Mansell v The State of Western Australia - [2013] WASC 202

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: MANSELL -v- THE STATE OF WESTERN AUSTRALIA [2013] WASC 202

CORAM: McKECHNIE J

HEARD: 20 MAY 2013

DELIVERED : 28 MAY 2013

FILE NO/S: CIV 1749 of 2013

BETWEEN: CAMERON JAMES MANSELL
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Practice and procedure - Declaration - Ongoing criminal proceedings - Whether discretion should be exercised - Abuse of process - Application in similar terms to previous application

Legislation:

Supreme Court Act 1935 (WA), s 25

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: In person
Respondent: Mr A J Sefton

Solicitors:

Applicant: In person
Respondent: State Solicitor for Western Australia

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

Commissioner of Corporate Affairs v Sansom [1981] WAR 32
Connell v Reynolds SM (1993) 9 WAR 27
Forster v Jododex (Australia) Pty Ltd (1972) 127 CLR 421
Ibeneweka v Egbuna [1964] 1 WLR 219
Munnich v Godstone Rural District Council (1966) 1 All ER 930
Re Magistrates Court of WA; Ex parte Mansell [2013] WASC 120
Sankey v Whitlam (1978) 142 CLR 1
Shapowloff v Dunn (1973) 2 NSWLR 468

McKECHNIE J: The applicant seeks relief in the nature of declaration supported by an affidavit sworn by him on 18 April 2013. The declarations sought are:
(1)The applicant is seeking a declaration from the Supreme Court to allow the applicant the opportunity to offer to the so named victims of the said charges an out of court settlement without prejudice to the application to financially ameliorate any loss financially sustained.
(2)The applicant would make an offer with the courts leave and with the court's insistence that the police or any other representative of the state not interfere with the offer being made by the applicant.
(3)The Declaration sought would allow the applicant to write to the said victims directly or through an approved person by the court to make such an offer.
(4)The said victims would be under no pressure whatsoever to agree with the offer however it stands to reason that a financial offer to the value of the purported loss would be accepted, otherwise it would just be a complete loss on behalf of the client.
(5)If the offer is accepted by the purported victims the applicant acknowledges that the state may still pursue the criminal matter with the courts.
(6)Justice Hall has already stated at a hearing on 20 March 2013, at page 16, there is no ownership in witnesses the applicant is free to approach them and have third parties contact them on his behalf.
(7)The applicant is under no restrictions whatsoever from approaching these clients and offering them an out of court settlement therefore dealing with the matter from a civil sense.
(8)The applicant and the clients need to be able to approach this agreement without obstruction from the state.
(9)Making offer of this kind is not perverting the course of justice and the court should declare that fact.
(10)The court had already made it abundantly clear that the applicant can not only make them the offer but it would not affect the charges of stealing before the court.
(11)The court should endorse the comments made by Justice Hall and declare the charges of perverting the course of justice dismissed for want of prosecution.
(12)The court should further declare that the applicant and the said victims should be allowed to settle unobstructed.
On the morning of the hearing the applicant lodged an amendment to the application:
The Supreme Court should give a Declaration in regard to the 'without prejudice' negotiated settlement between the applicant and his friends that are the purported victims of stealing charges, that, all evidence relating to the negotiated settlement is inadmissible in any court proceedings including the charges of perverting the course of justice, and that the applicant and the said victims can resume mediation unobstructed by the state.
The State Solicitor was served a copy with the application by the court and attended out of courtesy. The State had not received the amendment of 20 May 2013 which is the only matter that could involve at least the police prosecution in the Magistrates Court. The State does not appear to be a proper party.

The circumstances giving rise to the application

It appears that the applicant has been charged with 48 charges of stealing relating to what the applicant describes as an investment by the him of monies belonging to a small group of friends, although some of the group consisted of people who were also the applicant's past clients.
He has apparently also been charged with 14 counts of attempting to pervert the course of justice relating to offers he allegedly made to some of the people just mentioned. He asserts that the police have used documents which the applicant describes as 'privileged' due to their being documents generated in mediation correspondence which is 'without prejudice'.
The applicant submits:
2.These charges [attempting to pervert the course of justice] have been brought before the court for an improper purpose, their quiddity is to attempt to cause vexation and encumber the applicant to distract him from the arduous task of appealing the conviction of murder as the assertions of stealing and perverting the course of justice are made by the proponent had no basis in fact, these charges were immediately given to the media to report upon which they did, however the charges are designed to prejudice the more substantive matter before the courts, ...
3.These charges have not only been brought for an improper purpose but have no prospect of success and their continuance would constitute an abuse of process, ...
The applicant concludes:
There is no prima facie case to answer, there are a multitude of issues surrounding the matter of perverting the course of justice outlined in this application that either singularly or collectively show that this matter ought not proceed and a permanent stay placed on the charge of perverting the course of justice should be entered.
It can be fairly said that these charges have been brought before the court for a purpose that in the eye of the law they are not designed to serve. Any continued pursuit of these charges would be view as a cause of vexation and persecution on the applicant.
The court should allow the applicant and his clients to enter into discussions to ameliorate their financial position. The court should further order that the charges of perverting the course of justice against the applicant be permanently stayed.

The power to make a declaration

The power to make a binding declaration of right without a grant of consequential relief arises from the Supreme Court Act 1935 (WA) s 25(6). In Ibeneweka v Egbuna [1964] 1 WLR 219, Viscount Radcliffe, delivering the decision of the Privy Council, said that there are two primary considerations:
•the power to make declarations is conferred in wide and general terms;
•what is conferred is a discretion to be exercised according to the facts of each individual case.
After dealing with supposed restriction on the exercise of the power he continued:
It is doubtful if there is more of principle involved on the undoubted truth that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances at call for their making (225).
In Forster v Jododex (Australia) Pty Ltd (1972) 127 CLR 421 the jurisdiction was described as 'a very wide one' [435]. In Sankey v Whitlam (1978) 142 CLR 1, Gibbs ACJ said:
The word 'right', in the expression 'declarations of right' ... is used in a sense that is wide and loose. It includes what might more precisely be described as privileges, powers and immunities. And the power to make a declaration extends to enable a plaintiff to have it declared that he is under no duty or liability to the defendant (23).
Accepting that the jurisdiction is very wide, the power to grant a declaration is a matter for the exercise of discretion.
A court is reluctant to make declarations which impinge directly on a criminal matter. Once criminal proceedings have begun, they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order: Sankey v Whitlam (25 ‑ 26); Shapowloff v Dunn (1973) 2 NSWLR 468, 470: Connell v Reynolds SM (1993) 9 WAR 27.
If the charges are indeed vexatious, the applicant has an available remedy within the Criminal Procedure Act 2004 (WA) s 76 to seek a stay of proceedings. I make no comment as to whether a stay should be granted. The applicant told me at the hearing that he was applying to the magistrate on Friday, 24 May 2013, to have the charges stayed as an abuse of process.
The existence of a remedy such as provided by the Criminal Procedure Act is a powerful consideration against the exercise of a discretion in civil proceedings.
The claim for declarations can be broadly categorised as follows:
•A declaration that the applicant is allowed to make an offer to victims named in the charges for an out of court settlement, unaffected by police or the State.
•A declaration that the offer is not perverting the course of justice.
•A declaration that the police have unlawfully seized and used 'without prejudice' communications.
As to the first category, the applicant is not seeking a binding declaration of right but the court's approval to do something which he may do without the court's approval. He may make an offer of payment to any person. Whether such an offer constitutes a criminal offence is a matter which should be left to the criminal processes. This is especially so when there may be contested facts in issue: Munnich v Godstone Rural District Council (1966) 1 All ER 930, 933.
The applicant asserts no impediment to the exercise of the right to make an offer. On the contrary, he asserts that he may do so:
(4)The said victims would be under no pressure whatsoever to agree with the offer however it stands to reason that a financial offer to the value of the purported loss would be accepted, otherwise it would just be a complete loss on behalf of the client.
(5)If the offer is accepted by the purported victims the applicant acknowledges that the state may still pursue the criminal matter with the courts.
(6)Justice Hall has already stated at a hearing on 20 March 2013, at page 16, there is no ownership in witnesses the applicant is free to approach them and have third parties contact them on his behalf.
(7)The applicant is under no restrictions whatsoever from approaching these clients and offering them an out of court settlement therefore dealing with the matter from a civil sense.
(8)The applicant is under no restrictions whatsoever from approaching this agreement without obstruction from the state.
The application seems to be seeking a legal opinion as to the lawfulness of proposed action. The applicant can obtain legal advice as to his actions. A declaration is not a legal opinion. The fact that there is no proper contradictor is an indication that there can be no 'binding' declaration of right.
In making the declaration, the court would in effect be pronouncing that the applicant's proposed course of conduct is lawful, without any background of facts, and against ongoing criminal proceedings, where the offers made by the appellant are directly the subject of charges.
As to the latter point, in Commissioner of Corporate Affairs v Sansom [1981] WAR 32:
It is now well established that the power of this court to make a declaration of right under O18 r16 is 'a very wide one' and 'it is clear enough that the power of the court is not excluded because the matter as to which a declaration is sought may fall for decision in criminal proceedings'. See Sankey v Whitlam (1978) 21 ALR 505, at 512, per Gibbs J, and the authorities therein referred to. Nevertheless within that area it is a jurisdiction to be exercised with caution: Inglis v Moore (1979) 24 ALR 411 at 421. And in the cases a clear distinction is made between a case in which the plaintiff seeks a declaration that acts not yet done by him but which he wishes to do and has an interest in doing will, if done, not constitute a breach of the criminal law on the one hand and a case in which he seeks a declaration that acts done do not constitute a criminal offence on the other hand. The capacity to make a declaration in the former case 'contributes enormously to the utility of the jurisdiction'. Commonwealth v Sterling Nicholas Duty Free Pty Ltd (1972) 126 CLR 297 at 305, per Barwick CJ. In the latter case the conduct has taken place and the question whether that conduct offends against the criminal law can as well be litigated in defence of a prosecution and the 'principle that, in general, matters of criminal law should be dealt with at trials for alleged offences' - Commonwealth v Sterling Nicholas Duty Free Pty Ltd, supra, at 311 of the report, per Menzies J - finds a ready application.
While in an appropriate case a court may entertain a declaration in respect of future conduct, a discretion to make a declaration that particular conduct is or is not criminal will always be exercised with caution. It is not possible to make a declaration on the basis of the material presented in this application and I decline to exercise the discretion.
As to the third category, a lot more would need to be known about the transactions than the applicant has chosen to disclose. By no means every offer of settlement attracts privilege. The words 'without prejudice' if used, may be an assertion of a particular form of protection against a party subsequently relying on comments or admissions made without prejudice in an attempt to settle a dispute.
Whether such a privilege attaches to an allegation of a crime such as attempting to pervert the course of justice is a different and more complex matter depending in part on fact finding. Such a task is eminently suited for the criminal court. It is not a suitable basis for a declaration.
Finally, these proceedings are an abuse of process. In Re Magistrates Court of WA; Ex parte Mansell [2013] WASC 120, Hall J explicitly dealt with an application to amend prerogative relief to include a declaration, holding that the documents to be filed raise no arguable basis for a declaration [19]. Despite attempts to differentiate, this application in substance raises the same issues as these dealt with by Hall J.

Conclusion

The circumstances do not persuade me to exercise discretion to grant a binding declaration of right. The application is, in any event, an abuse of process.
The application is dismissed.