Palmer v City of Gosnells
[2013] WASC 446
•16 DECEMBER 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: PALMER -v- CITY OF GOSNELLS [2013] WASC 446
CORAM: EDELMAN J
HEARD: 12 DECEMBER 2013
DELIVERED : 16 DECEMBER 2013
FILE NO/S: SJA 1030 of 2013
BETWEEN: GRAHAM CLIVE PALMER
First Appellant
SANDRA MAXINE PALMER
Second AppellantAND
CITY OF GOSNELLS
Respondent
ON APPEAL FROM:
For File No : SJA 1030 of 2013
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE G N CALDER
File No :AR 2614-25 of 2011, AR 9956-57 of 2011
Catchwords:
Administrative law - Procedural fairness - Whether decision by learned Magistrate to refuse an adjournment of trial was procedurally unfair - Trial previously adjourned twice - Reason for seeking adjournment of trial was so that constitutional issues could be raised - No procedural unfairness - Whether Magistrate biased or whether apprehension of bias - Considerations of bias or apprehended bias to be determined by consideration of the whole of the proceedings
Legislation:
Constitution Act 1889 (WA)
Criminal Code 1913 (WA)
Magistrates Court Act 2004 (WA)
Planning and Development Act 2005 (WA)
Result:
Application for leave to appeal refused on all grounds
The appeal is dismissed
Category: B
Representation:
Counsel:
First Appellant : Dr J Walsh of Brannagh
Second Appellant : Dr J Walsh of Brannagh
Respondent: Mr P G McGowan
Amicus Curiae : Mr J Misso
Solicitors:
First Appellant : Darroll Nelson & Co
Second Appellant : Darroll Nelson & Co
Respondent: Lewis Blyth & Hooper
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Abram v Bank of New Zealand [1996] FCA 1650; (1996) ATPR 41‑507
Attorney-General (WA) v Marquet [2003] HCA 67; (2003) 217 CLR 545
Carney v The State of Western Australia [2010] WASCA 90; (2010) 201 A Crim R 537
Commonwealth v New South Wales [1923] HCA 34; (1923) 33 CLR 1
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292
Forge v ASIC [2006] HCA 44; (2006) 228 CLR 45
Glew Technologies Pty Ltd v Department of Planning and Infrastructure [2007] WASCA 289
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Glew v Shire of Greenough [2006] WASCA 260
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51
MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512
McGinty v State of Western Australia [1996] HCA 48; (1996) 186 CLR 140
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Mobil Oil Australia Pty Ltd v State of Victoria [2002] HCA 27; (2002) 211 CLR 1
Neil v Nott [1994] HCA 23; (1994) 121 ALR 148
O'Connell v The State of Western Australia [2012] WASCA 96
Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635
R v Mak [2003] NSWSC 849
Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231
Table of Contents
Introduction
The preliminary determination
The proposed grounds of appeal
Ground 1: The Magistrate's refusal to grant an adjournment
The first adjournment application
The second adjournment application
The third adjournment application
The fourth adjournment application
The fifth adjournment application
The last three adjournment applications were properly refused
Procedural fairness at the trial itself
Conclusion on the first ground of appeal
Ground 2: The allegations of ostensible bias and actual bias
Ground 3: Failure to consider arguments regarding trespass
Ground 4: Misapplication of the common purpose doctrine
Ground 5: Failure to address authorities
Ground 6: The jurisdiction of the Magistrates Court
Conclusion
EDELMAN J:
Introduction
This is an appeal by Mr and Mrs Palmer from their convictions in the Magistrates Court of Western Australia. In his reasons, the learned Magistrate explained that '[t]his is one of those cases where the accused sought to raise so called "constitutional issues" relating to the powers of the Western Australian Parliament under the Constitution Act 1889 (WA) concerning the creation of and operation and activities of local government bodies'.[1]
[1] Reasons for decision, page 10.
Mr and Mrs Palmer are the registered proprietors of a property in Kenwick. They were each charged with seven offences under the Planning and Development Act 2005 (WA). The alleged offences dated back to December 2010. The offences were broadly concerned with (i) activities carried on in relation to their jointly owned property: storage; 'industry light' development; unapproved commercial vehicle parking; and (ii) failing to comply with a written direction in relation to specified activities on the Kenwick property.
Following a trial in the Magistrates Court of Western Australia, Mr and Mrs Palmer were separately convicted of six offences each. Each was acquitted of one of the offences.[2] Mr and Mrs Palmer were fined amounting to a total of $25,000 each.
[2] ts 3 (15 December 2012).
The Palmers' counsel made written submissions on 'constitutional issues' prior to trial. Those arguments were rejected by the learned Magistrate in a preliminary decision. There were numerous attempts to re‑agitate related 'constitutional matters' during the trial. One 'constitutional' argument was also made before this Court on the application for leave to appeal. It concerns whether the learned Magistrate was operating as an employee of the Department of the Attorney General of Western Australia and was therefore not a judicial officer.
Other than the 'constitutional' argument, this appeal focused upon grounds including whether the Palmers were denied procedural fairness by refusing them adjournments; whether there was a reasonable apprehension that the learned Magistrate was biased, or whether he was actually biased; and whether the learned Magistrate properly considered various issues and authorities. In relation to the allegations of procedural fairness and bias, counsel for the Palmers identified 74 pages of the transcript upon which he relied. I have read all the transcript and I have also focused upon each of those pages. None provides any support for the grounds of appeal. The application for leave to appeal, and the appeal, must be refused on all grounds.
The preliminary determination
Some months before trial the learned Magistrate determined that he would decide preliminary issues raised by the Palmers prior to trial. The preliminary issues were to be decided 'on the papers', that is by written submissions. Counsel for the City of Gosnells on this appeal informed the Court that it was apparently by consent that the determination of the preliminary hearing was to proceed on the papers. Written submissions were filed by the Palmers on 24 August 2012.[3] Counsel for the City of Gosnells on this appeal said that the written submissions had been signed by the barrister representing the Palmers at that time.[4] In circumstances in which I describe below some medical details concerning that barrister it is sufficient in these reasons to refer to him as the Melbourne barrister for the Palmers rather than identifying him by name.
[3] Written submissions on behalf of the City of Gosnells [5].
[4] Written submissions on behalf of the City of Gosnells [8].
The preliminary issues for determination were set out in the learned Magistrate's reasons in relation to the determination of the preliminary issues. They included issues as follows:[5]
(i)a challenge to the validity of the incorporation of the City of Gosnells;
(ii)a claim that the City of Gosnells is subject to the 'Corporations Law of the Commonwealth and as such is unable to claim from or prosecute the Defendants other than as a result of a contract';
(iii)the absence of Constitutional power for the Local Government Act 1995 (WA);
(iv)the issue of further proceedings and whether the joinder of Mrs Palmer is an abuse of process;
(v)'the alleged evidence (nothing (sic) that a brief of prosecution evidence in relation to the further proceedings has not yet been provided to the Defendants) has been obtained illegally as a result of unlawful trespass on the subject property and should be excluded';
(vi)'the activities and decisions of the City of Gosnells in conjunction with the Water Corporation was an acquisition of property on other than just terms'.
[5] Determination of preliminary issues (10 December 2013), pages 2 ‑ 3.
With the exception of three matters which required the hearing of facts for determination, the learned Magistrate refused the preliminary application and gave reasons for doing so.[6] No appeal was, or is, brought from his Honour's preliminary determination.
[6] Determination of preliminary issues (10 December 2012).
The preliminary issues which the learned Magistrate did not decide on the papers, because he required evidence to decide them, were (i) whether the Palmers' property was within the boundaries of the City of Gosnells, (ii) whether the City of Gosnells provides services to the Palmers or to the property, (iii) whether there was an unlawful entry on to the property by the City of Gosnells, and (iv) whether evidence was obtained illegally by the City of Gosnells.
It appears from the transcript of the proceedings on 12 December 2012 that the Palmers received a copy of the learned Magistrate's decision on the preliminary issues late on Monday 10 December 2012.[7]
[7] ts 2 (12 December 2012).
The proposed grounds of appeal
At a directions hearing on 6 September 2013, orders were made by consent which consolidated Mr and Mrs Palmer's proposed grounds of appeal into six grounds. Those six grounds are reproduced below.
(1)The learned Magistrate erred in the application of his discretion regarding an adjournment request by the Appellants when such was fair and reasonable.
(2)The learned Magistrate demonstrated ostensible if not actual bias and predetermination towards the Appellants.
(3)The learned Magistrate did not properly consider the acquisition of the property or the trespass of [sic] the property by the Respondents.
(4)The learned Magistrate misapplied the common purpose doctrine to the detriment of the Appellants.
(5)The learned Magistrate failed to properly consider authorities read by the Appellants.
(6)The learned Magistrate was operating as an employee of the Department of the Attorney General of Western Australia and was therefore not a judicial officer.
Ground 1: The Magistrate's refusal to grant an adjournment
This ground of appeal concerns the refusal by the learned Magistrate to grant Mr and Mrs Palmer an adjournment of the trial. There were five applications for an adjournment. The final three were refused. One aspect of the oral submissions by counsel for the Palmers was a focus upon the preliminary determination by the learned Magistrate.
The first adjournment application
The first application for an adjournment was brought in April 2012,[8] apparently by consent, to allow further charges to be brought and for all charges to be amalgamated for a single hearing.[9] The application was granted and the trial was set down for 2, 3 and 4 October 2013.
The second adjournment application
[8] ts 16 (3 December 2012).
[9] ts 2 ‑ 3 (2 October 2012).
The second application for an adjournment was brought on 2 October 2012 which was the date that the trial was due to start.[10] It was preceded by an email sent to the City of Gosnells on 26 September 2012 by Ms Evans, an associate of the Melbourne counsel for the Palmers, requesting an adjournment.[11] The application for an adjournment was opposed by the City of Gosnells.
[10] ts 2 (2 October 2012); ts 2 (3 December 2012).
[11] ts 2 ‑ 3 (2 October 2012).
The basis for the adjournment application was that the Melbourne counsel for the Palmers had been unwell, suffering from depression. He had been examined by medical practitioners. Their reports were provided to the learned Magistrate and they were part of the material on this appeal. The Melbourne barrister needed respite from work, in their opinions, for respectively, either (i) four weeks to 'recuperate and gather his thoughts' or (ii) three months 'to gradually recuperate'.
The adjournment application was granted. The learned Magistrate said:[12]
Well, of course you're entitled to legal representation and, it goes without saying, to the lawyer of your choice. Some of the issues that are raised in the submissions are issues which it appears may - those issues have been the subject of previous decisions in the Supreme Court which make them difficult to argue but that's not to say you can't raise those issues and have them fully argued and tested and ask the court to rule on them again either because - well, essentially on the basis you would be arguing that they're distinguishable.
In terms of whether you can do it yourself, of course you can. The fact that you've started with counsel doesn't mean that you either have to continue to be self - to be represented by counsel and that you can't choose to be self-represented. I'm going to allow the adjournment and vacate the hearing dates in the circumstances.
[12] ts 5 ( 2 October 2012).
The new hearing dates were set for 12 and 13 December 2012. Counsel for the City of Gosnells explained that the evidence for the City would be from one witness only and that the witness statement of that witness had been provided. Counsel for the City of Gosnells also explained that he had spoken to Ms Evans, an associate of the Palmers, on speakerphone in the presence of the Palmers and also in the presence of the learned Magistrate's judicial support officer. Ms Evans had indicated that the Palmers' Melbourne barrister was available according to his diary on various dates in December 2012.[13]
[13] ts 8 (2 October 2012).
The learned Magistrate explained that prior to the trial he would give his decision on the preliminary issues which the parties had raised.[14]
The third adjournment application
[14] ts 9 (2 October 2012).
The third application for an adjournment was made by Mr Palmer 10 days before the start of the trial, on 3 December 2012.
Counsel for the City of Gosnells referred to a letter sent to the learned Magistrate by 'Matilda Evans' associate'. The letter explained that the instructing solicitor for the Palmers 'doesn't expect to find another barrister to take on this brief'. The letter continued, saying that the reason that the Palmers' barrister began to act 'despite being based in Melbourne is that the Palmers could not find any other barristers willing to be briefed'.[15] It had also been suggested to the City of Gosnells that the Melbourne barrister would be unfit until at least the beginning of February.[16]
[15] ts 3 ‑ 4 (3 December 2012).
[16] ts 4 (3 December 2012).
Mr Palmer explained that his Melbourne counsel was still unwell. Mr Palmer submitted, on behalf of himself and his wife, that he would rather wait for his barrister to recover fitness because '[p]eople think totally different [sic] about constitutional matters' and he expected to take his matter to the High Court.[17]
[17] ts 4 (3 December 2012).
The learned Magistrate refused the application. His reasons began as follows:[18]
I don't know how many other lawyers you've approached, but I accept from what you've told me, that you say you can't get anyone else to act for you that you have made some approaches to other lawyers. The availability of [your barrister] is something which is very much in limbo. There's no certainty that he's going to be available on any particular date in the future.
[18] ts 14 (3 December 2012).
The learned Magistrate then explained that it would appear that the 'primary role' for the barrister for the Palmers was in relation to the 'constitutional issues' canvassed in the preliminary submissions upon which his Honour was going to rule prior to trial. His Honour indicated to the Palmers that the likelihood was that he would not accept those submissions. He said that the likelihood of him accepting the submissions was slim since he was bound by the decision of the Court of Appeal in Glew v Shire of Greenough.[19] That preliminary indication was given 'so that you can decide if it has any effect on what you're going to do in terms of trying to get another lawyer or not'.[20]
[19] ts 5 (3 December 2012). See Glew v Shire of Greenough [2006] WASCA 260.
[20] ts 14 (3 December 2012).
His Honour also explained the history of the proceedings.
(i)In December 2011, a plea of not guilty was entered and, trial dates had been set for April 2012;
(ii)in April 2012, the trial dates were vacated due to an amalgamation of further charges and the matter was adjourned for mention only on 9 May 2012;[21]
(iii)on 9 May 2012, the matter was adjourned for mention only to 23 May 2012;
(iv)on 23 May 2012, the matter was adjourned to 20 June 2012;
(v)on 20 June 2012, the barrister for the Palmers appeared for the first time and the matter was adjourned to 4 July 2012;
(vi)on 4 July 2012 the matter was adjourned to 10 July 2012;
(vii)on 10 July 2012 the matter was adjourned to a trial on 2 ‑ 4 October 2012; and
(viii)on 28 August 2012, as I have explained above, the 2 ‑ 4 October 2012 trial was vacated and new trial dates entered for 12 ‑ 13 December 2012.
[21] ts 15 (3 December 2012).
After setting out this procedural history, his Honour also explained that there were costs being incurred on both sides and that it was in the public interest for the trial to proceed on 12 ‑ 13 December 2012.[22] His Honour also remarked:[23]
As I said, I'm retiring in February. The matter is still being listed before me. I'll be giving rulings on the preliminary issues. In one sense, that doesn't mean it's part heard but in another sense I think it does mean that it's part heard because if I give rulings on the preliminary issues it's arguable that if it goes to another magistrate, he or she is not bound by my determinations and there's the potential for the preliminary issues to be re‑argued.
[22] ts 16 (3 December 2012).
[23] ts 16 (3 December 2012).
In summary, the factors relied upon by the learned Magistrate in refusing the third adjournment application were as follows:
(i)the availability of the barrister for the Palmers was uncertain at any stage in the future;
(ii)the primary role of the barrister for the Palmers was to make submissions on the 'constitutional' issues which had been raised as preliminary issues on the papers and which the learned Magistrate had indicated might be decided against them prior to trial;
(iii)Mr Palmer's asserted basis for an adjournment had focused upon his intention to appeal any findings against him to the High Court of Australia, which was a tacit acceptance that the law of this State is against him on the 'constitutional issues', regardless of who argued the matter;[24] and
(iv)concerns of efficiency arose in circumstances in which the learned Magistrate was in the process 'at home preparing a decision'[25] on the preliminary issues and if the matter were to go to another Magistrate there would be the potential for those preliminary issues to be re‑argued.
The fourth adjournment application
[24] ts 15 ‑ 16 (3 December 2012).
[25] ts 5 (3 December 2012).
At the start of the trial on 12 December 2012, the Palmers submitted to his Honour that the trial should be adjourned for three reasons:
(i)they wished to appeal from his Honour's preliminary decision and had only received that decision on 10 December 2012 with a minor amendment on 11 December 2012;[26]
(ii)there were grounds for objection to his Honour's preliminary decision including a document which asserted that 'Australia has got an ABN number in America. They're owned by a corporation';[27] and
(iii)they did not have counsel to appear on their behalf at the trial[28] and their counsel would be available, after his holiday, on 8 February 2013.[29]
[26] ts 2 ‑ 3 (12 December 2012).
[27] ts 4 (12 December 2012).
[28] ts 3 (12 December 2012).
[29] ts 12 (12 December 2012).
His Honour refused to consider the document referred to in (ii). He explained to the Palmers the manner in which a trial proceeds, including the process of giving evidence, the nature of expert evidence, and the need to prove matters of evidence.
Counsel for the City of Gosnells opposed the application for an adjournment.
The learned Magistrate refused the application. He reiterated his reasons for the refusal of the third adjournment application on 3 December 2012. He explained his view that none of the additional constitutional issues raised was apparent to him. He explained that although the Palmers were not experienced in matters of law he was able to 'give some guidance in relation to how they proceed in terms of giving evidence themselves, what they may need to consider in giving evidence, what they may need to consider in cross-examining witnesses'.[30] His Honour also explained that he considered that the factual matters were 'fairly straightforward' and that the reason for the Palmers' defence of the proceedings was to raise Commonwealth constitutional issues.[31]
The fifth adjournment application
[30] ts 14 ‑ 15 (12 December 2012).
[31] ts 15 (12 December 2012).
During the trial, Mrs Palmer made another application for an adjournment of the trial until after 8 February 2013. She explained that she and Mr Palmer were not able to conduct the trial in an efficient and competent way. She reiterated that she wanted her Melbourne barrister (ie the barrister who had raised the preliminary issues) to conduct the trial.[32]
[32] ts 29 (12 December 2012).
The learned Magistrate said that he was not prepared to reverse his ruling. He reiterated that he still had the impression that the primary reason for engaging that barrister was the 'constitutional issues' upon which he had already ruled. He again reiterated the time that the matter had taken to get to trial and the risk that their counsel might not be available in February 2014.[33]
The last three adjournment applications were properly refused
[33] ts 29 ‑ 30 (12 December 2012).
In refusing the application for an adjournment on 3 December 2012, the learned Magistrate was entitled to take into account, as his Honour did, matters including:
(i)the length of time which the proceedings had taken to reach trial as well as the successful adjournment of the proceedings on the application by the Palmers on 2 October 2012;
(ii)the nature of the submissions made on the preliminary application by the barrister for the Palmers which it appeared were either related to, or identical to, submissions which were intended to be made at trial;
(iii)the 10 day period before trial which the Palmers could use to obtain alternative representation; and
(iv)concerns that if the matter were adjourned then it would need to be heard by another Magistrate which might require the preliminary issues to be re‑argued.
It is sufficient to say that it was open to his Honour to exercise his discretion to refuse the application for an adjournment on 3 December 2012 for all of these reasons. But, in my respectful opinion, his Honour's procedural decision was also correct.
In oral submissions on this appeal, counsel for the Palmers focused upon (iv) which he described as the 'prime reason' or 'prime concern' for the refusal of the adjournment application. His Honour's concerns about the matter being re‑listed before another Magistrate are not accurately described as the 'prime concern' but, in any event, there is nothing inappropriate about the learned Magistrate's concern that the trial could be further delayed by a possible re-hearing of the preliminary issues if the matter were re‑listed before another Magistrate.
The same reasons given by the learned Magistrate also provide a sufficient basis for the learned Magistrate's decisions not to adjourn the trial on 12 December 2012. In addition to those matters, there were further relevant reasons given by the learned Magistrate on the first application on 12 December 2012. They were as follows:
(i)that the learned Magistrate was able to give some guidance to the Palmers in relation to the procedure at trial; and
(ii)that the factual matters were 'fairly straightforward'.
I deal with each of these points separately.
As to (i), it was entirely appropriate for the learned Magistrate to indicate that he would assist the Palmers with the trial procedure and endeavour to ascertain their rights.[34] The degree of assistance in any case will vary according to the litigant, the nature of the case, and the litigant's intelligence and understanding of the case.[35] The need for assistance is usually more extensive in criminal proceedings,[36] although much of the additional disadvantage associated with criminal proceedings can be attributed to the sophisticated process of a jury trial which was not relevant to the proceedings in this case.[37]
[34] Neil v Nott [1994] HCA 23; (1994) 121 ALR 148, 150 (the Court).
[35] Abram v Bank of New Zealand [1996] FCA 1650; (1996) ATPR 41‑507, 42‑347 (the Court).
[36] MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512, 525 [16] (Gibbs CJ & Wilson J).
[37] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 334 ‑ 336 (Deane J).
Further, as I have mentioned, his Honour had informed the Palmers on 3 December 2012 that since he was not prepared to vacate the hearing date for trial in 10 days' time, 'it means you're going to have to go ahead with or without a lawyer'.[38] The Palmers had known since 2 October 2012 that the trial was going to proceed on 12 and 13 December 2012. They could, if they wished, have arranged for alternative representation any time after 2 October 2012 if they had concerns about the health of their Melbourne barrister. On 3 December 2012 when their further adjournment application was refused they had 10 days to obtain alternative representation for the trial if they wished to do so.
[38] ts 14 (3 December 2012).
The Palmers' position was that they could not get another lawyer because '[t]here's not one available'.[39] It may be that there was not another lawyer available to argue the constitutional issues that the Palmers wished to ventilate. But those issues had already been decided in the learned Magistrate's preliminary determination. The Melbourne barrister who the Palmers wished to represent them on those issues could have done so on an appeal from the learned Magistrate's decision on the preliminary issue. But no appeal was brought, or has been brought, from that preliminary determination.
[39] ts 6 (3 December 2012).
Counsel for the Palmers referred in oral submissions to various passages from the decision of Sully J in R v Mak.[40] In one passage, his Honour explained that a[41]
Court is not entitled to treat [accused persons] to their disadvantage by way of signalling in any fashion frustration or displeasure of any other kind deriving from the persistent refusal of the two particular accused to accept the persistent advice of the Court, given hitherto, that it would be very much in their own best interests to obtain proper professional legal representation, if not for the entirety of the trial, then at the very least to the extent of ensuring that they are properly seized of the matters upon which the Court is now ruling.
[40] R v Mak [2003] NSWSC 849, appeal ts 9 - 10.
[41] R v Mak [2003] NSWSC 849 [9].
That did not occur in this case. His Honour explained to the Palmers on 3 December 2012 that the trial would go ahead whether or not they had a lawyer.
As to (ii), the lack of complexity of the issues at trial was also a further valid reason for the learned Magistrate to take into account in refusing the adjournment application. I explain below at [47] ‑ [49] the essence of the issues involved at the trial. I take into account Mr Palmer's comments that he did not understand the law.[42] But the legal issues which he sought to raise were the subject of the preliminary issues decision by the learned Magistrate. If the Palmers wanted legal representation further to ventilate those issues then their Melbourne barrister could have represented them on an application for leave to appeal from the determination of the preliminary issues. An appeal on those matters would necessarily have been held some time after February 2014. If the Palmers wanted to seek leave to appeal the preliminary decision of the learned Magistrate, it was not necessary, nor was it appropriate, for them to obtain a stay or an adjournment of the trial. They had a right to seek leave to appeal the preliminary decision after the conclusion of the trial and they could still have sought leave to appeal the decision after the learned Magistrate's reasons were delivered on 15 February 2013.
[42] ts 14 (3 December 2012).
The lack of complexity of the issues at trial also meant that there were potentially many legal practitioners in this State who could have represented the Palmers on the short issues which might be raised at the hearing, once the preliminary issues had been determined. Mr Palmer explained, as was his right, that he 'wouldn't trust another' lawyer.[43] Nevertheless, it was not a sufficient basis for an adjournment that there had been a decision by Mr Palmer that he was only prepared to engage one particular lawyer, and the nature of this choice as involving a lawyer who would ventilate 'constitutional issues' identical to, or related to, those already decided.
[43] ts 14 (3 December 2012).
Once again is sufficient to say that it was open to his Honour to refuse the applications for an adjournment on 12 December 2012. Again, in my respectful opinion, his Honour's procedural decisions were also correct.
Procedural fairness at the trial itself
There is no ground of appeal which asserts that the trial itself was procedurally unfair. I readily accept the submission by counsel for the Palmers that it was essential that the Palmers received a fair trial.[44] But, to the extent that the appellants allege either procedural or substantive unfairness at the trial generally, that ground also cannot succeed.
[44] R v Mak [2003] NSWSC 849.
First of all, I reiterate that the trial was not complex. The prosecution had also explained that they were only going to call one witness, Mr Simpecas. There were two witness statements from Mr Simpecas which were dated 9 March 2012 and 27 August 2012. They had been provided to the Palmers.[45]
[45] ts 19 ‑ 20 (12 December 2012).
The issues for trial were also outlined in the opening submissions by counsel for the City of Gosnells.[46] Those issues were:
(i)whether or not the Palmers' property was within the City of Gosnells;
(ii)whether the evidence supported the assertion by the City of Gosnells that the uses of the land went beyond rural uses;[47]
(iii)whether the Palmers used the property in a prohibited way despite their planning approval application being declined;[48] and
(iv)the application of the town planning scheme to the land.[49]
[46] ts 17 ‑ 18 (12 December 2012).
[47] ts 19 (12 December 2012).
[48] ts 19 (12 December 2012).
[49] ts 19 (12 December 2012).
As to (i), during the trial Mrs Palmer clarified that there was no issue as to whether their property was in the City of Gosnells. She explained that the issue was whether the City of Gosnells existed.[50] She said that 'obviously' this was what their Melbourne barrister 'would put up'.[51]
[50] ts 34 (12 December 2012).
[51] ts 35 (12 December 2012).
As to (ii), the Palmers were not ignorant of the planning approval process. As the learned Magistrate explained in his reasons, they had applied for approval for the parking of a single commercial vehicle and a skip bin on their property. That approval had been granted in February 2002. They had also applied for approval to park two semi‑trailers on their property. That application was refused in January 2010.[52]
[52] Reasons for decision, page 12.
Secondly, his Honour assisted the Palmers in the trial procedure. I explain below the patient and tolerant manner in which the learned Magistrate performed this task. This point is considered in relation to the next ground, which alleges apprehended and actual bias. His Honour explained the purpose of cross‑examination and provided an overview of the relevant rules of evidence both prior to trial[53] and on a number of occasions during the trial.[54] He explained the nature of any sentencing hearing.[55] He explained the general principle of costs.[56] He also explained the process of appealing his decision.[57] During the trial he asked the Palmers if they had any further questions about how the hearing should proceed.[58]
[53] ts 10 ‑ 11 (2 October 2012).
[54] ts 21 ‑ 23 (12 December 2012); ts 41 ‑ 42 (12 December 2012); ts 68 (12 December 2012).
[55] ts 11 (2 October 2012).
[56] ts 11 (2 October 2012).
[57] ts 10 ‑ 11 (2 October 2012).
[58] ts 15 (12 December 2012).
Thirdly, the Palmers were given an opportunity to cross‑examine the only witness for the City of Gosnells, Mr Simpecas. They were also given an opportunity to give evidence.
Fourthly, I take into account passages from the transcript where the Palmers had protested that they did not understand the law, where Mr Palmer said that proceeding without a lawyer is 'just suicidal to me'[59] and the Palmers' concerns that they were disadvantaged and that the trial could not be conducted in an efficient and competent way.[60] As I have already explained, these matters must be understood in light of the 'constitutional' issues which they sought to raise, many or all of which the learned Magistrate had already determined adversely to the Palmers prior to the trial. As I explain below, it was to these issues that the learned Magistrate referred when his Honour said that Mr Palmer had a 'fundamental and dogmatic ignorance of the law'.[61]
[59] ts 14 (3 December 2012).
[60] ts 29 (12 December 2012).
[61] Reasons for decision, pages 17 ‑ 18.
The Court of Appeal said in Glew v Frank Jasper Pty Ltd:[62]
A court should … be alert to the possibility that beneath inadequately expressed and often irrelevant material there may lurk an arguable case. And some leniency may be required in relation to compliance with the rules. But in the end the allowances that can be made for a litigant in person are necessarily limited, both as a matter of fairness to the other party, who must be adequately informed of the case they have to meet, and because the provision of acceptable grounds of appeal is fundamental to the exercise of the appellate function by the court. (emphasis added).
[62] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10].
In contrast with the 'constitutional' issues, it appears that the Palmers understood the nature and effect of other issues at the trial. But their concern was never with any of those factual issues. At one stage during the evidence of the only witness for the prosecution, Mr Palmer said '[c]an we go out and have a sleep while this goes on'.[63] And in closing submissions the following exchange occurred: [64]
COUNSEL: [W]it all due respect, I don't think the Palmers were ever here truly arguing about the factual matters.
MR PALMER: Jeez, you worked that out.
COUNSEL: I have worked that out. ... They're really here to do with legal issues. This has been a question of Mr Palmer referring to, even, the movie The Castle. I think that's his position and he has been consistently holding that. This is -
HIS HONOUR: I take it you're conceding what counsel says is correct Mr Palmer?
MR PALMER: Have I ever denied this rubbish? Have I ever denied the rubbish? ... I'm just questioning their legality. They have no right - no legal right. ... They have no mandate. They are illegal - case dismissed.
[63] ts 45 (12 December 2012).
[64] ts 26 ‑ 27 (13 December 2012).
For these four reasons there was nothing unfair about the trial procedure.
Conclusion on the first ground of appeal
For the reasons above, the first ground of appeal has no reasonable prospects of succeeding.
Ground 2: The allegations of ostensible bias and actual bias
The appellant's second ground of appeal is that the learned Magistrate demonstrated ostensible if not actual bias and predetermination towards the Palmers.
The Palmers allege both actual bias and that there was a reasonable apprehension of bias.
An assessment of actual bias requires consideration of the state of mind of the judge in question. That assessment can be undertaken on the basis of what that judge has said or done.[65]
[65] Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427, 437 ‑ 438 [33] (Gummow ACJ, Hayne, Crennan & Bell JJ).
An assessment of whether there has been an apprehension of bias is whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.[66] In Johnson v Johnson,[67] the joint judgment explained that the fictional observer is not assumed to have a detailed knowledge of the law, or the character or ability of the particular judge but the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice.
[66] Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427, 437 ‑ 438 [33] (Gummow ACJ, Hayne, Crennan & Bell JJ).
[67] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, 493 [13] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).
A party who alleges actual or apprehended bias must identify those facts and circumstances which are said to give rise to the conclusion that the mind of the judge was partial or prejudiced or which are capable of giving rise to an apprehension of bias.[68] Counsel for the Palmers identified 74 pages of transcript which were said to give rise to that impression. I have considered each of those pages in the context of the whole of the trial transcript.
[68] Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427, 446 [67] (Gummow ACJ, Hayne, Crennan & Bell JJ).
Rather than establishing bias or apprehended bias, the transcript reveals that the learned Magistrate exercised considerable patience and tolerance. One example is the attempt by Mr Palmer to re-open the preliminary 'constitutional' issue which the learned Magistrate had decided.[69]
[69] ts 12 ‑ 13 (13 December 2012).
MR PALMER: We've had a day to sort out a constitutional argument that you - you said you would get to us in early December, and now you won't let it go over. You won't even let us put out side of the argument.
HIS HONOUR: Look, you're not going to talk me out of that decision.
MR PALMER: No. Because you're set. You've been told what to say, and you're too gutless to stand on your own feet.
HIS HONOUR: Look, you're on the ---
MR PALMER: You are. You are a gutless person.
HIS HONOUR: You are on the border of bring in contempt of the court.
MR PALMER: I can say what I want here. I'm not in the stand.
HIS HONOUR: Don't think I will hesitate to deal with you for a contempt if I consider that you've crossed the line. So bear that in mind. Those comments you're making are, as I said, if not contemptuous, on the edge. Don't push your luck, because you're not going to achieve anything positive.
MR PALMER: I know we're not, because you are biased against us.
Another occasion was when Mr Palmer attempted to cross‑examine Mr Simpecas about the 'State Constitution'. The learned Magistrate explained:[70]
[70] ts 15 (13 December 2012).
HIS HONOUR: He cannot be - he cannot be asked - - -
MR PALMER: Just listen to me.
HIS HONOUR: He cannot be - - -
MR PALMER: Let me have a say. I'm asking him a question.
HIS HONOUR: And I'm giving you a direction. He cannot be asked questions about what the law is. No witness can. It's as simple as that. I won't take into account what he says because he's not sitting here - - -
MR PALMER: Yes, okay. Just - just finish it, then.
HIS HONOUR: No, you listen.
MR PALMER: Just finish it.
HIS HONOUR: I am. I'm finishing what I'm going to say.
MR PALMER: We will go to the High Court with this, and we will finish you.
HIS HONOUR: I don't - listen.
MR PALMER: You will be the laughing stock of this country.
HIS HONOUR: Just listen to me. I'm explaining to you why I'm making this ruling. He's not a lawyer. It's not the function of any witness to - - -
The intemperate remarks from Mr Palmer continued when he was giving evidence. When Mr Palmer attempted to give evidence about the 'State Constitution, section 52' from the witness box the learned Magistrate interrupted and explained that he would 'not allow you to address me on the law from the witness box'. His Honour attempted to explain again the nature of giving evidence. Mr Palmer replied that '[t]his is a joke' and 'this court should be abandoned'. [71] When the learned Magistrate asked Mrs Palmer if she wished to give evidence, Mr Palmer replied that '[t]his is just a joke. It's an absolute joke'.[72]
[71] ts 17 (13 December 2012).
[72] ts 19 (13 December 2012).
In closing submissions, during which Mr Palmer had again addressed the learned Magistrate about 'constitutional issues', the learned Magistrate eventually interrupted Mr Palmer's attempt to read a lengthy document. The learned Magistrate asked him about the relevance of his submissions. Mr Palmer was warned about language he started to use. Mr Palmer added that 'you won't let me say a bloody word in my own defence. This is a kangaroo court. Those kangaroos jump on to your shoulders every day, I would say'.[73]
[73] ts 58 (13 December 2012.
In the face of rudeness, interruptions, disrespect and potentially contempt, the learned Magistrate showed patience, consideration and tolerance. He politely continued to attempt to assist the Palmers in the procedures of the trial.
Against this background, none of the passages in the pages identified by counsel for the Palmers is capable of raising any suggestion of predetermination or bias. Nor are any of the statements described by counsel for the Palmers in written submissions and reiterated in oral submissions capable of giving rise to any suggestion of predetermination or bias.[74] Those statements identified in written submissions were:
Mr and Mrs Palmer have always taken an approach that they are entitled to do what they are doing.[75]
If you are going to get on your constitutional hobby horse I am not interested.[76]
The defence of the proceedings was, in fact, vexatious, no lawful justification for it, and always not going to succeed before me or before any court in this state.[77]
[74] Written submissions of the Palmers [2.3]; appeal ts 6.
[75] ts 4 (15 February 2013).
[76] ts 8 (15 February 2013).
[77] ts 10 (15 February 2013).
Counsel for the Palmers also referred in oral submissions to a fourth remark by his Honour, in his reasons for decision,[78] that letters from the Palmers to the City of Gosnells 'are typical of the fundamental and dogmatic ignorance of the law that Mr Palmer, in particular, demonstrated during the hearing'.
[78] Reasons for decision, pages 17 ‑ 18.
In addition to the context which I have described, the following observations can be made to further explain why these comments, individually or collectively, do not establish any apprehended or actual bias.
The first of these statements was made by counsel for the City of Gosnells, not by the learned Magistrate.
The second statement was made in the context of a hearing about penalty in which the 'constitutional' issues were not relevant. And in any event, the learned Magistrate had ruled on 'constitutional' issues before trial but heard them raised on a number of occasions during trial.
The third statement was an echo of a comment made by the learned Magistrate prior to the trial when he explained to Mr Palmer that he was likely to find the preliminary issues adversely to the Palmers because he was bound by decisions of the Court of Appeal in this State including Glew v Shire of Greenough.[79] This reflects an appreciation of the operation of the rules of precedent. It does not create an apprehension of bias nor does it reflect actual bias.
[79] ts 5 (3 December 2012). See Glew v Shire of Greenough [2006] WASCA 260.
The fourth statement was made by his Honour in the course of his reasons for final decision on 15 February 2013. It was an observation which reflected upon Mr Palmer's conduct of the trial and, in particular, the 'constitutional' issues which Mr Palmer had raised (as described in the letters which his Honour quoted). This observation, post‑dating the trial, and reflecting upon the conduct of the trial in the manner I have discussed, is not capable of establishing or supporting any allegation of actual bias or ostensible bias.
None of the matters raised by the Palmers can support a conclusion of actual bias or that an independent lay observer would apprehend that the Magistrate was biased.
Ground 2 has no reasonable prospects of succeeding.
Ground 3: Failure to consider arguments regarding trespass
Ground 3 alleges that the learned Magistrate did not properly consider the 'acquisition of the property or the trespass of [sic] the property by the Respondents'.
In support of this submission, counsel for the Palmers submitted that the learned Magistrate had failed properly to consider the following:[80]
The fact that in effect 90% of the [Palmers'] property had been acquired preventing proper and full usage of the property was ignored in the proceedings and the learned Magistrate similarly ignored the question of unlawful trespass by employees of the City of Gosnells and completely failed to appreciate that the defendants had already suffered severe disadvantage personally and financially and that following their claim of right they were entitled to accept and develop activities pursuant to the plan approval by the … City of Gosnells on 22 August 2001.
[80] Written submissions of the Palmers [3.1].
The response to this ground of appeal by counsel for the respondent is the simple assertion that there was no evidence at trial to support any of these allegations.[81] Counsel for the Palmers referred to a passage in the reasons for decision by the learned Magistrate where his Honour referred to a letter dated 6 September 2011, signed by Mr and Mrs Palmer which informed the City of Gosnells that: [82]
It is because of the decision by the City of Gosnells to declare this area a flood plain when they could of chosen to accept the Water Authority's other option of purchasing two blocks to act as a drain that has devalued our land and made it unsaleable. This has forced us to look for another source of income from our Property, ie renting out hardstand.
[81] Written submissions on behalf of the City of Gosnells [67].
[82] Reasons for decision, page 17.
The letter continues by referring to a failed referendum on local councils in 1988 and s 109 of the Commonwealth Constitution. This letter was quoted by the learned Magistrate as an illustration of the ignorance of the law displayed by Mr Palmer during the hearing. It was not quoted as a recitation of evidence concerning acquisition of the Palmers' property.
In oral submissions in reply on this appeal, counsel for the Palmers accepted that there was no evidence on the matters concerning the alleged acquisition of the Palmers' property.[83]
[83] Appeal ts 24.
I turn then to the issue concerning trespass.
Prior to the trial, the learned Magistrate observed that there was an issue raised about trespass.[84] This issue was one of the preliminary issues resolved prior to trial. It was also raised during the evidence of Mr Simpecas for the prosecution.[85]
[84] ts 7 (3 December 2012).
[85] ts 50 (12 December 2012).
Mr Simpecas gave evidence that on one occasion on 5 November 2009 he was initially denied entry to the property by Mr Palmer but was later given permission in the context of a fire which had broken out on the Palmers' property.[86] But he entered the property subsequently on nine other occasions. A voir dire was held to determine whether Mr Simpecas had entered the land lawfully on those nine occasions.[87] He gave evidence on the voir dire that he had attended the property to observe whether there were breaches of the town planning scheme and that he had done so in his capacity as a town planning compliance officer.[88] Mr Palmer also gave evidence on the voir dire.
[86] ts 49 ‑ 50 (12 December 2012).
[87] ts 56 ‑ 57 (12 December 2012).
[88] ts 66 (12 December 2012).
The City of Gosnells relied upon cl 12.1.2 of town planning scheme 6, enacted under the Planning and Development Act 2005, s 69, s 256(1) and cl 11(2). Clause 12.1.2 provides:
An employee of the local government authorised by the local government may, at all reasonable times, and with such assistance as may be required, enter any building or land for the purpose of ascertaining whether the provisions of the scheme are being observed.
The learned Magistrate upheld the lawful nature of Mr Simpecas' entries on to the Palmers' property and the admissibility of the photographs taken by Mr Simpecas.[89] His Honour repeated his findings in his final reasons for decision.[90]
[89] ts 103 ‑ 105 (12 December 2012).
[90] Reasons for decision, pages 12 ‑ 13.
The submissions by counsel for the Palmers in support of this ground of appeal also allege that the learned Magistrate 'ignored' and 'rejected without consideration' relevant authorities that the Palmers had tried to bring to his attention which related to the property rights of the Palmers. This submission appears to relate to the two cases mentioned by Mrs Palmer in closing submissions:[91] Plenty v Dillon[92] and Commonwealth v New South Wales.[93]Neither of these two cases is concerned with the scope or lawful authority of a town planning compliance officer to exercise a right, delegated under state legislation, to enter private property.
[91] ts 49 (13 December 2012).
[92] Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635.
[93] Commonwealth v New South Wales [1923] HCA 34; (1923) 33 CLR 1.
Ground 3 has no reasonable prospects of succeeding.
Ground 4: Misapplication of the common purpose doctrine
Ground 4 alleges that the Magistrate misapplied the common purpose doctrine. In written submissions, counsel for the Palmers asserted that the doctrine was misapplied and that 'this only served to further prejudice the defendants and only reinforced the negative view of the defendants held by the learned Magistrate'.[94]
[94] Written submissions of the Palmers [4.1].
In oral submissions counsel for the Palmers did not elaborate upon what was meant by the 'common purpose doctrine' or how it was said to have been misapplied by the Magistrate, or the sense in which the application constituted an error of law.
In Carney v The State of Western Australia[95] Pullin JA (with whom Owen JA and Jenkins J relevantly agreed) said that:
The phrase 'common purpose' is sometimes used by lawyers and judges as a shorthand expression in lieu of the phrase in s 8 [Criminal Code] 'a common intention to prosecute an unlawful purpose'.[96] The expression 'common purpose' was used on several occasions by the trial judge but it was used when giving directions concerning s 7. This is not uncommon as explained in McAuliffe v The Queen[97] by Brennan CJ, Deane, Dawson, Toohey and Gummow JJ:
'The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms -- common purpose, common design, concert, joint criminal enterprise -- are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime. The liability which attaches to the traditional classifications of accessory before the fact and principal in the second degree may be enough to establish the guilt of a secondary party: in the case of an accessory before the fact where that party counsels or procures the commission of the crime and in the case of a principal in the second degree where that party, being present at the scene, aids or abets its commission.'[98]
McAuliffe's case did not concern s 7 of the Criminal Code, but the observations made apply with equal force to s 7. The phrase 'common purpose' or a similar phrase is sometimes used perhaps because it is thought that it might help explain the operation of s 7. It is thought that it might assist juries to understand the circumstances in which a person may be held to be a principal offender even though they did not commit the acts constituting the offence. The use of the phrase will sometimes confuse lawyers (if not the jury) because of the tendency of lawyers to refer to 'common purpose' when referring to s 8.
[95] Carney v The State of Western Australia [2010] WASCA 90; (2010) 201 A Crim R 537 [171] ‑ [172].
[96] R v Keenan [2009] HCA 1; (2009) 236 CLR 397, 427 [100] (Kiefel J).
[97] McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108, 113.
[98] Giorgianni v The Queen[1985] HCA 29; (1985) 156 CLR 473.
No case was brought against Mr Palmer or against Mrs Palmer on the basis of liability under either s 7 or s 8 of the Criminal Code 1913 (WA).
Ground 4 has no reasonable prospects of succeeding.
Ground 5: Failure to address authorities
Ground 5 alleges that the Magistrate failed to consider properly the authorities read by the Palmers. Counsel for the Palmers on this appeal submitted that the learned Magistrate 'ignored if not rejected' authorities presented by the Palmers which negated any suggestion that the Palmers were given a free and fair trial and reinforces ground 1.
Counsel for the Palmers did not identify these authorities.
Two authorities upon which the Palmers apparently relied during the Magistrates Court proceedings were part of the file transferred from the Magistrates Court to this Court for the hearing of this appeal. It seems that those cases were relied upon for submissions made on the 'constitutional' issues in relation to the preliminary determination. Those cases are the constitutional decisions in McGinty v State of Western Australia[99] and Attorney‑General (WA) v Marquet.[100]
[99] McGinty v State of Western Australia [1996] HCA 48; (1996) 186 CLR 140.
[100] Attorney-General (WA) v Marquet [2003] HCA 67; (2003) 217 CLR 545.
A mere failure by a judicial officer to consider authorities is not an error from which an appeal can be brought. It is a different matter if those authorities reveal a point of law upon which an error was made. No error of law is asserted by the Palmers. No proposed appeal ground alleges any error by the learned Magistrate in his Honour's preliminary determinations.
During the trial, Mrs Palmer also mentioned Plenty v Dillon[101] and Commonwealth v New South Wales.[102]I have already explained in relation to ground 3 that neither of these two cases is concerned with the scope or lawful authority of a town planning compliance officer to exercise a right, delegated under state legislation, to enter private property.
[101] Plenty v Dillon[1991] HCA 5; (1991) 171 CLR 635.
[102] Commonwealth v New South Wales [1923] HCA 34; (1923) 33 CLR 1.
The learned Magistrate had no need to refer to any of these authorities and his failure to do so gives rise to no possible apprehension of bias or basis upon which the trial should have been adjourned.
This ground has no reasonable prospects of success either independently or in conjunction with any other ground including ground 1.
Ground 6: The jurisdiction of the Magistrates Court
The sixth ground of appeal alleges that the learned Magistrate was not an independent judicial officer because the Magistrate was employed by the Department of the Attorney General (said to be a corporation), and had not sworn allegiance to Her Majesty Queen Elizabeth II.
The grounds of appeal by the Palmers were provided to the State Solicitor's Office. Counsel for the State Solicitor applied to be heard as amicus curiae or friend of the Court. His appearance in this capacity was by consent of the parties. It was limited to written submissions which were thoroughly researched, well presented and adopted by the counsel for the City of Gosnells as its submissions on this ground.
Counsel for the Palmers made essentially three related submissions on this ground.
First, he submitted that the Department of the Attorney General has an Australian Business Number which 'appears to be that appertaining to the Magistrates Court and thus the Magistrate is not an independent judicial officer of the Crown'.[103]
[103] Written submissions of the Palmers [6.1].
Secondly, counsel argued that the 'abovementioned corporation is subject to the Corporations Act 2010 [sic] (Cth)' and that this removes the independence of the Court and breaches the principle of separation of powers, both stated and implicit in the Constitution of the State of Western Australia and of the Commonwealth of Australia.
Thirdly, he submitted that these matters are reinforced by the assertion that the Magistrate was not sworn in by the Governor‑in‑Council and did not swear the appropriate judicial oath to the Sovereign or her Governor'.[104]
[104] Written submissions of the Palmers [6.1] ‑ [6.2].
Counsel for the Palmers relied upon three decisions of the High Court of Australia in support of these submissions.[105]
[105] Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51; Mobil Oil Australia Pty Ltd v State of Victoria [2002] HCA 27; (2002) 211 CLR 1; Forge v ASIC [2006] HCA 44; (2006) 228 CLR 45.
Counsel for the Palmers on this appeal, Dr Walsh, had also represented Mr O'Connell last year in the Court of Appeal in O'Connell v The State of Western Australia.[106] In that case, the Court of Appeal rejected a near‑identical submission to the first two points made by Dr Walsh in this Court. Mazza JA (with whom Martin CJ and Buss JA agreed) described Dr Walsh's submission as follows: since 'the Department of the Attorney General has an Australian Business Number (ABN), the courts in this State have effectively become corporations. Thus, it is said the judiciary is no longer a separate and independent arm of government'.[107]
[106] O'Connell v The State of Western Australia [2012] WASCA 96.
[107] O'Connell v The State of Western Australia [2012] WASCA 96 [88].
It is not necessary to repeat the reasoning of Mazza JA. It suffices to set out his conclusion that this argument[108]
is totally devoid of merit. The identical argument has been decided in this court in a number of cases including Glew v The Shire of Greenough [2006] WASCA 260; and Glew Technologies Pty Ltd v Department of Planning and Infrastructure [2007] WASCA 289. An application to the High Court for special leave to appeal against the first of those decisions was refused: Glew v Shire of Greenough [2007] HCATrans 520 (6 September 2007).
[108] O'Connell v The State of Western Australia [2012] WASCA 96 [91].
The additional point made by Dr Walsh on this appeal is that the Magistrate was not sworn in by the Governor‑in‑Council and did not swear the appropriate judicial oath to the Sovereign or her Governor. This submission provides no further support for this ground of appeal.
Schedule 1, cl 4(1) to the Magistrates Court Act 2004 (WA) provides as follows:
Before performing any function of a magistrate, a magistrate must take an oath or affirmation of office, in the form set out in Schedule 3, before the Governor, a judge of the Supreme Court, or a person authorised for the purpose by the Governor.
The oath or affirmation of office for a Magistrate is set out in sch 3 to the Magistrates Court Act:
I, [name], [insert an oath or affirmation according to the Oaths, Affidavits and Statutory Declarations Act 2005] that I will faithfully serve the people and the State of Western Australia in the office of a magistrate ... of the Magistrates Court and I will do right to all manner of people, according to law, without fear or favour, affection or ill will.
The form of a Magistrate's commission is prescribed in sch 2 of the Magistrates Court Act.
There is no basis for the assertion of any invalidity of the learned Magistrate's commission based upon any failure to swear an oath or affirmation of office before the Governor‑in‑Council or for the failure to swear the appropriate judicial oath to the Sovereign or her Governor. Similar arguments about the terminology used, and alterations to terminology, in Western Australian Acts have been rejected on numerous occasions. In Glew v Shire of Greenough,[109] Wheeler JA said:
There is no constitutional prohibition upon the alteration of the terminology which refers to the Crown or to her Majesty. Further, the changes of terminology contained within the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 are consistent with constitutional reality. The Governor is, for constitutional purposes, effectively the Queen's representative in Western Australia (s 50 State Constitution) and so is, for practical purposes, 'her Majesty' within Western Australia. The 'State' is simply another way of referring to the executive power of the Crown in right of the State of Western Australia. Parallel terminology can be found in the Commonwealth Constitution. For example, although the Commonwealth Constitution provides, by s 61, that the executive power of the Commonwealth is 'vested in the Queen and is exercisable by the Governor-General as the Queen's representative', a number of sections of the Constitution refer simply to 'the Commonwealth' as a shorthand expression for the entity exercising that executive power. A striking example is s 119, which provides that 'the Commonwealth shall protect every State against invasion'.
[109] Glew v Shire of Greenough [2006] WASCA 260 [18]. See also Glew Technologies Pty Ltd v Department of Planning and Infrastructure [2007] WASCA 289.
Counsel did not issue any notices under s 78B of the Judiciary Act 1903 (Cth). It has been held by the Court of Appeal in this jurisdiction that 'a constitutional issue does not arise for the purpose of that section merely because a party asserts that it does. If the alleged "constitutional issue" is unarguable or vexatious, then there is in truth no constitutional issue at all'.[110] This ground of appeal was vexatious. Section 78B notices were not necessary.
[110] Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231 [42] (Wheeler JA; Steytler P & Buss JA agreeing).
This ground has no reasonable prospect of succeeding.
Conclusion
In an appeal before a single judge of the Supreme Court, leave of the court is required for each ground of appeal. Leave to appeal must not be given unless the court is satisfied that a ground has a reasonable prospect of succeeding.[111] A 'reasonable prospect of success' has been described as a 'rational and logical prospect of succeeding'.[112] None of the grounds raised by the Palmers has a reasonable prospect of success.
[111] Criminal Appeals Act 2004 (WA) s 9.
[112] Samuels v State of Western Australia (2005) 30 WAR 473, 487 [56] (the Court).
Leave to appeal on all grounds is refused and the appeal is dismissed.
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