Ponnambalam v The State of Western Australia

[2013] WASCA 101

PONNAMBALAM -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 101

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASCA 101
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:90/2012	Heard:	18 MARCH 2013
Coram:	McLURE P BUSS JA NEWNES JA	Delivered:	16/04/13
No of pages:	5	Judgment Part:	1 of 1
Result:	Application for review dismissed
Category:	B
PDF Version

Parties:	NAVANEETH PONNAMBALAM THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Application for review of programming order Alleged constitutional issues Turns on own facts
Legislation:	Criminal Code (WA), s 371(1) Judiciary Act 1903 (Cth), s 40(1), s 78B
Case References:	Amrit Lal Narain v Parnell (1986) 9 FCR 479 Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 O'Connell v The State of Western Australia [2012] WASCA 9 Shaw v McGinty [2006] WASCA 231

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PONNAMBALAM -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 101 CORAM : McLURE P

BUSS JA
NEWNES JA

HEARD : 18 MARCH 2013 DELIVERED : 16 APRIL 2013 FILE NO/S : CACR 90 of 2012 BETWEEN : NAVANEETH PONNAMBALAM

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law - Application for review of programming order - Alleged constitutional issues - Turns on own facts

Legislation:

Criminal Code (WA), s 371(1)

Judiciary Act 1903 (Cth), s 40(1), s 78B

Result:

Application for review dismissed

(Page 2)

Category: B

Representation:

Counsel:

Appellant : In person
Respondent : No appearance

Solicitors:

Appellant : In person
Respondent : Director of Public Prosecutions (WA)

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

Amrit Lal Narain v Parnell (1986) 9 FCR 479
Finlayson; Ex parte Finlayson (1997) 72 ALJR 73
O'Connell v The State of Western Australia [2012] WASCA 9
Shaw v McGinty [2006] WASCA 231


(Page 3)

1 McLURE P: This is an application by the appellant, a self-represented litigant, to review a programming order made by Mazza JA on 17 January 2013. The respondent was not required to appear. On 18 March 2013 the court unanimously dismissed the review application. These are my reasons for joining in that order.

2 The background is as follows. On 3 February 2012 the appellant was convicted after trial of 220 counts of stealing, contrary to s 371(1) of the Criminal Code (WA) (the Code). On 11 April 2012, the appellant filed in this court an appeal against his convictions (the conviction appeal) and on 22 October 2012, his Appellant's case. The grounds of appeal in the Appellant's case do not in terms raise any matter arising under the Constitution of the Commonwealth of Australia or involving its interpretation.

3 On 8 November 2012 the appellant filed an application dated 6 November 2012 supported by an affidavit sworn by him on 8 November 2012 to adjourn the conviction appeal sine die. The application to adjourn was based on s 78B(2)(a) of the Judiciary Act 1903 (Cth).

4 A copy of a s 78B notice, not in these proceedings but in proceedings S323 of 2012 in the High Court, was annexed to the appellant's affidavit. It appears the appellant had filed an application in the High Court under s 40(1) of the Judiciary Act for the removal of the whole of the conviction appeal into the High Court. The removal application is not in evidence. Section 40(1) relevantly provides:

(1) Any cause … arising under the Constitution or involving its interpretation that is at any time pending in a … court of a State … may, at any stage of the proceedings before final judgment, be removed into the High Court under an order of the High Court, which may, upon application of a party for sufficient cause shown, be made on such terms as the Court thinks fit.

5 Section 78B relevantly provides:

(1) Where a cause pending in a … court of a State … involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court.

(Page 4)

(2) For the purposes of subsection (1), a court in which a cause referred to in that subsection is pending:

(a) may adjourn the proceedings in the cause for such time as it thinks necessary and may make such order as to costs in relation to such an adjournment as it thinks fit.

6 The appellant's adjournment application was listed before Mazza JA on 17 January 2013. By that stage not all Attorneys-General had provided a substantive response to the s 78B notice. No party contended that a reasonable time had elapsed since the giving of the s 78B notice. The respondent informed the court that the adjournment was opposed on the basis that the constitutional issues identified by the appellant in his s 78B notice were frivolous, vexatious and trivial.

7 As a result of the position taken by the respondent, Mazza JA made programming orders on 17 January 2013 for the filing of submissions to facilitate the determination of the adjournment application. He ordered that:

1 The appellant file and serve any submissions in support of the application dated 6 November 2012 by no later than 4.00 pm on 15 February 2013.

2. The respondent file and serve any submissions in response by no later than 4.00 pm on 7 March 2013.

3. The appellant file and serve any submissions in reply by no later than 4.00 pm on 21 March 2013.

8 The grounds of the review application are in the following terms:

1. The order of 17 January 2013 that written submissions be provided to the Court of Appeal for Western Australia, substantiating the questions relating to the Constitution that arise of the cause, is in excess of jurisdiction.

2. The order contravenes the duty of the Court of a State provided under Section 78B, subsection (1) of the Judiciary Act 1903 (Cth).

9 There is no merit in either ground. A constitutional issue does not arise for the purposes of s 78B merely because a party asserts that it does. If the alleged 'constitutional issue' is unarguable or vexatious, there is in truth no constitutional issue at all: Shaw v McGinty [2006] WASCA 231 [42]; O'Connell v The State of Western Australia [2012] WASCA 96 [90]; Finlayson; Ex parte Finlayson (1997) 72 ALJR 73, 74; Amrit Lal

(Page 5)

Narain v Parnell (1986) 9 FCR 479, 486 - 489. The same must be true for the purposes of s 40(1) of the Judiciary Act.

10 Moreover, unlike s 78B(1), the making of an application under s 40(1) does not, in terms, prevent this court from proceeding with the appeal. Further, s 78B(2)(a) does not apply to an application under s 40(1).

11 The purpose of the programming orders is to enable the Court of Appeal to make an informed assessment of the nature and scope of the alleged constitutional issues and to determine whether they, or any of them, are arguable. That is relevant in the exercise of this court's discretion in determining the appellant's adjournment application. The orders were both within the court's jurisdiction and appropriate.

12 On 12 February 2013, the appellant filed an affidavit sworn on 7 February 2013 annexing a copy of his Summary of Argument filed in the High Court removal proceedings. The respondent has filed responsive submissions. The adjournment application can now be listed for a hearing on the merits before Mazza JA.

13 BUSS JA: I joined in the orders made by the court on 18 March 2013 for the reasons given by McLure P.

14 NEWNES JA: The reasons given by McLure P reflect the reasons I joined in the order dismissing the review application.