Jenkins v Registrar of the Supreme Court (No 2) - [2017] NTCA 5

CITATION:Jenkins v Registrar of the Supreme Court (No 2) [2017] NTCA 5
PARTIES:JENKINS, Trevor
v

REGISTRAR OF THE SUPREME COURT

TITLE OF COURT:  NORTHERN TERRITORY COURT OF APPEAL
JURISDICTION:  APPEAL from SUPREME COURT exercising Territory jurisdiction
FILE NO:AP 8 of 2016 (21425645)
DELIVERED ON:  20 July 2017
DELIVERED AT:  Darwin
HEARING DATE:  11 July 2017
JUDGMENT OF:  Grant CJ
CATCHWORDS:

SUPREME COURT PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION
Appellant has not complied with orders for the purpose of prosecuting his appeal – appellant has not prosecuted his appeal with due diligence – appeal dismissed for want of prosecution
Supreme Court Act (NT) s 52
Supreme Court Rules (NT) r 84.13, r 84.16
Drover v Northern Territory of Australia & Anor [2004] NTCA 10, considered.
REPRESENTATION:
Counsel:
Appellant:Self-represented
Respondent:  GJ Macdonald
Solicitors:
Appellant:Self-represented
Respondent:  Solicitor for the Northern Territory
Judgment category classification:    C
Number of pages:  11

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Jenkins v Registrar of the Supreme Court (No 2) [2017] NTCA 5

No. AP 8 of 2016 (21425645)
BETWEEN:

TREVOR JENKINS

Appellant

AND:

REGISTRAR OF THE SUPREME COURT

Respondent

CORAM: GRANT CJ
REASONS FOR JUDGMENT
(Delivered 20 July 2017)

On 27 May 2016 the appellant lodged a document with the Supreme Court Registry in standard Form 85B. The document purports to be a Notice of Appeal in pursuance of r 85.09 of the Supreme Court Rules (NT).
The document nominates “Todd” as respondent to the appeal. For reasons that will become apparent, on 4 July 2016 the Master ordered that the Registrar of the Supreme Court be substituted as the respondent to the proceedings.
The document goes on to specify that the appellant appeals from the judgment given on 11 May. Although no year is specified, having regard to the context in which the document was filed the relevant date must be 11 May 2016.
Leaving aside the standard formal elements, the Notice of Appeal is handwritten. In that section of the standard form calling for the specification of the order sought, the appellant has recorded the following matters:
struck out falsely brought run constructed illegal practices deny natural justice ie ex parte pronouncements never taking place vulnerable witness box (ie not vulnerable witness)
The notice has attached to it a document headed “grounds against Kelly sentence”. So far as they may be discerned, the grounds of appeal are recorded in that document as follows:
unable to lodge appeal no hearing no witnesses insufficient time hearing illegal unlawful inadequate heard ex parte request rehearing standing accepted appeal ignored place in vulnerable witness box denies natural justice humiliates demeans childises [sic] appeals given active witnesses for registrar ie Daniel MacPherson legal & overt influence significantly affecting justice
The background to the appeal is as follows.
The appellant had originally brought an appeal to the Supreme Court against three convictions that had been recorded against him by the Court of Summary Jurisdiction. The Reasons for Judgment in those proceedings are recorded in Jenkins v Todd [2016] NTSC 4. As a result of the appellant’s conduct in that matter the judge before whom it had been heard directed the Registrar to apply by summons or originating motion for punishment of a contempt allegedly committed by the appellant during the course of the proceedings.
The application was heard and determined by Kelly J. On 20 April 2016, in Jenkins v Todd (No 2) [2016] NTSC 21; 36 NTLR 203, Kelly J concluded beyond reasonable doubt that by persistently interrupting and talking over the presiding judge in the manner set out in the particulars, the appellant was guilty of contempt in the face of the court.
On 11 May 2016, Kelly J convicted the appellant and sentenced him to imprisonment for three months commencing on 7 May 2016, to be suspended after two weeks on the following conditions.
For the next 12 months after you are released, when appearing before any court:
(i)   you are not to engage in any behaviour that is intended to disrupt any court proceedings or which has the effect of disrupting any court proceedings (This includes, without limiting the generality of this condition, interrupting or talking over the judge.);
(ii)    you are to address the presiding judge correctly as “your honour”;
(iii) you are to conduct yourself courteously and avoid abusive and offensive language;
(iv)   you are to comply with all directions of the presiding judge.
It is from that conviction and sentence, and the antecedent finding of contempt on 20 April 2016, that this appeal is apparently brought.
In Jenkins v Todd [2017] NTSC 26, Kelly J was called upon to consider whether that part of the sentence held in suspense should be restored in whole or in part. The background to that restoration is described in the opening paragraphs of the Reasons for Judgment in the following terms:
[1] On 11 May 2016 I sentenced Mr Jenkins to imprisonment for three months suspended after two weeks for contempt of court committed in proceedings before Barr J on 20 January 2016. The sentence was suspended for 12 months. It was a condition of the suspended sentence that, during that 12 month period, Mr Jenkins behave respectfully and appropriately whenever he appeared in a court. (Details of the condition are set out at [9] below.)
[2] I am dealing with an application that Mr Jenkins be dealt with for breaching the conditions of his suspended sentence. The breach is said to have been committed in the course of proceedings in the Local Court before Judge Smith on 21 October 2016.
Justice Kelly found that the appellant had breached two conditions of the order suspending sentence. In the matter before the Local Court the appellant intentionally disrupted proceedings by continually interrupting the evidence of a Crown witness and failed to comply with numerous directions by the trial judge that he cease doing so. In the event, on 9 May 2017 Kelly J restored the sentence held in suspense.
Justice Kelly concluded her reasons in Jenkins v Todd [2017] NTSC 26 with the following observations:
[76]     I want to add some remarks about the extraordinary amount of this Court’s resources which are being devoted to Mr Jenkins. It is true that a society can be judged by the way it treats its most disadvantaged members, and Mr Jenkins would have to qualify as among those most disadvantaged. It is also true that doing justice in the case of unrepresented litigants will sometimes involve a patient consideration of submissions that would be given short shrift if they came from a lawyer, to ensure that the unrepresented litigant perceives that he or she has been given an full and fair hearing. However, Mr Jenkins is coming to take up a disproportionate amount of the time and other limited resources of a relatively small court to the detriment of other litigants waiting for their matters to be brought on or for reserved judgments to be delivered.
[77]     This is only one of the matters Mr Jenkins has before this Court – and there are others in the Local Court. This matter began as an appeal against three convictions recorded against Mr Jenkins in the Court of Summary Jurisdiction. That appeal was heard by Barr J over six days. The resulting 56 page judgment would necessarily have taken many days work. Barr J allowed the appeal against one conviction on what was essentially a technicality. I have read the transcript and can say that all or almost all of the contentions made by Mr Jenkins over those six days were utterly without merit. (The one aspect on which he succeeded was not advanced by Mr Jenkins but identified by his Honour.)
[78]     As a result of his behaviour during the hearing of that appeal, Barr J directed the Registrar to charge Mr Jenkins with contempt. The Registrar did so and this resulted in many directions hearings, an unsuccessful application by Mr Jenkins to dismiss the proceeding on the ground that I had no jurisdiction, a hearing and a sentencing hearing. I spent many, many days reading transcript, sifting through Mr Jenkins’ handwritten submissions and bulk photocopied material, and many, many more days writing two judgments – one on the jurisdictional issue and one on the substantive contempt application – as well as sentencing remarks.
[79]     That was followed by this application that Mr Jenkins be dealt with for breaching his suspended sentence. Again this has involved multiple directions hearings, dealing with preliminary applications, sifting through a large volume of barely legible, barely comprehensible written material filed by Mr Jenkins trying to identify the substance of his contentions, and many, many days judgment writing dealing with contentions that by and large have no merit whatsoever. This is time I have not been able to spend writing other reserved judgments. Further, in addition to the Court time and judgment writing time involved, there has been a substantial allocation of resources in the registry and the library dealing with Mr Jenkins’ special needs and problematic behaviour. This disproportionate allocation of resources cannot continue indefinitely.
The present appeal is only one of a complex of six appeals which the appellant has on foot before the Supreme Court and this Court. The experience in the conduct of those appeals bears out Kelly J’s remarks.
The course of this appeal following the lodgement of the notice on 27 May 2016 has been as follows.
On 4 July 2016, the matter came before the Master to settle the index to the appeal books, to list the appeal for hearing, and for consequential orders. This appeal was one of three being run together by reason of certain common issues that arose. The other two appeals were AP5 of 2016 and AP7 of 2016. The Master made the following orders at that time:
1.    The Registrar of the Supreme Court is substituted as the Respondent in the proceedings.
2.    The Appeal Index is settled in accordance with the Draft Appeal Book Index signed by the Master and dated 4 July 2016.
3.    The Appellant is to file a corrected copy of the settled Appeal Index by 15 July 2016.
4.    This Appeal is to be heard together with appeal AP7 of 2016.
5.    The Appeal is listed for hearing on 18 October 2016 at 10:00 am to follow Appeal AP5 of 2016 (estimated duration is three days to include Appeals AP5 and AP7).
6.    The Appellant is to file three copies of the Appeal Books, and one version on disk in PDF format, by 19 August 2016.
7.    The Appellant is to serve the Respondent with one copy of the Appeal Book by 26 August 2016.
8.    The Appellant is to file and serve a List of Authorities and Summary of Submissions by 2 September 2016.
9.    The Respondent is to file and serve a List of Authorities and Summary of Submissions within seven days after service on her of the Appellant’s List of Authorities and Summary of Submissions.
10.     The matter is referred to the Senior Judge on the Court of Appeal to fix, if deemed appropriate, a Directions Hearing post 23 September 2016.
The appellant failed to comply with any of the obligations imposed on him under the terms of those orders, and made no apparent attempt to comply. From late-September 2016 the appellant made a number of written and oral approaches to court staff, and ultimately to the Master, seeking to have vacated the dates listed for the hearing of the appeals. As a result of those approaches, the matter was listed for mention before Hiley J on 10 October 2016.
During the course of that mention the appellant indicated that he expected the Court to prepare the appeal books for him, and that he was unable to prosecute the appeal until that had been done. It may be noted in that respect that the appellant had also failed to file submissions in accordance with the programming orders, but provided no excuse or explanation for that failure. Counsel for the respondents to the three appeals made the point that the conduct of the responses was also stultified by the fact that the appeal documents were not comprehensible.
The court ordered that the 18-20 October 2016 listing for the hearing of the appeals was vacated, and that the matters were to be re-listed before the Master for further directions on application. The appellant was advised of the following matters by notice dated 3 November 2016:-
·He was required to comply with the existing orders regarding filing and serving submissions in writing (in a legible form) as a pre-condition to the appeal being relisted for hearing.
·He was required to complete a review of typewritten versions prepared by the court of the various handwritten documents that had been lodged by him in the conduct of the appeal, also as a precondition to the appeal being relisted for hearing. (The provision of the typewritten versions on Hiley J’s direction was an attempt by the court to have the appellant produce a set of legible and comprehensible court documents for the purpose of the appeal.)
The onus was thereby cast on the appellant to attend to those steps and to make application in the prosecution of his appeals, including the subject appeal. He has not done so to this point in time. Nine months have elapsed in the interim period.
The Notice of Appeal and accompanying documents are grossly defective, to the extent that the appeal might properly be characterised as incompetent. In Drover v Northern Territory of Australia & Anor [2004] NTCA 10, Martin (BR) CJ observed at [28]:
In brief reasons given in Bilioara Pty Ltd v Leisure Investments Pty Ltd [2001] NTCA 2, Mildren J concluded that a single Judge did not have the power to exercise the jurisdiction of a Court of Appeal to dismiss an appeal as incompetent. His Honour said he reached that conclusion “somewhat reluctantly”. Like Mildren J, I would be reluctant to conclude that a single Judge does not have the power to dismiss an appeal as incompetent. There are sound policy and practical reasons why such a power should reside in a single Judge. However, as I have said, it is unnecessary for me to explore this question further.
His Honour was there speaking of the power conferred by r 84.16 of the Supreme Court Rules (NT). That reluctance is, with respect and as this matter demonstrates, well-founded; but the question may also be left open in this case. Section 52(2) of the Supreme Court Act (NT) provides that one judge may exercise the appellate jurisdiction of the Court of Appeal under s 51 “to dismiss an appeal for want of prosecution or for other prescribed cause”. That provision is complemented by r 84.13 of the Supreme Court Rules, which provides relevantly that where an appellant has not done an act required to be done for the purpose of prosecuting his appeal, or otherwise has not prosecuted his appeal with due diligence, the Court may order that the appeal be dismissed for want of prosecution.
This Court would ordinarily be slow to dismiss an appeal brought by an unrepresented litigant on this ground, and would only do so in exceptional circumstances. The circumstances in the present case are exceptional. In addition to the matters apparent from the preceding discussion, there is no real prospect that the appellant will be able to take the steps necessary in the prosecution of this appeal. He is, by his own admission, incapable of preparing the necessary appeal books. Past experience also demonstrates that he is incapable of producing anything in the nature of written or oral submissions that might in any way assist in the prosecution of his appeal, or that might be rational and comprehensible.
That situation might be capable of amelioration if the appellant was to secure professional and qualified legal representation. Unfortunately, that is not possible. The appellant has disclosed the following matters in relation to the possibility that he might secure legal representation. First, his various applications for legal aid have been refused on the basis of a lack of prospects. Secondly, he would not have availed himself of that assistance even if legal aid had been forthcoming (or if pro bono assistance was offered). The reasons he gives for that position are that he is better equipped than a legal practitioner to run this proceeding (and the related appeals) due to his intimate knowledge of the surrounding circumstances; and the various legal practitioners with whom he has discussed these proceedings are not prepared to conduct the proceedings in the manner he requires.
Finally, if the Court had even the slightest basis on which to consider that there might be some merit or point of principle or arguable issue arising in the matter, or that the dismissal of the proceedings for want of prosecution might possibly give rise to some injustice, it would continue to entertain the proceedings and seek to bring them to some substantive resolution notwithstanding the very significant obstacles to doing so. A close consideration of the Reasons for Judgment in Jenkins v Todd [2016] NTSC 4 and Jenkins v Todd [2016] NTSC 21; 36 NTLR 203 fails to disclose any basis on which to harbour apprehension in that respect.
The appeal is dismissed for want of prosecution.

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