Ives v Johnson
[2009] WASC 361
•20 NOVEMBER 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: IVES -v- JOHNSON [2009] WASC 361
CORAM: McKECHNIE J
HEARD: 20 NOVEMBER 2009
DELIVERED : 20 NOVEMBER 2009
FILE NO/S: CIV 2974 of 2009
BETWEEN: BENJAMIN WILLIAM IVES
Plaintiff
AND
MICHAEL JOHNSON
Respondent
Catchwords:
Courts and judges - Review order - Whether grounds - Summons to produce - Whether Registrars must grant access to documents - Checking transcript for accuracy - Whether applicant must specify part of transcript - Early return of witness summons - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff: In person
Respondent: No appearance
Solicitors:
Plaintiff: In person
Respondent: No appearance
Case(s) referred to in judgment(s):
Nil
McKECHNIE J: (Edited from transcript). There are proceedings pending in the Magistrates Court, for a violence restraining order involving the present plaintiff and another person who is represented by a solicitor. I will refer to that person as the applicant. The present application is for a review order and is supported by an affidavit of the plaintiff sworn 18 November 2009.
There is no evidence that the application has yet been served, but this is an initial hearing in any event. The plaintiff seeks that a draft order prepared by him be issued against the Principal Registrar of the Magistrates Court. The draft contains a number of facts and is written in confusing legalese but seems to assume that the registry staff have failed to comply with forms requesting the release of information and have stated that the plaintiff is required to have permission of a magistrate for the access he requests, 'but this is incorrect according to the Rules and Act of the Magistrates Court'.
The plaintiff has also requested a check of accuracy of the transcripts and the registry has refused to order that be done. He wishes information be released to him.
As far as I can gather, from the papers and his discursive submissions this morning, the plaintiff raises a number of issues. It would appear that he issued a subpoena for certain medical and other records. On 11 June 2009, a magistrate heard an application by the applicant to set aside the witness summonses. The magistrate set aside two witness summonses and adjourned consideration in respect of the third witness summons issued to the applicant's psychiatrist until hearing.
Apparently, in response to letters from the plaintiff, the acting registry manager wrote to the plaintiff on 13 August 2009 outlining the position in respect of the documents. The letter deals with a number of matters by number and asserts in part that 'As at 5 June 2009 there were no subpoenaed documents on our file'. The plaintiff takes issue with that and points to statements by the applicant's solicitor to demonstrate that that was wrong. However, on the material I am simply unable to judge whether the applicant's solicitor had access to the witness summons or the documents themselves, and I note the hearing was not indeed for some days afterwards. The acting registry manager's letter said 'There is not and never has been any documents withheld from you' and outlines the need for various forms. That letter was followed by a letter from the named defendant, who is the Principal Registrar, on 31 August 2009 which advises that he is satisfied with the response provided by the acting registry manager and deals with a number of other matters including a request to obtain or inspect a copy of the court record:
I confirm that arrangements can be made for you to listen to the audio recordings tapes, and that the required fee of $25 will be waived. You will need to contact the Manager Court Records (giving a phone number) to make the necessary arrangements.
The Principal Registrar dealt with the question of the transcript of the hearing and then said:
Item 3: Request to inspect or obtain copy of a court record (Form 1).
I have reviewed your request for access to obtain copies of subpoenaed documents and advise that these documents will only be released to you on lodgement of a Magistrates Court (General) Rules 2005 Form 2. Application For Leave In Respect Of A Court Record. For your assistance, I have enclosed a copy of this form. On lodgement your application will be listed for a hearing during which a magistrate will determine whether it should be granted or refused.
The court maintains an electronic register of all subpoenaed documents received, which will be made available to you to inspect. Please contact the Manager Court Records, … to make the necessary arrangements.
Your affidavit sworn 8 May 2009 is on file and you are at liberty to inspect it.
There then follows a response about a video-link. That is a matter presently before Simmonds J, although I understand that the plaintiff proposes to discontinue that application.
Today the plaintiff has handed up certain other documents. One of those is a response by the restraining orders registry, by email to the plaintiff, dated, it would appear, around about 1 October or 30 September 2009:
Form 1 - Request to inspect or obtain a copy of a court document - Dated 8th June 2009
1.Everything available at current. This is a very broad statement. Specific requests need to be made in order to identify exactly what it is you are after.
Form 1 - Request to inspect or obtain a copy of a document - Dated 25 June 2009
1.Subpoenaed Documents in total. These have already been provided to you.
2.Letters to the court relating to the case. As advised previously, I have made copies of letters on the file and they are waiting for you to collect. To reiterate these letters include:
1 x Letter from Mercedes College
3 x Letters from Ballantyne Plumbing, Gas & Electrical
1 x Letter from Microsoft Corporation
2 x Letters from Dr Rigg's office
1 x Letter from Officer Bracknell
3.Affidavits submitted by Applicant & Defendant. These have already been inspected by you.
Form 1 - Request to inspect or obtain a copy of a court document - Dated 22nd July 2009
1.Transcript of Hearing held on the 11th June 2009. As you have been previously advised, this Transcript is waiting for you to come and collect it.
2.Transcript of Hearings held 16th June 2009 and 17th June 2009. These have already been provided to you.
3.The phone records subpoenaed of Joyce Lim from Vodafone. These have already been provided to you.
4.Photocopies of every other record subpoenaed, without exception; as Mr Loreck did that pre hearing 16/9/09, so hence I am currently disadvantaged. Aside from the documents the Magistrate ordered should be returned without the parties viewing them they have already been provided to you.
5.Any register/inventory list stating when records arrived. As advised before, there is an electronic list of this available for you to view. It is not appropriate to provide you with a complete printed copy of the register as it contains all subpoenaed documents from all matters the court conducts. However I have an extract of the information that relates to your specific case which I have included with the documents still waiting for you to collect. If this is not sufficient, you will need to make an appointment to attend and view the electronic list personally.
6.I wish to inspect 1st Affidavit submitted in May, and the copy of my affidavit Mr Daniel Loreck edited and submitted. This has already been done. I personally saw you inspect them either on or around Friday the 2nd October.
From 3A - Application for access to information held by the court - Dated 22nd July 2009 [A lengthy response is provided.]
So I come to what seems to be the issues. The plaintiff clearly has views about matters but I am required to determine this application strictly on the law.
Inspection of documents
One matter is inspection of subpoenaed documents. Subpoena is an old word and it is more correct to say documents produced under witness summons. The plaintiff asserts that he, the Registrar, must grant leave. In that he is incorrect. Section 33 of the Magistrates Court Act 2004 (WA) says by s 33(3):
A party to a case is entitled, on request, to inspect or obtain a copy of the following documents -
(a)any document that has been lodged with or issued by the Court as required by law and that forms part of the Court's records of the case;
(b)a copy of any document admitted as evidence in the case by the Court;
The Magistrates Court (General) Rules 2005 r 37 is entitled 'Request to inspect or obtain copy of a document' (Act s 33(3) or (7)):
1.A request … must be made by lodging a Form 1.
2.When the request is lodged, a registrar
(a)must grant the request if the registrar is satisfied that the request is being made by a person who is entitled under the Act (which is a party to proceedings) to inspect or obtain a copy;
(b)otherwise, may list the request for hearing by a magistrate.
That section and rule are inapplicable to this case in respect of documents produced to the court under witness summons. The situation is covered by the Magistrates Court Act 2004 (WA) s 33(4) which reads:
With the leave of the Court, a party to a case may -
(a)listen to or view -
(i)any electronic recording tendered to the Court in the case or;
(b)any electronic recording in the proceedings in the case,
and obtain a copy of all or a part of such a recording;
(b)inspect or obtain a copy of any document held by the Court in relation to the case;
(c)inspect any other thing tendered to the Court in the case and, if it is practicable for the Court to make a copy of such a thing, to obtain a copy of it.
Documents produced under witness summonses do not form part of s 33. They are not the records of the court; they are documents held by the court in relation to a case. In respect of those documents r 38 of the Magistrates Court (General) Rules applies and says:
(1)An application for leave under section 34(4) must be made by lodging a Form 2.
(2)When the request is lodged a registrar may grant it or list it for hearing by a magistrate.
Reading the correspondence I am of opinion that the Magistrates Court registry is correct and the plaintiff may lodge a form 2 and have the matter determined by a magistrate if the registrar declines to grant it. There is no obligation on the registrar to deal with it. In any event in the case of the medical records, a magistrate has set aside the witness summons.
Checking transcript for accuracy
The plaintiff also wishes to have the transcript checked for accuracy and has lodged a form in respect of that. The Magistrates Court (General) Rules deal with this as well. Division 4 deals with recording of proceedings. Rule 20 provides:
(1)Whether or not a transcript or copy has been certified under these rules to be accurate, a person may apply to a registrar to have the accuracy of a specific part of the transcript checked.
(2)On such an application a registrar must cause the transcript to be checked for accuracy, corrected if necessary and certified to be accurate.
The short answer to this issue is that the plaintiff advised me that he has not in fact referred to a specific part of the transcript for checking. Therefore, no error on the part of the registry presently arises. However, I would not in any event issue a review order for a number of reasons. The first is that the request was made on 14 October 2009, barely a month ago. These proceedings have not been, as I understand it, yet served, and there certainly has been no conferral about matters with a view to reducing the matters in dispute. In any event, the plaintiff thinks that the transcript is inaccurate but has been given the opportunity to listen to the audio tape and has not yet done that. In discretion, I would not intervene even if I thought there was a need to do so.
Undated witness summons
The next issue which is raised is that the plaintiff wishes to issue a witness summons for closed circuit television footage in respect of a particular place of entertainment. The Magistrates Court had advised the plaintiff that the request for the production of the footage was on the wrong form and the form did not have a date of hearing. The registry is correct: a witness summons is to be returnable on the date when the matter is listed for hearing in court, otherwise it is meaningless because a witness summons is to produce a document to the court on a particular date.
It is always open for a party to apply for a hearing date specifically for the return of witness summonses before the hearing of the trial but the plaintiff has not done that. The plaintiff says that he has issued subpoenas before which the court has issued which do not have the date. As an example, on exhibit D, which appears to be written by the plaintiff in his own handwriting, he has specified 20 May 2009.
The registry has simply dated it and accepted it for filing. That may well be right but it is not an indication that the registry selected the date of 20 May 2009 or even that the clerk who dealt with it would have known the date. It is an insufficient basis for the issue of a mandamus. There is nothing shown in the papers or in the argument by the plaintiff today that would justify a review order at law in any event.
Many of the matters could have been raised before a magistrate, such as the last matter to which I referred. That is the principal place where they should be raised recognising of course that this court retains ultimate powers to control court by s 36 of the Magistrates Court Act.
Conclusion
That is sufficient to dispose of the matter but I should add this: the plaintiff has made a series of very serious allegations at various times in various correspondence.
For instance in an email of 6 October 2009, responding to Mr Gee's earlier email to which I have made reference, he finishes the email this way:
Please understand that I view that court as 100% rotten by corruption, and I tell everyone I know what corruption goes on there. The annoying thing is everyone there pretends they have a right to be proud of their job. I would never feel proud about working somewhere so depraved and completely debauched. I have no respect whatsoever for that registry the only power you have is misused, and I think you're all hypocrites. I would rather work at a hugal and hoil that did business honestly than was mixed up in a deluded world of self conceited criminals.
I have to say that I have carefully examined all the documents. I consider that the 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. There is no merit in this application and it is dismissed.
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