Peter James Spencer v Cooma-Monaro Shire Council
[2008] ACTCA 18
•12 November 2008
PETER JAMES SPENCER v COOMA-MONARO SHIRE COUNCIL AND ANOR [2008] ACTCA 18 (12 November 2008)
APPEAL – notice of appeal does not contain any coherent or arguable ground of appeal - Court Procedure Rules 2006 (ACT), r 5604.
EX TEMPORE JUDGMENT
Acts Interpretation Act 1901 (Cth), s 25D
Crimes Act 1914 (Cth), s 4B
Court Procedure Rules 2006 (ACT), r 5472, r 5604
ON APPEAL FROM A MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 27 – 2007
No. SC 129 of 2007
Judges: Gray P, Penfold and Marshall JJ
Court of Appeal of the Australian Capital Territory
Date: 12 November 2008
IN THE SUPREME COURT OF THE ) No. ACTCA 27 – 2008
)
AUSTRALIAN CAPITAL TERRITORY ) No. SC 129 of 2007
)
COURT OF APPEAL )
ON APPEAL FROM A MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:PETER JAMES SPENCER
Appellant
AND:COOMA MONARO SHIRE COUNCIL
First Respondent
AND: SHANE ANGOVE
Second Respondent
ORDER
Judges: Gray P, Penfold and Marshall JJ
Date: 12 November 2008
Place: Canberra
THE COURT ORDERS THAT:
The appeal is dismissed.
The appellant pay the first respondent’s costs of the appeal.
The question of costs for the second respondent are reserved pending an application for costs to be made within seven days.
IN THE SUPREME COURT OF THE ) No. ACTCA 27 – 2008
)
AUSTRALIAN CAPITAL TERRITORY ) No. SC 129 of 2007
)
COURT OF APPEAL )
ON APPEAL FROM A MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:PETER JAMES SPENCER
Appellant
AND:COOMA MONARO SHIRE COUNCIL
First Respondent
AND: SHANE ANGOVE
Second Respondent
Judges: Gray P, Penfold and Marshall JJ
Date: 12 November 2008
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
Mr Spencer has filed a notice of appeal from a judgment of Master Harper. On 29 June 2007, the Master entered judgment for the current respondents in an action commenced by Mr Spencer. Before the Master, the respondents applied for summary judgment on the ground that Mr Spencer’s statement of claim did not disclose a cause of action. Master Harper decided that issue in favour of the respondents.
Mr Spencer’s statement of claim sought an amount of $165,000.00 from the first respondent and $33,000.00 from the second respondent, by reference to a formula in s 4B of the Crimes Act 1914 (Cth) for the imposition of pecuniary penalties. It appears that Mr Spencer considered that section gave rise to a civil action for the recovery of penalties. Section 4B is a technical provision applying to offences for which the only penalty is a term of imprisonment. The section permits a court to impose a pecuniary penalty on a natural person convicted of the offence and enables it to impose such a penalty on a body corporate convicted of an offence. The conversion factor applies in relation to convictions – it provides no basis for a civil action of any kind.
Master Harper noted that the statement of claim referred to the following legislation without identifying any provision giving rise to a cause of action:
· the Judiciary Act 1903 (Cth);
· the Trade Practices Act 1974 (Cth);
· the Constitution.
The Master also observed that the statement of claim purported to be an appeal from a decision of the Local Court of New South Wales in which judgment had been entered for the first respondent against Mr Spencer in the sum of $18,808.24, plus costs. Again, the Master observed that there is no statutory right of appeal from the Local Court of New South Wales to this Court. Master Harper also, to the extent that it mattered, rejected Mr Spencer’s claim that the Local Court had exercised federal jurisdiction in the matter in which judgment was entered against him in favour of the first respondent.
Mr Spencer’s notice of appeal in this matter alleges that the judgment is erroneous and asserts:
(1)That written submissions totalling some hundreds of papers of evidence of authorities where [sic] ignored, and neither distinguished, not [sic] addressed.
(2)That Master Harper has ignored the duty, cast upon him by Section 25D Acts Interpretation Act 1901 (Cth) to give reasons why he does [did] not follow the authorities put to him, set out the finding on material questions of fact put to him, and refer to the evidence or other material on which those finding[s] are based.
(3)The error is the proposition:
(1) That the ACT Supreme Court does not have unlimited jurisdiction when exercising Federal Jurisdiction. (s 15C Acts Interpretation Act 1901 (Cth))
(2) That Her Majesty Elizabeth the Second does not hold the root or radical title to all freehold land in Australia on behalf of the Sovereign.
(3) That Claim of right does not oust the jurisdiction of a Justice.
(4) That the Magna Carta 1295, is not a Statute in the ACT.
…
The first respondent has applied to strike out the appeal as incompetent under Court Procedure Rule 5472 or, in the alternative, as disclosing no coherent or arguable ground of appeal under Court Procedure Rule 5604. It is that alternative proposition that we now consider.
As to appeal grounds 1 and 2 set out above, s 25D of the Acts Interpretation Act 1901 (Cth) applies where a tribunal, body or person is required by a Commonwealth Act to give written reasons for a decision. The Master was not exercising powers under a Commonwealth Act. Section 25D of the Acts Interpretation Act 1901 is not relevant to the form or content of his decision. It follows that appeal ground 1 which seems to anticipate the requirement to deal with authorities that are asserted in appeal ground 2, and appeal ground 2 itself, are just not arguable.
Ground 3 of the grounds of appeal contains a number of matters expressed with the preface “The error is the proposition”. Each one of those matters does not form any part of the Master’s decision and no connection is made to his decision to make these matters intelligible in any relevant sense.
The appellant has, in effect, asked us to give him every indulgence because he is not versed in the law and that he is a farmer not a lawyer. Even making every such allowance for this, the appeal does not disclose any coherent or arguable grounds and it should be dismissed on the ground that it does not so contain them.
In light of this conclusion, it is not necessary to deal with the foreshadowed application made by the first respondent for security for costs of the appeal. The order of the court is that the appeal be dismissed.
The order of the court will be that the appellant pay the first respondent’s costs of the appeal. As far as the second respondent is concerned, we would reserve the question of costs at this stage, but require an application for costs to be made by him within seven days.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 21 November 2008
Counsel for the appellant: Self litigant
Solicitor for the appellant: Self litigant
Counsel for the first respondent
and mentioned on behalf of the
second respondent: Mr J Pappas
Solicitor for the first respondent: Bradley Allen
Date of hearing: 12 November 2008
Date of judgment: 12 November 2008
0
3