Haughton v Chang - [2023] SASCA 112

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
HAUGHTON v CHANG
[2023] SASCA 112
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey and the Honourable Justice David)
11 October 2023
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - STAY OF PROCEEDINGS
Appeal against a permanent stay of proceedings order by a Magistrate.

Ordinarily an appeal from a magistrate should not be brought before the Court of Appeal. Appeals from magistrates should ordinarily be brought before a single judge in the General Division.
The appellant contended that the magistrate erred in granting a stay of proceedings on the ground that the appellant's private prosecution of the respondent constituted an abuse of process.
By his written submissions, the respondent sought a declaration that the appellant is a “vexatious litigant” for the purposes of s 39(1) of the Supreme Court Act 1935 (SA).
The Court held, dismissing the appeal:
1.It was appropriate that the Court of Appeal exercise its discretion to hear the matter rather than remit it to the General Division given the consequential prospect of a further appeal being taken to this Court.
2.The appellant failed to demonstrate any error of fact or law on the part of the Magistrate.
3.A person bringing an application for vexatious litigant declaration is to do so by filing with the Court a properly prepared application under s 39 of the Supreme Court Act 1935 (SA). Given the seriousness of a vexatious litigant declaration it would be unusual for the Court to proceed to make such a declaration on an informal application.

Constitution Act 1934 (SA) s 79; Criminal Law Consolidation Act 1935 (SA) s 242; Joint Criminal Rules 2022 (SA) rr 184.2, 192.2; Judiciary Act 1903 (Cth) ss 23, 32; Magistrates Court Act 1991 (SA) ss 9, 42; Supreme Court Act 1935 (SA) ss 39, 50, referred to.
Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256; Chang v Haughton (No 2) [2021] FCA 998; Chang v Haughton [2021] FCA 765; Commonwealth Bank of Australia v Haughton [2020] SASC 135; Hamilton v Oades (1989) 166 CLR 486; Georganis v Barkla [2021] SASC 47; Haughton v Australia and New Zealand Banking Group Ltd [2019] SASC 198; Haughton v Australian and New Zealand Banking Group Ltd [2020] SASCFC 14; Haughton v Chang [2020] SADC 94; Haughton v Chang [2021] SASCA 90; Jago v The District Court (1989) 168 CLR 23; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; Ridgeway v The Queen (1995) 184 CLR 19; Southdale Stud Pty Ltd v RJR Trading Pty Ltd [2020] SASC 106; Walton v Gardiner (1993) 177 CLR 378, considered.

HAUGHTON v CHANG
[2023] SASCA 112
Court of Appeal – Criminal: Livesey P and David JA
THE COURT (ex tempore):
Introduction

This is an appeal against a permanent stay ordered by a magistrate concerning the appellant’s private prosecution by which, on Information, he charged the respondent with 15 counts of perjury.
The appellant contends that the magistrate was wrong to grant the stay on the ground that his prosecution comprised an abuse of process. The respondent has countered that this Court should declare that the appellant is a vexatious litigant pursuant to s 39 of the Supreme Court Act 1935 (SA).
For the reasons that follow, the appellant has not demonstrated that the magistrate made any material error of fact or law, or flawed exercise of discretion, with the result that the appeal must be dismissed. Absent a properly prepared application, no “vexatious litigant declaration” should be made.
Two preliminary matters
The appellant has been involved in considerable litigation in recent times. During the course of that litigation he has, from time to time, made various objections to the capacity of the judges of this Court to hear and determine the litigation in which he is involved.[1] At the callover before this matter was listed for hearing, the appellant agreed that, though he objected generally to judges sitting in determination of his matters, he had no objection to any particular judge sitting in determination of this matter.
[1] See, by way of example only, Haughton v Australia and New Zealand Banking Group Ltd [2019] SASC 198 [25] – [33]; Haughton v Australian and New Zealand Banking Group Ltd [2020] SASCFC 14; Commonwealth Bank of Australia v Haughton [2020] SASC 135.
Ordinarily an appeal from a magistrate should not be brought before the Court of Appeal. Appeals from magistrates should ordinarily be brought before a single judge in the General Division.[2] Nonetheless, as the appellant wished to commence his appeal in this Court, and as the outcome appears clear, it is appropriate that this Court exercise its discretion to hear the matter rather than remit it to the General Division with the prospect of a further appeal being taken to this Court.[3]
[2] See Supreme Court Act 1935 (SA), s 50; Magistrates Court Act 1991 (SA), s 42(2)b and the Joint Criminal Rules 2022 (SA), r 184.2.
[3] Joint Criminal Rules 2022 (SA), r 192.2(1)(b).
Long running litigation between the parties
These parties have been engaged in litigation for some years.[4]
[4] Haughton v Chang [2020] SADC 94; Haughton v Chang [2021] SASCA 90; Chang v Haughton [2021] FCA 765; and Chang v Haughton (No 2) [2021] FCA 998.
The dispute arises out of a lease agreement they entered during 2013 by which the appellant leased land owned by the respondent and Ms Kiew at Liston Road in Lonsdale, south of Adelaide. After entry into the lease the appellant took possession of the land and commenced depositing landfill. He was required to make various payments on presentation of an invoice, including for rent. By 2015 the parties were in dispute over what the respondent and Ms Kiew claimed were late payments by the appellant. The respondent and Ms Kiew instructed their solicitors to terminate the lease agreement and serve a notice of re‑entry, after which the locks were changed and possession was resumed.
The appellant commenced proceedings in the Magistrates Court in mid‑2015 and these were transferred to the District Court in 2016. An initial trial listed in 2018 did not proceed and the trial was eventually listed to commence in late 2019. By that stage the appellant’s solicitors had been given leave to withdraw and the appellant sought an adjournment. Although that was opposed, the trial was relisted for hearing during mid‑2020 with 10 days set aside.
By late 2019 the appellant was raising a number of constitutional challenges to the jurisdiction of the District Court to hear the case. After the appellant failed to attend two directions hearings, the trial commenced on 1 June 2020. According to the District Court judge who heard the trial, the appellant maintained his objection but did not intend to prosecute his claim:[5]
Mr Haughton attended on the first day of trial with a large group of people that he described as amicus curae. Owing to the limited size of the courtroom, and COVID‑19 social distancing requirements, it was necessary for a number of these to sit outside. This caused some contention but ultimately the matter commenced. It did not appear that Mr Haughton was hampered in his submissions by limiting the number of supporters in Court. At the outset, Mr Haughton sought to challenge the jurisdiction of the Court to hear this action. He did not explain why he had not raised this by way of application or amendment of his pleadings. When pressed he said that he did not intend to address or call any evidence concerning the substantive issues raised in his pleadings against the Changs. It was pointed out to Mr Haughton that he had issued the proceedings against Mr Chang and Ms Kiew; he had invoked the jurisdiction of the Court. Mr Haughton disputed this by saying “the jurisdiction is fraudulent and I found out after it was invoked by my lawyers”. There was considerably more in this vein. I attempted to have Mr Haughton articulate what his application was with limited success…
(Citation omitted)
[5] Haughton v Chang [2020] SADC 94, [11]-[12] (McIntyre DCJ, as her Honour then was).
Eventually the appellant declined to prosecute his action. He also declined to discontinue it. The judge gave the appellant some time to consider whether he would press his claim. He was warned that he was at risk of the claim being dismissed. In response, the appellant purported to serve criminal proceedings on the court, placing a large box of documents on the bar table. The appellant told the judge that he would see her in the Full Court of the Supreme Court of Victoria. Service was declined and the box was made available to the appellant for collection.
In the course of her reasons, the judge referred to other litigation in which the appellant had made similar arguments about jurisdiction.[6] These arguments had previously been described as being “without merit”, “manifestly misconceived” and “seriously legally flawed”. The judge agreed with these conclusions.[7] In the face of the appellant’s failure to raise his jurisdictional issue in a proper form and his stated intention not to prosecute his claim, the judge dismissed the appellant’s claim.
[6] In addition to those earlier mentioned, Southdale Stud Pty Ltd v RJR Trading Pty Ltd [2020] SASC 106.
[7] Haughton v Chang [2020] SADC 94, [22], citing Haughton v Australia and New Zealand Banking Group Ltd [2019] SASC 198, [25] – [33]; Southdale Stud Pty Ltd v RJR Trading Pty Ltd [2020] SASC 106, [25]; Commonwealth Bank v Haughton [2020] SASC 135, [88].
A counterclaim was, however, pressed. Mr Chang and Ms Kiew were not legally represented and had an imperfect grasp of what was required to prove their counterclaim. The trial was adjourned for some days to give them an opportunity to seek legal advice. Despite his objections to the jurisdiction of the court, the appellant later attended and cross‑examined the respondent and gave evidence in support of his own defence. After carefully considering the terms of the agreement and the evidence offered in support of the cross‑claim, the trial judge gave judgment on the counterclaim in the sum of $364,988 inclusive of interest but in addition to costs.
The appeal against that judgment was dismissed.[8] Doyle JA (with whom Bleby JA agreed) rejected the appellant’s allegations of perjury by the respondent:[9]
Mr Haughton’s complaints appear to be two-fold. First, he contends that the trial Judge was led into error as a result of Mr Chang having committed perjury. In this regard, he seeks to rely on fresh evidence regarding the terrain of the Property; he contends that this evidence proves that Mr Chang gave dishonest evidence when he said that there was a functional fence on the Property at the time Mr Haughton took possession.
Secondly, Mr Haughton contends that the lease had been frustrated before the respondents had terminated the Agreement, due to issues with the stormwater connection on the Property. He again seeks to rely on fresh evidence, including photographs of the Property, documents produced by the Onkaparinga Council, and correspondence from the same.
Having reviewed the material filed by Mr Haughton, I do not think there is any merit in either of these challenges to the trial Judge’s decision. There is no basis in the material before the Court from which it could sensibly be inferred that Mr Chang gave dishonest evidence, nor is there any evidence to support Mr Haughton’s claim that the Agreement had been frustrated.
[8] Haughton v Chang [2021] SASCA 90.
[9] Haughton v Chang [2021] SASCA 90, [44]-[46] (Doyle JA, with whom Bleby JA agreed).
The Court refused to receive further evidence on appeal and refused the appellant an extension of time in which to appeal.
The perjury proceedings
The appellant’s Information alleges that the respondent gave untruthful evidence during the District Court trial on 5 June 2020. The magistrate observed that the statement of allegations did “not make a lot of sense” because it largely comprised an extract of transcript followed by commentary from the appellant.
The magistrate determined to grant a permanent stay of the appellant’s criminal proceedings so as to prevent what she described as a “misuse” of the court’s processes. The magistrate explained that, to a considerable extent, the charges sought findings which were inconsistent with those made by the District Court judge. In addition, the appellant sought to rely on evidence which could have been, but was not, adduced at the time of the trial in the District Court.
The magistrate observed that the appellant had previously raised perjury allegations before the Court of Appeal which had been rejected by that Court. The magistrate declined to permit the appellant to, effectively, retry the District Court counterclaim under the guise of a perjury proceeding.
The magistrate gave further reasons for her decision. These included that the perjury charges were major indictable offences which were only within the jurisdiction of the District Court on an Information laid by the Director of Public Prosecutions. The prosecution of those charges in the Magistrates Court was therefore outside the jurisdiction conferred by s 9 of the Magistrates Court Act 1991 (SA). The magistrate identified a number of defects in the charges, having regard to the requirements of s 242 of the Criminal Law Consolidation Act 1935 (SA). She also described various defects in the particulars given.
The magistrate concluded that the proceedings were an abuse of process and that it was appropriate for the court to order that they be permanently stayed.
The appellant’s contentions and the determination of this appeal
Both parties remain unrepresented. Their submissions were difficult to follow and did not address the issues to be addressed by this Court.
For example, the appellant submitted in writing that it was an error of law for a State court asked to exercise Federal jurisdiction to refuse to do so. He then cited the Administrative Decisions (Effective International Instruments) Act 1995 (Cth). After setting out some commentary in relation to administrative decision‑making, the appellant admitted that he was indeed attempting to “appeal” the decision of the District Court judge under the guise of a perjury proceeding:
The detailed allegations against Fui Sac Chang were an attempt to Appeal, cheaply, and without enormous expense, the Decision of McIntyre J, who in reliance on what Peter Scott Haughton alleges are lies, awarded $364,988, in favour of Fui Sac Chang. The said Mr Chang, then used the judgment to engage the judicial power of the Commonwealth and make Peter Scott Haughton bankrupt.
The appellant then relied upon High Court authority in support of his submission that there was a want of jurisdiction.[10] The appellant concluded his submissions by reference to ss 23 and 32 of the Judiciary Act 1903 (Cth), s 79 of the Constitution and Kable v Director of Public Prosecutions (NSW).[11] The appellant then concluded with these words:
These are my submissions. Since I am incarcerated, I will have my associate lodge them with the Court of Appeal. The orders the Court of Appeal should make are:
1.Appeal allowed, and the matter of Haughton v Chang be remitted for trial with a jury in the District Court of South Australia as an indictable offence.
[10] Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369, 389 (Dixon J), “But, if there be want of jurisdiction, then the matter is coram non judice. It is as if there were no judge and the proceedings are as nothing. They are void, not voidable”.
[11] Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
In Jago v The District Court (NSW), the High Court held that a court created by statute had an inherent power to stay proceedings that comprised an abuse of process.[12] It may be accepted that the Magistrates Court has the power to grant a permanent stay of proceedings where it can be said that they have been instituted for an improper purpose or otherwise comprises an abuse of process.
[12] Jago v The District Court (1989) 168 CLR 23, 25-26 (Mason CJ), 74 (Gaudron J); approved in Walton v Gardiner (1993) 177 CLR 378, 394-395 (Mason CJ, Deane and Dawson JJ); Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256, [9]-[15] (Gleeson CJ, Gummow Hayne and Crennan JJ).
Whilst the power to grant a stay of proceedings is an exceptional remedy, which should only be used as a last resort, it remains available in the face of a clear abuse of process.[13] The attempt to relitigate that which has already been appealed and dismissed is both vexatious and an abuse of process. The perjury proceedings are, accordingly, “seriously and unfairly burdensome, prejudicial or damaging” and “productive of serious and unjustified trouble and harassment”.[14]
[13] Ridgeway v The Queen (1995) 184 CLR 19, 74-75. See Batistatos v Roads and Traffic Authority (2006) 226 CLR 256, [14].
[14] Ridgeway v The Queen (1995) 184 CLR 19, 74-75. See also Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197, 247; Hamilton v Oades (1989) 166 CLR 486, 502.
This was an appropriate case in which to grant a permanent stay.
The vexatious litigant declaration
The respondent sought a declaration that the appellant be declared a “vexatious litigant” within the meaning of s 39(1) of the Supreme Court Act 1935 (SA).
An application under s 39 of the Supreme Court Act 1935 (SA), if it is to be pursued, must be prepared, filed and served in the usual way.[15] It is not appropriate to make a declaration of that kind at this hearing.
Conclusion
[15] Georganis v Barkla [2021] SASC 47, [67]-[79] (Livesey J).
The appellant has not demonstrated that the magistrate’s decision was affected by material error. The appeal must be dismissed.