Hunter v City of Joondalup
[2018] WASCA 166
•27 SEPTEMBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HUNTER -v- CITY OF JOONDALUP [2018] WASCA 166
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 23 AUGUST 2018
DELIVERED : 27 SEPTEMBER 2018
FILE NO/S: CACR 109 of 2017
BETWEEN: ANDREW JAMES HUNTER
Appellant
AND
CITY OF JOONDALUP
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: PRITCHARD J
Citation: HUNTER -v- CITY OF JOONDALUP [2016] WASC 424
File Number : SJA 1057 of 2016
Catchwords:
Criminal law and procedure - Appeals - Appellant failed to file appellant's case - Springing order - Application for extension of time for compliance - Whether further extension of time should be granted - Turns on own facts
Legislation:
Planning and Development Act 2005 (WA), s 218(a)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(ii)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| Respondent | : | Mr T L Beckett |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Hunter v City of Joondalup [2016] WASC 424
Wharton v The Queen [No 2] [2015] WASCA 176
JUDGMENT OF THE COURT:
Before the court is the appellant's application, filed on 7 March 2018 to extend the time to comply with a springing order made by Mazza JA on 5 October 2017.
For the reasons that follow, the application should be dismissed.
Background
On 13 July 2016, the appellant was convicted after a trial before Magistrate De Vries in the Joondalup Magistrates Court of an offence under s 218(a) of the Planning and Development Act 2005 (WA) (the Act). The appellant was fined $16,000 and ordered to pay the respondent's costs in the sum of $9,653.60.[1]
[1] Hunter v City of Joondalup [2016] WASC 424 [1].
The appellant sought leave to appeal against his conviction and sentence. Those appeals were heard by Pritchard J on 29 November 2016. On 30 November 2016, her Honour ordered, in respect of each appeal, that leave to appeal be refused and the appeal dismissed: Hunter v City of Joondalup [2016] WASC 424.
On 27 March 2017, the appellant filed an appeal notice in respect of her Honour's decisions.
The appellant's case was due to be filed by 12 July 2017. On 11 July 2017, the appellant sent to the court by facsimile a document purporting to be his appellant's case. The document was not accepted for filing because it did not comply with the relevant requirements in the Supreme Court (Court of Appeal) Rules 2005 (WA) (the Rules).
On 18 July 2017, the acting Court of Appeal Registrar made an order extending the time for the appellant to file and serve his appellant's case to 4 August 2017. The appellant did not comply with this order.
On 11 August 2017, a consent notice was filed by the appellant to extend the time for the appellant to file and serve his appellant's case to 25 August 2017.
On 14 August 2017, the acting Court of Appeal Registrar made an order in accordance with the consent notice. The appellant failed to comply with this order.
On 29 August 2017, the court wrote to the appellant reminding him of his obligation to file an appellant's case and informing him that if his appellant's case was not filed without delay the matter would be referred to a Judge of Appeal who has the jurisdiction under r 43(2)(g)(ii) of the Rules to dismiss the appeal for non‑compliance with the Rules.
On 5 October 2017, Mazza JA made the following order in each appeal: 'the time for the appellant to file and serve the appellant's case is extended to 25 January 2018, failing which the appeal is dismissed pursuant to r 43 (2)(g)(ii) of the (Rules)' (the springing order).
On 24 January 2018, the appellant sent by facsimile a one‑page document entitled 'reasons for appeal'. This document was not accepted for filing. It does not in substance or form comply with the requirements in the Rules for an appellant's case.
On 30 January 2018, a certificate of conclusion of criminal appeal was signed by the acting Court of Appeal Registrar and sealed.
On 7 March 2018, the appellant filed the present application. The application was supported by an affidavit sworn by the appellant on 6 March 2018. The substantive part of the affidavit is in the form of a letter which reads as follows:
Dear Sir/ Madam
I am applying for this extension of time regarding my appeal.
The reason I need a bit more time is because I thought I had to give my reasons for my appeal by the 25/1/2018 as ordered by the Court. The reason I only submitted that was because I had previously submitted an appeal on the same matter, which wasn't accepted, I was therefore submitting a 'revised' reason for appeal and was unaware I had to do the complete appeal process.
I honestly believe I have a legitimate reason for my appeal in the way the City of Joondalup conducted their actions against me.
I would also ask the Court to take into account my personal circumstances ie; mental health issues, namely depression, this has some bearing on the way I may or may not reply in a timely manner. I apologize for this and will do my best to proceed in a professional manner.
Yours sincerely
On 21 March 2018, a directions hearing was held before Mazza JA. His Honour made the following orders:
(1)The appellant has leave to file and serve any additional affidavit and any written submissions he wishes to rely upon in respect of the application dated 6 March 2018 by 4.00 pm on Friday, 13 April 2018.
(2)The respondent has liberty to file and serve any written submissions and any affidavit in answer to the affidavit filed by the appellant by 4.00 pm on Friday, 11 May 2018.
(3)The matter is adjourned to a hearing date to be fixed before three judges of this court.
On 13 April 2018, the appellant sent to the court by facsimile two bundles of documents which were not accepted for filing. There was no affidavit and nothing which could properly be described as submissions.
In order to give the appellant a further chance to put before the court further documents in relation to his application, an order was made on 18 April 2018 extending the time for the appellant to file and serve any additional affidavit and any written submissions to 14 May 2018. A further extension of time was given to the respondent.
On 11 May 2018, the appellant sent to the court by facsimile a document which purported to be the appellant's case. The proposed grounds of appeal are unorthodox to say the least and are expressed in the following way:
(1)Unable to defend myself in a fair and reasonable way. Mistake in law and or facts.
(2)Submissions from City of Joondalup. Mistake in facts.
(a)Storage of materials;
(b)Inspections and discussions of issues;
(c)Planning approvals;
(d)Use of land for purpose other than residential.
(3)Previous issues. Mistake of facts.
(4)Justice Pritchard's legal authorities are not relevant to this case.
Within the appellant's case are a number of documents including a three‑page document headed 'Grounds for appeal "Revised 10th July 2017"' [sic], a two-page document headed 'Reasons for appeal' dated 24 January 2018, a third document also headed 'Reasons for appeal' but undated and a fourth document headed 'Appellant's submissions/summary' dated 10 May 2018. With no disrespect to the appellant, the various contentions he makes are largely incoherent. The appellant's most recent attempt to state his case on appeal is contained in the fourth of these documents. It is in the following terms:[2]
[2] Yellow AB 43.
Appellant's submissions/summary
1.On 5th Feb 2016 Joondalup Magistrates Court Ordered the City to supply me with full disclosure of charges and information so I could understand the charges. However, all written Material supplied by Mr Beckett could not be used as it wasn't signed by the parties mentioned.
Mr Beckett admitted in his affidavit to Justice Pritchard (10 nov 2016) that more information was available and that 'I should have asked for it'. This info was supposed to be supplied approx. 2 weeks before hearing, it was supplied 1 day before hearing. This did not give me the opportunity to address the matters at the primary or secondary hearing.
2. Page 5 and 6 attached
a.Unlawful storage of materials. All items in my yard, even though my yard was untidy, were and are for me and my families use only and are relevant to me and my family. All items were, or are going to be used for by us. With no commercial or business involvement at all.
b.Inspections and discussions. There was absolutely no discussions with anyone from The City regarding this issue. In this letter dated 12th August 2015 there was a request to remove 'disused materials from the property' there had never been any discussions about any materials stored in my backyard, sheds or out buildings and the last issue I had regarding the front yard had been withdrawn by The City after I had arranged a meeting with a mediator from SAT.
c.Planning, page 5 and 6
Mr Beckett stated 'the only planning approval was for a parapet wall at the property and there were no other approvals at the property. That is absolutely incorrect. All extensions to my property were approved and accepted by The City, including the storage shed (with parapet wall) and storage area that is in the photos submitted by The City. There was absolutely no developments to my property without all the necessary approvals from The City, as suggested or insinuated by Mr Beckett.
3.I believe a lot of Justices De Vries attention was given to previous issues I had with the City over several years All previous issues had been resolved, either through agreements, the SAT, The Magistrates Court or The Supreme Court of WA. This charge (section 218) had never been raised before.
Charge 218 has 3 sections, 218a, 218b, and 218c. it was never identified which section I was charged with prior to hearing, again making it very hard to defend myself.
The statutory framework applicable to this application was set out in Wharton v The Queen [No 2].[3] We adopt what was written on that occasion without repeating it.
[3] Wharton v The Queen [No 2] [2015] WASCA 176 [40] ‑ [47].
It is settled law that this court has the power to extend time for compliance with a springing order, even though the time for compliance has passed. The principles to be applied were explained in Wharton v The Queen [No 2] at [50] ‑ [52].
By its nature, a springing order is intended to mark the end of the line for a party who has failed to comply with it and any previous orders of the court. The power to extend time when a springing order has not been complied with is a power to be exercised cautiously and with due regard to the necessity for maintaining the principle that orders are made to be complied with and not ignored. In other words, springing orders are made to be obeyed. There are no hard and fast rules as to the matters which the court should consider when deciding an application to extend time. However, a court will normally have regard to at least the following matters:
1.The circumstances in which the springing order came to be made.
2.The reason for non‑compliance with the springing order.
3.The prejudice to the defaulting party if the time were not extended.
4.The prejudice to the other party if the time were extended.
It will also normally be a relevant consideration whether or not the defaulting party has a reasonably arguable case on the merits.
In criminal appeals, where relevant, this court will pay due regard to the difficulties that often face self‑represented appellants, and the serious consequences that might flow to an appellant if the court refuses to grant such applications.
Disposition
The appellant has failed to comply with the requirements of the Rules as to the filing of an appellant's case. The appellant was granted two extensions of time by the acting Court of Appeal Registrar. Neither order was complied with. The court wrote to the appellant reminding him of his obligation to file an appellant's case, without success.
On 5 October 2017, the springing order was made. The appellant was given more than three months to comply with that order, but he failed to do so.
The appellant claims that he has been unable to file an appellant's case by reason of his personal circumstances, including that he suffers from depression. There is no medical evidence before this court to confirm this diagnosis and how it might have impacted on his ability to prepare an appellant's case.
We acknowledge the difficulties that the appellant faces as a self‑represented appellant. However, the appeal cannot go on indefinitely. The springing order gave the appellant, after a series of defaults, one further and last chance to file an appellant's case. For the appellant to be given more time would bring the proper administration of justice into disrepute and delay the proper resolution of this appeal. Even if the appellant were given more time, there is no reason for us to be confident that the appellant would comply with the order. The appellant has not filed a draft appellant's case in support of this application.
Furthermore, nothing in anything filed by the appellant suggests any merit in the appeal. The appellant alleges that the hearing before Pritchard J was somehow unfair to him. A perusal of the transcript of those proceedings reveals the opposite to be the case. The arguments the appellant wishes to put before this court, insofar as they are comprehensible, are a repetition of the arguments that were put to Pritchard J and carefully dealt with by her. There is no reason to doubt the correctness of her Honour's conclusions or reasons in respect of those issues. There is no point in allowing this litigation to proceed further.
The appellant has not persuaded us that the court's discretion to extend the time to comply with the springing order should be exercised in his favour. The application must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CS
ASSOCIATE TO THE HONOURABLE JUSTICE MAZZA27 SEPTEMBER 2018
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