Maguire v Pankiewicz

Case [2009] SASC 169


SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Civil)

MAGUIRE v PANKIEWICZ

[2009] SASC 169

Judgment of The Honourable Justice Gray

12 June 2009

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - INFORMATION AND COMPLAINT - FORMALITIES

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - INFORMATION AND COMPLAINT - RELEVANT PRINCIPLES - COMMENCEMENT OF PROSECUTION

Appeal against Magistrate's order dismissing complaint - whether Magistrate erred in ruling complaint against respondent, a former legal practitioner, invalid - whether ‘proceeding’ commences on signing of complaint or on issue of court proceedings - Magistrate's obligation to provide reasons.

Appeal allowed - orders of Magistrate set aside - complaint remitted to Magistrate for further hearing - 'proceeding' commences on filing of complaint in court.

Leglal Practitioners Act 1981 (SA) s 21 and s 96; Summary Procedure Act 1921 (SA) s 49, s 51, s 52, s 54, s 57 and s 58; Magistrates Court (Criminal) Rules 1992 r 12; Magistrates Court (Civil) Rules 1992 r 103, referred to.
Flexible Manufacturing Systems Pty Ltd v Alter (2004) 182 FLR 15; Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1; Miller v Police (1997) 67 SASR 484; Palmer v Clarke (1989) 19 NSWLR 15; Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (2001) 4 VR 28; Director of Public Prosecutions (Tas) v Cook (2006) 166 A Crim R 234, considered.

MAGUIRE v PANKIEWICZ
[2009] SASC 169

Magistrates Appeal

GRAY J:

  1. This is an appeal against an order of the Chief Magistrate dismissing a complaint alleging that Peter Alvin Pankiewicz practised the profession of the law while not being a legal practitioner.

  2. The Legal Practitioners Act 1981 (SA) regulates the practice of the law in South Australia and those who may be entitled to act as legal practitioners. The Act, and in particular section 21, makes it an offence to practise the profession of the law without being a legal practitioner. The offence is summary in nature and its complaint is to be made in a summary court pursuant to the provisions of the Summary Procedure Act 1921 (SA).  The Legal Practitioners Act provides that such a proceeding may not be instituted without the authority of the Attorney-General. This appeal raises for determination the meaning of the phrase “the institution of proceedings” and the relationship between and construction of the relevant provisions of the two statutes.

    The Magistrates Court Proceedings

  3. The defendant and respondent, Peter Alvin Pankiewicz, was charged on complaint by the complainant and appellant, Jerome Maguire, the Chief Executive Officer of the Attorney-General’s Department,[1] with an offence pursuant to section 21(1) of the Legal Practitioners Act.[2]

    [1] Section 57A(11) of the Summary Procedure Act 1921 (SA) provides:

    (11) In this section—

    "public authority" means—

    (a) any instrumentality or agency of the Crown in right of the State…

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Maguire v Pankiewicz [2009] SASC 169
Case
[2009] SASC 169
Decision Date

CaseChat Overview and Summary

The case of Maguire v Pankiewicz involved a complaint filed against the respondent, a former legal practitioner, by the complainant. The dispute centred on the validity of the complaint and the procedural requirements that must be satisfied for a prosecution to commence. The case was heard and dismissed by a Magistrate, and the complainant subsequently appealed to a higher court. The appeal raised two primary legal issues: whether the Magistrate correctly ruled the complaint against the respondent invalid and the determination of when a 'proceeding' officially commences in such cases—whether it is upon the signing of the complaint or the issuance of court proceedings. Additionally, the appeal examined whether the Magistrate had a duty to provide reasons for their decision.

The court considered the procedural aspects of the complaint, including the commencement of prosecution and the necessity for a magistrate to provide reasons for their decisions. It was argued that a 'proceeding' begins when a complaint is filed in court rather than when the complaint is signed. The court found that the Magistrate did indeed err in their ruling and that the complaint should not have been dismissed without adequate reasons. The importance of providing reasons for judgment was highlighted, as it allows parties to understand the basis of the decision and to exercise their rights of appeal. The court also acknowledged that while reasons should ideally be provided at or soon after judgment, there may be circumstances that necessitate a delay, provided there is a good reason for it.

The appeal was ultimately allowed, and the orders of the Magistrate were set aside. The complaint was remitted to the Magistrate for a further hearing, with specific instructions on the commencement of a 'proceeding'. The defendant was ordered to pay the complainant's costs of the appeal, to be taxed on a party-party basis, and the costs thrown away in the Magistrates Court, which would be fixed by the Chief Magistrate. This decision underscored the importance of procedural correctness and the necessity for timely and reasoned decisions in legal proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

This review of authority confirms the importance of reasons being provided at or soon after judgment. It is plainly desirable that parties have reasons for judgment so that they are in a position to exercise their rights of appeal. However, none of the authorities go so far as to say that late reasons are not to be had regard to. Circumstances may arise in which it is not possible for a magistrate to deliver reasons at the time of judgment or soon thereafter. One would expect that there would be good reason for any delay. In the present proceeding the heavy administrative responsibilities of the Chief Magistrate are to be borne in mind, and that the need to attend to those responsibilities may, on some occasions, lead to some delay in the delivery of reasons.Conclusion This appeal is allowed. The orders of the Chief Magistrate are set aside. The complaint is remitted to the Chief Magistrate for further hearing. The defendant is to pay the complainant’s costs of the appeal, to be taxed on a party-party basis. The defendant is to pay the costs thrown away in the Magistrates Court in an amount to be fixed by the Chief Magistrate.

Ratio Decidendi

Legal Principle Established

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