Ives v Johnson
[2010] WASCA 137
•29 JULY 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: IVES -v- JOHNSON [2010] WASCA 137
CORAM: PULLIN JA
NEWNES JA
HEARD: 23 JUNE 2010
DELIVERED : 29 JULY 2010
FILE NO/S: CACV 16 of 2010
BETWEEN: BENJAMIN IVES
Appellant
AND
MICHAEL JOHNSON
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :McKECHNIE J
Citation :IVES -v- JOHNSON [2009] WASC 361
File No :CIV 2974 of 2009
Catchwords:
Appeal - Litigant in person - Whether grounds of appeal have reasonable prospect of succeeding - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Ms D E Quinlan
Solicitors:
Appellant: In person
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Ives v Johnson [2009] WASC 361
REASONS OF THE COURT: On 10 June 2010 the appellant was sent a registrar's notice requiring the appellant to show cause why the appeal should not be dismissed on the basis that none of the grounds had any reasonable prospect of success. The appellant appeared to make submissions on that matter and on the appellant's application for a stay of proceedings in the Magistrates Court. The respondent to these proceedings is the Principal Registrar of the Magistrates Court.
The background is as follows. A Ms Lim commenced proceedings PE 2670 of 2008 in the Magistrates Court in 2008 seeking a violence restraining order against the appellant. During the course of the proceedings, but before the final hearing, the following events occurred:
(a)The appellant issued some witness summonses requiring production of certain documents. Some of the witness summonses were set aside but a third was adjourned to the main hearing. It seems that a witness then produced some documents to the court pursuant to the witness summons and the appellant sought access to the documents. The Principal Registrar refused to let the appellant see the documents on the basis that the magistrate had to determine whether he could have access to them. The appellant contends that the Principal Registrar was under a duty to give access.
(b)The appellant sought to have the registrar check the accuracy of a transcript of some interlocutory hearing which the appellant contended the registrar failed to do.
(c)The appellant wished to issue a witness summons to secure production of close circuit television footage in respect of a certain place of entertainment. The witness summons was in the wrong form and specified no hearing date. The registrar refused to issue it. The appellant contended that the registrar failed in his duty.
As a result, the appellant issued an originating motion in the Supreme Court in CIV 2974/2009 seeking an order that:
The drafted writ of mandamus prepared by BW Ives be issued against Mr. Michael Johnson, Principle [sic] Registrar of The Magistrates Court of Western Australia from The Supreme Court of Western Australia.
It appears from the grounds set out in the notice of originating motion that the appellant, in effect, sought to review the registrar's alleged decisions and sought orders that the registrar 'do his duty'.
The application was dismissed by McKechnie J. See Ives v Johnson [2009] WASC 361.
As to the appellant's complaint about the first decision, McKechnie J held, in effect, that it was appropriate for the appellant to first have the magistrate determine his application for access to the documents before seeking a review in the Supreme Court. The second complaint concerning the checking of the transcript was dismissed because of the failure of the appellant to identify the specific part of the transcript which had to be checked. The third complaint concerning the witness summons was dismissed on the basis that the registrar was justified in refusing to issue the witness summons. McKechnie J dismissed the application for review on 20 November 2009.
On 17 February 2010, the appellant filed an appeal notice out of time and, on the same day, filed an application seeking orders that:
PE 2670/08 be either cancelled/removed from the Perth court/stayed from the Perth court.
The application was dismissed by Pullin JA after reviewing the papers and without hearing the appellant. Pullin JA was authorised to do this pursuant to r 7(1)(b) of the Supreme Court (Court of Appeal) Rules 2005 (WA). Pullin JA gave reasons which read:
[T]here is no merit in the application for a stay and the affidavit in support does not afford any information suggesting that McKechnie J erred in his decision to dismiss the appellant's application. As a result the application for a stay is dismissed.
The appellant was advised of those reasons.
The application having been dismissed on the papers, the appellant then sought an oral hearing pursuant to r 19 of the Supreme Court (Court of Appeal) Rules. This was listed for hearing on 8 March 2010. The appellant sent a message to the court that he wanted the hearing vacated and as a result that happened. He then asked for the matter to be relisted and it was relisted for hearing at 10.30 am on 17 May 2010. This hearing date was also vacated at the appellant's request.
It is necessary to go back in time a little to relate some more of the history concerning the proceedings involving Ms Lim and the appellant in PE 2670/2008. On 18 February 2010, the day after this appeal was commenced, the proceedings in PE 2670/2008 came to a conclusion. The transcript of that hearing reveals that the appellant did not appear and as a result, the magistrate granted Ms Lim's application and made a final violence restraining order for a period of two years in the same terms as an interim violence restraining order dated 3 December 2008. There was then an application for costs by the applicant and the magistrate directed that a copy of the transcript of the hearing on 18 February 2010 be sent to the appellant. The magistrate adjourned the application for costs to 29 March 2010 and directed that notice be given to the appellant of that hearing date.
On 23 March 2010, the appellant made an application in this appeal, seeking an order that:
The 29/3/10 hearing before Magistrate Smith for associated case PE 2670/08 toward costs following the judgment passed against Benjamin William Ives on 18/2/10 be stayed pending the conclusion of CACV [16] of 2010.
The ordinary time limit to appeal the judgment of Magistrate Smith for associated case PE 2670/08 be extended to accommodate the conclusion of CACV [16] of 2010 in The Supreme Court and all inferior courts.
That application was dismissed by Pullin JA on 1 April 2010 on the papers. The reasons Pullin JA gave for dismissing that application were reduced to writing and provided to the appellant. They read in part:
This application has nothing to do with the appeal against Justice McKechnie's order dismissing the application for a review order against the Principal Registrar concerning events or non events in the Registry in 2009. If the appellant wishes to appeal against decisions made by Magistrate Smith inter partes on 18 February 2010 or concerning some consequential orders made in the Magistrates Court on 29 March 2010 he will have to seek his own advice about the proper place in which to institute the appeal and who the respondent to that appeal should be. It is clear that there is no basis for the present application.
On 29 March 2010 in the Magistrates Court, Magistrate Smith made an order that the appellant (who was the respondent in those proceedings) pay the applicant's costs fixed in the amount of $14,000. The appellant did not appear at the hearing to argue against a costs order being made.
It is now appropriate to return to the events concerning this appeal. The appellant did not file the appellant's case in the time specified in the rules. The appellant sought an extension of time. The extension was granted to 3 May 2010. The appellant's case was not filed by that date. However, the appellant did file his appellant's case on 28 May 2010.
There are 58 grounds of appeal. Those grounds of appeal and the submissions in support between them contain argumentative, irrelevant, vexatious and scandalous material. The submissions contain irrelevant and unsupported allegations of fraud including an allegation that there was 'sufficient evidence to mount criminal charges of fraud' against various people. An example of irrelevant material in the submissions is par 3, part of which reads:
I demand a review order by authority of the Queen of England. I have been given the right to a writ of Mandamus by none other than her authority which was given to her by God himself. That is a fact. For a reference please check the coronation oath, and the judicial oath. If I am denied this writ, it is because evil has taken a grip on the WA justice system and I refuse to consent and will appeal to the High Court, and if that fails to Her Royal Highness herself in the UK, which is still permissible under the Australian Constitution unless revoked by a referendum. I am not taking this absolute wickedness.
The main thrust of the appellant's submissions are that the decision was unreasonable and irrational, that he was denied natural justice, that the judge was actually biased or that his conduct gave rise to a reasonable apprehension of bias and that his Honour misconstrued the evidence and facts.
The allegation that the decision was unreasonable or irrational, and that his Honour misconstrued the evidence, is largely based on the appellant's attempt to range over the whole history of the proceedings during the course of which he makes scandalous allegations against court staff and the lawyer acting for Ms Lim. The transcript of the hearing before McKechnie J reveals that his Honour made every effort to have the appellant focus on the issue, which was the conduct of the Principal Registrar. There is nothing in the material presented by the appellant which indicates that the decision of McKechnie J was unreasonable or irrational, and there is nothing to indicate that his Honour misconstrued the evidence or facts. All his Honour did was to concentrate on the evidence which was relevant and to ignore irrelevant material which the appellant wished to refer to.
The allegations of bias and apparent bias levelled against the judge whose decision is under review in this case are not based on any evidence other than what happened at the hearing or what was said by his Honour in his reasons for decision. Nothing in his Honour's reasons for decision or in the transcript of the hearing provide any evidence of bias or reasonable apprehension of bias. His Honour, at the conclusion of his reasons, said that he considered that:
[T]he Registry staff who have responded, have responded temperately, appropriately and, as far as I can tell from the material, accurately to all of the many requests made by the plaintiff. His allegations might have provoked a less temperate response by them but I consider they have shown appropriate and proper good humour in responding, notwithstanding the considerable aggravation of wild and unfounded allegations against them.
Those observations are referred to in the appellant's outline of submissions under the heading 'The denial of natural justice to the appellant'. There was no denial of natural justice. The transcript reveals that considerable latitude was given to the appellant by McKechnie J. None of the grounds of appeal have a reasonable prospect of succeeding and as a result, the appeal should be dismissed.
It is not therefore strictly necessary to deal with the application to stay proceedings because the appeal has been dismissed, but even if the appeal had not been dismissed, the stay application would have been refused because it is futile, given that the proceedings in the Magistrates Court have concluded and final orders have been made. No order of this court could prevent from occurring an event which has already occurred.
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