Gargan v Ellis
[2005] TASSC 124
•9 December 2005
[2005] TASSC 124
CITATION: Gargan v Ellis [2005] TASSC 124
PARTIES: GARGAN, Ellen Mary
v
ELLIS, Timothy James
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 78/2005
DELIVERED ON: 9 December 2005
DELIVERED AT: Hobart
HEARING DATE: 28 November, 6 December 2005
JUDGMENT OF: Tennent J
CATCHWORDS:
Procedure - Supreme Court procedure - Tasmania - Practice under Rules of Court - Time – Application to extend time to file a notice of review – Inadequate explanation for delay – Res judicata.
Australian Dig Procedure [283]
REPRESENTATION:
Counsel:
Applicant: Applicant in person
Respondent: F C Neasey
Solicitors:
Applicant: Applicant in person
Respondent: Director of Public Prosecutions
Judgment Number: [2005] TASSC 124
Number of paragraphs: 36
Serial No 124/2005
File No LCA 78/2005
ELLEN MARY GARGAN v TIMOTHY JAMES ELLIS
REASONS FOR JUDGMENT TENNENT J
9 December 2005
History of proceedings
On 29 July 2004 Deputy Chief Magistrate Hill found a charge proved against the applicant. He proceeded to record a conviction and fine her $1,500. He ordered she pay costs of $39.90 and allowed her a period of 9 months to pay.
On 13 August 2004 the applicant moved this Court to review the decision of the learned deputy chief magistrate. The terms of the notice were as follows:
"… TO REVIEW the decision of Deputy Chief Magistrate M R Hill made on the 29th day of Jul 2004 whereby IT WAS ORDERED THAT:
The defendant pay a $1,500.00 fine for (otherwise than purporting to be a solicitor or purporting an entitlement to practise as a solicitor) practising the business of a conveyancer;
AND TO QUASH the said decision ON THE GROUNDS THAT:
The decision is predicated upon errors in law and upon errors in fact, pertinently and significantly, no conveyances were presented in evidence for which the defendant may be said to be the conveyancer entirely as the preparer, or in part as assistant to the preparer, nor were efficacious arguments presented by prosecution founded upon relevant precedent law against the fact that where there is no conveyance there is no conveyancer."
Attached to that notice was a number of pages of submissions. They contained no reference to the fine imposed.
On 17 December 2004, the notice to review heard by Blow J was dismissed. His Honour opened the reasons he gave for that dismissal with the words, "This is a motion for the review of a conviction imposed …".
It is clear from those words, and his reasons generally, that Blow J did not consider that he was dealing with an appeal against sentence, only conviction.
The applicant subsequently appealed the decision to dismiss her notice to review. That appeal was heard by the Full Court and was dismissed on 11 November 2005.
On 25 November 2005 the applicant filed a notice to review the sentence imposed by Deputy Chief Magistrate Hill on 29 July 2004. She filed two further applications on the same date. One was an application to extend the time within which to file the notice to review filed on 25 November, it having been filed some 16 months out of time. The second was an application to, in effect, stay enforcement proceedings being taken against her in the Magistrates Court in respect of non-payment of the fine imposed in that court. No affidavit was filed in support of the application to extend time or to stay the Magistrates Court proceedings.
All matters came before the Court on 28 November at 10am. The applications were opposed and the hearing commenced. After hearing submissions, the applicant sought to be able to prepare and file an affidavit. The matter was stood down until later on the same day to enable her to do so. That affidavit was filed and the matter adjourned for a week to enable the applicant to consider the submissions of counsel for the respondent and for counsel to consider the applicant's affidavit. When the hearing resumed the applicant failed to appear.
Submissions by applicant
The applicant said she planned to seek leave to appeal the decision of the Full Court to the High Court. She had not yet done so, could not recall when the Full Court decision had been handed down and did not know what, if any, time limits might apply to an application for special leave.
The applicant said she believed that her appeal against conviction dealt with by Blow J carried with it an appeal against sentence. She asserted that Deputy Chief Magistrate Hill had told her that and she was entitled to rely on his advice. She also asserted that the Court did not give her advice about how she should approach the review of, or appeals against, decisions of this Court at various levels and hence she did not understand what was required.
The remainder of her oral submissions were largely unintelligible, as were the notice to review and the affidavit filed. The affidavit in particular did not address the issues the Court was required to consider on an application to extend time.
Submissions of the respondent
When the hearing commenced, counsel for the State did not take issue with the fact that the applicant had not filed any affidavits in support of her interlocutory applications. He instead initially dealt with the matter on the basis that the somewhat rambling contents of the notice to review were an unsworn affidavit and made submissions based on that and the applicant's oral submissions. After the adjournment to allow the applicant to file an affidavit, he made some further brief submissions.
He submitted that, as a preliminary matter, the Court had no power to entertain the notice to review, and hence the interlocutory applications, because of the application of the doctrine of res judicata. He submitted that the applicant had already appealed her sentence and referred to her earlier notice to review. He submitted that the applicant had conceded that she thought when she appealed in 2004 she was dealing with conviction and sentence. She raised the issue of the fine by her notice, although she did not develop it in her grounds of appeal.
He referred to the terms of the notice to review filed in August 2004, the opening words of Blow J's judgment and the transcript of the exchange between the applicant and Deputy Chief Magistrate Hill on 19 July 2004 in relation to the issue of what the applicant said was advice given to her by the learned deputy chief magistrate. I have already set out the first two. As to the transcript, I propose to set out the entirety of that relating to the appearance during which the learned deputy chief magistrate handed down his decision and then sentenced the applicant. The transcript contains the following:
"DECISION – HIS WORSHIP: I publish my reasons in relation to these charges. I dismiss counts 1 and 3. Count 2 is proved.
MS GARGAN: Please excuse my fashionable lateness your Worship.
HIS WORSHIP: That's all right.
MS GARGAN: My name didn't appear on the list.
HIS WORSHIP: Yes, there was some problem, yes. That's all right, you're here now and these are the reasons I have published in relation to the charges against you. I have dismissed two charges and found one proved. Now -
MS GARGAN; If you could remind me what charge that is, please?
HIS WORSHIP: I have found proved against you, the complaint that you practised as a conveyancer Now Mr Bender, as to sentence?
STATING FACTS – MR BENDER: Your Worship, the complicator in this is your Worship would be aware, is a fine and/or a term of imprisonment. And the defendant in this matter has continued to indicate her pecuniary position has been very very low, which of course does not leave your Worship with a great deal of alternative.
HIS WORSHIP: One doesn't necessarily send a person to prison because they've got no money to pay a fine within a reasonable time.
MR BENDER; But in saying that, sir, an actual custodial sentence would not be sought.
HIS WORSHIP: No custodial sentence sought. Thank you. Ms Gargan, what do you want to say about the penalty that ought to be imposed here. The legislation provides for a penalty of a fine of up to twenty thousand dollars or two years' imprisonment or both. The prosecution are not seeking that you be sent to prison, so what do you say about what penalty should be passed?
IN MITIGATION - MS GARGAN: Oh well first that it's an outrage that this should even be considered. Nextly the only conveyancing I've ever done as a conveyancer is my own and thirdly, I am unaware of the court procedures. If it is suitable I wish to put the Court on notice that I will lodge an appeal.
HIS WORSHIP: That's fine.
MS GARGAN: If necessary, and if that's the proper procedure, with the higher court.
HIS WORSHIP: What income do you have?
MS GARGAN; None.
HIS WORSHIP: all right. Well, I am going to impose sentence now. I hear what you say –
MS GARGAN; Excuse me your Worship, can I just make an addition – a post script – that I shall refuse to pay any fine that this court levies upon me, which I consider unjust.
HIS WORSHIP: thank you.
MS GARGAN; And because I consider it unjust, I consider it my civic duty to oppose it in a politically active manner, which would, I believe, necessitate the Court either holding me in contempt and imprisoning me or in the alternative making a custodial sentence, as its sentence, rather than as a fine.
SENTENCE - HIS WORSHIP: thank you. All right. Well, in relation to this matter, the legislation sets out, as I say, a fine of up to twenty thousand dollars or two years' imprisonment or both. The requirement for the qualification for people acting in this particular type of business activity is a protective one. Unless and until the Parliament changes the law, it must be complied with.
The defendant's conduct was quite deliberate in my view. It was in breach of the law and as the defendant quite plainly does not simply accept the law as it is, a penalty must be imposed which reflects not only the policy of the legislation but that conduct.
Her financial position is relevant. She says that she is in difficult financial circumstances. I do not detect any remorse as far as the defendant is concerned – quite the contrary.
MS GARGAN: Excuse me –
HIS WORSHIP: The law may eventually change –
MS GARGAN: Excuse me your Worship, I don't know what your ruling is –
HIS WORSHIP: Just a moment. Just a moment.
MS GARGAN: How can I feel remorse for what I do not know.
HIS WORSHIP: Just a moment. The law may eventually change, but at the moment the defendant's actions are contrary to the law. There is no evidence she took advice prior to starting out this business activity and in my assessment of it, she set out quite deliberately to defeat what she perceived to be a monopoly of lawyers in the conveyancing area.
Taking into account the period alleged in the complaint, and although a habitual course of conduct is not necessary, these are not accidental breaches and they occurred over three transactions over a number of weeks.
The defendant will be fined on the complaint fifteen hundred dollars. She is awarded nine months to pay. The costs on the complaint are thirty nine, ninety. That is the order of the Court. If you want to take some advice as to how you appeal, by all means do so.
MS GARGAN; May it be noted. I can't pay – won't pay.
HIS WORSHIP: That's all right. That's it."
It is clear from that exchange that the learned deputy chief magistrate gave no advice about the nature or form of any appeal. The applicant could not have been under any misapprehension from anything he said as to her rights of appeal or how she should go about an appeal.
Counsel also submitted that, if I were against him as to that issue, to extend time the applicant had to satisfy the Court that there was a reasonable explanation for her delay and that there was some merit in the appeal. He submitted that the delay in filing the notice was extraordinary and there was no explanation for that delay. There was also nothing in the applicant's material which addressed the merit of the appeal itself.
What the notice to review contained was an assertion that the imposition of the fine and the requirement that she pay it made life difficult for her. She had other bills and limited income. The notice was more particularly an attempt to re-run her original appeal. It represented an attack on Blow J's decision and that of the Full Court. This notice to review could not be a vehicle for that sort of attack.
Counsel for the State referred again to the exchange which occurred between the learned deputy chief magistrate and the applicant in July 2004. She told him then she had no income, but raised none of the matters about her financial circumstances that she now sought to agitate. She also made it quite clear that as a matter of principle she had no intention of paying the fine.
Res judicata
In essence, the submission of counsel for the State was that the issue of the applicant's challenge to her sentence, that is the fine, had already been adjudicated upon and she could not seek to have it reviewed again by the same process. Her only avenue by implication was to seek leave to appeal to the High Court against the judgment already delivered by the Full Court.
I was not presented with any authority other than the bald statement of the principle. I raise that simply because this case is not a straightforward application of the principle. The words of the notice to review filed in August 2004 were ambiguous. While the order set out as that which was sought to be reviewed clearly referred to the fine, it was apparent from the grounds that what the applicant was actually seeking to have reviewed was the conviction. Further, it is clear from the reasons of Blow J that he treated the notice as one by which the applicant sought to review her conviction alone and not conviction and sentence.
For the principle to apply to this case, the issue of the challenge to the sentence as a distinct issue needs to have been adjudicated upon. In my view it has not been. It may be that the applicant thought that by her notice she was seeking to overturn both conviction and sentence. However, the reality is that no determination was made in respect of the issue of sentence.
Application to extend time
For the applicant to succeed on this application, she needed to satisfy the Court that there was a reasonable explanation for her delay and that there was some merit in her notice to review.
The notice to review was filed on 25 November 2005, that is just short of 17 months after the fine sought to be reviewed was imposed. The delay on any version of events is extraordinary. Was there an explanation for that delay?
The bases of the applicant's explanation for delay appear to be:
·She thought her notice dealt with by Blow J was a notice to review sentence.
·She was given advice by Deputy Chief Magistrate Hill about her rights of appeal and that is what she was given to understand by him. He did not tell her she had to appeal against the sentence within a certain time.
·Blow J would not hear her on the issue.
·The members of the Full Court did not give her advice about the matter and given she was a lay person they ought to have done.
·The Court, I infer the staff, did not give her advice as to what she needed to do.
Dealing with those points, the exchange between Deputy Chief Magistrate Hill and the applicant discloses the applicant told the learned magistrate she was going to appeal and he acknowledged that. He gave her no advice about the appeal process, nor was he in any way obligated to do so. Neither the members of the Full Court nor the staff of the Court were obliged to give advice to the applicant about how she should deal with any appeals she wished to conduct. The applicant herself said in her notice to review that "The Appellant is an educated person not unread in law …" and as such had the obvious ability to conduct any required research herself.
The applicant sought to review the decision of the learned deputy chief magistrate in this Court. That notice to review was dismissed in December 2004 by Blow J. There is no reference at all to the fine or its appropriateness in the reasons for decision published by Blow J. As the notice to review the conviction was dismissed, the conviction remained in place. There was no other order which could have led the applicant to any belief that the fine did not also remain.
The applicant then appealed the decision of Blow J to the Full Court. Her notice of appeal makes no reference at all to any fine, but clearly attacks the conviction and the reasons of Blow J for failing to overturn it. The appropriateness or otherwise of the fine was not agitated before the Full Court.
The only reason the applicant appears to have now sought to attack the fine itself is that there have been proceedings taken against her to enforce payment of it.
I am not satisfied the applicant has, in all the circumstances, provided an adequate explanation for her delay.
As to whether there is any merit in the notice now filed, the applicant did not really address this issue, save to provide some information in her notice to suggest that her financial circumstances did not permit her to pay the fine. Her argument was contained in the first few paragraphs of her notice where she said:
"The Appellant's argument stands against the legality of that order on the grounds that. such sum is inconsonant with the Appellant's contentment, in the circumstances that the Appellant has - per demographic classification - means of subsistence well below the relevant indices of 'the poverty line' and of 'average weekly household expenditure', and that therefore such sum would corrode, erode, and undermine the means upon which the Appellant's subsistence depends. The Appellant cannot pay that sum and be content just as a merchant cannot trade without merchandise.
To so amerce vassals as to cause their beggary, ruin and starvation is illegal under Article 20 of the Magna Carta which civil treaty, by virtue of British legislation establishing the Australian Commonwealth and by corresponding act of the Australian Parliament, is the law of this land.
The intention of the law-maker in framing Article 20 of the said civil treaty was under compulsion to prevent liege lords from imposing exorbitant sums to be amerced upon their vassals from spite, malice, ambition and other motivational causes for the purpose of compelling such vassals to starve, be beggared and ruined."
In essence, as I understand the argument there set out, it was that any fine should not impoverish her and this one did. There was some very limited information in the last sentences of the notice about income and expenses. However, this Court is to review the learned magistrate's decision based on what was before him.
The transcript of the sentencing process shows that the applicant was not being co-operative. She was told what the penalty range was and asked if there was anything to say. Her immediate response was to call the decision an outrage and say she was going to appeal. In response to an enquiry about her income, she said "None", but provided no other information at all about her financial circumstances. She went on to tell the learned magistrate that she would refuse to pay the fine in any event and that she understood that would necessitate the court holding her in contempt and imprisoning her or gaoling her instead of fining her.
It might be argued that the learned deputy chief magistrate should have pursued the applicant further as to her means. However, it was clear the applicant was not being co-operative, the learned deputy chief magistrate considered the issue of the applicant's means in determining penalty, the fine was at the low end of the scale by reference to the maximum penalty which the court had considered and the applicant, before she was fined, made it clear she would not, not could not, pay in any event.
Conclusion
The applicant has given no adequate explanation for the delay in filing the present notice to review and it is doubtful there is merit in her appeal. The applicant's notice to review filed on 25 November 2005 is, on its face, an attempt to re-agitate the applicant's substantive argument about her not being allowed to practice as a conveyancer and the monopoly of the legal profession. I am not satisfied in all the circumstances the Court should exercise its discretion in favour of the applicant.
Orders
The application to extend the time within which the applicant may file a notice to review the decision of Deputy Chief Magistrate Hill on 29 July 2004 whereby he fined the applicant $1,500 is dismissed.
It follows that the applicant's notice to review filed 25 November 2005 cannot proceed further.
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