Manny v Australian Securities and Investments Commission

[2017] NSWCA 44

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Manny v Australian Securities and Investments Commission [2017] NSWCA 44
Hearing dates:	9 March 2017
Decision date:	09 March 2017
Before:	Beazley ACJ at [1], [24] and [26]; Basten JA at [2]; Ward JA at [25]
Decision:	Summons dismissed
Catchwords:	APPEAL AND REVIEW – judicial review – review of order in criminal jurisdiction of District Court under s 69 Supreme Court Act 1970 (NSW) – supervisory jurisdiction limited to review of jurisdictional error by s 176 District Court Act 1973 (NSW) – whether decision of District Court rejecting application for annulment of convictions in Local Court infected by procedural unfairness   CRIME – conviction in absence of defendant – application to annul – whether defendant hindered by illness from attending – delay – whether annulment in interests of justice
Legislation Cited:	Crimes Act 1914 (Cth), s 20 Crimes (Appeal and Review) Act 2001 (NSW), ss 4, 8, 11A, 18, 52 District Court Act 1973 (NSW), s 176 Supreme Court Act 1970 (NSW), s 69
Cases Cited:	Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 Wishart v Fraser (1941) 64 CLR 470
Category:	Principal judgment
Parties:	Jeff Manny (Applicant) Australian Securities and Investment Commission (First Respondent) District Court of NSW (Second Respondent)
Representation:	Counsel: Applicant self-represented Ms K Lawrence (Solicitor) (First Respondent)   Solicitors: Applicant self-represented Commonwealth Director of Public Prosecutions (First Respondent)
File Number(s):	2016/257276
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 18 May 2016 Before: Mahony SC DCJ File Number(s): 2011/233431

Judgment

1. BEAZLEY ACJ: I invite Justice Basten to deliver the first judgment.

2. BASTEN JA: In 2011 the applicant, who is known in this country as Jeff Manny, was the sole director of companies which went into administration. He was charged with a number of offences under the Corporations Act 2001 (Cth) for failing to provide statements and books to the administrator. On 24 March 2015, after an extraordinary set of delays which are not presently relevant, he was convicted in his absence by the Local Court at Queanbeyan.

3. On 9 February 2016 the applicant sought annulment of the convictions pursuant to s 4 of the Crimes (Appeal and Review) Act 2001 (NSW) (“Appeal and Review Act”). The magistrate in the Local Court at Queanbeyan rejected that application and proceeded to sentence the applicant. The applicant was placed under a recognisance pursuant to s 20(1)(a) of the Crimes Act 1914 (Cth) and a penalty of $220 was imposed.

4. On 9 February 2016 the applicant filed a notice of appeal to the District Court. The notice of appeal stated that the applicant was appealing because he was not guilty. This was treated in the District Court as an appeal against the rejection of his annulment application. There is no complaint about that approach. The right of appeal is provided by s 11A of the Appeal and Review Act. The appeal was heard by Judge Mahony in the District Court at Queanbeyan on 18 May 2016. The appeal was dismissed with no order as to costs.

5. There is no right of appeal from an order in the criminal jurisdiction of the District Court dismissing an appeal from the Local Court. However, the applicant invoked the supervisory jurisdiction of this Court under s 69 of the Supreme Court Act 1970 (NSW). That jurisdiction is available; nevertheless, it is well-established that the grounds on which the jurisdiction may be invoked are limited by the privative clause in s 176 of the District Court Act 1973 (NSW) to the constitutionally protected jurisdiction based on what is known as “jurisdictional error”. [1]

   1. Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 at [10].

6. Pursuant to s 8 of the Appeal and Review Act, a conviction must be annulled if the court is satisfied that the defendant was “hindered by accident, illness, misadventure or other cause from taking action in relation to the original Local Court proceedings”. [2] The conviction must also be annulled if the court is satisfied, “having regard to the circumstances of the case, it is in the interests of justice to do so”. [3]

   2. Appeal and Review Act, s 8(2)(b).

   3. Appeal and Review Act, s 8(2)(c).

7. In this case, there were three issues raised by the application in the Local Court, namely:

1. whether, because of illness, the applicant was hindered from appearing at the hearing;

2. whether the annulment should be set aside in the interests of justice:

1. because the applicant had viable defences to the charges, and

2. despite the extraordinary delay in having the matter come to hearing.

8. With respect to the first issue, the appeal judge noted that the applicant relied upon circumstances which flowed from an injury to his hand, when he was in Iran on 7 January 2015. The applicant proffered medical certificates at the hearing in the Local Court from an Iranian surgeon who had operated on his hand and who stated that the applicant was unable to travel by air until completion of his “treatment”. The treatment identified in one of the certificates was 10 sessions of physiotherapy. The judge noted that the certificate was dated 14 February 2015. The judge concluded that the evidence was insufficient to satisfy him that the applicant was unable to travel in sufficient time to attend the hearing which had been fixed for 24 March 2015.

9. The appeal judge further considered whether it was in the interests of justice that the annulment be set aside. He addressed the applicant’s submissions that he had a strong defence and noted the applicant’s reliance on a passage in the submissions of the prosecutor to the magistrate advising that the administrators had been able to obtain the information they sought with respect to the affairs of the companies from other sources. The applicant submitted in the District Court that this was an indication that he had supplied the material. The judge rejected that reading of the prosecutor’s statement.

10. Because the question of the applicant’s defence arose in relation to a later complaint about the proceeding in the District Court, it is convenient to note the manner in which the issue was dealt with in the Local Court. After the applicant had indicated that he proposed to say “how viable is my defence,” the magistrate intervened with the following rejoinder: [4]

“No, no, no. I’m happy for you to say that there is a strong defence, but on a list day I do not need details on – you’ve said that before, Mr Manny, but the basis of today’s application is whether or not – and all you need to say is that you believe you have a strong defence. And you’ve pointed before, and you’ve set out in your application, as to why you say that defence would have some grounds. But I’m not going to have a whole hearing today as to why there is credit to your defence.”

4.    Tcpt, Local Court, 09/02/16, p 4(40).

11. It is clear that the magistrate was happy to proceed on the basis that there was an arguable defence and that issue was not referred to again in the course of the dismissal of the application.

12. The appeal judge identified, correctly on the submissions in this Court, the critical basis of the appeal, namely that the applicant said he had not been accorded procedural fairness in the Local Court. Having dealt with the issues noted above, the judge concluded, on the basis of a reading of the transcript of the Local Court proceedings on 9 February 2016 that the applicant had been fairly treated and given appropriate opportunities to provide information relevant to the matters before the Local Court. While noting that the applicant had a “strong sense of grievance”, the appeal judge further concluded that the applicant had been given a fair hearing, and took the view that he would come to the same determination as the magistrate. Accordingly, it was not in the interests of justice to set aside the decision to reject the annulment order.

13. The challenge to that decision in this Court turns on whether the applicant was accorded procedural fairness in the District Court. There is otherwise no possible error which would warrant the grant of relief in these proceedings.

14. The applicant’s submissions sought to challenge both the decision of the Local Court and the judgment in the District Court. As the solicitor for the Commission noted, the challenge to the orders made in the Local Court would be incompetent in circumstances where they had been superseded by the orders of the District Court, in accordance with the reasoning of the High Court in Wishart v Fraser. [5]

    5. (1941) 64 CLR 470.

15. The Commission further submitted that the proceeding in the District Court was by way of rehearing. Although the Appeal and Review Act does not expressly so provide, an appeal with respect to the refusal by the Local Court of an application for annulment of a conviction being dealt with in ss 11A and 16A, [6] the submission should be accepted, it being in an applicant’s interest that there are no implied limitations on such an appeal. [7] It follows that the appeal against the refusal of an application for annulment of conviction having been dealt with in the District Court by way of a rehearing, there is no extant order of the Local Court to be reviewed.

    6. Cf Appeal and Review Act, s 18(1).

    7. Appeals on questions of law go to the Supreme Court: Appeal and Review Act, s 52(1).

16. The first ground upon which the judgment in the District Court was challenged was the refusal by the appeal judge to accept a further medical certificate dated 16 November 2015, which referred to the injury to the applicant’s hand and a ligamentous sprain of the left knee. The description (which did not accord with the account given by the applicant as to which hand was fractured, nor with his certificates from the Iranian doctors in that regard) merely set out the supposed history, without making a diagnosis or indicating anything about the ability of the applicant to travel prior to 20 March 2015. The document did not constitute evidence of any relevant matter and its rejection demonstrated no error of any kind.

17. There was also a specific claim that the appeal judge did not address s 4 of the Appeal and Review Act. That section, however, merely provides for an application for annulment of a conviction made in the absence of the defendant. There has never been an issue but that the applicant complied with the requirements of that provision. The circumstances to be addressed were those set out in s 8, which the appeal judge expressly addressed. No error is revealed in this regard.

18. There was then a complaint that the appeal judge misunderstood the nature of the appeal and the ground on which the applicant had sought to rely, namely that there had been a denial of procedural fairness in the Local Court. That assertion was factually inaccurate; the appeal judge expressly referred to the fact that he had read the whole of the transcript in the Local Court and concluded that the applicant had been dealt with fairly by the magistrate, in the sense that he had been given an opportunity to deal with the issues which were raised in the Local Court proceeding.

19. The focus of the applicant’s oral submissions in this Court was that he was denied procedural fairness in the Local Court because the magistrate refused to accept a bundle of documents which he sought to tender. He then said that the basis of his appeal in the District Court was to establish error in the form of procedural unfairness on the part of the magistrate, which would result in the Local Court order being set aside. But in the District Court, when he had the opportunity, he did not seek to tender the documents not accepted in the Local Court. Nothing was said in the written submissions filed in that Court as to this issue. Furthermore, in the brief passage in which he dealt with these documents in the course of oral submissions, he described them as “some Farsi language document … to show what a sickness I had …”. The documents were not tendered; as described, there was no reason for the District Court judge to think that they would have affected the outcome in any way. There is no substance in that challenge.

20. The applicant suggested that the appeal judge had failed to consider his defence to the substantive charges. That too was not so; in considering whether the annulment should have been granted on the basis that it was in the interests of justice to do so, the appeal judge expressly addressed arguments put by the applicant with respect to his alleged defences. That ground cannot be upheld.

21. Finally, the applicant complained he that had not been given sufficient time to prepare for his appeal. That misconceived the nature of procedural fairness. The appeal was lodged by the applicant himself, on 9 February 2016. The appeal was heard more than three months later on 18 May 2016. It is appropriate that such matters be dealt with expeditiously. There was no basis for the general proposition that the applicant was denied an opportunity to put before the court on the appeal relevant submissions, or to tender further evidence, as in fact he did.

22. The applicant did not complain to the appeal judge that he was not in a position to proceed, nor seek an adjournment. The reason appears to have been that his present complaint was limited to the lack of an opportunity to prepare submissions about his defences to the charges, which he had not anticipated would be relevant. In that expectation he was correct; the substance of the defences was only relevant to the extent that he sought to rely on them as an element of his appeal based on the “interests of justice”. For the reasons noted above, there was no procedural unfairness in the appeal being heard on the date fixed for the hearing.

23. There is, accordingly, no substance to the complaint of procedural unfairness, nor any other form of jurisdictional error, in relation to the proceedings in the District Court. The summons should be dismissed.

24. BEAZLEY ACJ: I agree with the reasons of Justice Basten and I agree with the proposed order that the summons be dismissed.

25. WARD JA: I also agree with the reasons of Basten JA and with the order his Honour proposes.

26. BEAZLEY ACJ: Accordingly, the order of the Court is: summons dismissed.

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Endnotes