Ives v The Magistrates Court of Western Australia - [2010] WASCA 231

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: IVES -v- THE MAGISTRATES COURT OF WESTERN AUSTRALIA [2010] WASCA 231

CORAM: PULLIN JA
NEWNES JA

HEARD: 23 NOVEMBER 2010

DELIVERED : 10 DECEMBER 2010

FILE NO/S: CACV 55 of 2010

BETWEEN: BENJAMIN IVES
Appellant
AND
THE MAGISTRATES COURT OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :HASLUCK J
File No  :CIV 2066 of 2009

Catchwords:

Practice and procedure - Application for leave to appeal out of time - No explanation for delay - No proper respondent - Grounds of appeal have no reasonable prospect of success - Application refused - Appeal dismissed

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 26, r 32, r 43(2)(g)(i), r 43(2)(g)(ii)

Result:

Leave to appeal out of time refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: No appearance

Solicitors:

Appellant: In person
Respondent: No appearance

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

Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430
Ives v Johnson [2010] WASCA 137
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149

JUDGMENT OF THE COURT: This is an appeal against a decision of Hasluck J of 10 June 2009 dismissing the appellant's notice of originating motion (originating motion) for a writ of certiorari directed to 'The Magistrates Court of Western Australia'. There are several applications before the court for determination in the appeal. There are the following applications by the appellant:
1.an application dated 8 June 2010, for an extension of time to appeal; and
2.an application, dated 10 November 2010, by which the appellant seeks leave to:
(a)adduce additional evidence on the appeal;
(b)amend the grounds of appeal;
(c)remove the respondent as a party to the appeal and;
(d)substitute as respondents, six named persons including a magistrate of the Magistrates Court.
In addition, the appellant has been given notice to show cause why the appeal should not be dismissed under r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (the Rules), on the ground that none of the grounds of appeal has a reasonable prospect of succeeding, or under r 43(2)(g)(ii), on the ground that the appellant has failed to obey the Rules or an order made under them.

The background

The relevant events giving rise to the proceedings before the primary judge are contained in an affidavit sworn by the appellant on 10 June 2009 in support of the originating motion. The affidavit is not easy to understand and the relevant events have to be pieced together from the affidavit and various documents attached to it.
It appears, however, that in December 2008 a Joyce Lim obtained an interim violence restraining order, ex parte, in the Magistrates Court, in proceedings PE 2670/2008, restraining the appellant, in effect, from approaching Ms Lim or entering or remaining upon any premises where Ms Lim lived or worked. The appellant had 21 days from service of the order on him within which to object to it.
The appellant did object and the matter came back before the Magistrates Court on 24 February 2009, at which stage the appellant was legally represented. Counsel for Ms Lim informed the court that the continuation of the restraining order was opposed by the appellant and he therefore sought an adjournment of the matter for eight weeks to enable Ms Lim's case to be prepared. He said Ms Lim intended to subpoena police and telephone records and to consider other evidence which might be relevant to the determination of the matter. She had been overseas when the matter was relisted and was unaware that it had been relisted until she returned to Australia on 2 February 2009. Counsel said that Ms Lim had applied for legal aid and that had been granted on 20 February 2009, leaving him effectively no time to obtain proper instructions. The adjournment was opposed by counsel for the appellant.
After hearing argument, the magistrate granted the adjournment. The matter was adjourned to 16 June 2009 for substantive hearing, that being the first available date on which it could be heard.
On 28 May 2009, the appellant attempted to file an application (a 'Form 23') at the Magistrates Court in PE 2670/2008 seeking orders that:
Magistrate alone to view medical records of Joyce Lim, Dr Rigg refuses to obey civil served subpoena to reveal records [and] give oral testimony.
Magistrate to instruct police to issue court subpoena to [name omitted], who blackmailed me (Ben Ives) for testimony. He has since stated he won't attend trial.
The appellant swore an affidavit on 29 May 2009 in support of that application. It is unnecessary to describe the contents in any detail. However, it appears from the affidavit that the application, so far as it related to Dr Rigg, had its origins in a document - presumably a witness summons - he received on 5 May 2009 requiring him to attend the hearing on 16 June 2009 and to bring Ms Lim's medical records. In a letter to the court dated 6 May 2009, copied to the appellant, Dr Rigg said the document was simply left at his rooms together with conduct money. Dr Rigg said he was going overseas and would not be available on 16 June. He also queried the relevance of the medical records.
It appears from the appellant's affidavit in support of the originating motion that he was told by staff at the registry of the Magistrates Court that the Form 23 would not be accepted for filing but that the matters raised in his application would have to be dealt with at the hearing on 16 June 2009 if Dr Rigg and the other witness failed to attend. The appellant complained in the affidavit that Ms Lim's solicitor, on the other hand, was able to have an application filed on 5 June 2009 listed for hearing on 11 June 2009. Ms Lim's application was for an order setting aside the summons served at Dr Rigg's rooms and a further order that only counsel (and not the appellant) be able to inspect Ms Lim's medical records, on an undertaking not to reveal the contents to the appellant.
In his affidavit, the appellant complained that he was not given five clear days notice of Ms Lim's application as, he contends, he was entitled to under the Magistrates Court (General Procedures) Rules 2005 (WA). He said that he was told by the Magistrates Court registry that he could not lodge an objection to Ms Lim's application but to make his objection at the hearing of the application on 11 June 2009.
On 8 June 2009, the appellant filed in the Magistrates Court a response (a 'Form 24') to Ms Lim's application of 5 June 2009 and an affidavit in opposition to it. It is unnecessary to canvass the contents of the affidavit.
On 10 June 2009, the appellant filed the originating motion in this court, supported by the affidavit to which we have referred. The originating motion is endorsed as being set down for hearing at 5.15 pm that day. The appellant was acting in person. In the originating motion, the appellant sought an order that:
A writ of certiorari, be granted absolute in the first instance, and be issued to The Magistrates Court of Western Australia, or as the court sees fit.
The grounds of the application were as follows:
And further take notice that the grounds of this [writ of certiorari] are: The clear favour shown to the applicant and legal representative in case PE2670/08, by evidence of the registrar refusing to permit the processing of a civil Form 23 correctly filed, by the defendant with subpoena and received and date stamped 28/5/09 by the registrar, yet no hearing for orders was granted; and yet when the applicants lawyer applied for a hearing for orders, giving grounds which are forbidden as grounds to be permissibly argued in the Freedom of Information Act, and the hearing was not listed in 5 clear days time but sooner in a breach of the Rules of the Magistrates Court. Furthermore, in subpoenaed evidence by the applicant, she states the objection to the disclosure of documents held on file at the court, yet I was lied to by the court officials as to documents being on file. The arguments used by the registrar to deny me a hearing should have been given to the applicants who should have been denied. Also cases PE1233/09 and PE1234/09 in which Benjamin William Ives was the applicant, and Danny Harrison and Joyce Lim were the defendants, the cases were heard co‑jointly and both cases dismissed on grounds of no evidence, on hearing only arguments for one case, and arguments would be heard for the other during PE2670/08 hearing 16/6/08. When hearsay evidence is admissible in ex parte hearings for initial civil violence restraint order hearings, the medical status of Joyce Lim is prescribed information, and cannot be excluded from final hearings, as the applicant is seeking to do. They are seeking an adjournment either way. The whole matter should be quashed immediately.
The originating motion is endorsed for service on the registrar of the Magistrates Court but there is no indication of whether it was served. There is nothing to indicate that it was served on Ms Lim or her solicitors, or that they were given notice of it.
The originating motion was heard on 10 June 2009 as a matter of urgency, after normal court hours. It appears that the hearing was not recorded, presumably because it was heard urgently after hours. The primary judge dismissed the originating motion. His Honour did not provide any written reasons for his decision. It is unclear whether he provided oral reasons.
The appeal notice was filed by the appellant on 8 June 2010, some 11 months out of time. In it the respondent was named as 'The Magistrates Court of Western Australia'. A notice of respondent's intention was filed by the State Solicitor for Western Australia, albeit it was noted on it that there was no such legal entity as 'The Magistrates Court of Western Australia'. The State Solicitor indicated that his office would not be participating in the appeal.
The appellant was quickly in default on the appeal. The appellant was required to file his appellant's case by 13 July 2010: r 32. It was not filed by that date and, on 9 August 2010, notice was given to the appellant that he was required to attend before the court on 10 September 2010 for consideration, among other things, of whether the appeal should be dismissed for failure to file and serve the appellant's case.
At the hearing on 10 September 2010, the time within which the appellant was to file and serve the appellant's case was extended to 24 September 2010. At that hearing it was drawn to the appellant's attention that there was no legal entity known as 'The Magistrates Court of Western Australia'. It was ordered that any application to amend the notice of appeal be filed by 24 September 2010.
The appellant's case was filed later on 10 September 2010. The grounds of appeal contained in it were as follows:
1.The learned judge erred in law by ignoring the evidentiary fact that the appellant had been denied a hearing.
2.The learned judge erred in law by ignoring the evidentiary fact that the appellant's adversary, Mr Loreck had been granted a hearing by the respondent:
(a)To hear argument in support of orders sought, which were exactly the opposite in nature to that which the appellant sought.
(b)Out of time.
(c)On an illegal form.
3.The learned judge erred in law by ignoring manifest prejudice, bias and inequity shown by the respondent.
At a hearing on 15 October 2010 to consider the appellant's application for an extension of time to appeal, the appellant's attention was again drawn to the fact that the respondent was not a legal entity. It was also drawn to his attention that the grounds of appeal were defective and that some of the matters as to the merits of the appeal relied upon in an outline of submissions filed in support of that application did not relate to any of the grounds of appeal. On that occasion, the appellant was given leave to file and serve an amended appellant's case by 5 November 2010 and the time within which any application to amend the appeal notice was to be filed was extended to the same date. The matter was adjourned to 23 November 2010.
On 10 November 2010, the appellant filed what is described as a 'Minute of Amended Grounds of Appeal'. There are, or appear to be, 11 grounds of appeal. No purpose would be served by setting them out. One ground is that the primary judge failed to provide reasons for decision. The other grounds assert, in substance, that the primary judge erred in law in failing to grant the relief sought in the originating motion. Many of those grounds of appeal are difficult to understand and none comply with the Rules.
On 10 November 2010, the appellant also filed an application to substitute a number of individuals as respondents in place of the current named respondent. The appellant has filed an affidavit in support of that application. In substance, the appellant complains that he was misled by members of staff at the Magistrates Court about the date upon which certain hospital records relating to Ms Lim were delivered to the court in answer to a witness summons in PE 2670/2008 and the fact that Ms Lim's solicitor, but not the appellant, was able to inspect those records. He also complains that on 11 June 2009 (that is, after the hearing of the originating motion) a magistrate, whom he seeks to have joined as a respondent, ordered that the medical records be returned to the hospital without giving the appellant an opportunity to inspect them. The affidavit contains scandalous allegations against members of the court staff and a number of irrelevant allegations concerning Ms Lim.
Although it is not entirely clear, it seems that the persons the appellant now wishes to join as respondents are, apart from the magistrate who ordered the return of the hospital records on 11 June 2009, the principal registrar and members of staff in the Magistrates Court registry who had dealings with the appellant in relation to the Form 23 or the hospital records.

The disposition of the applications

In our opinion, an extension of time to appeal should be refused and the appeal dismissed. We are of that view for several reasons.
In the first place, the appeal notice is some 11 months out of time and no satisfactory explanation has been given for the delay. Under the Rules, the appellant's appeal notice was required to be filed and served within 21 days of the decision of the primary judge: r 26. A compelling reason would be necessary to overcome a delay of 11 months. No such reason has been proffered. In an affidavit filed on 8 June 2010 in support of the application for an extension of time, the appellant said:
Due to my inexperience and lack of legal knowledge I thought [the decision of the primary judge] was the end of the matter and was not aware of my options in appealing decisions until recently.
It is very difficult to accept that the appellant was unaware there might be provision for an appeal against the decision of the primary judge and even if that were the case, the appellant was certainly aware of it by 17 February 2010 when he filed an appeal notice in other proceedings in this court: see Ives v Johnson [2010] WASCA 137 [7]. As we have mentioned, the notice of appeal in this matter was not filed until four months after that, on 8 June 2010.
In the meantime, as the appellant confirmed on the hearing of this application, the proceedings in PE 2670/2008 had come to an end. That also appears from the decision of this court in Ives v Johnson [10] ‑ [13], where it is recounted that, on 18 February 2010, a final violence restraining order for a period of two years was made in PE 2670/2008 in the same terms as the interim violence restraining order made in December 2008.
Secondly, the current respondent is not a legal entity and there is nothing in the material before us which would warrant the joinder of the new respondents proposed by the appellant. That is related to another problem which faces the appellant, namely identifying the decision he seeks to have quashed by the writ of certiorari. No such decision was identified with any clarity in the originating motion and even on the hearing of the current application the appellant had difficulty articulating what the relevant decision was. In the end, the appellant appeared to suggest it was a decision of the principal registrar of the Magistrates Court declining to set down the application in the Form 23 for hearing. The appellant conceded, however, that he was informed at the time that the matters raised in the Form 23 were not matters properly raised in that way but that they should be raised at the hearing on 16 June 2009. The appellant did not say whether he followed that course. We should add that pursuant to s 35 of the Magistrates Court Act 2004 (WA) certiorari does not lie against a magistrate.
Thirdly, none of the grounds of appeal has any prospect of success. The first ground of appeal is that the primary judge failed to give reasons for decision. While his Honour did not give written reasons for decision, it is not apparent whether at the time he dismissed the originating motion he gave oral reasons. In any event, we do not think it matters. Even if the primary judge failed to give reasons it does not follow that his decision must be set aside. An appeal court is entitled to consider the matter and, if it can do so (where, for example, only one conclusion is reasonably open on the available evidence), it may itself decide the matter: Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430, 444; Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149 [29]; (2004) 29 WAR 273.
The remaining grounds of appeal assert, in a variety of ways, that the primary judge erred in dismissing the originating motion. We do not consider that any error has been shown. On the material before us the primary judge was plainly correct in dismissing the originating motion. The application and the supporting affidavit were confused and incoherent, there was no proper respondent, and no decision was identified which would be amenable to a writ of certiorari. No grounds were made out which might have entitled the appellant to relief.
There is one further matter we should mention, lest it be thought that it has been overlooked. On 29 November 2010, six days after the hearing of the applications, the appellant filed an application for leave to rely on further written submissions which he filed with the application. The affidavit in support of the application indicates that the additional submissions are simply matters that have occurred to the appellant since the hearing. No reason has been given as to why they could not have been made at the hearing. In any event, there is nothing contained in those submissions which advances the appellant's case.

Conclusion

We would refuse leave to appeal out of time and dismiss the appeal.