McGregor v Jenkins - [2018] NTSC 84

CITATION:McGregor & Ors v Jenkins [2018] NTSC 84
PARTIES:McGREGOR, Daniel
v

JENKINS, Trevor

and

CU, Nelson

v

JENKINS, Trevor

and

MILLIGAN, Sarah

v

JENKINS, Trevor

and

ROWBOTTAM, Ian

v

JENKINS, Trevor

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO/S:97 of 2018 (21840546); 98 of 2018 (21840549); 99 of 2018 (21840553); 112 of 2018 (21844211)
DELIVERED:  29 November 2018
HEARING DATES:  22 and 28 November 2018
JUDGMENT OF:  Hiley J
CATCHWORDS:

CRIMINAL LAW – Practice and procedure – form and sufficiency of information and summons – validity of information – failure to identify offences alleged and to provide sufficient particulars – failure to comply with requirements of ss 22A(2), 22A(3) and 181 of the Local Court (Criminal Procedure) Act – information ineffective – information a nullity
Criminal Code (NT) s 3
Local Court Act (NT) s 45, s 47
Local Court (Criminal Procedure) Act (NT) s 20, s 22, s 22A, s 49, s 63A(1A), s 101, s 181, s 182, s 183, s 190
Public Sector Employment Management Act (NT) s 5F, s 49
Summary Offences Act (NT) s 47
Supreme Court Rules (NT) r 11.01, r 75.05, r 75.06
Vexatious Proceedings Act (NT) s 3
Director of Public Prosecutions v Kypri [2011] VSCA 257; (2011) 33 VR 157; Gabriel v Williamson (1979) 1 NTR 6, applied.
Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564; Connor v Sankey [1972] 2 NSWLR 570; Director of Public Prosecutions (ACT) v Hiep Huu Le (1998) 86 FCR 33; Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 346 ALR 1; Glynn v Smith (1984) 70 FLR 427; Hanson v Radcliffe UDC [1922] 2 Ch 490; Harrison v President of Industrial Court [2016] QCA 089; (2017) 1 Qd R 515; Japaljarri v Cooke (1982) 64 FLR 314; John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508; Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531; R v Iorlano [1983] HCA 43; (1983) 151 CLR 678; R v Murdoch (No. 3) [2005] NTSC 77; (2005) 150 NTR 23; Stanton v Abernathy (1990) 19 NSWLR 656, referred to.
REPRESENTATION:
Counsel:
Plaintiffs:L Peattie
Defendant:In person
Solicitors:
Plaintiffs:Solicitor for the Northern Territory
Defendant:In person
Judgment category classification:    B
Judgment ID Number:  Hil1815
Number of pages:  27

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
McGregor & Ors v Jenkins [2018] NTSC 84

No. 97 of 2018 (21840546); 98 of 2018 (21840549); 99 of 2018 (21840553); 112 of 2018 (21844211)

BETWEEN:
DANIEL McGREGOR

Plaintiff
AND:
TREVOR JENKINS

Defendant
BETWEEN
NELSON CU

Plaintiff
AND:
TREVOR JENKINS

Defendant
BETWEEN
SARAH MILLIGAN

Plaintiff
AND:
TREVOR JENKINS

Defendant
BETWEEN
IAN ROWBOTTAM

Plaintiff
AND:
TREVOR JENKINS

Defendant
CORAM: HILEY J

REASONS FOR JUDGMENT
(Delivered 29 November 2018)
Introduction

On various dates in 2017 the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McGregor v Jenkins

Details

AGLC: McGregor v Jenkins [2018] NTSC 84
Case: [2018] NTSC 84
Decision Date: 29 November 2018

CaseChat Overview and Summary

The case of McGregor v Jenkins involved four plaintiffs, all of whom were employed in the justice system, who sought declarations that the informations laid against them by the defendant, Jenkins, were ineffective to charge them or were a nullity. The plaintiffs argued that the informations were invalid due to the failure to identify the offences alleged and provide sufficient particulars. The case was heard in the Supreme Court of the Northern Territory. The legal issues before the court were whether the informations complied with the requirements of the Local Court (Criminal Procedure) Act (NT) and whether the informations were ineffective or a nullity.

The court found that the informations did not comply with the mandatory requirements of the Act. None of the documents contained a reference to the section of the law creating the alleged offence, nor did they contain necessary particulars of the offence or give the defendant a reasonably clear and intelligible statement of the offence or matter with which they were charged. Additionally, in relation to one of the plaintiffs, the offences described in the Summons were different to that described in the Information, and the Summons referred to an offence not known to the law. The court held that the informations were ineffective and a nullity.

The court also found that the defendant's attempts to bring third-party proceedings were impermissible and irrelevant to the issues before the court. The court rejected the defendant's assertions critical of the conduct and character of the plaintiffs, finding that they went to the plaintiffs' credibility and not to the validity of the informations.

In conclusion, the court found that the informations laid against the plaintiffs were ineffective and a nullity, and made the declarations sought by the plaintiffs. The court did not grant any other relief requested by the plaintiffs.

Orders

Orders of the court

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Background

Background to the litigation

Notwithstanding the dismissal of the charges against them, the plaintiffs claim, and I agree, that the purported laying of the charges has ongoing detrimental effects upon each of them. Accordingly, each of them has brought proceedings in this Court seeking declarations that the informations laid against them were “ineffective to charge the plaintiff”, alternatively were “a nullity”.Relevant factsMaterials and submissions Counsel for the plaintiffs read and relied upon the following evidentiary material in their respective proceedings: (a)In proceeding no. 97 of 2018, the affidavit of Daniel Law McGregor affirmed on 25 September 2018 (McGregor Affidavit); (b)In proceeding no. 98 of 2018, the affidavit of Nelson Cu affirmed on 25 September 2018 (Cu Affidavit); (c)In proceeding no. 99 of 2018, the affidavit of Sarah Jayne Milligan affirmed on 25 September 2018 (Milligan Affidavit); and (d)In proceeding no. 112 of 2018, the affidavit of Ian John Rowbottam affirmed on 22 October 2018 (Rowbottam Affidavit). The evidentiary material relating to proceedings numbers 97, 98 and 99 of 2018, together with the respective Originating Motions and Summonses, was served on the defendant on 4 October 2018 and that relating to proceeding number 112 of 2018 on 24 October 2018. The defendant has not entered any appearances and did not appear at the hearing on 11 October 2018. The matters were set down for a one-day hearing on 22 November 2018 and the defendant was directed to file and serve any affidavit on which he intended to rely at that hearing by 2 November 2018. The defendant did not file any material by that date. Although not required to, the solicitors for the plaintiffs filed written submissions[2] and emailed a copy of them to the defendant after close of business on 20 November. The defendant appeared late at the hearing of the matters on 22 November. He said that he had been trying to file material that morning, and required an adjournment of the hearing. He said that he had sworn affidavits in answer to the plaintiffs’ affidavits and that he was in the process of having them and other documents typed up so they could be filed. The Court adjourned the hearing of the matter to 10 am on Wednesday, 28 November and directed the defendant to file and serve any relevant material by 2 pm on Monday, 26 November. He did not do that. However, the defendant did send a number of emails to my associate and to others, the first at 11.25 am on Saturday, 24 November. They attached documents that purported to be third-party notices naming Natasha Fyles (the Attorney-General of the Northern Territory) as third-party and other documents including draft unsigned affidavits. Even if the form of those documents otherwise complied with the Supreme Court Rules (NT) (SCR) and Practice Directions, which they would not, the filing of them would be impermissible without leave of the Court. This is not only because of the effect of the Supreme Court Rules but also because the defendant has been declared a vexatious litigant and is prohibited from bringing third-party proceedings without leave.[3] Further, it appears most unlikely that the purported third-party notices would meet the threshold requirements of SCR r 11.01. Further, the assertions made in the documents were largely unintelligible, were not responsive to the affidavit material filed on behalf of the plaintiffs, and were irrelevant to the issues the subject of the Originating Motions and Summonses, namely the legal effectiveness and validity of the informations and summonses the subject of these proceedings.[4]

Evidence

Evidence Before The Court

At the hearing the defendant objected to some parts of the plaintiffs’ material being read. I rejected his objections. For the most part his objections did not go to the admissibility of the affidavits but sought to attack the character of the plaintiffs and the genuineness of their beliefs as to the prejudice flowing from the continued existence on record of the informations naming them as defendants. In the course of making his final submissions the defendant made a number of assertions critical of the conduct and character of each of the plaintiffs. I made it clear that I would be treating those assertions as submissions and not as evidence. The only part of his submissions that might have some, if any, relevance were those to the effect that the plaintiffs should not feel aggrieved by having the informations remain on the public record because they are all persons of bad character and they should expect to remain exposed to the defendant’s allegations of their criminal behaviour. These matters, if true, might go against the Court exercising its discretion before making the declarations sought. I reject those submissions and the contentions critical of the conduct and character of the plaintiffs.The evidence The evidence established the following facts. Each of the plaintiffs is employed in the justice system, either as an office holder of the Court[6] or as a legal practitioner.[7] In the course of their duties, the plaintiffs had various dealings with the defendant and, from time to time, the defendant threatened to privately prosecute each of them.[8] Consistent with those threats, each of the plaintiffs was named as a defendant in an information filed by the defendant with the Local Court in purported reliance on s 101 of the Local Court (Criminal Procedure) Act (NT) (LCCPA). The informations were signed by the defendant on various dates in mid-2017. The seal of the Local Court appears on each information. On 11 January 2018 the defendant attended the Registry of this Court and left there for service a number of documents relating to those prosecutions which he had instituted against Daniel McGregor, Nelson Cu and Sarah Milligan, respectively the Sheriff, the Probate and Civil Appeals Officer and the Registrar of this Court. At about the same time the defendant attended the offices of the Director of Public Prosecutions (DPP) and left there documents relating to his prosecution of Ian Rowbottam, Supervising Prosecutor employed by the DPP.[9] In relation to each plaintiff the documents were an “Information for an Indictable Offence”[10] and a “Summons to a Person Charged with an Indictable Offence” [11]. Each of the Summonses were issued by the Local Court on 20 December 2017 and required the relevant plaintiff to “be and appear” at 10 am on 16 January 2018 “to answer the said charges and to be further dealt with according to law.” Each of the plaintiffs, other than Ian Rowbottam,[12] duly attended the Local Court at 10 am on 16 January 2018.[13] Altogether, approximately 16 matters in which the defendant had commenced private prosecutions were listed for that time and date. The matters were called on and the defendant, though called, did not appear.[14]

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The LCCPA also draws a clear distinction between the appropriate process for bringing proceedings for summary offences and that for indictable offences. The former are to be commenced by way of complaint[42] and the latter by information.[43] Erroneous joinder of indictable and summary offences, or the pursuit of a summary offence by way of information, is not a mere technicality. Substantially different procedural regimes apply as between indictable and summary offences[44] and those procedures depend on the form of the initiating process filed. The nature of the power exercised is different. In the case of an indictable offence the Court is exercising administrative or quasi-judicial power.[45] Different sentencing considerations may apply where offences are joined on a single information. Accordingly, an information which purports to charge a defendant with a summary offence will be incompetent.[46]Consideration of the Informations and Summonses None of the documents complied with the mandatory requirements of s 22A(2) or s 22A(3) of the LCCPA. Nor did they contain sufficient information of the kind contemplated in s 22A(1), s 22A(4) or s 181 of the LCCPA. In particular, none of them:(a)contained “a reference to the section of the law of the Territory creating the [alleged] offence – cf s 22A(2);(b)contained necessary particulars of the offence – cf s 22A(3);(c)gave the “defendant” a reasonably clear and intelligible statement of the offence or matter with which he or she was charged – cf s 181. Further, in relation to Mr McGregor (proceeding 97/2018):(a)The Information and the Summons did not correspond. The offences described in the Summons (assault and “obstruct justice”) were different to that described in the Information (attempt to pervert the course of justice).(b)The alleged date of the offences described in the Summons (8 April 2016) was different to that described in the Information (26 March 2017).(c)The Summons referred to an offence not known to the law (“obstruct justice”) – cf s 182(b).(d)The Summons purported to join offences without the requisite factual or legal relationship – cf s 101A(1). In relation to Mr Cu (proceeding 98/2018):(a)The Information and Summons purported to charge him with committing contempt. There is no indication as to whether the contempt alleged was contempt of court or some other kind of contempt. If it was being alleged that the contempt was a contempt of court such a charge could not be laid by information. The Information states that the offence occurred at “Darwin Supreme Court”. Order 75 of the SCR exhaustively prescribes the procedures by which a person may be dealt with for contempt of the Supreme Court. Relevantly, and putting aside the Court’s power to deal with contempt summarily (Order 75, Part 2), Order 75 provides that an application for punishment for contempt “shall be by summons or originating motion in accordance with [SCR r 75.06]”. That is plainly exhaustive: the word “shall” is directory[47] and the disjunctive “or” contemplates only two alternatives.[48] Accordingly, an information could not competently charge Mr Cu with contempt of court.(b)The Information stated that the offence was created by the (non-existent) “Local Court Admin Act”.