Nugawela v Magistrate E Campione
[2020] WASC 189
•25 MAY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: NUGAWELA -v- MAGISTRATE E CAMPIONE [2020] WASC 189
CORAM: ARCHER J
HEARD: 25 MAY 2020
DELIVERED : 25 MAY 2020
FILE NO/S: CIV 1605 of 2020
MATTER: An application under s 36 of the Magistrates Court Act 2004 (WA) for a review order against E Campione, Magistrate of the Magistrates Court at Perth
BETWEEN: PATRICK ALLAN NUGAWELA
Applicant
AND
MAGISTRATE E CAMPIONE
Respondent
PAUL DEVELLEREZ
Third Party
Catchwords:
Review order - Magistrates Court - Refusal to adjourn prosecution
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | In person |
| Respondent | : | No appearance |
| Third Party | : | H Kopsen |
Solicitors:
| Applicant | : | In person |
| Respondent | : | State Solicitor for Western Australia |
| Third Party | : | Director of Public Prosecutions (Cth) |
Case(s) referred to in decision(s):
Ashwin v Housing Authority [2019] WASC 144
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123
Rayney v AW [2009] WASCA 203
Re Magistrate D Temby; Ex Parte Stanton [2015] WASC 357
Re Magistrate G Benn; Ex parte Gething [2019] WASC 380
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Strahan v Brennan [2014] WASC 190
ARCHER J:
(This judgment was delivered extemporaneously on 25 May 2020 and has been edited from the transcript.)
Introduction
Although incorrectly brought as an application for judicial review under O 56 r 3 of the Rules of the Supreme Court 1971 (WA), the applicant actually seeks a review order under s 36 of the Magistrates Court Act 2004 (WA), which is regulated by O 56A of the Rules.[1]
[1] The following summary of legal principles reproduces or draws from my decision in Re Magistrate G Benn; Ex parte Gething [2019] WASC 380.
Section 36 of the Magistrates Court Act is a statutory judicial review power.[2] It relevantly provides:
[2] Rayney v AW [2009] WASCA 203 [27].
(1)If a person is or would be aggrieved by one or more of the following ‑
(a)the failure of a Court officer to do any act or make any order or direction ‑
(i)on the ground that the officer is under a duty to do the act or make the order or direction; or
(ii)on any ground that might have justified an order of mandamus;
(b)an act, order or direction that a Court officer proposes to do or make -
(i)on the ground that it would be without jurisdiction or power or would be an abuse of process; or
(ii)on any ground that might have justified an order of prohibition;
(c)an act, order or direction done or made by a Court officer -
(i)on the ground that it was done or made without jurisdiction or power or is an abuse of process; or
(ii)on any ground that might have justified an order of certiorari,
the person may apply to the Supreme Court for an order (a review order) that requires the Court officer and any person who will be affected by the act, order or direction to satisfy the Supreme Court at a hearing that the act, order or direction should or should not be done or made or set aside, as the case requires.
(2)The procedure for making, and in relation to, an application under subsection (1) is to be prescribed by rules of court of the Supreme Court.
(3)On an application made under subsection (1) and rules of court of the Supreme Court, the Supreme Court may make any review order that is just, whether it has been applied for or not.
(4)If at the hearing required by a review order the Supreme Court is not satisfied in accordance with the review order, or if it is just to do so, it may -
(a)order that the act, order or direction be or not be done or made or set aside, as the case requires;
(b)grant any relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari;
(c) make any necessary consequential orders.
(5)On an application made under subsection (1) in respect of an act, order or direction, the Supreme Court may -
(a)if it considers that an appeal lies under the Criminal Appeals Act 2004 in respect of the act, order or direction, order the application to be treated as if it were such an appeal and deal with the matter accordingly;
(b)if it considers that an appeal lies under the Magistrates Court (Civil Proceedings) Act 2004 in respect of the act, order or direction, order the application to be treated as if it were such an appeal and remit the matter to the District Court to be dealt with accordingly.
(6)When dealing with an appeal under the Criminal Appeals Act 2004 the Supreme Court may make a review order and, if it does, may also make an order under subsection (4).
…
A review order can only be made if the applicant establishes an arguable case that an error of the type identified in s 36(1)(a), (b) or (c) was made. To fall within s 36(1), the error must be either a jurisdictional error,[3] or it must be an error of law on the face of the record.[4]
[3] As to which see Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163] and Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123.
[4] Re Magistrate D Temby; Ex Parte Stanton [2015] WASC 357; see also Rayney [27] ‑ [34] and Ashwin v Housing Authority [2019] WASC 144 [3] ‑ [9].
In Re Magistrate D Temby; Ex Parte Stanton,[5] Beech J (as his Honour then was) said that 'the record' generally does not include the reasons for decision (and did not in the case before him).
[5] Stanton [39].
As I will explain, even if the magistrate's reasons do form part of the record, I would not be satisfied that the applicant had established an arguable case that the magistrate made a jurisdictional error or an error of law on the face of the record.
When considering a magistrate's reasons, it is necessary to keep in mind the nature of the work of magistrates. As was pointed out by Martin CJ in Strahan v Brennan,[6] magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day. Accordingly:[7]
[I]t is not appropriate to scrutinise the reasons for decision given by magistrates with a fine tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.
[6] Strahan v Brennan [2014] WASC 190 [89] ‑ [90].
[7] Strahan v Brennan [90].
Mr Nugawela seeks a stay of Perth Magistrates Court matter PE22876 of 2018, pending the Federal Court hearing of a matter which he says has the reference number of WAD 528 of 2017 on the following grounds:
1.Matter to be dealt with substantively in a Federal Court action currently on foot
2.Jurisdictional error
3.Interests of justice
4.Preserve subject matter of current Federal Court matter on foot
I observe that Mr Nugawela is unrepresented.
Mr Nugawela brought the application ex parte, as he was entitled to do. I, however, directed that the Commonwealth Director of Public Prosecutions and the State Solicitor's office be notified, due to the urgency. The Magistrates Court matter is listed for Wednesday, 27 May 2020.
The State Solicitor's Office advised on behalf of the respondent that, as is customary, the respondent did not intend to appear and would abide by the decision of the court. The Commonwealth Director of Public Prosecutions appeared by counsel.
Magistrates Court matter
The Magistrates Court matter is a charge that in 2018 Mr Nugawela, being a person against whose estate a sequestration order had been made, did fail, within 14 days from the day on which he was notified of the bankruptcy, to make out and file with the Official Receiver for the District in which the order was made a statement of his affairs and furnish a copy of the statement to the trustee, contrary to s 54(1) of the Bankruptcy Act 1966 (Cth).
The hearing for that charge was listed for August 2019. Mr Nugawela sought an adjournment on 26 July 2019 and it was ultimately adjourned.
On 10 December 2019, Chief Magistrate Heath relisted the hearing for 27 May 2020. Mr Nugawela objected, saying that a Federal Court matter remained on foot and that a decision of the Full Court of the Federal Court, which had apparently rejected his appeal, was only in relation to an interlocutory matter and the substantive matter continued.
Having reviewed those authorities in a summary form, it appears that the Commissioner of Taxation brought an application for summary dismissal of an appeal that Mr Nugawela had brought in relation to some decisions of the Administrative Appeals Tribunal. His Honour Colvin J found that the tribunal had not made a mistake in one respect, but had in another. Colvin J said that the tribunal was correct to find that Mr Nugawela did not have standing to progress his applications in the tribunal because he was effectively a bankrupt. However, his Honour found that the tribunal had failed to consider one matter that Mr Nugawela had raised and that matter was something that could be considered by the Federal Court.
The appeal which the Full Court dismissed was in relation to Colvin J's conclusion in relation to the lack of standing. Accordingly, there does remain something of substance before Colvin J. Those proceedings have not been completely resolved. However, those proceedings do not bear the number relied upon by the applicant in these proceedings. The number of the Federal Court proceedings before Colvin J is WAD 134 of 2018. The number cited by the applicant is WAD 528 of 2017.
I have been able to find several cases before McKerracher J, which bear the number cited by the applicant. However, in this short time available to me, I have not been able to find the underlying documents. Nevertheless, clearly there are Federal Court proceedings that remain on foot. It is not clear whether or not Chief Magistrate Heath understood that to be the case. However, his Honour ultimately said that, if Mr Nugawela wanted a stay of the Magistrates Court charge, he needed to apply to the Federal Court for one; otherwise, the Magistrates Court would hear the matter on 27 May 2020.[8]
[8] Page 65 of the applicant's affidavit filed on 25 May 2020.
Shortly before the new hearing date, Mr Nugawela again sought an adjournment. The transcript of the most recent hearing suggests that he brought that application on 7 May 2020. He told me today, from the bar table, that he telephoned the Commonwealth DPP on 30 April 2020 and raised the possibility of seeking an adjournment. Mr Kopsen from the Commonwealth DPP confirmed there had been a telephone call that day. Even if I was to accept that Mr Nugawela raised the possibility of applying for an adjournment in that call, that is still a delay from 10 December 2019 to 30 April 2020 before he even foreshadowed the application.
If I was to find an error, that level of delay would be relevant to the exercise of the discretion. The explanation given by the applicant for that delay was that he was looking at his other options, such as whether he should bring an application in the Federal Court or in the Supreme Court or commence an appeal in the District Court. He said he was also considering whether or not he should change his plea. He said it was only as the hearing date approached that he knew that he would have to make a final decision as to how to try to stop the hearing going ahead.
The decision of the magistrate
On 15 May 2020, Magistrate Campione refused the adjournment application. Her Honour noted that Chief Magistrate Heath may have been wrong in his interpretation of the status of the Federal Court proceedings. However, the magistrate correctly noted, among other things, the following matters.
First, the charge is a simple one.
Second, it is a regulatory offence with strict liability.[9]
[9] s 54(3) of the Bankruptcy Act. Strict liability means that there are no fault elements and what that means is the prosecution does not have to prove intention, knowledge, recklessness or negligence.
Third, the matter has a long history, having been first listed for mention in the Magistrates Court in June 2018.
Her Honour summarised her reasons for refusing the adjournment:[10]
These proceedings are regulatory. They're of a criminal nature. They impact upon the behaviour of Dr Nugawela and his compliance.
To my mind, review of the actions of the trustee in the Federal Court really is a different cause of action. He will be made available for cross-examination and will be required to answer questions under oath. So the extent and impact of any of his actions can be revealed in evidence and they can be the subject of submissions to me in closing statements. I form the view that it is not in the interest of justice for these hearing dates to be vacated, for this trial to be vacated.
Dr Nugawela has not satisfied me that there really is a good reason or a sufficient reason to vacate these proceedings. I am of the view that the proceedings that remain in the Federal Court relate to different conduct, different concerns and have a different impact. Ultimately, these proceedings have been before the court for so long that there might be a concern that the recollection of witnesses is now going to be infected by the matter being delayed any further.
[10] ts 9.
In my view, Mr Nugawela has not established an arguable case that an error of the type identified in s 36(1) was made. He has not established an arguable case of jurisdictional error. Further, even if the magistrate's reasons are treated as part of the record, he has not established that the magistrate made an error of law. There is no connection, as far as I can tell, between any allegations of poor conduct on behalf of the trustee and the Magistrates Court charge that is to be dealt with on Wednesday.
Even if the trustee is found to have acted in some way poorly, the Magistrates Court charge is a simple charge of having failed to file a statement of affairs as required to do under the legislation. The fact that the trustee has a discretion under the Bankruptcy Act to employ a person to assist in the preparation of the statement of affairs[11] may be relevant to whether, had that discretion been exercised, the offence would have factually occurred. However, I cannot see how it could be relevant to whether or not the alleged offence occurred.
[11] Section 19(2) Bankruptcy Act.
Mr Nugawela also submitted that the magistrate does not have jurisdiction to deal with the Magistrates Court charge, because the Magistrates Court is not a bankruptcy court. But the Magistrates Court charge is not about Mr Nugawela's bankruptcy. It is about whether or not he has committed an offence of breaching s 54 of the Bankruptcy Act by failing to file a statement of affairs. The Magistrates Court has jurisdiction to deal with such a charge.
Discretion
If I had found there to be an arguable case of error, I would not have exercised my discretion to make a review order. The delay between the relisting of the hearing on 10 December 2019 and the first contact with the Commonwealth DPP on 30 April 2020 is extremely long. The application was then heard on 15 May 2020, and that is simply too late.
Orders
I would dismiss the application for a review order.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SW
Associate to the Honourable Justice Archer5 JUNE 2020
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