CORICA -v- the SHIRE of MUNDARING
[2016] WASC 356
•7 NOVEMBER 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: CORICA -v- THE SHIRE OF MUNDARING [2016] WASC 356
CORAM: TOTTLE J
HEARD: 31 MARCH 2016 AND ON THE PAPERS
DELIVERED : 7 NOVEMBER 2016
FILE NO/S: SJA 1017 of 2015
BETWEEN: MARILYN KAYE CORICA
SALVATORE CORICA
AppellantsAND
THE SHIRE OF MUNDARING
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE MIGNACCA-RANDAZZO
File No :MI 5376 of 2013, MI 5377 of 2013, MI 5378 of 2013, MI 5379 of 2013, MI 5380 of 2013, MI 5381 of 2013, MI 11570 of 2013, MI 11571 of 2013, MI 224 of 2014, MI 225 of 2014, MI 226 of 2014, MI 227 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 - Turns on own facts
Evidence - Whether documentary evidence was hearsay - Whether Landgate document was public document - Whether Evidence Act 1906 (WA) s 79C applied - Where magistrate made findings as to credibility of witness - Circumstances in which appellate court can interfere with finding at first instance as to credibility - Where application to adduce further evidence on appeal - Whether evidence was relevant and admissible - Whether evidence was fresh or new evidence
Jurisdictional error - Whether magistrate failed to make findings as to jurisdictional facts - Whether failure to grant adjournment was denial of procedural fairness
Practice and procedure - Where failure by prosecutor to disclose evidence - Consequences of failure to disclose - Where appellants asked to provide transcript reference in supplementary submissions and failed to do so - Obligations of self-represented litigants - Where appellants granted leave to file supplementary submissions provided the supplementary submissions did not raise new grounds of appeal - Where submissions filed sought to raise new grounds - Appropriate response to material filed after hearing without leave
Constitutional law - Commonwealth Constitution s 51(xx) - Whether respondent, Magistrates Court, Supreme Court or other entities were 'trading corporations' - Relevance of that question - Consequences of concurrent legislative power
Legislation:
Building Act 2011 (WA)
Commonwealth Constitution
Criminal Procedure Act 2004 (WA)
Criminal Procedure Regulations 2005 (WA)
Evidence Act 1906 (WA)
Interpretation Act 1984 (WA)
Magistrates Court Act 2004 (WA)
Supreme Court Act 1935 (WA)
Western Australian Land Authority Act 1992 (WA)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellants: In person
Respondent: Mr D P Gillett
Solicitors:
Appellants: In person
Respondent: McLeods Barristers & Solicitors
Case(s) referred to in judgment(s):
Bale v Mills [2011] NSWCA 266; (2011) 81 NSWLR 498
Civic Video Pty Ltd v Paterson [2016] WASCA 69
De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
Devries v Australian National Railways Commission (1993) 177 CLR 472
John Nominees Pty Ltd v Dixon [2003] WASCA 51
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
Lawless v The Queen (1979) 142 CLR 659
Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13
Palmer v City of Gosnells [2014] WASCA 102
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Stead v State Government Insurance Commission (1986) 161 CLR 141
Stewart v City of Belmont [2013] WASC 366
Swan Bay Holdings Pty Ltd v The City of Cockburn [2010] WASC 81
TOTTLE J:
Introduction
On 16 February 2015 the appellants were convicted, after a trial lasting 10 days, of various offences constituted by contraventions of the Planning and Development Act 2005 (WA) (PDA) and the Building Act 2011 (WA). Fines were imposed in respect of the offences and the appellants were ordered to pay a total of $25,000 in costs.
The appellants have applied for leave to appeal against the convictions and the sentences imposed on them. To obtain leave the appellants must demonstrate that each ground of appeal has a reasonable prospect of succeeding: Criminal Appeals Act 2004 (WA) s 9. To have a reasonable prospect of succeeding, each ground must have a rational and logical prospect of success, that is, it would not be irrational, fanciful or absurd to envisage the ground succeeding: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
In my view, for the reasons I explain below, none of the grounds of appeal advanced has a reasonable prospect of succeeding. Accordingly, leave to appeal should be refused.
Background
The offences arise out of work undertaken by the appellants on two adjoining properties in Greenmount. The street addresses of the properties are 8 and 10 Marloo Road. The first appellant is the registered proprietor of 10 Marloo Road and she and the second appellant are the registered proprietors of 8 Marloo Road. There is no building on 8 Marloo Road. There is a single storey house and an outhouse or studio of brick construction along with a garden and lawn on 10 Marloo Road.
I set out below in tabular form a summary of the offences and the fines imposed in respect of them.
| Charge number | Appellant | Property | Offence | Period of offence | Fine |
| MI 5376/13 | Second Appellant (S Corica) | 8 Marloo Road | Failing to comply with a direction given under the PDA | 5/11/2012 - 10/6/2013 | $15,000 |
| MI 5377/13 | Second Appellant (S Corica) | 8 Marloo Road | Contravening provisions of a Planning Scheme | 11/6/2012 - 10/6/2013 | $5,000 |
| MI 5378/13 | First Appellant (M Corica) | 10 Marloo Road | Failing to comply with a direction given under the PDA | 5/11/2012 - 10/6/2013 | $7,500 |
| MI 5379/13 | First Appellant (M Corica) | 8 Marloo Road | Failing to comply with a direction given under the PDA | 5/11/2012 - 10/6/2013 | $7,500 |
| MI 5380/13 | First Appellant (M Corica) | 8 Marloo Road | Contravening provisions of a Planning Scheme | 11/6/2012 - 10/6/2013 | $5,000 |
| MI 5381/13 | First Appellant (M Corica) | 10 Marloo Road | Doing building work without a building permit | 2/11/2012 - 22 May 2013 | $2,500 |
| MI 11370/13 | Second Appellant (S Corica) | 8 Marloo Road | Failing to comply with a direction given under the PDA | 11/6/2013 - 21/11/2013 | $15,000 |
| MI 11371/13 | Second Appellant (S Corica) | 8 Marloo Road | Contravening provisions of a Planning Scheme | 11/6/2013 - 21/11/2013 | $3,000 |
| MI 224/14 | First Appellant (M Corica) | 10 Marloo Road | Failing to comply with a direction given under the PDA | 11/6/2013 - 21/11/2013 | $7,500 |
| MI 225/14 | First Appellant (M Corica) | 8 Marloo Road | Failing to comply with a direction given under the PDA | 11/6/2013 - 21/11/2013 | $7,500 |
| MI 226/14 | First Appellant (M Corica) | 8 Marloo Road | Contravening provisions of a Planning Scheme | 11/6/2013 - 21/11/2013 | $3,000 |
| MI 227/14 | First Appellant (M Corica) | 10 Marloo Road | Doing building work without a building permit | 23/5/2013 - 21/11/2013 | $2,500 |
The offences constituted by failures to comply with directions given under the PDA (see s 214(7) of that Act) relate to landscaping or earthworks undertaken on the north-western side of the properties along the boundary with the neighbouring property on Gabo Road. The respondent gave the appellants directions pursuant to s 214(3) of the PDA to remove fill and restore the land to an approved condition and they failed to do so.
The offences constituted by contraventions of a local planning scheme (contrary to s 218(a) of the PDA) concern the storage on 8 Marloo Road of assorted building materials, a large pile of limestone and uncut rough blocks of limestone or rock, brick pavers and blocks on pallets or crates. The use of residential land in that manner is prohibited by the respondent's Town Planning Scheme No 3.
The offences under the Building Act arise out of the construction of the brick outhouse on 10 Marloo Road. The outhouse was built without a valid building licence, contrary to s 9 of the Building Act.
The magistrate's decision
The magistrate reserved his decision. His subsequent written reasons for decision extended over 125 pages. The magistrate gave careful and detailed consideration to the evidence and to the arguments advanced by the appellants, who represented themselves, as they have done on this application for leave to appeal. After delivering his reasons and entering a judgment of conviction against each of the appellants, the magistrate heard submissions from the respondent's counsel on penalty and costs. Although invited to do so, neither appellant addressed the magistrate on the issue of what penalties should be imposed and neither advanced any submissions in mitigation.
The magistrate gave ex tempore reasons for the fines he imposed. In doing so, the magistrate referred to authorities concerning the penalties imposed for breaches of the Building Act and the PDA. The magistrate observed that it was difficult to discern a sentencing range or tariff in respect of such offences.
The magistrate referred to the maximum penalties that he could impose and to the fact that daily penalties could be imposed. His Honour referred to the need for general deterrence and, in this context, to the decision in Swan Bay Holdings Pty Ltd v The City of Cockburn [2010] WASC 81, in which Hasluck J (at [74]) observed that planning controls exist for the benefit of the community as a whole and indicated that for those controls to be effective significant penalties may be required to deter infringements.
The magistrate also referred to the need for specific deterrence. This arose because the second appellant had pleaded guilty to a charge under s 214(7) of the PDA on an earlier occasion in respect of which he was fined a total of $21,500.
Grounds of appeal
Precisely what the grounds of appeal are in respect of which the appellants seek leave to appeal has been somewhat difficult to establish.
The notice of appeal, dated 4 March 2015, contained a number of grounds. The grounds of appeal as set out in the notice of appeal are convoluted and difficult to understand.
On 19 May 2015 the appellants filed written submissions dated 8 May 2015. These submissions are largely unintelligible and do not assist in understanding the grounds of appeal. The nature and tenor of the submissions is illustrated by the opening paragraphs which read as follows:
1,Civil Judgment Enforcement Act 2004 is in violation of Section 29 of the Magna Carta which applies.
2.Our names are Salvatore and Marilyn Kaye Corica.
3,We are of male and female gender and flesh and blood living souls.
4,We recognize that you people are flesh and blood living souls of the male and female gender.
5,YOU people of this Court are not Gender Neutral as you claim.
6.We are not subject to State Acts and Statue [sic] as you are being a Flesh and Blood living soul and are subject to Common Law under the Commonwealth of Australia Constitution 1901.
On 14 October 2015 the appellants filed further written submissions dated 13 October 2015. In these submissions the grounds of appeal are identified with marginally greater clarity. Five grounds are set out as follows:
13.GROUND ONE: the Missing Jurisdictional Facts being the Malicious Persecution, the Hidden Agenda of the Malicious Prosecutor, the Intimidation and the Effects of the Intimidation are missing from the written judgment of the Decision Maker despite the fact that they have been presented before him by the Appellants and argued before him (the Missing Jurisdictional Facts).
13.1The Missing Jurisdictional Facts as refined by the above summaries in terms of the following would have been properly explained by the Decision Maker in order to render this decision a valid one:
13.1.1The Malicious Prosecution.
13.1.2The Tainted Decision.
13.1.3The Complainant.
13.1.4The Affidavit of the Complainant.
13.1.5The Malice of Planning Officer Da Costa.
13.1.6The False Evidence of the Fill.
13.1.7Appellants have not been Proven Guilty.
13.1.8The Benefit of Assumption of the Appellants.
13.1.9The Double Jeopardy on the Second Appellant.
13.1.10The Prospect of Personal Gains of the Conspirators.
13.1.11The Prosecutor is Clueless of the Cause of Action.
13.1.12The Malicious Prosecution is to effect an abandonment of the Land by the Appellants.
13.1.13The Integrity of the Prosecution is being questioned.
13.1.14The Conspirators have intimate knowledge of their Exploits.
13.1.15The Persistency of the Conspirators.
13.1.16The Non-Criminal Conduct of the Appellants.
13.2The above Missing Jurisdictional Facts enlivens the Primary Decision Maker with the jurisdiction or the power conferred upon him by the relevant statute to deliver his written judgment, or alternatively it is a condition for this decision. The Chief Justice of the Supreme Court of Western Australia His Honour Wayne Martin CJ at paragraph 54 of the case of [Stewart v City of Belmont [2013] WASC 366] in effect says that if the Jurisdictional Facts are missing, the Decision Maker has indeed exceeded his jurisdiction. In this case, the Primary Decision Maker was advised by the Appellants to make a determinations on those Jurisdictional Facts as listed and he instead of doing fair justice to the Appellants chose not to do so and therefore he omitted them in his written judgment. His decision is therefore a NON CORAM JUDICE.
14.GROUND TWO: The Void Summary Jurisdiction Judgment of the Primary Decision Maker is a NON-DECISION or a CORAM NON JUDICE. Because the Primary Decision Maker is that of an inferior tribunal, its decision is to be declared by this appeal court as a NON-DECISION without requiring the Appellants to appeal against that decision in order to set it aside.
15.GROUND THREE: Reverse Onus of Proof is required by virtue of the allegations of facts summarized in items 13.1.1 to 13.1.16 above on the ground that their details are peculiarly within the knowledge of the Respondent in the persons of the Conspirators. They are therefore obliged by the law to show cause that they are not the alleged conspirators (Show Cause Obligation based on Peculiar Knowledge).
16.GROUND FOUR: The Prosecutors Civil Standards of Proof on the balance of probability only is required to for the Show Cause Obligation based on the Peculiar Knowledge) in relation to the First Accused Null Convictions and the Second Accused Null Convictions.
17.GROUND FIVE: The Non-Conviction of the Appellants is based on the Prosecution's Burden of Proof not having been fully discharged to a particular point of moral certainty which precludes the existence of any reasonable alternatives. To reach that point of certainty it does not mean that no doubt exists as to the Appellants' guilt but that no reasonable doubt is possible. Until that point is reached, the accused should be acquitted of all the 12 charges. (footnotes omitted)
At the hearing of the appeal, the second appellant (whose submissions the first appellant adopted) indicated that the appellants relied on that formulation of the grounds of appeal, together with certain additional grounds contained in a document dated 30 March 2016. Those additional grounds are discussed later in these reasons.
The appellants also attempted to introduce additional grounds of appeal by lodging an 'Application in an Appeal' on 14 March 2016. This document contains a mixture of what appear to be grounds of appeal and submissions. The grounds of appeal consist of grounds raised in earlier documents filed by the appellants and some new grounds.
None of the new grounds raised in the application in an appeal has any chance of success. To the extent that they involve constitutional or jurisdictional contentions, those contentions are dealt with at the end of these reasons. The remainder of the grounds raised are either unintelligible or nonsensical. They include a complaint that the appellants' names in the relevant prosecution notices do not match their birth certificates because on the prosecution notices the appellants' last name is in capitals and underlined (but see Criminal Procedure Regulations 2005 (WA) reg 5), an assertion that there was no contract between the appellants and the respondent under which a debt could arise, and a claim that various pieces of legislation relevant to these proceedings are invalid because they have never been passed by the Parliament or received the Royal Assent (but see Evidence Act 1906 (WA) s 53). These grounds patently have no reasonable prospect of succeeding and it is unnecessary to say anything further about them.
Lastly, the appellants relied on an affidavit sworn by the second appellant on 6 March 2016 and filed on 14 March 2016. This affidavit repeats the arguments raised in the earlier documents and sets out further arguments. The further arguments provide no assistance.
The balance of these reasons deals with the five grounds of appeal set out in the appellants' submissions dated 13 October 2015, the additional grounds of appeal raised in their submissions of 30 March 2016, an application for leave to adduce further evidence (also set out in the 30 March 2016 document), and lastly the constitutional and jurisdictional arguments which recurred throughout the appellants' submissions.
Grounds of appeal set out in the submissions of 13 October 2015
Ground 1 - malicious prosecution and missing jurisdictional facts
The appellants contend that the prosecution in these proceedings was malicious. They allege that there was a conspiracy between their former neighbours and officers of the respondent to deprive them of their property. Malicious prosecution is a tort, a civil wrong, and does not constitute a ground of appeal under s 8 of the Criminal Appeals Act. To the extent that the appellants are alleging that the prosecution was an abuse of process, this ground is entirely unsupported by any evidence and has no reasonable prospect of success.
The appellants also contend that the magistrate's decision was invalid because certain jurisdictional facts were not established. A jurisdictional fact is a factual precondition to the valid exercise of a statutory power: Stewart v City of Belmont [2013] WASC 366 [54] (Martin CJ). In par 13.1 of their submissions dated 13 October 2015, set out earlier in these reasons at [16], the appellants list 16 'missing jurisdictional facts' they claim invalidate the magistrate's decision. None of those facts is a jurisdictional fact. This ground of appeal has no reasonable prospect of success.
Double jeopardy
One of the 'missing jurisdictional facts' listed in the appellants' submissions invokes the double jeopardy doctrine.
The second appellant contends that he was convicted on 12 April 2012 of failing to comply with a direction given to him under s 214(3) of the PDA and that by reason of the convictions in respect of the charges numbered MI 5376/13, MI 5377/13, MI 11370/13 and MI 11371/13 on 16 February 2015 he was convicted more than once of the same offence.
This is not correct. The charge of which the second appellant was convicted on 12 April 2012 was numbered MI 13374/10 and related to a direction given to the second appellant in 2010. The direction the subject of charges MI 5376/13 and MI 11370/13 was given on 5 September 2012, nearly five months after the conviction and sentencing for the charge MI 13374/10. Charges MI 5377/13 and MI 11371/13 concern an entirely different offence, namely contravention of the provisions of a local planning scheme contrary to s 218(a) of the PDA.
Accordingly, no ground of appeal based on double jeopardy has any reasonable prospect of success.
Ground 2 - the decision of the magistrate is void
This ground depends on the success of ground 1. Ground 1 has no reasonable prospect of success and neither does this ground.
Ground 3 - the magistrate reversed the onus of proof in relation to the missing jurisdictional facts
I understand this ground to mean that the magistrate erred in identifying the onus of proof in respect of the jurisdictional facts.
I have reviewed the magistrate's reasons on this point. Under the heading 'Some general legal principles' his Honour recorded:
The starting point in this criminal trial is that each of the accused [is] presumed innocent. The burden of proving any charge is on the prosecutor.
The standard to which any charge must be proved is beyond reasonable doubt. It is the highest standard of proof that is known to the law.
If I have a reasonable doubt as to whether any accused is guilty on a given charge then it is my duty to find that accused not guilty, enter a judgment of acquittal and discharge the accused. [8] - [10]
I have no doubt that the magistrate applied the correct onus and standard of proof. This ground has no reasonable prospect of success.
Grounds 4 and 5 - standard of proof
In so far as these grounds are intelligible, I understand them to mean that the magistrate applied the civil standard of proof. That is not so for the reasons just explained. These grounds have no reasonable prospect of succeeding.
Additional grounds raised in the submissions of 30 March 2016
The appellants' application for leave to appeal was heard on 31 March 2016. At the commencement of the hearing the appellants handed up a document dated 30 March 2016 and entitled 'Appellants' Reply Submission' (the 30 March Submissions) which included a section headed 'Additional Grounds of Appeal'. Most of the grounds listed under that heading had not been raised before. The document also contained what appeared to be an application to adduce new evidence in the appeal.
At the hearing, the second appellant indicated that he wished to rely on the additional grounds of appeal contained in the 30 March Submissions. I informed him that he would require leave to do so: Criminal Appeals Act s 40(1)(k). I also informed the appellants that they would require leave to adduce new evidence on appeal: Criminal Appeals Act s 39(1) and (3) and s 40(1)(e); De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 [148]-[154]. The appellants were invited to make submissions on both those questions at the hearing. They were also given leave to file further written submissions after the hearing, on the express condition that the submissions 'must not raise any new grounds of appeal and will be limited to providing submissions and references to the transcript and evidence upon which the appellants wish to rely'. Written submissions were filed in due course. For reasons explained later, the appellants' supplementary submissions were of very limited assistance.
I have reached the view that none of the additional grounds raised in the 30 March Submissions has a reasonable prospect of succeeding. In those circumstances leave to amend the grounds of appeal to include the additional grounds should be refused.
I have also concluded that leave to adduce the additional evidence which the appellants wish to put before the Court should be refused.
The additional grounds of appeal
The additional grounds as set out in the 30 March Submissions are in places repetitious and difficult to follow. The points which the appellants wish to make became rather more clear after hearing oral submissions from the second appellant. Those points are as follows:
(a)the magistrate erred in admitting documents which were inadmissible because they were not proved by the person who created the document and were hearsay, namely exhibits 28, 30 and 35;
(b)the magistrate erred in failing to exclude Attachment 2 to exhibits 9 and 10 from the evidence when the attachments were identical to Appendix C to exhibit 28, which was excluded from the evidence;
(c)the appellants were denied a fair trial by reason of the late disclosure of exhibit 35;
(d)the appellants were denied procedural fairness because the magistrate refused an application for an adjournment;
(e)the appellants were denied procedural fairness because the magistrate did not allow them to make an opening statement;
(f)the magistrate erred in failing to admit into evidence a letter from Mark Luzi, dated 15 October 2007;
(g)the magistrate erred in failing to accept evidence of Scott Donaldson which confirmed that the letter from Mr Luzi was a 'variation' to a planning approval;
(h)the magistrate erred in accepting certain evidence of Allen Smith, the appellants' neighbour, regarding the volume of fill deposited on the appellants' land;
(i)the magistrate erred in failing to accept evidence that the second appellant had arranged for a contractor to remove 450 cubic metres of earth from the land;
(j)the magistrate erred in refusing to allow the appellants to cross‑examine Mr Smith regarding an alleged agreement relating to a dividing fence between Mr Smith's property and the appellants' land;
(k)the magistrate's sentencing discretion miscarried because he took account of the second appellant's previous conviction;
(l)the magistrate's sentencing discretion miscarried because he failed to take into account the appellants' impecuniosity when fixing the quantum of the fines he imposed.
I have excluded from the above list the constitutional and jurisdictional arguments raised by the appellants. Those arguments are dealt with at the end of these reasons.
Additional grounds (a) and (b) - exhibits wrongly admitted
The first additional ground of appeal is that the magistrate erred in admitting three documents as exhibits because the witnesses through whom they were tendered did not create the documents. There was also a submission that the documents were inadmissible as hearsay. The second additional ground also concerned the admission of evidence which the appellants say was inadmissible as hearsay. It is convenient to deal with both grounds together.
Exhibit 28
At the hearing I observed, and the second appellant accepted, that the magistrate had ultimately excluded exhibit 28 from the evidence. It follows that any complaint on appeal about the admission of exhibit 28 has no prospect of success.
Attachment 2 to exhibits 9 and 10
The appellants also submitted that 'Attachment 2' was inadmissible on the ground that it was identical to Appendix C to exhibit 28, which had been held to be inadmissible. This appears to be a reference to Attachment 2 to exhibits 9 and 10. The magistrate accepted expert evidence that the plans in Appendix C and Attachment 2 were in fact identical. The plans in each case reflect data taken from a 2006 Landgate survey.
The submission regarding Attachment 2 to exhibits 9 and 10 is perhaps understandable from a layperson's point of view, but any ground of appeal premised on that submission has no reasonable prospect of success. Exhibits 9 and 10 are copies of directions served by the respondent on the appellants in September 2012 in relation to 8 and 10 Marloo Road respectively. Attachment 2 to each direction is a contour plan of the two lots. The substance of each direction was that the appellants were required to remove fill from the land so that the finished ground levels were no more than 0.5 metres (in the case of 8 Marloo Road) or 1 metre (in the case of 10 Marloo Road) above the contour levels shown in Attachment 2.
Exhibits 9 and 10 were tendered through Ms Selina Da Costa, an officer of the respondent, who gave evidence that she served the directions on the appellants. The directions themselves were clearly admissible in relation to the charges under s 214(7) of the PDA because they tended to show that directions had in fact been issued and served on the appellants pursuant to s 214(3) and what the content of those directions was. The contour plans were admissible as an integral part of those directions.
The contour plans would have been hearsay had they been relied upon as evidence of the actual levels of the land in 2006. But the prosecution explicitly did not rely on the plans in that way. Its case was that there did not need to be any finding as to the historical accuracy of Attachment 2 to the directions. All that was required to be proved in order to make out the offences under s 214(7) was that the appellants had failed to remove fill so as to reduce the ground levels of the land to no more than 0.5 metres (in the case of 8 Marloo Road) or 1 metre (in the case of 10 Marloo Road) above the levels shown in Attachment 2, regardless of whether Attachment 2 accurately recorded the land's contours at any historical point in time. The magistrate accepted that contention: see [359] of his Honour's reasons for decision.
Additional ground (b) has no reasonable prospect of success.
Exhibit 30
Exhibit 30 is a survey plan, prepared by Midland Survey Services and tendered through Mr Nicholas Kitscha, the Engineering Survey Manager of Midland Survey Services. The plan is dated 30 January 2013. Exhibit 30 depicts the contours of 8 and 10 Marloo Road with red and blue shading over parts of the lots. Mr Kitscha and Mr Nathan Lawrence, a surveyor from Midland Survey Services, each gave evidence that the shading showed areas where there was a height difference above a certain threshold between the 2006 Landgate survey and the 2013 survey (ts 20 November 2014, 125). Mr Lawrence also gave evidence that he was the person who undertook the 2013 survey (ts 21 November 2015, 205 - 206).
On its face, exhibit 30 appears to have been approved by Mr Kitscha (the bottom of the document has the name 'N.KITSCHA' in a box next to the word 'APPROVED'). Mr Kitscha also gave evidence that it was a document produced by Midland Survey Services (ts 20 November 2014, 125). In those circumstances, I am satisfied that Mr Kitscha was an appropriate witness to prove the document, notwithstanding that it appears to have been drawn by someone named 'M.ARIOTTI'.
In so far as exhibit 30 was relied on as evidence of the actual levels of 8 and 10 Marloo Road in 2013, it was hearsay. It was, however, admissible pursuant to s 79C of the Evidence Act. Either the survey plan contains statements made by a qualified person, or it is derived from information in one or more statements made by a qualified person and/or information from one or more devices designed and used for the purpose of measuring and recording information (not being information based on a statement made by a person): s 79C(1). The qualified person was Mr Lawrence, who I infer had personal knowledge of the results of the 2013 survey: see s 79B. As I have already noted, Mr Lawrence was called as a witness: cf s 79C(2). It may also be that the survey is a business record of Midland Survey Services, but it is unnecessary to resolve that question.
In so far as additional ground (a) relates to exhibit 30, it has no reasonable prospect of succeeding.
Exhibit 35
Exhibit 35 was a Landgate document described as a 'Landgate accuracy statement'. Mr Kitscha's evidence indicates that it provides information on how accurate the heights recorded in Landgate survey data are (ts 21 November 2014, 188 - 189). It was ruled inadmissible at the same time as exhibit 28 and for the same reasons (it was hearsay and not a business record within the meaning of s 79C of the Evidence Act). Unlike exhibit 28, however, the prosecution was given leave to reopen its case to lead evidence of the document in admissible form. The prosecution subsequently tendered exhibit 47, which is a copy of the same document as exhibit 35 together with a certificate under s 65 of the Evidence Act. Exhibit 47 was admitted over the appellants' objection. Although the appellants referred in their submissions to exhibit 35, I will treat this ground as involving a challenge to the admissibility of exhibit 47.
Section 65 provides (relevantly):
(1)Whenever in any part of Her Majesty's dominions any book or other document is of such a public nature as to be admissible in evidence on its mere production from the proper custody, any copy thereof or extract therefrom shall be admissible in evidence in any court or before any person acting judicially, if -
…
(b)it purports to be signed and certified as a true copy or extract by the officer to whose custody the original is entrusted.
Section 65(1)(b) has the effect that the statement on the first page of exhibit 47, to the effect that the attached document is a true copy of an original which is held in the custody of the person making the statement, can be accepted as true, although usually that statement would itself be hearsay: see J D Heydon, Cross on Evidence (Butterworths, 10th ed, 2015) [35390]. Section 65 does not render the document on the second page of exhibit 47, described in the certificate as '1:2000 Metadata Statement for Mahogany Mundaring Project 060001.00 Currency Date 16/12/2006', admissible as evidence of the truth of its contents. For that, one has to turn to the common law rules regarding public documents. The general rule at common law is that a public document is admissible as evidence of the truth of its contents, as an exception to the hearsay rule: J D Heydon, Cross on Evidence (Butterworths, 10th ed, 2015) [33345] and authorities cited therein.
As the magistrate observed in his reasons, the document appears to originate from the Western Australian Land Authority trading as Landgate, which is a body which has a statutory power to conduct surveys: magistrate's reasons at [59], citing the Western Australian Land Authority Act 1992 (WA) s 17(2)(f) and (k). There was, however, no evidence as to precisely how the document on the second page of exhibit 47 was produced or to whom it was available: John Nominees Pty Ltd v Dixon [2003] WASCA 51 [103]ff.
It is unnecessary, however, to reach any concluded view as to whether or not exhibit 47 was a public document, because the magistrate expressly eschewed any reliance on the exhibit. As I have already noted, the magistrate accepted a contention that it was not necessary to determine the correctness of the Landgate data reproduced in Attachment 2 to exhibits 9 and 10. It follows that his Honour did not need to rely on exhibit 47, which provided evidence about the accuracy of that data. The magistrate made that point explicitly and unambiguously in his reasons for decision: 'I make clear that I have determined the charges without reference to exhibit 47' (at [359]).
Additional ground (a), in so far as it relates to the admission of exhibit 47, has no reasonable prospect of succeeding.
Additional grounds (c) and (d) - late disclosure and refusal of adjournment
These two grounds can be dealt with together because they arise out of the same episode in the course of the trial.
I record at this point that at the hearing of the application for leave to appeal I asked the second appellant to provide, in his supplementary written submissions, references to the parts of the trial transcript on which he relied. The supplementary submissions filed by the appellants contain no references to transcript. The transcript for a 10‑day trial is, unsurprisingly, a lengthy document. In an adversarial system, litigants, including self-represented litigants, have a basic duty to assist the court in understanding their case. It is not an appropriate use of this Court's limited judicial resources for judges to spend their time scouring through transcript in order to identify particular passages on which a party relies. Fortunately, that situation was largely avoided in this case because the respondent's supplementary submissions did contain references to the relevant passages. Unfortunately, this means I have not had the benefit of any submissions from the appellants relating the complaints they make about the conduct of the trial to the official record of what was said and done in the Magistrates Court.
With the assistance of the respondent's supplementary submissions, it appears that the episode to which additional grounds (c) and (d) relate occurred on day six of the trial (21 November 2014), during Mr Kitscha's re‑examination. Counsel for the respondent sought to tender exhibit 35 (ts 21 November 2014, 189). The second appellant objected on the ground that the document had not been disclosed. Counsel for the respondent indicated that the document had only come to his attention the previous day. The magistrate referred to s 63 of the Criminal Procedure Act 2004 (WA) which provides (relevantly):
(1)In this section, unless the contrary intention appears -
disclosure requirement means a requirement imposed on a party by section 61 or 62 …
(2)If at the trial in a case the court is satisfied that a party has not obeyed a disclosure requirement, the court, on the application of a party affected by the breach, may adjourn the trial to a date that allows enough time -
(a)…
(b)for a party affected by the breach to investigate properly any evidence or other matter disclosed in accordance with the requirement and to obtain any further evidence that may be necessary as a result of the disclosure.
(3)On the resumption of a trial that is adjourned under subsection (2) a party affected by the breach -
(a)may require a person who has given evidence, including the accused, to be recalled as a witness; and
(b)may cross-examine or further cross-examine the person about the evidence or other matter disclosed in accordance with the disclosure requirement; and
(c)may adduce evidence in rebuttal of the evidence or other matter disclosed in accordance with the disclosure requirement.
The magistrate evidently took the view that there had been a breach of the prosecutor's disclosure obligations under s 61 of the Act (ts 190). I am not entirely convinced that there was any breach given the document apparently only came into the prosecutor's possession the day before it was tendered, but in any event it is arguable that the rules of procedural fairness obliged the magistrate to offer the appellants an adjournment (indeed that is the way the appellants put their case on appeal). The precise source of any obligation to offer an adjournment is not important, because I am satisfied that the appellants were invited to apply for an adjournment but that they failed to do so. Accordingly, any ground of appeal predicated on the refusal of an adjournment has no reasonable prospect of success.
After the magistrate referred to s 63 the following exchange occurred:
HIS HONOUR: Do you seek an adjournment of the trial in order for you to investigate properly this proposed evidence, and obtain any further evidence that you might not presently have that you would want to have before the court, either for cross-examination further of this witness and any other witness to be called by the prosecutor?
ACCUSED S. CORICA: Yes. I have got a surveyor coming in - - -
HIS HONOUR: Yes.
ACCUSED S. CORICA: - - - to give evidence. I need to now go to him and sort all this out - - -
HIS HONOUR: I understand that.
ACCUSED S. CORICA: - - - and prepare my case properly. (ts 190-191)
The magistrate then enquired when the surveyor was coming in, and the second appellant answered Monday (21 November 2014 was a Friday). The magistrate then addressed the second appellant as follows:
HIS HONOUR: What I propose to do, subject to any further submission from you, is, in my view, the evidence sought to be led is relevant. I propose, if the tender is maintained, to receive it into evidence and have it marked as an exhibit. I propose not to release this witness [ie Mr Kitscha] until at some stage after you have informed me whether you require generally an adjournment of the trial and/or the recall of this witness for further cross-examination, if necessary. In the meantime, you can confer with your proposed witness, the surveyor, or anyone else that you wish to do so in relation to this evidence which has not previously been disclosed to you. Do you understand that?
ACCUSED S. CORICA: Yes.
HIS HONOUR: All right. Do you want to say anything further at this point in time?
ACCUSED S. CORICA: No. (ts 191)
Exhibit 35 was then accepted into evidence, following which the magistrate addressed the second appellant again:
HIS HONOUR: Just to be very clear, Mr Corica, I have received it into evidence. You are entitled, at an appropriate time, depending upon your position, to ask for an adjournment. I will consider any application for an adjournment if made to me. It may or may not be sought. It may or may not be granted, depending upon what is the state of the position if such an application is made and what information I'm given. Do you understand that?
ACCUSED S. CORICA: Yes.
HIS HONOUR: And this witness is not going to be released until such time as I've heard from you whether you require an adjournment and/or the recall of this witness for further cross-examination. Is that clear?
ACCUSED S. CORICA: Yes.
HIS HONOUR: All right. Thank you. (ts 192)
It appears from the foregoing that the magistrate dealt with the late disclosure of exhibit 35 and any ensuing prejudice to the appellants by giving the appellants the weekend to confer with their witness and consider their position and by explaining to them that, once they had considered their position, it would be open to them to apply for an adjournment. It appears that no application for an adjournment was made, either on the following Monday or subsequently.
At the hearing of the application for leave to appeal the second appellant explained that he was unable to make inquiries of Landgate (from whence exhibit 35 originated) over the weekend and that he thought he had already said 'yes' to an adjournment on Monday morning. That view is supported by the first passage of transcript set out above ('Do you seek an adjournment…? Yes'). It should have been abundantly clear, however, from what the magistrate went on to say (and in particular the last passage set out above) that he was not granting an adjournment there and then, and that if the appellants wanted an adjournment they would have to apply for one in due course. Even if the appellants had remained of the subjective belief that an adjournment had already been granted and that no application was required, they must have been disabused come Monday morning when the trial proceeded. It was open to them at that point to raise with the magistrate their understanding that there was going to be an adjournment.
I note parenthetically that the appellants' surveyor was able to give evidence on exhibit 35 on Monday, 24 November 2014 (ts 325, 327) and that Mr Kitscha does appear to have remained available for further cross‑examination, although he was not ultimately recalled (ts 326-327).
In those circumstances, there can be no complaint that the appellants were denied procedural fairness by the magistrate. Additional ground (d) has no reasonable prospect of succeeding and leave to amend the grounds of appeal to include it should be refused.
Additional ground (c) raises in substance the same complaint as additional ground (d) and falls with it. The consequences of failure to comply with s 61 of the Criminal Procedure Act are prescribed by s 63, which essentially gives an accused person the right to seek an adjournment. The magistrate afforded the appellants that right.
I add for completeness that even if I am wrong in the conclusion that the appellants were afforded procedural fairness, additional ground (d) still has no reasonable prospect of success because the outcome of the trial would have been the same regardless of whether or not an adjournment had been granted: Stead v State Government Insurance Commission (1986) 161 CLR 141, 145. That is because, as I have already noted, exhibit 35 was ultimately excluded from the evidence and its replacement, exhibit 47, was explicitly not relied on by the magistrate in reaching his judgment of conviction in respect of each appellant.
Additional ground (e) - no opportunity to make opening address
Additional ground (e) can be dealt with shortly. The magistrate did invite each of the appellants to make an opening statement, both immediately after the prosecutor's opening statement and at the close of the prosecution case. On the first occasion, the appellants indicated that they were unprepared to make a statement but, on the second occasion, the second appellant did avail himself of the opportunity to make a statement. At the hearing of the application for leave to appeal, this ground was put slightly differently: the second appellant said that he did not understand how to make a statement and that the magistrate erred in failing to grant an adjournment so that he could prepare. It is unnecessary to decide whether the rules of procedural fairness might have required the magistrate to offer or grant an adjournment, because any unfairness was clearly cured by the second invitation to make an address, at which point the second appellant did in fact make an address.
This additional ground has no reasonable prospect of succeeding and leave to amend the grounds of appeal to include it is refused.
Additional ground (f) - failure to admit letter from Mr Luzi
This additional ground has no prospect of success and leave to amend to include it in the grounds of appeal should be refused. The magistrate did admit a letter from Mark Luzi, dated 15 October 2007, into evidence as exhibit 26 (ts 12 January 2015, 470, 477). I have read exhibit 26 and am satisfied that it is the letter to which the appellants refer in the 30 March Submissions.
Additional ground (g) - failure to accept evidence of Mr Donaldson
The letter admitted as exhibit 26 was drafted for Mr Luzi by Mr Scott Donaldson, formerly a planning officer of the respondent, who was called as a witness by the appellants. The letter appears to record an agreement between the respondent and the appellants reached on 28 September 2007, relating to the rectification of earthworks on the appellants' land. One aspect of the agreement was that the appellants agreed to reduce the height of '[t]he tiered section on Lot 1 adjacent to the western boundary' to match 'the ground level of the underside of the dwelling'. The appellants submit that this constituted a 'variation' (presumably meaning a variation to the planning approval in respect of the earthworks), that Mr Donaldson 'confirmed' in his 'summary of evidence' that this variation was made, and that the magistrate erred in failing to accept Mr Donaldson's evidence.
This ground has no reasonable prospect of success. Mr Donaldson did not give evidence to that effect (ts 12 January 2015, 449 - 453, 464 - 468). If the reference to a 'summary of evidence' is a reference to a prior written statement of Mr Donaldson's evidence (cf ts 449) then such a document does not appear to have been tendered and in any case would not have been admissible as evidence of the truth of its contents (as opposed to evidence going to Mr Donaldson's credibility: Evidence Act s 21). Leave to include this ground in the grounds of appeal is refused.
Additional ground (h) - the magistrate erred in accepting Mr Smith's evidence
Mr Smith gave evidence that over a period of approximately four months he estimated he had seen approximately 200 trucks, each carrying 20 - 30 cubic metres of fill, arrive at 8 and 10 Marloo Road (ts 20 November 2014, 86). It was put to him by the second appellant that if those estimates were correct, 4,000 - 6,000 cubic metres of fill would have been deposited on the land, to which Mr Smith responded 'the estimate was about 4,000 cubic metres, but it could be less, could be more' (ts 20 November 2014, 89). The appellants now say that the magistrate erred in relying upon Mr Smith's evidence because his estimate, if correct, would have involved an implausibly large volume of fill being placed on the land.
In his reasons, the magistrate accepted that Mr Smith was a witness of truth: [299]. He accepted Mr Smith's evidence that between May and August 2007 soil was brought to the appellants' land by trucks and was placed on the land as fill: [299]. He also accepted Mr Smith's evidence as to the height of the fill: [304] - [309]. Mr Smith's evidence in that regard was not dependent on his estimates of the volume of fill. Mr Smith's evidence as to the height of the fill was largely based on visual comparisons between the fill which could be seen on 8 and 10 Marloo Road and various reference objects on Mr Smith's land, the height of which was known (for instance, a light pole and Mr Smith's carport). Mr Smith's observations were supported by photographic evidence. The magistrate did not at any point accept Mr Smith's evidence as to the volume of fill placed on the land, nor was it necessary for him to do so. The offences under s 214(7) of the PDA were concerned solely with a failure to reduce the height of the fill in accordance with directions issued by the respondent.
It follows that the only relevance of Mr Smith's estimate as to the volume of fill placed on the land was that it went to his reliability and credibility as a witness.
In so far as additional ground (h) is an attack on the reliability of Mr Smith's estimates of the height of the fill, it has no reasonable prospect of success. I have already noted that Mr Smith's estimates of height were supported by photographic evidence. The magistrate also found that the estimates were consistent with the evidence given by the surveying experts, Mr Kitscha, Mr Lawrence and Mr Kolatay (the surveyor called by the appellants): [365] - [366]. In those circumstances it was entirely open to the magistrate to conclude that, whatever might be said about his estimate of volume, Mr Smith's estimates of height were reliable.
The appellants also attack Mr Smith's credibility. They say his estimate of 4,000 - 6,000 cubic metres was a '[m]alicious exaggeration of the facts'. The magistrate made the following findings about Mr Smith's credibility:
Much was sought to be made of the accuracy and reliability of Mr Smith's estimates during Mr Smith's cross examination by the accused Mr Corica. In my assessment there was no material inconsistency with any prior statement Mr Smith had made. In my assessment Mr Smith's evidence was consistent with the evidence given by Mr Snell [the earthmoving contractor engaged by the appellants to bring the fill to the land] even if Mr Smith was mistaken about the number of trucks and exact volumes of fill delivered. Without being critical Mr Snell himself was far from being accurate or reliable in his own estimates. Any such mistake by Mr Smith about the number of trucks and exact volumes of fill delivered in my assessment was honest. Whilst Mr Smith would have noticed the ongoing earthworks I would not have expected him to be exact about the number of trucks or types and at best the volumes would be estimates. Mr Smith never purported to be exact in giving his evidence. In my opinion that reflects favourable [sic] on Mr Smith's honesty and willingness to be frank with the court. Although Mr Smith was an engineer with earthwork experience he never purported to have counted trucks delivering fill or in some way measure volumes. Rather common sense would suggest his estimates were just that - estimates - obviously prone to being inexact as he candidly acknowledged. Whilst I have reflected on and given some limited weight to the criticism of this aspect of Mr Smith's evidence any possible inconsistency and or unreliability is very limited and in my opinion immaterial and does not cause the court any concern about Mr Smith's general credibility as a witness of the truth. [303]
The principles regarding appellate review of a trial judge's assessment of a witness' credibility are well established. An appellate court should not interfere with a finding of a trial judge based upon the credibility of a witness unless it can be shown that the trial judge has failed to use, or has palpably misused, his or her advantage in seeing and hearing the witness, or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or was glaringly improbable: Civic Video Pty Ltd v Paterson [2016] WASCA 69 [58] citing Devries v Australian National Railways Commission (1993) 177 CLR 472, 479. Nothing in the materials before me suggests that the magistrate failed to use, or palpably misused, his advantage in seeing and hearing Mr Smith give evidence and there was nothing incontrovertible in the evidence that was inconsistent with Mr Smith's evidence as to the height of the fill, nor was that evidence glaringly improbable. As the Court of Appeal has recently observed, '[a]n appellant who seeks to overturn findings of fact which depend to any substantial degree upon credibility assumes a formidable burden': Civic Video Pty Ltd v Paterson [2016] WASCA 69 [59] (Newnes JA, McLure P & Corboy J agreeing). The appellants in this case have no reasonable prospect of discharging that burden.
This additional ground of appeal has no reasonable prospect of success and leave to amend the grounds of appeal to include it is refused.
Additional ground (i) - failure to accept evidence that 450 cubic metres of fill was removed
The appellants submitted that the magistrate erred in failing to accept evidence that the second appellant had procured a contractor to remove 450 cubic metres of fill from the land. Any such argument has no merit. The magistrate accepted that evidence: [352] of his Honour's reasons for decision.
Additional ground (j) - failure to allow cross-examination regarding the alleged dividing fence agreement
This additional ground of appeal was not, with respect, apparent on the face of the 30 March Submissions. The point really only emerged in the course of the second appellant's oral submissions on 31 March 2016 (appeal ts 28). It has no merit. The appellants did not at any point seek to cross-examine Mr Smith on the subject of a dividing fence or any agreement relating to a dividing fence (ts 20 November 2014, 82 - 93).
Additional grounds (k) and (l) - errors in the exercise of the sentencing discretion
Additional grounds (k) and (l) are both criticisms of the magistrate's sentencing remarks and can be dealt with together. Ground (k) is misconceived as a matter of law. The magistrate was clearly entitled to take the second appellant's prior conviction into account when determining sentence. There is no suggestion he took the previous conviction into account in deciding whether the appellants were guilty or not of the charges against them: cf his Honour's reasons for decision at [328]. Ground (l) is simply unsustainable on any reading of the magistrate's sentencing remarks. His Honour, of his own initiative, made inquiries of the appellants regarding their means to pay any fine and expressly took their answers into account when determining the appropriate sentence.
Additional grounds (k) and (l) have no reasonable prospect of succeeding and leave to amend the grounds of appeal to add these grounds should be refused.
The application to admit further evidence
The 30 March Submissions also contained what the second appellant confirmed at the hearing was an application for leave to adduce further evidence on appeal. The evidence consisted of four photographs and a document entitled 'AGREEMENT MADE IN MAY 2010'. The photographs are all taken from a statement of facts prepared by the respondent's solicitors in relation to fresh charges against the appellants under s 218(a) of the PDA. The fresh charges appear to relate to the continued storage of building materials on the appellants' land subsequent to the appellants' conviction of charges MI 5377/13, MI 5380/13, MI 11371/13 and MI 226/14 on 16 February 2015. The document entitled 'AGREEMENT MADE IN MAY 2010' is said by the appellants to be an agreement between counsel for the respondent, Mr Smith and the CEO of the respondent relating to the construction of a dividing fence between Mr Smith's property and the appellants' land.
None of that evidence is admissible in these proceedings and accordingly leave to adduce it should be refused. It is unnecessary to consider in any great detail the principles relating to the admission of evidence on appeal depending on whether it is 'fresh' or 'new' evidence: see De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 [150] - [158] (Pullin JA).
Three of the photographs sought to be tendered are dated 20 August 2014 and the fourth is dated 18 June 2015. The charges in these proceedings all relate to acts or omissions occurring on the appellants' land on or before, at the very latest, 21 November 2013. The photographs show the state of the appellants' land well after that date and are therefore irrelevant to the facts in issue. For completeness, I note that the first three photographs are 'new', rather than 'fresh' evidence: see Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13 [410] - [411] (Steytler J) on the distinction. The trial of this matter took place on 10 - 11 April, 5, 17, 20 - 21 and 24 November 2014 and 5, 12 and 13 January 2015. It follows that it was open to the appellants to have taken photographs themselves showing the state of their land on 20 August 2014 and to have tendered those photographs at trial. The evidence was thus at the very least constructively available to the appellants in the sense explained by Stephen J in Lawless v The Queen (1979) 142 CLR 659, 669. An appellate court will generally only permit 'new' evidence to be adduced on appeal where the evidence is 'strong enough to show that the appellant is innocent or raises such a doubt that the court concludes that the accused should not have been convicted': De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 [158] (Pullin JA) (internal quotation marks omitted). As I have said, the photographic evidence shows the state of the appellants' land approximately nine months after the period the subject of the charges had ended. It is impossible to see how such evidence could lead to the conclusion that the appellants are innocent or should not have been convicted because there is a reasonable doubt as to their guilt.
The document entitled 'AGREEMENT MADE IN MAY 2010' appears, in so far as it is intelligible, to be entirely irrelevant to the matters in issue in these proceedings. Moreover, there is no evidence as to how it came into being and whether it is a genuine document. In those circumstances, it would be inadmissible even if there were some basis on which it could be said to be relevant.
The 30 March Submissions contained a number of submissions which appear to relate to the alleged dividing fence agreement. The appellants submitted that the agreement was 'un-desirable and a fraud', constituted unjust enrichment of Mr Smith, and that any fence constructed pursuant to the agreement would have been 'a penalty on [the second appellant]'. In the light of my decision to refuse leave to put the agreement into evidence, these submissions have no evidentiary basis and I have had no regard to them. In any case, the submissions, in so far as they are intelligible, are entirely irrelevant to the question whether the appellants are guilty of the charges of which they were convicted by the magistrate.
The appellants' supplementary written submissions
At the conclusion of the hearing on 31 March 2016 I made the following orders:
1.The appellants file and serve written submissions in support of their application to amend the grounds of appeal to include the additional grounds of appeal set out in the appellants' reply submissions dated 30 March 2016, by 1 June 2016.
2.The submissions to be filed in accordance with order 1 must not raise any new grounds of appeal and will be limited to providing written submissions and references to the transcript and evidence upon which the appellants wish to rely.
3.The respondent file and serve submissions responding to the appellants' submissions on or before 1 July 2016.
4.The appellants have leave to file and serve any submissions in reply to the respondent's submissions on or before 1 August 2016.
5.There be liberty to apply on 48 hours' written notice.
6.The costs of the hearing today be in the application.
In accordance with those orders, the appellants filed further written submissions on 31 May 2016 and submissions in response to the respondent's further written submissions on 1 August 2016. I have already noted that the appellants' supplementary submissions did not contain any references to the transcript of the trial. The submissions filed on 31 May 2016 are divided into submissions made by the first appellant and submissions made by the second appellant. The first appellant's submissions do not address any of the matters referred to in my orders and instead seek to raise a further ground of appeal, namely a defence of duress. I have had no regard to that additional ground for the reasons explained below. The second appellant's submissions do address the additional grounds of appeal canvassed at the hearing but rise no higher than re‑asserting the substance of those grounds. The submissions of 1 August 2016 are lengthy and largely unintelligible. To the extent they address the additional grounds of appeal discussed earlier in these reasons, they are of little assistance. To the extent they raise new grounds of appeal, I have had no regard to them.
It is inappropriate for parties to attempt to place further material before a court after a hearing has occurred without leave or, where leave has been granted, where the material falls outside the scope of such leave. The appropriate response when such material is filed is for the court to ignore it: Bale v Mills [2011] NSWCA 266; (2011) 81 NSWLR 498 [57] - [61]. In this case, the appellants were granted leave to file further written submissions, but that leave was expressly circumscribed. In particular, I ordered that any further submissions 'must not raise any new grounds of appeal'. To the extent the submissions filed raise new grounds of appeal, the appropriate course is for me to disregard them. To the extent they fall within the leave granted, I have had regard to them in reaching the conclusions expressed elsewhere in these reasons.
The appellants' constitutional and jurisdictional arguments
At various points during their trial and in the course of this application for leave to appeal the appellants made submissions to the following effect:
(1)that various entities, including the respondent, the respondent's solicitors, this Court and the State of Western Australia, are 'trading corporations' within the meaning of s 51(xx) of the Commonwealth Constitution, which was said to have various consequences for the validity or efficacy of the proceedings against the appellants; and
(2)that the Magistrates Court had no jurisdiction to hear the trial and this Court had no jurisdiction to hear the appeal.
These submissions are misconceived and wrong for reasons I will explain shortly. Apart from the flaws of such submissions as a matter of legal principle, submissions of a similar kind have already been rejected by this Court and by the Court of Appeal on numerous occasions: see, for example, Palmer v City of Gosnells[2014] WASCA 102 and the authorities therein cited. It is unfortunate that some litigants in this Court, and especially self-represented persons, continue to be seduced by these arguments and to run the risk of costs orders being made against them by repeating the arguments in litigation when they are doomed to failure.
It is unnecessary to enter into the question whether any of the entities to which the appellants referred are trading corporations within the meaning of s 51(xx) of the Constitution. Even if they were, that fact would have no consequences in the context of these proceedings. Section 51(xx) confers on the Commonwealth Parliament power to make laws for the peace, order and good government of the Commonwealth with respect to 'foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth'. The legislative power of the Commonwealth Parliament under s 51 is concurrent with that of the States. That is, it is entirely open to the States to legislate in respect of trading corporations, subject to the operation of s 109 of the Constitution. Section 109 deals with any conflicts between Commonwealth and State laws made in the exercise of concurrent legislative power by providing that, if a Commonwealth law and a State law are inconsistent, the former prevails and the latter is inoperative to the extent of any inconsistency. The appellants did not point to any Commonwealth law which was inconsistent with any State law engaged in these proceedings, nor could they have.
The appellants' jurisdictional arguments also have no merit. The Magistrates Court has jurisdiction to hear and determine a charge of a simple offence: Magistrates Court Act 2004 (WA) s 9 and s 11(2)(a). The offences of which the appellants were convicted were simple offences: Interpretation Act 1984 (WA) s 67(2). A single judge of this Court has jurisdiction to hear an appeal from a court of summary jurisdiction: Supreme Court Act 1935 (WA) s 16(2); Criminal Appeals Act 2004 (WA) pt 2 div 2. In the exercise of its criminal jurisdiction, the Magistrates Court is a court of summary jurisdiction: Magistrates Court Act 2004 (WA) s 11(4). The appellants' references to Ch III of the Constitution are misconceived. Chapter III deals with the judicial power of the Commonwealth: see s 71. In this case, both the Magistrates Court and this Court were and are exercising the judicial power of the State of Western Australia. The appellants have not referred to anything in the PDA, the Building Act or any other legislation engaged in this case which might be said to deprive the Magistrates Court or this Court of their 'institutional integrity', contrary to the doctrine expounded in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 and subsequent cases.
Conclusion
None of the additional grounds of appeal set out at [37] of these reasons has a reasonable prospect of succeeding. It would therefore be inappropriate to grant leave to amend the grounds of appeal to include those grounds and leave is refused.
None of the grounds of appeal set out in the appellants' submissions dated 13 October 2015 and reproduced at [16] of these reasons has a reasonable prospect of succeeding. Leave to appeal is refused in respect of those grounds. Accordingly, the appeal is taken to be dismissed: Criminal Appeals Act s 9(3).
The application to adduce new evidence on appeal is dismissed.
I will hear the parties as to the orders required to give effect to these reasons and in relation to costs.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: CORICA -v- THE SHIRE OF MUNDARING [2016] WASC 356 (S)
CORAM: TOTTLE J
HEARD: 7 NOVEMBER 2016
DELIVERED : 30 JANUARY 2017
FILE NO/S: SJA 1017 of 2015
BETWEEN: MARILYN KAYE CORICA
SALVATORE CORICA
AppellantsAND
THE SHIRE OF MUNDARING
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE MIGNACCA-RANDAZZO
File No :MI 5376 of 2013, MI 5377 of 2013, MI 5378 of 2013, MI 5379 of 2013, MI 5380 of 2013, MI 5381 of 2013, MI 11570 of 2013, MI 11571 of 2013, MI 224 of 2014, MI 225 of 2014, MI 226 of 2014, MI 227 of 2015
Catchwords:
Practice and procedure - Costs - Where appellants' application was wholly unsuccessful - Turns on own facts
Legislation:
Nil
Result:
The appellants pay the respondent's costs, to be taxed if not agreed
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):
Nil
TOTTLE J: On 7 November 2016 I dismissed the appellants' application for leave to appeal against convictions that had been entered against them in the Magistrates Court.
The respondent applied for an order that the appellants pay its costs of the application for leave to appeal. The appellants opposed this order and I gave them leave to file and serve written submissions to enable them to develop their argument that they should not be liable for the respondent's costs, and I gave the respondent leave to file responsive submissions. I said that upon receipt of those submissions I would determine the issue of costs 'on the papers'.
On 21 November 2016 the appellants filed submissions extending over some 16 pages. The submissions challenged the standing of the respondents to bring the proceedings and repeated a number of arguments that had been advanced by the appellants in their application for leave to appeal. The submissions concluded with a list of the 'orders sought' by the appellants. These included orders that:
the 'Company's [sic] known as be deregistered immediately:
1Attorney General ABN 70 598 519 443
2Supreme Court of Western Australia ABN 70 598 519 443
The deregistration of a number of other entities was sought.
Under the heading 'Costs' the appellants sought payment of the sum of $2 million to each of them as compensation for hardship suffered by them.
The submissions did not contain a cogent reasoned argument as to why the appellants should not pay the respondents' costs of the application for leave to appeal.
The appellants' application was wholly unsuccessful and there is no reason why they should not pay the respondents' costs. Accordingly, I order that the appellants pay the respondents' costs of the application for leave to appeal, such costs to be taxed.
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