judge failed to deal with their grounds of appeal in General Division - Where appellants challenge authority of State courts and local governments to exercise their functions
Application in an appeal - Where application that respondent's case 'be Strikeout' and 'The Respondent pay Damages for commencing a[n] Unlawful Prosecution' on the basis that respondent filed its notice of intention to take part in appeal late
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
First Appellant : In person
Second Appellant : In person
Respondent : Mr D P Gillett
Solicitors:
First Appellant : In person
Second Appellant : In person
Respondent : McLeod & Co
Case(s) referred to in judgment(s):
Corica v The Shire of Mundaring [2016] WASC 356
Palmer v City of Gosnells [2014] WASCA 102
- REASONS OF THE COURT:
Introduction
1 On 28 February 2017, we made the following orders in this appeal and said that we would publish reasons for doing so at a later time:
1. The appellants' application in the appeal dated 15 February 2017 is dismissed.
2. Leave to appeal is refused on each of the grounds of appeal sought to be relied on by the appellants.
3. The appeal is dismissed.
2 These are our reasons for making those orders.
Application for leave to appeal
3 The appellants, who are unrepresented, were convicted by the Magistrates Court of Western Australia of offences against the Planning and Development Act 2005 (WA) and the Building Act 2011 (WA). They sought to appeal to the General Division of the Supreme Court of Western Australia. The primary judge refused leave to appeal on all of the appellants' proposed grounds, with the consequence that the appeal to the General Division was taken to be dismissed.1 The primary judge published reasons for that decision, which set out the relevant factual background.2
4 The appellants now seek to appeal to this court against the primary judge's decision. By s 9 and s 18 of the Criminal Appeals Act 2004 (WA), leave to appeal is required for each proposed ground of appeal. The court must not give leave to appeal on a ground of appeal unless satisfied that it has a reasonable prospect of succeeding. Unless leave is granted on at least one ground, the appeal to this court is taken to have been dismissed.
5 The appellants' case sets out 19 proposed grounds of appeal.
6 Ground 12 asserts that the primary judge failed to deal with the appellants' grounds of appeal in the General Division. There is no merit to that ground. The primary judge's written reasons deal with the appellants' grounds in detail. The primary judge went to considerable lengths to extract intelligible points from the grounds and submissions which the appellants sought to advance in the General Division. He dealt with the identified issues.
7 Otherwise, none of the appellants' proposed grounds in this court challenge the adequacy or admissibility of the evidence led at trial to establish the elements of the offences of which the appellants were convicted, or the magistrate's reasons for being satisfied that each element was established. Rather, the other grounds challenge the authority of State courts and local governments to exercise their functions. As the primary judge noted,3 substantially the same arguments have been rejected on numerous occasions.4 These proposed grounds of appeal are patently without merit.
8 We are satisfied that none of the proposed grounds of appeal to this court has a reasonable prospect of success. The appellants' application for leave to appeal must be refused and the appeal dismissed.
Application in the appeal
9 The appellants have also made an application in the appeal, dated 15 February 2017, for orders that:
1. Case be Strikeout
2. The Respondent pay Damages for commencing a[n] Unlawful Prosecution
- The appellants seek these orders essentially on the ground that the respondent failed to file notice of its intention to take part in this appeal (Form 4) and the respondent's answer (Form 8) within the time required by r 31(2) and r 33(3) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules).
10 The respondent filed its Form 4 on 9 February 2017, which was later than the prescribed time of seven days after it was served with the notice of appeal. The time for the respondent to file its Form 8 has not yet started to run under r 33(3) of the Rules, as the respondent has not yet been served with a notice issued by the registrar requiring the respondent's answer to be filed.
11 Any failure to comply with procedural steps required by r 31(2) and r 33(3) of the Rules could not justify this court allowing the appellants' appeal without being satisfied that it has merit. Nor could such a failure justify this court making orders of the kind sought in the appellants' application in the appeal. The application in the appeal must be dismissed.
1 Section 9(3) of the Criminal Appeals Act.
2Corica v The Shire of Mundaring [2016] WASC 356.
3Corica [94].
4Palmer v City of Gosnells [2014] WASCA 102 [9] and cases there cited.
4
2
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