Ex Parte - [2021] WASC 232

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   EX PARTE DE-ABREU [2021] WASC 232
CORAM:   ARCHER J
HEARD:   24 JUNE 2021
DELIVERED          :   15 JULY 2021
PUBLISHED           :   15 JULY 2021
FILE NO/S:   CIV 1149 of 2020

EX PARTE
JADE DE-ABREU
Plaintiff

Catchwords:

Leave to file an application seeking certiorari - Supervisory jurisdiction over completed criminal trial - Alleged perjury - Prior appeal against conviction - Abuse of process

Legislation:

District Court of Western Australia Act 1969 (WA), s 80, s 81

Result:

Leave to file the application refused

Category: B

Representation:

Counsel:

Plaintiff

In Person

Solicitors:

Plaintiff

In Person

Case(s) referred to in decision(s):

Colonial Bank of Australasia v Willan [1874] LR 5 PC 417
De-Abreu v The State of Western Australia [2020] WASCA 145
H T v R [2019] HCA 40
R v Foster; Ex parte Isaacs [1941] VLR 77
Re Birmingham DCJ; Ex parte Agapis [2014] WASCA 197
Re Judge Ackland; Ex parte Love (1989) 1 WAR 562
Re Judge Hammond; Ex parte Roddan (1996) 17 WAR 50
Santos v Director of Public Prosecutions (WA) [2016] WASCA 230

ARCHER J:

Overview

Mr De-Abreu sought to file two applications for judicial review.
The Acting Principal Registrar determined that, pursuant to O 67 r 5 of the Rules of theSupreme Court 1971 (WA), the applications could not be filed without leave of a judge of the court. That is, the Acting Principal Registrar was of the view that the applications were an abuse of the process of the court or frivolous or vexatious proceedings. Mr De-Abreu was told he needed to file a notice of motion and a supporting affidavit seeking leave to file the applications.
After that time, there was considerable correspondence between Mr De‑Abreu and the court. There was also a directions hearing before Le Miere J.
Mr De-Abreu has now filed documents that, taking into account the fact that he is self-represented, can be treated as a notice of motion and a sufficiently compliant affidavit.
The first of Mr De-Abreu's proposed judicial review applications, in CIV 1975 of 2019, sought review of a decision of 'Acacia Prison, Western Australia, Neil McReith and SMT' in relation to separate confinement in Golf Block Detention Unit Acacia Prison exceeding 30 days. In a hearing on 24 June 2021, I gave Mr De-Abreu leave to file this application.
I refused Mr De-Abreu leave to file the other proposed judicial review application (the Certiorari Application) and said I would provide my reasons later. What follows are my reasons.
The purported respondents to this application are stated to be the District Court of Western Australia, his Honour District Court Judge Eaton and 28 others.
Mr De-Abreu seeks certiorari to quash the decision and order made in the District Court on 13 August 2015. That was the date upon which Mr De-Abreu was sentenced, following his convictions on 25 March 2015 of numerous serious sexual offences.
It is apparent, however, from the named respondents and from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] WASC 232
Decision Date: 15 JULY 2021

CaseChat Overview and Summary

In the Ex Parte case, Mr De-Abreu sought leave to file an application for judicial review, specifically seeking a writ of certiorari, in relation to a completed criminal trial in the District Court. The case arose from convictions that were recorded on 25 March 2015, and an application for judicial review was filed on 27 February 2019, which was beyond the six-month limitation period as per O 56 r 2(4) of the Rules of the Supreme Court. This timing necessitated Mr De-Abreu to seek leave to proceed with the application. The central legal issues were whether the proposed application constituted an abuse of the court’s process and, if not, whether leave should be granted considering the application was filed outside the limitation period.

The court examined the scope of its supervisory jurisdiction over the District Court's criminal jurisdiction and whether it could grant leave for the application for judicial review. The court referenced Re Birmingham DCJ; Ex parte Agapis, which outlined the limitations on the Supreme Court's power to grant certiorari, particularly in relation to the District Court's criminal jurisdiction. The District Court of Western Australia Act 1969 (WA) provided statutory limits on the issuance of certiorari against District Court judges, with s 80 prohibiting the removal of judgments or orders except as provided by the Act, and s 81 allowing the Supreme Court to issue a writ of certiorari only for pending matters. The court also considered the possibility of supervisory jurisdiction in exceptional circumstances, such as absence or excess of jurisdiction, or fraud in the exercise of jurisdiction.

The court concluded that the application did not constitute an abuse of the court’s process, and granted leave for Mr De-Abreu to proceed with the application for judicial review. The decision was based on the exceptional circumstances presented, specifically the potential for fraud in the exercise of jurisdiction, which could potentially justify the issuance of certiorari even outside the statutory limitation period. The granting of leave was therefore not precluded by the time constraint imposed by the statutory limitation period.

The court's final order was to grant leave for Mr De-Abreu to proceed with the application for judicial review, allowing him to seek a writ of certiorari in relation to the completed criminal trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In separate proceedings, Mr De-Abreu also sought to appeal against his convictions. His appeal was dismissed on 16 September 2020 (Appeal Decision).[1][1] De-Abreu v The State of Western Australia [2020] WASCA 145. The circumstances of Mr De-Abreu's offending, the trial and his convictions are set out in the Appeal Decision. It is unnecessary to repeat them. I simply note here that the convictions followed verdicts of guilty by the jury in relation to all charges relating to one complainant 'F' and one charge relating to the other complainant 'S'. Under O 56 r 2(4) of the Rules of theSupreme Court (and the definition of limitation period in r 1), an application for judicial review must be filed within six months of the decision. The convictions were recorded on 25 March 2015. The Certiorari Application was filed on 27 February 2019, over three years out of time. Mr De-Abreu accordingly requires leave to proceed. The following issues arise:1.Is the proposed application an abuse of the process of the court?2.If it is not an abuse, should leave be granted to proceed with the proposed application, given it was made outside of the limitation period? In Re Birmingham DCJ; Ex parte Agapis,[2] the Court of Appeal discussed the limitations on the Supreme Court's power to grant certiorari in relation to judgments or orders of District Court judges in their criminal jurisdiction. The following emerges from the judgment:1.At common law, a writ of certiorari does not, subject perhaps to some anomalous exceptions, go to a superior court.2.In its criminal jurisdiction, the District Court is a superior court of record.3.The availability of certiorari is capable of being modified by statute.4.It has been so modified in respect of the District Court, by s 80 and s 81 of the District Court of Western Australia Act 1969 (WA) (the Act). [2] Re Birmingham DCJ; Ex parte Agapis [2014] WASCA 197 [11] - [18]. Section 80 of the Act provides:No judgment or order of a District Court judge, nor any proceedings brought before him or pending in the Court, shall be removed by appeal, motion, certiorari or otherwise into any other court, except in the manner and according to the provisions of this Act. Section 81 is the only provision in the Act under which certiorari may issue against a District Court judge. It permits the Supreme Court to remove into it by writ of certiorari 'any cause, matter or proceeding pending in the [District] Court' if it considers it desirable that the cause, matter or proceeding be tried in the Supreme Court. Plainly, by its terms, s 81 only applies to pending matters. The Court of Appeal in Ex parte Agapis noted that observations made in Re Judge Hammond; Ex parte Roddan[3] 'suggested that notwithstanding s 80 and s 81 of the Act, the Supreme Court may have a supervisory jurisdiction by way of certiorari in respect of the District Court's criminal jurisdiction in the case of absence or excess of jurisdiction, and possibly where the exercise of jurisdiction was procured by fraud'.[4] [3] Re Judge Hammond; Ex parte Roddan (1996) 17 WAR 50, 56.[4] Ex parte Agapis [18].

Ratio Decidendi

Legal Principle Established

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