Satchithanantham v Folkes
[2019] ACTSC 165
•11 July 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Satchithanantham v Folkes |
Citation: | [2019] ACTSC 165 |
Hearing Dates: | 20 and 21 June 2019 |
Final Submissions Date: | 3 July 2019 |
DecisionDate: | 11 July 2019 |
Before: | Mossop J |
Decision: | The appeal is dismissed |
Catchwords: | PRACTICE AND PROCEDURE – APPEAL – Appeal from interlocutory orders of Magistrates Court – interlocutory application in appeal proceedings – whether court has jurisdiction to hear appeal – it does not – appeal dismissed |
Legislation Cited: | Bail Act 1992 (ACT), ss 20B, 42A, 42A(c), 43A Court Procedures Rules 2006 (ACT), rr 5172, 6140, 6142 Supreme Court Act 1933 (ACT), ss 8(1), 8(1)(c), 20, 20(1)(a) |
Cases Cited: | Burow v The Queen [2015] ACTCA 61; 11 ACTLR 157 Eastman v DPP (No 1) [2014] ACTSCFC 1; 9 ACTLR 163 The Queen v Ross-Jones; Ex parte Green (1984) 156 CLR 185 |
Parties: | Thambiappah Satchithanantham (Appellant) Benjamin Folkes (Respondent) |
Representation: | Counsel Self-represented (Appellant) M Howe (Respondent) |
| Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 20 of 2019 |
Decision under appeal: | Court/Tribunal: Magistrates Court Before: Magistrate Taylor Date of Decision: 4 April 2019 Court File Numbers: MC 10156 of 2018 MC 10314 of 2018 MC 10315 of 2018 MC 10316 of 2018 |
MOSSOP J:
Introduction
The appellant, Thambiappah Satchithanantham, has appealed to the Supreme Court from interlocutory decisions of the Magistrates Court. He has then made an interlocutory application in the appeal proceedings. In order to understand the present application it is necessary to set out some background.
The proceedings in the Magistrates Court
The substantive proceedings in the Magistrates Court are criminal proceedings in which the appellant is alleged to have committed the following offences:
(a)damaging property, namely, a laptop computer belonging to himself and his wife contrary to s 116(3) of the Crimes Act 1900 (ACT) (CC2018/10156);
(b)damaging property, namely plates and drinking glasses belonging to himself and his wife contrary to s 116(3) of the Crimes Act (CC2018/10314);
(c)assault, contrary to s 26 of the Crimes Act (CC2018/10315); and
(d)threatening to damage property, namely a pet cockatiel, contrary to s 407(1) of the Criminal Code 2002 (ACT) (CC2018/10316).
The offences are alleged to have occurred on 8 August 2018. The proceedings were listed for hearing on 8 April 2019. Unfortunately, the proceedings were not reached on 8 April 2019 or on 9 April 2019 and, on that latter date, the hearing of the matter was adjourned until 30 September 2019. The appellant presently has interlocutory applications before the Magistrates Court.
The interlocutory application in the Magistrates Court
By application dated 3 April 2019, the appellant sought a variety of relief which was organised under headings of “Interim orders” and “Final orders”. In summary, the interim orders sought:
(a)vacation of the hearing date on 8 April 2019;
(b)directions for case management;
(c)joinder of a number of persons or entities as parties to the proceedings which include staff members of Child and Youth Protection Services, Mount Stromlo High School, Charles Weston Primary School and other government and non‑government entities; and
(d)the “stay” of bail conditions until the final hearing of the interlocutory application.
In summary, the final orders sought were:
(a)the dismissal or stay of the proceedings;
(b)a declaration that the arrest of the appellant was unlawful;
(c)payment of damages (identified as falling into three categories totalling $54,000, $300,000 and $20 million); and
(d)costs on an indemnity basis.
In the application dated 3 April 2019, the reasons for seeking those orders are set out at length. Apart from the grounds for the vacation of the hearing date and the making of case management orders, the grounds for the balance of the orders are set out in 31 paragraphs which do not specifically address the individual orders sought and include a wide variety of complaints.
It appears that the application was heard on 4 April 2019, but no transcript, bench sheet or perfected orders from that day were in evidence.
The substantive proceedings in the Supreme Court
The appellant has appealed against two decisions of the Magistrates Court made on 4 April 2019. The two decisions appealed from are as follows:
(a)a decision to refuse an application dated 3 April 2019; and
(b)the refusal to vacate a hearing listed to commence on 8 April 2019.
The grounds of appeal are stated in the notice of appeal as follows:
1.Appellant has suffered miscarriage of Justice by not hearing the application on its merits and the Appellant was in duress situation in the court as no legal representation for appliant/Defendant.
2.Court erred [in] law by not hearing (2) Applications before court listed on 4/4/19 filed in the court by the applicant and his wife filed on 29/3/19.
3.Other grounds 1-31 of the application befor[e] the court today 4/4/19.
The reference in ground 3 to the 31 grounds in the application are to those grounds identified in the application dated 3 April 2019 referred to at [6] above.
The orders sought are as follows:
1.Appeal be allowed.
2.Stay of the [orders] made on 4/4/19 and on 30/10/18 below.
3.Vacate the hearing date fixed for commencing for 8/4/19.
4.Grant the orders 1-9 as sought in the Application below filed and served, which not heard on its merits.
5. Stay of the proceedings below until further order of this court.
6. Respondents pay costs and court below.
Further interlocutory application in the Magistrates Court
Because it is referred to in the interlocutory application to which I will refer in a moment, it is necessary to also note a further interlocutory application filed on 6 June 2019 in the Magistrates Court. By Application in Proceeding filed in the Magistrates Court the appellant sought:
(a)a stay of the proceedings;
(b)a “stay” of bail conditions until the appeal proceedings were determined;
(c)the orders 3-8 and 10 sought in the 3 April 2019 application;
(d)orders 2 and 3 sought in an application in which his wife is identified as the applicant said to have been filed in court on 29 March 2019;
(e)vacation of the hearing date of 30 September 2019.
I was told that the hearing of this application had been adjourned to 2 July 2019.
Interlocutory application in appeal proceedings
That brings me to the application which is presently before the Supreme Court. That is an interlocutory application in the appeal proceedings in which the appellant seeks the following orders:
1.Under the s216 of the Magistrate court act 1930 or other relevance Act the court deems fit, stay of the proceedings below, as sought in the order-5 of in this Notice of Appeal matter filed & served on 5 April 2019.
2.All of the bail conditions imposed on the appellant on 11/6/2019 be stayed until the order-1 sought above or pursuant to s 216 (1) (a) of the Magistrate Court Act 1930 or under other rules the court deems fit, until the current appeal matter in this court is determined.
3.Other orders as appropriate as sought in the court below in the applications dated 4/4/2019 and 6/6/2019 for which hearings were held on 8/4/2019 and 11/6/2019 respectively, the court deems fit.
The grounds for the making of those orders are set out at some length in the application in proceeding.
To summarise what is sought in the interlocutory application:
(a)a stay of the proceedings in the Magistrates Court as sought in ground 5 of the Notice of Appeal;
(b)a “stay” of the bail conditions until determination of the appeal proceedings; and
(c)the other orders “as appropriate” sought in the applications dated 4 April 2019 (this should be 3 April 2019) and 6 June 2019.
Chronology
The material put before the court for the purposes of the application was limited. Large numbers of documents generated by the appellant were put into evidence. Only limited material permitting a coherent chronology was put into evidence.
No transcripts of the proceedings in the Magistrates Court on 4, 8 or 9 April 2019 or 11 June 2019 were put into evidence. Nor were the bench sheets or formal orders of the court on these dates in evidence.
Doing the best I can from the material in evidence and what I was told without objection from the bar table, the chronology appears to be:
(a)10 August 2018: appellant arrested.
(b)11 September or October 2018: Special Magistrate Hunter grants bail.
(c)30 October 2018: variation of bail.
(d)31 January 2019: variation of bail.
(e)4 April 2019: application dated 3 April 2019 heard by Magistrate Taylor.
(f)4 April 2019: appeal to the Supreme Court filed.
(g)8 April 2019: listed hearing date, matter not reached.
(h)9 April 2019: matter not reached and proceedings adjourned to 30 September 2019.
(i)6 June 2019: date of interlocutory application for a permanent stay of proceedings, removal of bail conditions and adjournment of the criminal proceedings until the Supreme Court appeal has been dealt with.
(j)11 June 2019: the Chief Magistrate adjourns the application of 6 June 2019 to 2 July 2019.
(k)2 July 2019: listed date for interlocutory application in Magistrates Court.
Jurisdiction
The first duty of a court is to determine whether it has jurisdiction: see Federated Engine‑Drivers and Firemen’s Association of Australasia v Broken Hill Pty Company Ltd (1911) 12 CLR 398 at 415; The Queen v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 202 and 213; Eastman v DPP (No 1) [2014] ACTSCFC 1; 9 ACTLR 163 at [5]; Obeid v R [2015] NSWCCA 309; 91 NSWLR 226 at [9].
In considering the substantive Application in Proceedings, I came to the tentative conclusion that the Supreme Court did not have jurisdiction to hear the appeal at all. As a consequence, in order to permit the appellant to address the issue I directed that he provide any written submissions that he wished on that point. Written submissions were filed by the appellant on 3 July 2019.
The actions of the Magistrates Court that may be the subject of an appeal are defined by s 208 of the Magistrates Court Act 1930 (ACT) which identifies the appeals to which Div 3.10.2 applies. Section 208 of the Act does not give to the Supreme Court jurisdiction to hear an appeal from interlocutory orders generally. A refusal of an interlocutory application or the refusal to vacate hearing date are not within the scope of s 208. Similarly, the two decisions identified in the Notice of Appeal are not decisions within the scope of the review appeal provisions in Div 3.10.3 of the Act.
The submissions on the jurisdictional issue filed by the appellant raised a number of matters, none of which overcome the absence of jurisdiction. I will address the contentions made by the appellant (as best as I can understand them) below.
First, the appellant submitted that the court had jurisdiction because the Notice of Appeal had been accepted for filing in the registry. Although there is a capacity to reject documents that are sought to be filed in the registry for non-compliance with the rules (r 6140) or if they involve an abuse of process or are frivolous or vexatious (r 6142), the existence of those powers does not immunise a document such as a Notice of Appeal which is accepted for filing by the registry from jurisdictional challenge.
Second, the appellant submitted that no formal application had been made by the respondent raising the issue of jurisdiction and that it could be dealt with at the hearing. This submission is correct insofar as the respondent had foreshadowed, but not made, an application to strike out the appeal on the basis that it was incompetent, pursuant to r 5172. However, notwithstanding this, it remains open to the court to address the absence of jurisdiction so long as it does so in a procedurally fair manner.
Third, the appellant submitted that it would be open to him to amend his Notice of Appeal. However in the present case, even if it was possible to amend the Notice of Appeal so as to remedy an absence of jurisdiction, no amendment was identified which would bring the appeal within s 208.
Fourth, the appellant submitted that the respondent had lost the opportunity to raise the issue of jurisdiction because it did not file a cross-appeal within 28 days or application in writing to deal with the matter. As pointed out above, the jurisdiction of the court is a matter which may be addressed notwithstanding the absence of a written application. A cross-appeal would obviously not be an appropriate means by which to raise the issue.
Fifth, the appellant appeared to submit that s 207(1)(a) and (2) of the Magistrates Court Act and s 8(1) or s 8(1)(c) of the Supreme Court Act 1933 (ACT) apply and provide jurisdiction. None of those provisions on their own (as opposed to in conjunction with s 208) provide jurisdiction to the court in present case.
Sixth, the appellant submitted that court has jurisdiction by reason of s 20(1)(a) of the Supreme Court Act and that once the registry granted leave to file proceedings, the court has power to rectify any issue in relation to the proceedings. Section 20 of the Supreme Court Act does not provide jurisdiction for an appeal where that appeal is not otherwise provided for by statute: Burow v The Queen [2015] ACTCA 61; 11 ACTLR 157 at [40]‑[58]. As a consequence, it does not provide appellate jurisdiction in the present case. Similarly, the acceptance of the Notice of Appeal for filing does not provide jurisdiction to the court where there is no statutory entitlement to appeal.
Seventh, the appellant submitted that s 208(1)(a)(ii) applied in this case. That provision permits an appeal from a decision of the Magistrates Court relating to fitness to plead. The decisions appealed from the present case were not within the scope of that provision.
Eighth, the submissions of the appellant also asserted that the Magistrates Court had breached ss 41B and 42 of the Magistrates Court Act. Those sections relate to the issuing of court attendance notices and warrants and summons (as opposed to arrest). While these submissions relate to the complaints that the appellant makes about his arrest, they are not relevant to the question of jurisdiction.
For these reasons the court does not have jurisdiction to entertain the appeal under the Magistrates Court Act 1930 (ACT). For the reasons given in [37] below, the Supreme Court does not have jurisdiction in relation to the appellant’s bail. The purported appeal is not an application for prerogative relief directed to the Magistrates Court. The appeal as a whole must therefore be dismissed. Had the appeal as a whole not been dismissed, then for the reasons which follow, the interlocutory application would have been dismissed.
Stay of proceedings
In his interlocutory application the appellant sought a stay of proceedings. Section 216 of the Magistrates Court Act provides that if a person appeals under Div 3.10.2 then “the enforcement or execution of the decision, conviction, order, sentence or penalty that is the subject of the appeal is stayed until the appeal is decided or is abandoned or discontinued”. This is the provision principally relied upon by the appellant to justify the stay of the proceedings below. There are two misconceptions involved in this reliance.
First, if s 216 applied then, relevantly, the “order” that is the subject of the appeal would be stayed. In the present case, the orders identified in the notice of appeal involve the refusal of the application dated 3 April 2019 and the refusal to vacate the hearing. It is only the former of these which remains relevant because the hearing listed to commence on 8 April 2019 did not proceed. So far as the refusal of the application dated 3 April 2019 is concerned, assuming that an order was made refusing or dismissing the application, the stay of that refusal or dismissal would not have the effect of staying the proceedings as a whole. The stay of a refusal or dismissal would have no operative effect relevant to the future conduct of the proceedings. In that respect the application is, therefore, misconceived.
Second, s 216 refers to a “decision, conviction, order, sentence or penalty” that is the subject of the appeal. As pointed out at [22] above Div 3.10.2 defines the scope of the appeals to which s 216 applies. It does not extend to interlocutory orders generally.
It does not extend to the orders identified in the notice of appeal. Therefore s 216 does not apply. It does not provide a basis for the stay of the proceedings below. Further, the reason that it does not apply is because there is no jurisdiction under Div 3.10.2 of the Magistrates Court Act to hear the present appeal. As a consequence not only is a stay unavailable as an interlocutory order, the Magistrates Court Act does not give jurisdiction to the Supreme Court to hear the appeal.
Bail conditions
In his interlocutory application, the appellant seeks removal of the bail conditions to which he is presently subject. Assuming the chronology outlined above is correct, he has previously been able to vary his bail conditions. I do not make any comment about the appropriateness of the present bail conditions. There is no power in s 208(1) to appeal from decisions relating to bail. However, the limitation on appeals in s 208(1) does not affect any power that the Supreme Court has under the Bail Act 1992 (ACT) to grant bail or to vary the conditions of bail: Magistrates Court Act s 208(2). The Supreme Court only has power to make a bail order in relation to an accused person in proceedings in the Magistrates Court if (relevantly) s 43A of the Bail Act applies: Bail Act s 20B. There is a power under s 43A of the Bail Act to review a decision of the Magistrates Court, but that only empowers the review of a decision of the Magistrates Court under s 42A. The language used in s 42A(c) is not without its ambiguity. However it can be said that the present proceedings are not an application for review under s 43A. As a consequence the Supreme Court does not have power to make a bail order in relation to the appellant in these proceedings.
Other orders sought
The appellant’s interlocutory application seeks “other orders as appropriate” as sought in the previous interlocutory applications of the Magistrates Court. None of those other orders would, in my view, be appropriate. Dealing generally with the subject matters of those orders:
(a)It would not be appropriate to grant leave to join additional parties as these proceedings are summary criminal proceedings rather than civil proceedings. If civil proceedings relating to the circumstances in which the appellant came to be arrested are to be brought they would need to be brought in separate proceedings.
(b)In relation to bail conditions I have referred to the limitations on what this court can do above.
(c)So far as the interlocutory proceeding seeks a stay, the grounds stated in the 3 April 2019 application do not provide appropriate grounds for a permanent stay of the proceedings;
(d)In so far as damages are sought, the same comments apply as in relation to the claim to join additional parties for the purposes of those civil proceedings.
Conclusion
The court does not have jurisdiction to hear the appeal. For that reason, the appeal must be dismissed. In the event that the court did have jurisdiction, then it would not be appropriate to make any of the orders sought in the application in proceedings dated 14 June 2019 and hence that application would have been dismissed.
The order of the Court is:
1. The appeal is dismissed.
| I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 11 July 2019 |
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