Djime v Le
[2016] VSC 48
•19 February 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2015 02168
| HAMADOU DJIME | Plaintiff |
| v | |
| MATTHEW LE | Defendant |
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JUDGE: | ZAMMIT J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 February 2016 |
DATE OF JUDGMENT: | 19 February 2016 |
CASE MAY BE CITED AS: | Djime v Le |
MEDIUM NEUTRAL CITATION: | [2016] VSC 48 |
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PRACTICE AND PROCEDURE — Appeal from a decision of an Associate Justice — Whether error in granting summary judgment — No real as opposed to fanciful prospect of success — Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158 applied — Appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendant | Ms K Argiropoulos | Counsel for Public Prosecutions |
HER HONOUR:
The appellant was found guilty in the Magistrates’ Court, Sunshine, of one charge of resisting police and one charge of assault. He lodged an appeal against conviction to the County Court, but subsequently abandoned the appeal. The appellant also filed an originating motion seeking judicial review of the decision by the Magistrates’ Court.
The respondent applied for summary dismissal of the judicial review proceeding. The summary judgment application filed by the respondent on 23 October 2015 was supported by an affidavit sworn by Adam Casselton 17 September 2015 (‘Casselton affidavit’). The application for summary dismissal was heard before the Associate Justice on 2 December 2015. The applicant did not attend the hearing. The Associate Justice dismissed the proceeding pursuant to s 63 of the Civil Procedure Act 2010 (Vic) (‘the CPA’) and provided a statement of the reasons.
The Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) r 77.06.9 states that on appeal, a Judge of the Supreme Court shall have all the powers of the Court constituted by an Associate Justice. In the appeal, the Judge shall have power to receive further evidence upon questions of fact and draw inferences of fact.
Rule 77.06.9 may allow for the Court to receive further evidence about matters which might support the grant of leave to appeal on a question of law.
Nonetheless, an appeal is not a re-hearing de novo.[1] To succeed, the applicant must show that the Associate Justice committed an error of law.[2]
[1]Oswal v Carson [2013] VSC 355 [11].
[2]Hau v Westpac [2014] VSC 606,[37] and [38]; Shreuders v Grandiflora Nominees Pty Ltd [2014] VSC 310; Oswal v Carson [2013] VSC 355; Lazarevic v Victoria Police [2015] VSC 13 [4].
The applicant filed a Notice of Appeal against the Order of the Associate Justice on 11 December 2015 (the 11 December 2015 Notice of Appeal). The respondent submits that no error of law can be established.
Based on the applicant’s 11 December 2015 Notice of Appeal and the oral submissions, the applicant appears to allege that the Associate Justice’s decision and therefore Order was erroneous for the following reasons:
(a) the decision relied on false documents submitted by Mr A Castle, the solicitor that appeared before the Associate Justice on 14 September 2015;
(b) the Casselton affidavit was wilfully false;
(c) an invalid summons seeking summary judgment and affidavit in support had been deliberately served by the respondent;
(d) the Associate Justice ignored the Evidence Act (2008) and other legislative decisions concerning false documents and evidence; and
(e) the Associate Justice failed to consider the flagrant violation of human rights that occurred.
The applicant seeks, amongst other things, compensation for what he described as malicious prosecution by the police.
In my opinion, the evidence before the Court contained largely in the Casselton affidavit and the reasons of the Associate Justice, demonstrated there was no unfairness or error of law. Accordingly, this appeal should be dismissed. My reasoning now follows.
Material relevant to the appeal
In short, I have reviewed the material which was before the Associate Justice, in particular the affidavits filed by the applicant dated 8 May 2015 affirmed on 29 July 2015 and further documents provided in the applicant’s affidavit affirmed on 9 October 2015, and the Casselton affidavit and the exhibits.
Background to the appeal
The incident which is the subject of the charges in Magistrates’ Court case number D13670467 occurred on 18 September 2013. I will summarise the facts as contained in the informant’s preliminary brief statement.[3] I note that the applicant disputes the factual summary as contained in Exhibit OPP1.
[3]Casselton affidavit - Exhibit OPP1.
The preliminary brief statement made by the informant indicates that on 18 September 2013 police were called in regards to a dispute at 15 City Place. Police spoke to the applicant and the current tenant at the address. The applicant demanded to be let in to the address, stating he was a tenant. In short, the police asked the applicant to leave the premises but he refused. The statement made by the informant states that the police attempted to get the applicant to stand up off the couch by lifting him up by both arms. The applicant actively resisted their attempts to get him to stand by bracing himself and pulling his arms away. The statement by the informant indicates that ‘after the accused broke free from Sgt Kearnes, the accused clenched his right hand into a fist and raised his arm causing Sgt Kearnes to believe he was about to be punched’.
The applicant continued to resist police by struggling and bracing himself against police attempts to handcuff him. The applicant was eventually handcuffed and escorted from the premises. A field interview was conducted at the front of the premises. The applicant was released and advised to seek legal advice regarding the dispute.
The applicant was subsequently charged and charges comprise Magistrates’ Court case number D13670467 as follows:
Charge 1 — assault police contrary to s 52(1) Summary Offences Act 1966;
Charge 2 — resist police contrary to s 52(1) Summary Offences Act 1966; and
Charge 3 — unlawful assault contrary to s 23 Summary Offences Act 1966.[4]
[4]Casselton affidavit – OPP2 and OPP8.
On 20 November 2013, charges 1 and 2 in Magistrates’ Court case number D13670467 were issued in the form of a charge and summons at Sunshine Magistrates’ Court. The return date was 22 January 2014.
On 23 and 24 November 2013, police officers attended at 143 Gordon Street Footscray and additionally at 76 Old Geelong Road, Footscray on the second day, to affect service and charges 1 and 2 upon the applicant. On each occasion no-one was at home and calling cards were left.
On 24 November 2013, the applicant telephoned Constable Matthew Le, and advised that he would attend Sunshine police station on 29 November 2013 to collect the charge and summons.
Charge 2 was served upon the applicant on 29 November 2013 by Constable Shane Weatherly at Sunshine police station at 12:47 pm.
The execution copies of charges 1 and 2 were filed in the Magistrates’ Court at Sunshine on 2 December 2013.[5]
[5]Casselton affidavit Exhibit OPP2.
On 20 January 2014 the respondent received by email a letter from Hartleys Lawyers that they acted for the applicant and requested further documents.[6]
[6]Ibid Exhibit OPP3.
On 22 January 2014 at Sunshine Magistrates’ Court, court case number D13670467 was adjourned to 25 February 2014.[7] On the same day, on 22 January 2014, the respondent received by email a letter from Hartleys Lawyers requesting a copy of all notes taken by all attending police officers on the day of the incident.[8] A copy of those notes was forwarded to Hartleys Lawyers on that day.
[7]Ibid Exhibit OPP4.
[8]Ibid Exhibit OPP5.
On 27 January 2014, a decision was made to file an additional charge of unlawful assault based upon a statement by one of the other individuals involved in the dispute, Mr Gilbert Besanko. An email message was sent to Hartleys Lawyers asking if they would accept service and additional charge on behalf of the applicant.
On 28 January 2014, the respondent received by email a letter from Hartleys Lawyers who advised that they would accept the additional charge on behalf of the applicant.[9]
[9]Ibid Exhibit OPP7.
On 3 February 2014, the informant signed an additional charge 3.[10] The original was sent to the Sunshine Magistrates’ Court for filing[11] and copies of the charges signed by the applicant were sent to Hartleys Lawyers[12] and Sunshine police prosecutors.
[10]Ibid Exhibit OPP8.
[11]Ibid Exhibit OPP9.
[12]Ibid Exhibit OPP10.
On 25 February 2014, in the Magistrates’ Court at Sunshine charges 1, 2 and 3 were adjourned to 15 October 2014 for a contest hearing.[13]
[13]Ibid Exhibit OPP11.
On 24 June 2014 in the Sunshine Magistrates’ Court, Ms Samantha Holmes, counsel, appeared on behalf of the applicant. On 10 October 2014, the applicant appeared in person at the Sunshine Magistrates; Court to make an application for a special mention. The matter was adjourned to 13 October 2004.
On 13 October 2014 the applicant appeared in person at the Sunshine Magistrates’ Court. The application was granted. Orders were made to allow the parties to view documents provided under subpoena and to obtain copies subject to a prohibition against those documents being viewed by other parties or disseminated to any other parties and all copied documents being returned to the Court at the conclusion of the proceedings.
Charge 1 was dismissed. Charges 2 and 3 were found proven. Pursuant to s 75 of the Sentencing Act 1991, charges 2 and 3 were adjourned without conviction to 9 September 2015. The applicant was released upon giving an undertaking to be of good behaviour in the meantime and to pay $650 to the Court Fund.[14]
[14]Ibid Exhibit OPP19.
After the hearing on 5 March 2015, the applicant filed a Notice of Appeal to the County Court against the orders made in the Magistrates’ Court case number D13670467. That appeal was assigned number AP150486. The appeal was abandoned before a Registrar on 28 July 2015.[15]
[15]Ibid Exhibit OPP20.
Supreme Court Proceeding 2015 02168
On 4 May 2015 the applicant filed an originating motion. A summons on this originating motion (returnable on 27 July 2015) was filed on 6 July 2015 and served on the respondent.
On 7 July 2015 the applicant appeared in person before the Associate Justice. Mr A Castle appeared on behalf of the respondent.
In the Associate Justice’s statement of reasons the following is noted:
4.At the directions hearing on 14 September 2015, clarification was sought from the plaintiff as to what he was seeking to review. He indicated that he was seeking to have the Magistrates’ Court decision overturned. He alleged that a charge against him was fake because it was based on a forgery by police. He submitted that he wanted police to take responsibility for what they had done, alleging forgery, malicious prosecution, false allegations and that he sought damages from the police. The Court made orders on 14 September 2015, including that the plaintiff file any further affidavit upon which he wished to rely.
5.The plaintiff filed a further affidavit on 9 October 2015. It contains wide ranging allegations and refers to a number of police officers. It stated the plaintiff seeks: ‘that all the fake, and invalid charge-summons obtained by way of forgeries be struck out or dismissed’. It concluded that the demand that Victoria Police pay him damages of $4,806,000.
6.The defendant’s application for summary dismissal is supported by an affidavit sworn by Adam Casselton on 17 September 2015 (the Casselton affidavit). The Court relies on that affidavit.
On 23 October 2015 the respondent filed and served an application for summary dismissal. The application was listed for hearing on 5 November 2015.
The respondent’s grounds for summary dismissal are as follows:
(a) in his originating motion filed on 4 May 2015, the [applicant] has not articulated any proven error or process in the hearing and determination of Magistrates’ Court case number D137670467 which enlivens the Supreme Court’s jurisdiction to grant relief or remedy pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 (‘the 2005 Rules’); and
(b) in his affidavits dated 8 May 2015 and [1] October 2015, the [applicant] has not adduced or exhibited substantive evidence of any error in law process in the hearing and determination of Magistrates’ Court case number D13670467 which enlivens the Supreme Court’s jurisdiction to grant relief or remedy pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2005.
Counsel for the respondent, in the written submissions, indicated the following:
(a) on 25 October 2015 the applicant sent an email to Mr Castle in which he stated that he did not intend to appear on 5 November 2015 because the summons served on 23 October 2015 violated r 22.18(4) of the Supreme Court (General Civil Procedure) Rules 2015; and
(b) On 28 October 2015 the Court informed the parties that the application could no longer be heard on 5 November 2015. The matter was relisted for 2 December 2015.
In the course of oral submissions, it was put by the applicant that the summary judgment application was adjourned to 2 December 2015 and that he did not consent to such an adjournment.[16] No order was made adjourning the hearing date from 5 November 2015 to 2 December 2015. There is no evidence on affidavit before the Court on this issue.
[16]Transcript 13.16-.25; Transcript 14.1-.5.
On 2 December 2015 the application for summary dismissal was heard before the Associate Justice. The applicant did not appear. Mr A Castle appeared on behalf of the respondent. Her Honour dismissed the proceeding.
Her Honour provided a statement of reasons which were given ex tempore and subsequently revised.
Her Honour identified the applicable principles relevant to an application for summary dismissal and that the application proceeded on the basis of ss 62 and 63 of the CPA and Order 22 of the 2005 Rules. Her Honour set out the applicable principles as follows:
7.Section 62 of the CPA permits the defendant to make an application for summary judgment on the grounds that the Plaintiff’s claim or part of that claim has no real prospect of success. Both s 63 of the CPA and Order 22 of the Rules provides that the Court may give summary judgment in a civil proceeding if it is satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, has ‘no real prospect of success’.
8.Upon the present state of authority:
(a)the test of summary judgment of s 62 of the CPA is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success;
(b)the test is to be applied by reference to its own language without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel;
(c)it should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
(d)at the same time it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and that the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[17]
(e)Section 64 of the CPA requires the Court to take into account the interests of justice and the overarching obligations of the CPA. Section 7(1) sets out the overarching purpose being to facilitate the just, efficient, timely and cost-effective resolution of real issues in dispute. Section 9 requires the Court to have regard to these purposes in making any order or giving any direction in a civil proceeding.
[17]Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158 [35] (Warren CJ and Nettle JA with whom Neave JA agreed) (‘Lysaght’).
Albeit brief, the Associate Justice concluded relevantly:
12.The Plaintiff’s application for judicial review is made against a police officer although it concerns the Magistrates’ Court’s decision. Accordingly, there is no real prospect of it succeeding on any ground concerning the decision by the Magistrates’ Court.
13.The Plaintiff’s application for judicial review has no prospect of succeeding against the Defendant. The affidavit material by the Plaintiff contains many assertions and does not provide evidence of the facts that he is relying upon to support his claim of forgery (or his other allegations).
14.In this proceeding, the Plaintiff seeks damages against Victoria Police. He has no real prospect of success in relation to that claim.
15.The Court will make orders summarily dismissing the proceeding. The Defendant did not seek costs and accordingly, the Court will not make any orders as to costs.
11 December 2015 Notice of Appeal — grounds of appeal
The orders sought by the applicant in the 11 December 2015 Notice of Appeal are:
(1)that the charges be ‘dismissed or struck out’ on the basis that they are ‘fake and invalid charge/summons obtained by way of forgeries and which [have] never been filed’;
(2)the Magistrates’ Court orders dated 5 March 2015 be dismissed or struck out on the basis that they have been made on a ‘fake and invalid charge/summons’;
(3)Victoria Police pay all damages to the applicant on the basis of unlawful arrest with malicious prosecution and having caused injuries physical and emotional while in the police officer’s detention. The applicant seeks compensation for financial loss caused to him due to his inability to perform his work. He also seeks aggravated damages and demands that the Victoria Police pay the sum of $4,806,000.
The grounds of appeal as drafted in the 11 December 2015 Notice of Appeal are difficult to understand. Based on the 11 December 2015 Notice of Appeal and oral submissions, I understand the grounds of appeal to be as follows:
(1)the Associate Judge erred in dismissing the proceeding pursuant to s 63 of the CPA, in that she relied upon fake documents, including the charges and summons, court documents submitted by solicitor Adrian Castle, the Casselton affidavit and, accordingly, is in breach of r 22.18(2) of the 2015 Rules;
(2)the Casselton affidavit relied upon by the Associate Judge is a ‘wilful statement, full of flagrant perjuries that violate s 141 of the Evidence (Miscellaneous Provisions) Act 1958’;
(3)the Associate Judge summarily dismissed the proceeding in circumstances where the summons and affidavit relied upon by the respondent in the summary judgment was not served within the time prescribed in r 22.18(1)(iv) of the Rules;
(4)the Associate Judge erred in dismissing the proceeding summarily in that she failed to take into account that the Victoria Police failed to file the charge/summons in accordance with s 14 of the Criminal Procedure Act 2009 and that the charge/summons were forgeries;
(5)the Associate Judge erred in that she allowed evidence, by way of documents that were forgeries produced by Constable Matthew Le, Sergeant Michael Kearnes, Lucinda Nolan, Adrian Castle and Adam Casselton;
(6)the Associate Judge erred in that she failed to consider that the applicant had been defamed and did not consider that he was seeking damages and that there had been a violation of his rights pursuant to the Charter of Human Rights and Responsibilities Act 2006.
I note that the applicant names Matthew Le as the respondent in the originating motion filed on 4 May 2015. The grounds for review pursuant to Order 56 of the 2005 Rules set out in the Originating Motion filed 4 May 2015 included the following:
(1)that the informant, Constable Matthew Le, did not file the charges with the Registrar of Sunshine Magistrates’ Court and was therefore in breach of s 14 of the Criminal Procedure Act 2009;
(2) that the learned Magistrate allowed the hearing of the charges in circumstances where the charges were commenced after the time period of 12 months as required by s 7 of the Criminal Procedure Act 2009;
(3) the Magistrate failed to take account of evidence given by eye witnesses and accordingly was in breach of s 55 of the Evidence Act 2008;
(4) the Magistrate erred by failing to take into account the statutory declaration made by an eye witness, Mr Samuel Elliott;
(5) the Magistrate erred in that he failed to make a finding that police officer Sergeant Kearnes committed multiple perjuries during the trial and failed to hold Sergeant Kearnes accountable for the perjuries and that Sergeant Kearnes committed unlawful assault and false arrest;
(6) the Magistrate erred by allowing Adam Casselton to adduce evidence which was fake, undated;
(7) the Magistrate erred in failing to take into account the fact that the ‘police officer was acting out of his duty as police officer while committing an unlawful arrest for illegal conviction without a warrant of possession’;
(8) the Magistrate erred by failing to take into account charges made against Gilbert Basanko which was not filed with the Magistrates’ Court, however Mr Basanko had engaged in an unlawful eviction of the applicant;
(9) the Magistrate erred in that he failed to take into account relevant legislation including the Residential Tenancy Act (1997) and anti-discrimination laws in Victoria; and
(10) the Magistrate ‘personally decided to violate the law by commencing a criminal proceeding more than 12 months (about 18 months after the event)’ in circumstances where the charges were not accepted by the Registrar of the Sunshine Magistrates’ Court because of lack of evidence. As such, the Magistrate was in violation of s 141 of the Evidence Act.
The applicant’s 8 May 2015 affidavit makes a series of assertions on page 2, including that Constable Matthew Le produced a fake charge sheet, a fake stamp and signature; that Constable Matthew Le had forged the signatures of the Victorian Magistrate Court and that this was done with the supervision of a senior police officer, Lucinda Nolan; that Victoria Police had engaged in the malicious prosecution and false accusations of the applicant and; that Constable Matthew Le had intimidated, trespassed and violated the applicant’s privacy. The remainder of the 8 May 2015 affidavit contains submissions in relation to the judicial review application.
The applicant’s affidavit of 9 October 2015 makes essentially the same assertions as in the 8 May 2015 affidavit and further submissions.
The hearing before the Associate Judge
On 2 December 2015, as discussed, the application for summary dismissal was heard before the Associate Justice. The applicant did not appear and Mr A Castle appeared on behalf of the respondent.
It would appear that one of the applicant’s grounds of appeal was that he was either not informed that the summary judgment application was adjourned from 5 November 2015 to 2 December 2015, or that he did not consent to the adjournment. In oral submissions, he confined this argument to not giving consent to the adjournment.
There is no evidence before the Court that the applicant was denied procedural fairness in relation to the adjournment of the summary judgment application before the Associate Justice on 2 December 2015. Order 46.06(1) of the Rules allows the Court to adjourn the hearing of an application on such terms as it thinks fit. The applicant does not submit that he did not know of the new hearing date of 2 December 2015. Rather, that he did not consent to it.
There is no evidence before the Court as to why the applicant did not attend the summary judgment application or whether he was properly served within time with the summons for the summary judgment application.
There is no evidence that the applicant was denied procedural fairness.
The Associate Justice determined that one of the grounds for dismissing the proceeding summarily was that the applicant’s application for judicial review is made against a police officer, although it concerns the Magistrates’ Court decision and, accordingly, there is ‘no real prospect of it succeeding on any ground concerning the decision by the Magistrates’ Court’.[18]
[18]Associate Justice’s Reasons, [12].
I consider that the Associate Justice applied the correct test in determining the respondent’s application for summary judgment.[19] The evidence before the Associate Justice, including the applicant’s affidavits of 8 May and 9 October 2015, provide no evidence to support his application for judicial review, and it is, in my opinion, correct that there was no real prospect of succeeding against the respondent.
[19]Lysaght [2013] VSCA 158 [35] (Warren CJ and Nettle JA with whom Neave JA agreed).
I consider that the Associate Justice took into account all of the relevant materials, including the applicant’s two affidavits, as well as the affidavit relied upon by the respondent, the Casselton affidavit.
In the course of his oral submissions, the applicant asserted that the charges, in particular charges 1 and 2, had not been properly filed with the Court or had not been filed at all.
There is no evidence before this Court, based on the timeframes set out in the Casselton affidavit at paragraph 9, that the charges and summons were filed out of time. It appears that the applicant is relying on the date of the filing of the executed copy with the Magistrates’ Court in Sunshine.
In this case, the charge and summons was issued by a court. Section 12 of the Criminal Procedure Act 2009 deals with the issuing of such a summons. Section 16 of the Criminal Procedure Act 2009 provides that the summons must be served on an accused person at least 14 days before the return date. Section 14 of the Criminal Procedure Act 2009, which appears to be the section the applicant relies upon, deals with the situation where a police officer issues a summons, and that is not what occurred in this case. In the current matter, the summons had been issued by the Court, that is, by the Registrar of the Sunshine Magistrates’ Court on application by a police officer.
Exhibits OPP2 and OPP8, the charge sheet and summons, confirm that the summons was issued at the Sunshine Magistrates’ Court on 20 November 2013. There is a tick in the section headed ‘Details about this summons’ indicating that it was issued by the Registrar, not the police informant.
In relation to the issue of service of the summary judgment application, there is no evidence before the Court, nor any indication in the Associate Justice’s reasons in relation to whether the applicant had been served by the respondent of the summary judgment application and what notice, if any, was given to the applicant in relation to the adjournment of the summary judgment application from 5 November 2015 to 2 December 2015.
The Associate Justice referred to s 64 of the Civil Procedure Act and noted it required the Court to take into account the interests of justice and the overarching obligations in the Civil Procedure Act. While not specifically stated, it can be inferred from her Honour’s reasons that she did not invoke the power under s 64 to allow the matter to proceed to trial, even if the Court considered that the proceeding did not have any real prospect of success.
While it is correct that the proper defendant is the Magistrates’ Court, I do not consider this ground a sufficient basis to have summarily dismissed the proceeding. The defect is curable by way of amendment. In any event, this was not the sole basis for the summary dismissal of the proceeding. Importantly, the Associate Justice found that there was no evidentiary basis for the assertions at the core of the applicant’s grounds for review. That is, claims of an invalid charge/summons, forgeries and fraud.
The applicant has brought an application pursuant to Order 56 for judicial review. Under its supervisory jurisdiction of judicial review, the concern of the Supreme Court is whether what was done by the Court below was made within jurisdiction and in accordance with law, not with the merits of its decision. It seems from the applicant’s originating motion and summons in support, that he seeks relief by way of certiorari. The applicant appears to assert that there has been jurisdictional error in that the Magistrate relied on an invalid summons, that there has been a breach of procedural fairness and fraud. The Associate Justice rightly considered all the relevant material before the Court and concluded summarily that the applicant had no real prospect of success.
Order 77.06 gives the Court all the powers of the Court constituted by an Associate Judge.
The applicant is self-represented and, in the circumstances, I consider it appropriate to have allowed the applicant considerable leeway and flexibility in relation to the documentation he relied upon and the manner in which he presented his case. Ultimately, however, I am not satisfied on the evidence and or the applicant’s oral submissions that there has been jurisdictional error in that the charges and summons were invalid, forgeries, or fraudulently obtained. I do not consider that there is any evidence to support the applicant’s assertions that the charge and summons were issued out of time and in breach of the Criminal Procedure Act 2009.
Finally, I do not consider that the applicant was denied procedural fairness in relation to the adjournment of the summary judgment application in that there is no evidence that he was not aware of the hearing or that there was any reason that he could not attend the hearing on 2 December 2015.
Finally, as I have already said, I do not consider that there has been any error by the Associate Justice.
Accordingly, I dismiss the appeal. I will hear the parties on costs.
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