Hopes v Australian Securities and Investments Commission

[2017] WASCA 108

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   HOPES -v- AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION [2017] WASCA 108

CORAM:   MAZZA JA

BEECH JA
HALL J

HEARD:   24 MAY 2017

DELIVERED          :   19 JUNE 2017

FILE NO/S:   CACR 119 of 2016

BETWEEN:   HARRY ROY HOPES

Appellant

AND

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :CORBOY J

File No  :SJA 1073 of 2015

Catchwords:

Criminal law - Appeal against decision by a single judge in an appeal against conviction - Springing order not complied with - Appeal taken to be dismissed - Whether an extension of time will be granted following non­compliance with the springing order - Whether the appeal has merit

Legislation:

Royal Style and Titles Act 1947 (WA)
Royal Style and Titles Act 1973 (Cth)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(ii)

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     Ms S J Oliver

Solicitors:

Appellant:     In person

Respondent:     Director of Public Prosecutions (Cth)

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

Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56; (1999) 166 ALR 302

Hopes v Australian Securities and Investments Commission [2016] WASC 198

Joosse v Australian Securities and Investments Commission [1998] HCA 77; (1998) 159 ALR 260

1. REASONS OF THE COURT:    Before the court is the appellant's application to extend time to comply with a springing order. 

2. The appellant was convicted after trial in the Magistrates Court of two offences under the Corporations Act2001 (Cth). He appealed against the decision to a single judge of the Supreme Court. This appeal was dismissed by Corboy J. The appellant then appealed to this court against that decision.

3. The appellant failed to file an appellant's case as required by the Supreme Court (Court of Appeal) Rules 2005 (WA). He was given five extensions of time to do so but failed to comply with the terms of those extensions. On 19 December 2016, a springing order was made requiring an appellant's case to be filed by 27 January 2017, failing which the appeal was dismissed. The appellant did not file an appellant's case. Accordingly, the appeal stands dismissed.

4. The appellant filed an application seeking an extension of time to comply with the springing order.  The contentions the appellant wishes to raise in an appeal to this court are devoid of merit and are doomed to fail.  No purpose would be served by granting the extension of time.  The application to extend time should be dismissed, with the consequence that the appeal remains dismissed pursuant to the springing order.  Our reasons for these conclusions are as follows.

Proceedings in the Magistrates Court

1. The appellant was the sole director and secretary of a company called Finelion Pty Ltd (Finelion).  On 10 June 2014, the Federal Court made an order for the winding up of Finelion.  Mr Neil Cribb was appointed the liquidator of the company. 

2. By letter dated 11 June 2014, Mr Cribb wrote to the appellant advising him that he was required, within 14 days, to submit a report as to the affairs of Finelion and to deliver to him the company's books.  A further letter to the same effect was sent to the appellant on 31 July 2014.  The appellant failed to provide Mr Cribb with the report or the company's books. 

3. By a prosecution notice dated 25 September 2014 filed in the Perth Magistrates Court, the respondent charged the appellant with two offences against s 1311(1)(b) of the Corporations Act 2001 (Cth). It was alleged that between 25 June 2014 and 22 September 2014, the appellant, being a director of Finelion, failed to provide the liquidator with a report as to the affairs of the company[1] and failed to deliver to the liquidator the company's books.[2]  It is a defence to these charges if the person the subject of the obligation to provide a report or deliver to the liquidator the company's books has a reasonable excuse for any failure to do so.[3] 

   [1] Section 475(1), s 475(4) and s 475(9) Corporations Act 2001 (Cth) (charge 1).

   [2] Section 530A(1) and s 530A(6) Corporations Act 2001 (Cth) (charge 2).

   [3] Section 475(11) and s 530A(6B) Corporations Act 2001 (Cth).

4. The appellant declined to enter pleas to the charges when called upon.  Accordingly, pleas of not guilty were entered on his behalf.[4]

   [4] Magistrates Court ts 7.

5. The appellant was tried by Magistrate Malone on 27 August 2015.  The appellant represented himself.  Although not identified by name in the transcript, it is accepted that he did so with the assistance of a non‑lawyer, Mr Neil Piccinin.[5]  The only witness for the prosecution was Mr Cribb.  The appellant elected to give evidence in his defence.  The appellant did not, either in his cross‑examination of Mr Cribb or in his sworn testimony, dispute that he had failed to provide the liquidator with the report as to Finelion's affairs or the company's books as requested.  

   [5] Magistrates Court ts 8.

6. In his defence, the appellant contended that he was under no obligation to comply with the liquidator's requirements because the Corporations Act had not been validly enacted.  His principal argument in support of this proposition, insofar as it can be understood, proceeded in this way.  The Bill which became the Corporations Act was passed by the Commonwealth Parliament and was given Royal Assent by the Governor General in the name of the Queen under the title 'Queen of Australia'.  The Royal Style and Titles Act 1973 (Cth) (the 1973 Act) records the assent of the Commonwealth Parliament to the adoption and use of the style and title 'Queen of Australia'. However, the 1973 Act was invalid because the appellant had not been able to locate a 'legally valid instrument' or a 'head of power' which authorised the appointment of Queen Elizabeth II as 'Queen of Australia'. Because the 1973 Act was invalid, no legislation given Royal Assent under the title 'Queen of Australia' was validly enacted.

7. It is apparent that this argument is the brainchild of Mr Piccinin.  The appellant said that inquiries he had made or which had been made on his behalf by Mr Piccinin to obtain such an 'instrument' or 'head of power' had either not been answered or had not been answered to his satisfaction.  Until these inquiries are answered or answered to his satisfaction, the appellant claimed that he had a reasonable excuse for not complying with the liquidator's requirements.[6]

   [6] Magistrates Court ts 18 ‑ 21, 23 ‑ 30.

8. The learned magistrate found the charges proved beyond reasonable doubt.  He found that the appellant's 'constitutional arguments' did not provide him with a reasonable excuse for his failure to comply with the liquidator's requirements.  The appellant was convicted of the charges and fined.[7] 

   [7] Magistrates Court ts 30 ‑ 35, 43.

The single judge appeal

1. The appellant appealed to a single judge of the Supreme Court against the magistrate's decision.[8]  His appeal notice contained ten proposed grounds of appeal.  The proposed grounds and the submissions in support of them were prolix and largely unintelligible.  Insofar as they were intelligible, the appellant made the same arguments he made before the learned magistrate.  However, the appellant's arguments went one step further.  He contended that the Magistrates Court Act 2004 (WA) and the Criminal Appeals Act 2004 (WA) should not be 'taken as valid' until it was established that the Royal Assent given for the Bills which created these statutes in the name of the Queen of Australia was valid. In this respect, the appellant contended that the Royal Style and Titles Act 1947 (WA) (the 1947 Act) was invalid essentially for the same reasons that the 1973 Act was invalid. In the appellant's written submissions in the court below he explained the 'essence' of his submissions as follows:

   As to grounds of appeal 3 to 10, the appellant in essence contends that there has been in political practice a derailment of the law making process at different times for the Commonwealth of Australia and the State of Western Australia centred on the identity of the Crown.

   The appellant contends that magistrates hearing matters for conviction under the Magistrates Court Act 2004 are in excess of the constitutions of the Commonwealth and the State for reasons herein.[9]

   [8] Pursuant to pt 2 div 2 of the Criminal Appeals Act 2004 (WA).

   [9] Appellant's submissions 18 January 2016, pars 28, 29.

2. The appellant supported his submissions by reference to a number of documents, including a document written by Mr Piccinin entitled 'The law concerning the Commonwealth of Australia - 101' and an affidavit sworn by the appellant on 22 December 2015.  The affidavit (including attachments) is 247 pages long.  The appellant later sought to rely upon a second affidavit sworn by him on 8 April 2016.  The affidavits attach correspondence, notices and memoranda sent by the appellant or by Mr Piccinin to various courts, government departments and instrumentalities including the Federal Court, the Australian Securities and Investments Commission, the Department of Prime Minister and Cabinet, the Department of Treasury and the Commonwealth Director of Public Prosecutions.  Where a response was received, those responses were included. 

3. On 1 July 2016, Corboy J refused leave to appeal on all of the proposed grounds of appeal and dismissed the appeal.[10]  His Honour gave detailed and comprehensive written reasons:  Hopes v Australian Securities and Investments Commission.[11]  In doing so, his Honour rejected the appellant's 'constitutional' arguments. 

   [10] Pursuant to s 9 of the Criminal Appeals Act 2004 (WA).

   [11] Hopes v Australian Securities and Investments Commission [2016] WASC 198.

The appeal to this court

1. On 22 July 2016, the appellant filed a notice of appeal in this court against Corboy J's decision.[12]  The appeal notice contained seven draft grounds of appeal.  These draft grounds are set out in Annexure A to these reasons. 

   [12] Pursuant to pt 2 div 3 Criminal Appeals Act 2004 (WA).

2. In due course, the respondent filed a notice advising of its intention to take part in the appeal. The next step which an appellant must take is to file an appellant's case in accordance with r 32(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (the Rules). Rule 32(2)(b) of the Rules provides that an appellant's case must be filed 'within 35 days after the date on which the appeal notice is filed'. This court's practice in criminal appeals is to allow an appellant's case to be filed within 56 days after the filing of an appeal notice.

3. The appellant should have filed and served his appellant's case on or before 16 September 2016.  However, the appellant failed to do so.  A registrar granted the appellant five extensions of time to file his appellant's case.  The last of these extensions required the appellant to file and serve his appellant's case no later than 4.00 pm on 24 November 2016.  The appellant failed to comply with all the extensions of time granted by the registrar.

4. As a consequence of the appellant's repeated default, the appeal was brought before a single judge of this court for directions on 19 December 2016.  On 19 December 2016, the appellant filed an application seeking a 'special appointment' to determine the validity of the Rules.[13]  After hearing from the appellant, a springing order was made pursuant to r 43(2)(g) of the Rules as follows:

   [T]he time for the appellant to file and serve an appellant's case in accordance with the Supreme Court (Court of Appeal) Rules 2005 is extended to 4 pm on Friday 27 January 2017 failing which the appeal is dismissed in accordance with r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005.[14] 

   [13] AB 2 ‑ 7.

   [14] AB 1.

5. The appellant has not complied with this order.  Thus, the appeal presently stands dismissed.

6. On 25 January 2017, the appellant filed an application which effectively sought an extension of time to comply with the springing order, although in form it was expressed to be an application for an order suspending the operation of the springing order pending his application for a 'special hearing'.[15]  Procedural orders were made which required the appellant to file by 6 March 2017 a proposed appellant's case and his submissions in support of the application of 25 January 2017.

   [15] AB 8.

7. On 7 March 2017, the appellant filed an affidavit which purported to comply with the procedural orders we have mentioned.[16]  It is unnecessary to refer to it in detail.  Insofar as it may be understood it articulates some bizarre constitutional theories.  It seeks to challenge Corboy J's reasoning and raises 'questions' which it is said this court should answer by conducting an 'inquiry'.[17]   Nothing in any of the documentation filed by the appellant in this court or said in oral submissions on behalf of the appellant[18] provides any reason whatever to doubt the correctness of Corboy J's decision.  In particular, Corboy J was correct to reject the appellant's 'constitutional' arguments which are, for the reasons given by his Honour, seriously misconceived.  As his Honour pointed out, they proceed on a fundamentally flawed assumption that the 1973 Act (and the 1947 Act) worked a fundamental constitutional change.  This notion was expressly rejected by Hayne J in Joosse v Australian Securities and Investments Commission[19] and Helljay Investments Pty Ltd v Deputy Commissioner of Taxation.[20]  In Joosse, his Honour observed that a change in the royal style and titles of a monarch is a change of form rather than substance and does not alter the constitutional status of the Crown or the Queen.  As any challenge made by the appellant to the Rules appears to be based on the same misconceived arguments, it has no merit.

   [16] AB 9 ‑ 44.

   [17] This court was told at the hearing that notices under s 78B of the Judiciary Act 1903 (Cth) had been issued to the Attorneys General of the States and Territories. This court was also told that of those who had replied, no Attorney General wished to intervene. An application by the appellant prior to the hearing to adjourn the hearing of the appeal to await responses to the notices was not pursued.

   [18] At the hearing, the court gave leave for Mr Piccinin to address the court.  The appellant claimed he was suffering from anxiety and was unable to address the court. 

   [19] Joosse v Australian Securities and Investments Commission [1998] HCA 77; (1998) 159 ALR 260.

   [20] Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56; (1999) 166 ALR 302.

8. This is enough to dispose of proposed grounds 1, 3, 4 and 6 in Annexure A.  The rest of the proposed grounds may be dealt with briefly.  They, too, have no merit.

9. Proposed ground 2 appears to refer to the fact that the transcript of the proceedings in the Magistrates Court is incomplete.  The beginning of the proceedings before the learned magistrate was, for some unknown reason, not transcribed.  However, the great majority of the proceedings was transcribed.  In particular, all of the evidence, the parties' closing submissions and the magistrate's reasons for decision were transcribed.  The appellant does not identify anything that was said or done that was not transcribed which has any bearing upon the matters before this court.

10. Insofar as proposed ground 5 alleges that his Honour was obliged to rule on every point raised by the appellant in the documents prepared by Mr Piccinin, that proposition must be rejected.  His Honour was not obliged to deal with each and every argument put before him.  His Honour properly identified the real issues raised in the appeal and dealt with them comprehensively in his written reasons.

11. Proposed ground 7 alleges that his Honour failed to uphold the fifth covering clause in the Constitution. The fifth covering clause of the Constitution is materially in these terms:

    This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State …

12. This allegation is unsustainable.  His Honour applied and thereby upheld the relevant laws of the Commonwealth Parliament.[21]

    [21] See Joosse [19]; Helljay [18].

13. As the proposed grounds of appeal to this court are devoid of merit, there is nothing to be gained by extending the time for the filing of the appellant's case.  As for the application for this court to hold an 'inquiry', it is not this court's function to hold such an inquiry and, even if it were, there would be no even remotely sensible reason to do so.

14. The appellant's application of 25 January 2017 must be dismissed.  The consequence of the dismissal is that the appeal to this court remains dismissed pursuant to the springing order made on 19 December 2016.

Annexure A

1.Judge failed to establish validity of judicial exercise of power under the authority of the Queen of Australia in light of evidence to a contrary position.

2. The judge claimed a matter of the applicant's ability, and request for assistance to conduct the prior hearing, in the Magistrate's Court, when he acknowledged that the transcript of that matter was not complete.  The applicant maintained that the matter was of greater complexity for his delivery and relied upon the assistance of a friend, a request that had been refused.

3.The judge made an erroneous assumption or observation of several document findings relating to the finding for a head of power for a Commonwealth Statute that was otherwise apparent.

4.The Judge failed to reconcile the written law of the Constitution for the Commonwealth of Australia with the law that provides for the jurisdiction of the Crown of Australia and the Queen of Australia.

5.The judge failed to account the majority of the points of the outline of submissions and the supporting points of the document of Neil Piccinin relied upon for constitutional understanding, leaving no coherent reasoning for the appellant to abandon his position as by outline of submissions made patent.

6.The judge attempted to place weight on opinions against evidence to the contrary regarding constitutional matters.

7. The judge failed in his duty to uphold the fifth covering clause in the foundation law for the Commonwealth of Australia.