Evans v Dziubinski

[2023] ACTSC 312

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Evans v Dziubinski

Citation: 

[2023] ACTSC 312

Hearing Date: 

1 November 2023

Decision Date: 

1 November 2023

Before:

Baker J

Decision: 

(1) The Notice of Appeal dated 29 August 2023 is struck out as incompetent pursuant to r 5172 of the Court Procedures Rules 2006 (ACT).

Catchwords: 

APPEAL – PRACTICE AND PROCEDURE – Appeal from an interlocutory decision of the Magistrates Court – Application by the respondent for the proceedings to be struck out as incompetent pursuant to r 5172 of the Court Procedures Rules 2006 (ACT) – jurisdiction of the Supreme Court to hear an appeal from an interlocutory decision – prospects of judicial review of the decision – application granted – Notice of Appeal struck out as incompetent.

Legislation Cited: 

Constitution Act 1902 (NSW), s 4

Court Procedures Rules 2006 (ACT), rr 5172

Magistrates Court Act 1930 (ACT), Pt 3, Divs 3.10.2, 3.10.3, ss 207, 272

Cases Cited: 

Bloxham v Wyte [2013] ACTSC 151; 278 FLR 365

Canham v ACT Magistrates Court and Jabs [2014] ACTSC 14; 9 ACTLR 84

Davey v Herbst (No 2) [2012] ACTCA 19

Harlovich v Sebbens [2023] ACTSCFC 3

Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531

Lacey v Attorney-General of Queensland [2011] HCA 10; 242 CLR 573

Satchithanantham v Folkes [2019] ACTSC 165

Parties: 

Tony Michael Evans ( Appellant)

Jason Shawn Dziubinski ( Respondent)

Representation: 

Counsel

Self-represented ( Appellant)

E M Roff ( Respondent)

Solicitors

Self-represented ( Appellant)

ACT Director of Public Prosecutions

File Number:

SCA 48 of 2023

Decision Under Appeal: 

Court/Tribunal:           ACT Magistrates Court

Before:   Magistrate Lawton

Date of Decision:       15 August 2023

Case Title:                 Dziubinski v Evans

Court File Number(s): CC1293 of 2022

BAKER J:      

Introduction

1․On 6 September 2023, the appellant filed a Notice of Appeal relating to a decision of Magistrate Lawton (“the Magistrate”) made on 15 August 2023, in which his Honour declined the appellant’s application for the summary proceedings against him to be struck out, or alternatively, transferred to the Supreme Court of New South Wales.

2․By an application filed on 9 October 2023, the respondent made an application for the appellant’s appeal to be struck out as incompetent pursuant to r 5172 of the Court Procedures Rules 2006 (ACT).

3․For the reasons outlined below, I have determined that the respondent’s application should be granted and the appellant’s appeal should be struck out as incompetent under r 5172 of the Court Procedures Rules.

Procedural history

4․The appellant is charged with a number of offences, including assaulting frontline community service workers and resisting a public official. These events are alleged to have occurred on 2 February 2022, when the appellant was present during a protest at Patrick White Terrace, between the National Library of Australia and Lake Burley Griffin, in Parkes. The prosecution alleges that the appellant struck a police officer near the back of his head, and that he resisted other officers during the exercise of their duties.

5․The proceedings were previously listed for hearing on 11 August 2022, 27 January 2023 and 12 May 2023. Each of those hearings were vacated (the latter on the application of the appellant), and the proceedings were listed for hearing on 16 August 2023.

6․On 5 August 2023, the appellant filed an application seeking that the proceedings be “struck out ab initio” and that “all charges be dismissed, if not withdrawn”.

7․The application was listed for hearing before the Magistrate on 15 August 2023. At that hearing, the appellant relied on written submissions, in which he contended that the place where the alleged offences took place was within the geographical boundaries of New South Wales, relying on s 4 of the Constitution Act 1902 (NSW) (as enacted). He further submitted that:

[a]s this Act [the Constitution Act 1902 (NSW)] was in place before and after the ACT was enacted, this legislation, being first-in-time, prevails over any subsequent legislation of either the Commonwealth or the ACT Government - which is not a State but merely a Territory.

8․In his oral submissions by Audiovisual Link (AVL) on 15 August 2023, the appellant reiterated that he wished to challenge the court’s jurisdiction and that he sought that the proceedings be struck out, or alternatively transferred to the Supreme Court of New South Wales.

9․After considering these submissions, the Magistrate indicated that the appellant would need to raise any question of jurisdiction at the hearing of the proceedings. The Magistrate confirmed the listing of the proceedings for hearing on the following day.

10․The appellant did not appear at the hearing on 16 August 2023. On that occasion, the Chief Magistrate issued a first instance warrant for the appellant’s arrest.

11․On 3 October 2023, the proceedings were listed before the Chief Magistrate in relation to a further interlocutory application that had been filed by the appellant. The appellant again did not appear on this occasion.

12․On 5 October 2023, the respondent filed the present application.

Submissions

13․The appellant sought leave to appear by AVL or telephone. As noted above, there is an outstanding warrant for the appellant’s arrest. However, as the appellant’s contentions related to the jurisdiction of the court to hear the charges laid against him, I considered it appropriate to grant the appellant leave to appear. He did so by telephone.

14․Ms Roff, who appeared for the respondent, provided helpful written and oral submissions. In short, she contended that the appeal is incompetent because there is no right of appeal against an interlocutory decision of a Magistrate made in connection with a summary prosecution.

15․Ms Roff noted that under r 5172(2) of the Court Procedures Rules, the appellant bears the burden of establishing that an appeal is competent. However, as the appellant is self-represented, Ms Roff nonetheless surveyed the possible sources of appellate jurisdiction, in particular in the Magistrates Court Act 1930 (ACT) relating to summary prosecutions. She submitted that none of the provisions contained therein provided a right of appeal against an interlocutory decision made by a Magistrate in respect of a summary prosecution.

16․In reply, the appellant relied on the “common law principle of ‘lacuna’” and submitted that this Court has inherent jurisdiction to determine his appeal against the Magistrate’s interlocutory decision. The appellant also submitted that the present application should be made under a Notice of Contention and heard together with his appeal.

Determination

17․Rule 5172 of the Court Procedures Rules provides that:

(1)A respondent to the appeal may apply to the Supreme Court at any time for an order striking out the appeal as incompetent.

Note   Pt 6.2 (Applications in proceedings) applies to an application for an order under this rule.

(2)The burden of establishing the competency of the appeal is on the appellant.

18․An appeal will be incompetent “if the decision in the court or tribunal from which it is sought to bring the appeal is not the kind of decision (e.g. a judgment or order) from which an appeal lies”: Davey v Herbst (No 2) [2012] ACTCA 19 at [9].

19․An appeal is a creature of statute: Lacey v Attorney-General of Queensland [2011] HCA 10; 242 CLR 573 at 596 [56]. This means that, before a right of appeal can exist, a statute must confer upon a court the jurisdiction to determine an appeal and the powers necessary for its exercise: Lacey at 578 [8].

20․The Magistrates Court Act confers jurisdiction on this Court to hear and determine appeals against decisions of the Magistrates Court in criminal proceedings. As the Court of Appeal recently observed in Harlovich v Sebbens [2023] ACTSCFC 3 at [45], Pt 3.10 of the Magistrates Court Act confers three separate sources of jurisdiction on the Supreme Court to hear criminal appeals from decisions of Magistrates: appeals in criminal matters (Div 3.10.2), reference appeals (Div 3.10.2A) and review appeals (Div 3.10.3).

21․A reference appeal under Div 3.10.2A may only be brought on the application of the Attorney-General, the Solicitor-General or the Director of Public Prosecutions: s 219AB of the Magistrates Court Act.

22․The decisions which may be subject to an appeal under Div 3.10.2 or a review appeal under Div 3.10.3 are set out in ss 208 and 219B of the Magistrates Court Act respectively. It is unnecessary to set out these provisions in full.  It suffices to note that these provisions permit an appeal to be made against the following categories of decisions of a Magistrate in summary proceedings:

(i)Decisions made with respect to fitness to plead (s 208(1)(a));

(ii)Convictions in certain summary proceedings (s 208(1)(b) and s 219B(1)(b));

(iii)Orders made against a defendant after a summary hearing where the defendant has not sought to defend or has unsuccessfully sought to defend an information (s 208(1)(c) and s 219B(1)(c));

(iv)Various sentencing orders (s 208(d) – (g) and s 219B(1)(f));

(v)Dismissal of an information for a charge heard summarily (s 219B(1)(a));

(vi)A decision not to commit a person to the Supreme Court for sentence (s 219B(1)(d)); and

(vii)A decision to dispose of a case summarily (s 219B(1)(e)).

23․None of these provisions confer a right of appeal against an interlocutory order made by a Magistrate in connection with a summary prosecution: see Satchithanantham v Folkes [2019] ACTSC 165 at [22] (cf s 272 of the Magistrates Court Act, which permits an appeal in a civil matter from a “judgment or order of the Magistrates Court, whether final or interlocutory…”).

24․Section 207 of the Magistrates Court Act states that the jurisdiction of the Supreme Court extends to the hearing and deciding of the appeals referred to in Div 3.10.2, Div 3.10.2A and 3.10.3 “and to no others”. However, s 207(3) clarifies that this part “does not limit the operation of any other Act that makes provisions in relation to the appellate jurisdiction of the Supreme Court”.

25․In summary, there is no legislation in the ACT that confers a right of appeal against an interlocutory order of a Magistrate made in the course of a summary prosecution.

26․There is no “common law principle of lacuna” as contended by the appellant. The inherent jurisdiction of the Court does not extend to the creation of appellate remedies. As noted above, an appeal “requires the creation by statute of an appellate jurisdiction and the powers necessary for its exercise”: Lacey at 578 [8].

27․However, underlying the appellant’s contention that there is a “common law principle of lacuna” is the proposition that, even where there is no legislation that creates a right of appeal, decisions of the Magistrates Court must be subject to the supervisory jurisdiction of this Court. The correctness of that proposition is well established: Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; 239 CLR 531 at 581 [99].

28․Accordingly, whilst there is no right of appeal against an interlocutory order made in criminal proceedings in the Magistrates Court, it remains open to a defendant in a summary prosecution to seek judicial review of such an order: Canham v ACT Magistrates Court and Jabs [2014] ACTSC 14; 9 ACTLR 84 at [49] – [50]. As the appellant is self-represented, I considered whether to invite the appellant to seek judicial review of the Magistrate’s decision.

29․I have determined that such a course would not be appropriate.

30․The orders which the appellant seeks are an order transferring the substantive proceedings, which remain in the jurisdiction of the Magistrates Court, to the New South Wales Supreme Court; or alternatively, “striking out” or dismissing the prosecution. Neither this Court, nor the Magistrates Court, has jurisdiction to transfer summary proceedings from the Magistrates Court to a court in another State or Territory. Further, I do not understand the Magistrate to have finally determined the appellant’s application for the proceedings to be dismissed on the basis of his contention that the events in question occurred in New South Wales rather than the ACT. Rather, the Magistrate has simply indicated that any submissions concerning the question of jurisdiction should be heard as part of the final hearing. Accordingly, any application for judicial review of the Magistrate’s decision would be doomed to fail. In these circumstances, any claim for judicial review would be futile.

Orders

31․For the above reasons, the following orders are made:

(1)The Notice of Appeal dated 29 August 2023 is struck out as incompetent pursuant to r 5172 of the Court Procedures Rules 2006 (ACT).

I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker

Associate: A McCook

Date: 1 November 2023