Harkness v Roberts
[2024] VSCA 45
•26 March 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2023 0023 |
| ZENAAN HARKNESS | Applicant |
| v | |
| PAUL ROBERTS | Respondent |
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| JUDGE: | BEACH JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 26 March 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 45 |
| JUDGMENT APPEALED FROM: | [2023] VSC 10 (Richards J) |
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COURTS AND JUDGES – Jurisdiction – Whether Supreme Court has power to confer jurisdiction on County Court – Application for leave to appeal – Where primary judge concluded that Supreme Court has no power to confer jurisdiction on County Court – Primary judge’s decision plainly correct – Proposed appeal having no prospects of success – Application for leave to appeal totally without merit – Application for leave to appeal refused.
Supreme Court Act 1986, ss 14C and 14D.
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| Counsel | |||
| Applicant: | Unrepresented | ||
| Respondent: | Mr D Glynn | ||
Solicitors | |||
| Applicant: | |||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
BEACH JA:
In June 2016, Zenaan Harkness (‘the applicant’) appeared before the Magistrates’ Court for a contested hearing of seven charges brought pursuant to the Road Safety Act 1986. There were four charges of unlicensed driving, two charges of driving an unregistered vehicle, and one charge of failing to comply with a notice requiring him to surrender his vehicle.
At the commencement of the hearing, the applicant, who appeared for himself, attempted to contest the court’s jurisdiction. In doing so, he asserted that the court had ‘not proven jurisdiction over [his] right to travel pursuant to the Blessing of Almighty God’. He also contended that the Road Safety Act did not apply to him.[1]
[1]This contention was obviously delusional: quite why the Road Safety Act might not apply to the applicant was never rationally explained by him. It may have had something to do with another assertion he made to the magistrate, that he stood before her Honour ‘as a soul in a flesh and blood body’. But how this differentiated him in any relevant way from any other person charged with offences under the Road Safety Act has never been the subject of any legally coherent explanation by the applicant in these proceedings.
During the course of the hearing, the magistrate evicted the applicant from the court due to his persistent misbehaviour,[2] The hearing continued in the applicant’s absence. At its conclusion, the magistrate convicted the applicant of six of the seven charges,[3] and fined him a total of $3,050.
[2]Some of the details of the applicant’s misbehaviour can be found in this Court’s decision in Roberts v Harkness (2018) 57 VR 334, 339–346 [19]–[20] (Maxwell P, Beach and Niall JJA) (‘Court of Appeal Reasons’).
[3]The seventh, a charge of unlicensed driving, was dismissed because the prosecution led no evidence.
In July 2016, pursuant to s 272(1) of the Criminal Procedure Act 2009, the applicant filed a notice of appeal to the Supreme Court on a question of law.
The applicant’s appeal to the Supreme Court was heard by Bell J over three days in March and August of 2017. In October 2017, his Honour delivered judgment upholding the appeal.[4] The judge concluded that, while the magistrate’s decision to remove the applicant from the court for misbehaviour was unimpeachable, her Honour ‘breached the rules of natural justice and [the applicant’s] human right to a fair hearing under the Charter, which were errors of law’.[5]
[4]Harkness v Roberts [2017] VSC 646.
[5]Ibid [32], [65]. See also, Court of Appeal Reasons, [34].
On 29 August 2018, following a hearing in July 2018, this Court (Maxwell P, Beach and Niall JJA) allowed an appeal by the respondent against the orders of Bell J, and made orders dismissing the applicant’s appeal from the orders of the magistrate.[6] On the same day, the applicant purported to file a notice of appeal to the County Court pursuant to s 254(1) of the Criminal Procedure Act. The purported appeal was, by this stage, more than two years out of time.
[6]Court of Appeal Reasons, [8]. An application for special leave to appeal to the High Court was subsequently refused: Harkness v Roberts [2018] HCASL 372 (Nettle and Gordon JJ).
Following the filing of the notice of appeal in the County Court, the respondent applied to strike it out. The basis for that application was that s 273 of the Criminal Procedure Act, which provides that a person who appeals under s 272(1) to the Supreme Court on a question of law, ‘abandons finally and conclusively’ any right to appeal to the County Court in relation to the same proceeding.
On 25 February 2019, following a hearing in December 2018, a County Court judge (Judge Mullaly), applying s 273 of the Criminal Procedure Act, struck out the applicant’s appeal for want of jurisdiction.
In September 2019, the applicant commenced another proceeding against the respondent — this time, by way of originating motion. In his originating motion, he sought:
An order for declaratory relief in the nature of a conferral of jurisdiction upon the County Court of Victoria to hear the de novo County Court of Victoria appeal ..., notwithstanding s 273 of the Criminal Procedure Act 2009 and the ‘decision on appeal’ made on 25 February 2019 in pursuance of s 273 by County Court of Victoria Judge Mullaly in this matter, which decision was ‘Appeal struck out – No jurisdiction’.[7]
[7]Italics in original.
The applicant’s originating motion was heard by Richards J in December 2022. On 7 February 2023, pursuant to reasons delivered 20 January 2023,[8] her Honour dismissed the proceeding. Her Honour held that, while the Supreme Court’s power to make declarations is undoubtedly broad, ‘it does not extend to amending legislation to change the plain meaning of a statutory provision or conferring new jurisdiction on an inferior court or tribunal’.[9]
[8]Harkness v Roberts [2023] VSC 10 (‘Reasons’).
[9]Ibid [24].
On 27 February 2023, the applicant filed an application for leave to appeal to this Court. In the application for leave to appeal, he seeks an order that the orders of Richards J be set aside, and an order for a declaration in the same terms as that set out in his originating motion.
Pursuant to r 64.15(1) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’), the Registrar of the Court of Appeal has referred the application for leave to appeal to a single Judge of Appeal for it to be considered and dealt with under r 64.15. Upon the Registrar’s referral, I consider that it was neither necessary nor desirable to have an oral hearing of the application.[10]
[10]See rr 64.15(2) and (5) of the Rules, and s 14D(1) of the Supreme Court Act 1986.
The application for leave to appeal
In his application for leave to appeal, the applicant appears to identify seven proposed grounds of appeal. Each ground of appeal, however, consists of a number of paragraphs. There are 30 paragraphs in total. They are difficult to follow and, in parts, incoherent. While there is an assertion that the trial judge ‘erred in finding that I [the applicant] chose not to take the opportunities to be heard and to be reheard’, there is very little in the 30 paragraphs which could be construed as a specific or concise ground of appeal as required by the Rules. There are, however, a number of unconnected statements. By way of example:
The courts have cocooned themselves effectively against review of the conduct of proceedings by a rogue magistrate, or by any other hypothetical conduct by a magistrate which is perceived by citizens to be unfair.
…
The law effectively creates a ‘winner take all’ scenario, which scenario is obscene to the common law.
…
My opportunity and right to be reheard is superior to the State’s right to minimise judicial review of a denial of procedural fairness in the conduct of proceedings.
As best I can determine, the applicant appears to assert that his proposed appeal raises the following questions of law:
(a)whether it was ‘lawful for the State of Victoria to deny to the applicant his opportunity and right to be heard by way of a de novo hearing, AND at the same time to deny the applicant his opportunity and right to be heard by way of an appeal in any court of Victoria’; and
(b)whether it was ‘lawful for the State of Victoria to deny to the applicant his opportunity and right to be reheard’.
Additionally, the application for leave to appeal contained the following questions, also asserted by the applicant to be questions of law on which the appeal is brought:
Does the constitutional guarantee to an Accused for his opportunity to be heard pursuant to Clause 9 section 51(24) of the Commonwealth of Australia Constitution Act, stand as overarching in this matter?
Does an Accused have the right to be heard pursuant to Clause 9, section 51(24) of the Commonwealth of Australia Constitution Act, and/or pursuant to common law, and/or pursuant to the legal jurisprudence of the State of Victoria?
In support of his proposed appeal, the applicant also filed a document headed ‘Notice of Constitutional matter within the meaning of section 78B of the Judiciary Act 1903’. This Notice was also described by the applicant as a ‘Charter Notice’. For completeness, I note that the Court received responses from the Victorian Equal Opportunity and Human Rights Commissioner and the Attorneys-General of the Commonwealth, the States, the Northern Territory and the ACT indicating that none of them proposed to intervene in the proceeding at this stage.
On 19 October 2023, the applicant filed a written case in support of his proposed appeal. In his written case, he summarised his argument as follows:
9.Richards J dismissed my application for a declaration conferring jurisdiction on the County Court to hear my appeal from the Magistrates’ Court of Victoria, finding that ‘The law provided Mr Harkness with opportunities to be heard and reheard in relation to the charges … [and] he chose not to take those opportunities,’ and further found that ‘fairness does not require that he should have any further hearing or right of appeal.’
10.Richards J erred in finding that I ‘chose not to take those [hearing and rehearing] opportunities.’ Indeed the record shows my extensive efforts both to seek and to preserve my right to hearing and rehearing in the courts, including:
a)My application of 27 June 2016 to the Seymour Magistrates Court seeking a rehearing de novo.
b)My orders sought and granted by Bell J on 26 October 2017 to remit the matter to the Magistrates Court for rehearing.
c)My Application for Ruling dated 28 June 2016 before Bell J to preserve my right of appeal/rehearing to the County Court, which was not heard by Bell due to my prevailing in the proceeding before Bell.
d)When I exhibited and later raised my same Application for Ruling dated 28 June 2016 with the Court of Appeal in the proceeding of 30 July 2018 but not heard by that court, and later on 29 August 2018 that court handed down its ruling against me.
e)My Notice of Appeal to the County Court of 29 August 2018 (later that day after the Court of Appeal’s ruling in my matter), which was heard by Mullaly on December 2018.
f)My subsequent application for a declaration conferring jurisdiction on the County Court to hear my appeal, the matter below heard by Richards J on 15 December 2022 with orders issued 7 February 2023.
11.As a consequence of the above, Richards J consequently and relatedly found that there is no unfairness to me in denying to me any (‘further’) opportunity to hearing or appeal, which consequential finding I submit is also in error.
Consideration
At the core of her reasons for judgment, the judge said that the Supreme Court’s power to make declarations does not extend to amending legislation to change the plain meaning of a statutory provision or to confer jurisdiction on some other court or tribunal which that court or tribunal otherwise does not possess.[11] In so concluding, the judge was plainly correct. The contrary is not arguable, let alone reasonably arguable.
[11]Reasons, [24].
Accordingly, the judge had no option but to refuse the applicant the declaration he sought and to dismiss his proceeding. Moreover, there is nothing unconstitutional, and nothing involving any breach of a provision of the Charter, in a legislative scheme that effectively requires an aggrieved party to elect between different rights of appeal. To the extent that the applicant’s arguments in this Court sought to undermine or negate the operation of s 273 of the Criminal Procedure Act, they were misconceived and devoid of substance.
The fact that the appellant may have tried to preserve his rights under both ss 254 and 272(1) of the Criminal Procedure Act does not assist him in his endeavours to persuade this Court that Richards J erred in dismissing his originating motion. Even if it could be said that the applicant did not choose not to take the opportunity of instituting an appeal under s 254(1) of the Criminal Procedure Act (contrary to what her Honour said at Reasons [41]), no different result could have been achieved by the applicant in the proceeding. The fact is that, by pursuing his appeal under s 272(1), the applicant abandoned finally and conclusively any right he had to appeal under s 254(1). Moreover, even if one were to conclude that s 273 had worked any unfairness to the applicant (which, like the judge, I do not), there would still be no basis in law for granting the applicant the orders he sought in the proceeding below.
Similarly, it is not to the point that, on one view, as an alternative to appealing under s 272(1) on a question of law, the applicant might have commenced judicial review proceedings pursuant to O 56 of the Rules. That is not the step which the applicant took. That fact cannot be undone now. The applicant’s contentions in relation to that issue were, for the reasons given by the judge,[12] without substance and rightly rejected by her Honour.
[12]Ibid [27]–[32].
It follows from the above that the applicant’s proposed appeal has no prospects of success. It having no prospects of success, it must be refused.[13] Additionally, and for the same reasons, the application for leave to appeal is ‘totally without merit’ within the meaning of s 14D(3) of the Supreme Court Act 1986.[14]
[13]See s 14C of the Supreme Court Act 1986.
[14]By reason of s 14D(3), the determination of the application for leave to appeal is totally without merit and precludes the applicant from any right to apply to have the dismissal of his application for leave to appeal set aside or varied.
Conclusion
The application for leave to appeal will be refused.
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