Fels v Davies
[2013] WASCA 42
•20 FEBRUARY 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: FELS -v- DAVIES [2013] WASCA 42
CORAM: McLURE P
HEARD: ON THE PAPERS
DELIVERED : 20 FEBRUARY 2013
FILE NO/S: CACV 156 of 2012
BETWEEN: ANTHONY JAMES FELS
Applicant
AND
MIA JANE DAVIES
Respondent
Catchwords:
Practice and Procedure - Application to review Registrar's decision - Whether Supreme Court (Court of Appeal) Rules 2005 (WA) apply to applications under s 41 of the Constitution Acts Amendment Act 1899 (WA) - Challenge to Registrar's jurisdiction - Turns on own facts
Legislation:
Acts Amendment (Court of Appeal) Act 2004 (WA)
Acts Amendment and Repeal (Disqualification for Parliament) Act 1984 (WA)
Constitution Acts Amendment Act 1899 (WA), s 33, s 34, s 35, s 36, s 37, s 38, s 41
Electoral Act 1907 (WA), s 149A(2)
Interpretation Act 1984 (WA), s 5, s 16, s 66
Supreme Court (Court of Appeal) Rules 2005 (WA), r 10, r 15, r 16, r 46, r 68
Supreme Court Act 1935 (WA), s 58(1)(m)
Result:
Application for review dismissed
Category: B
Representation:
Counsel:
Applicant: In person
Respondent: Mr R Hooker & Ms J McKenzie
Solicitors:
Applicant: In person
Respondent: MDS Legal
Case(s) referred to in judgment(s):
Fels v Davies [2009] WASC 138
McLURE P: By undated letters the applicant seeks a review of programming directions made by Acting Court of Appeal Registrar Bush on 18 January 2013. A single judge of the Court of Appeal has jurisdiction to decide an application for review: Supreme Court (Court of Appeal) Rules 2005 (WA) (CA Rules), r 15 and r 16. I propose to determine the review application on an ex parte basis on the papers.
On 21 December 2012 the applicant filed a motion under s 41 of the Constitution Acts Amendment Act 1899 (WA) (the 1899 Act) seeking a declaration that by the operation of s 33 to s 38 of the 1899 Act and/or by s 149A(2) of the Electoral Act 1907 (WA) the seat of Mia Davies, being a member of the Legislative Council, has become vacant.
The background to this matter is as follows. On 20 May 2009 Martin CJ dismissed a petition lodged by the applicant disputing the election of Ms Davies as a member of the Legislative Council: Fels v Davies [2009] WASC 138. He held that the petition was invalid and thus deprived the Court of Disputed Returns of jurisdiction to entertain the petition [87]. Ground 1 of the petition relied on s 37 and s 38 of the 1899 Act. The Chief Justice noted that this ground of the petition fell exclusively within the Court of Appeal's jurisdiction [92] ‑ [96].
At a directions hearing on 18 January 2013 Registrar Bush made standard programming orders for pt 5 of the CA Rules to apply. At the directions hearing the applicant advised that he wanted the motion to be heard urgently given the imminent State election. The Registrar informed the applicant that he would need to file an application for an urgent appeal order together with a supporting affidavit in accordance with the CA Rules (r 46).
The applicant contends that the CA Rules do not (and should not) apply and that Court of Appeal registrars should have no involvement in this matter. Both claims are without merit.
Under s 41(1) of the 1899 Act, an elector may apply to the 'Court of Appeal, in accordance with Rules of Court', for a relevant declaration. Thus the Court of Appeal has jurisdiction to hear and determine applications under s 41 of the 1899 Act: Supreme Court Act 1935 (WA), s 58(1)(m). Further, the CA Rules, as amended from time to time, apply to such applications: Interpretation Act 1984 (WA), s 5, s 16, s 66.
The applicant asserts that the Court of Appeal and the CA Rules are 'ultra vires the Western Australian Constitution' on the basis that changes made to the 1899 Act were intended to simplify the disqualification process in relation to offices of profit under the Crown. Presumably that is a reference to the Acts Amendment and Repeal (Disqualification for Parliament) Act 1984 (WA) which inserted s 41 of the 1899 Act and provided that electors may apply to the Full Court of the Supreme Court for a relevant declaration. The Acts Amendment (Court of Appeal) Act 2004 (WA) (2004 Act) established the Court of Appeal and made consequential amendments to other Acts, including s 41 of the 1899 Act. The assertion of ultra vires is without legal merit.
The applicant also submits that s 41 of the 1899 Act requires that applications for a declaration under s 41 be heard by a judge or judges of the Court of Appeal. Section 41 of the 1899 Act refers to applications being made to the Court of Appeal. There is no reference to the role of any particular officers within the Court of Appeal. Applications under s 41 of the 1899 Act are within the definition of 'CA matter' in r 3 and the Court of Appeal Registrar has the same jurisdiction in respect of a CA matter as a single judge (with some exceptions that are not relevant here): CA Rules, r 10. Thus, Registrar Bush had jurisdiction to make the challenged programming orders: CA Rules, r 68.
Court of Appeal registrars play a vital role in the efficient and expeditious programming and preparation for the hearing of appeals and other matters by judges of appeal. The Court of Appeal frequently expedites the hearing of matters in its very extensive lists of civil and criminal matters. The established procedure for obtaining an order for expedition must be followed to enable the court to be satisfied that a particular matter deserves priority over other matters in its lists, including matters where the liberty of an individual is at stake. In this matter there would need to be an explanation for the failure to make a timely application under s 41 of the 1899 Act after delivery of the Chief Justice's reasons in May 2009.
The application for review is dismissed.
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