Smolarek v Roper
[2009] WASCA 124
•16 JULY 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SMOLAREK -v- ROPER [2009] WASCA 124
CORAM: WHEELER JA
PULLIN JA
NEWNES JA
HEARD: 6 MAY 2009
DELIVERED : 16 JULY 2009
FILE NO/S: CACV 68 of 2008
BETWEEN: HANNA SMOLAREK
Appellant
AND
NICHOLAS KENNETH ROPER
Respondent
FILE NO/S :CACR 105 of 2008
BETWEEN :HANNA SMOLAREK
Appellant
AND
NICHOLAS KENNETH ROPER
Respondent
ON APPEAL FROM:
For File No : CACV 68 of 2008
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :Templeman J
File No :CIV 1202 of 2008
For File No : CACR 105 of 2008
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :Templeman J
File No :SJA 1024 of 2008
Catchwords:
Jurisdiction - Plea that Magistrates Court had no jurisdiction - Criminal Procedure Act 2004 (WA), s 126, s 127 - Whether there had been trial of issue of jurisdiction
Power of ASIC to prosecute for offence under Corporations Act 2001 (Cth) - Effect of s 1315 of Corporations Act - Whether s 49 of ASIC Act limits power of ASIC to prosecute
Appeal against conviction - Whether prosecution notice invalid - Issue relevant to charge the subject of a finding in earlier civil proceedings in superior court - Whether binding in prosecution - Whether charge proved beyond reasonable doubt - Adequacy of reasons of primary judge - Allegation of bias - Extent of intervention by judge in course of hearing where litigant in person - Turns on own facts
Legislation:
Australian Securities and Investments Commission Act 2001 (Cth), s 49
Corporations Act 2001 (WA), s 1315
Criminal Procedure Act 2004 (WA), s 126, s 127
Result:
Appeal in CACV 68 of 2008 dismissed
Appeal in CACR 105 of 2008 dismissed
Category: B
Representation:
CACV 68 of 2008
Counsel:
Appellant: In person
Respondent: Mr S Vandongen
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (Cth)
CACR 105 of 2008
Counsel:
Appellant: In person
Respondent: Mr S Vandongen
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630
Johnson v Johnson (2000) 201 CLR 488
Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273; [2004] WASCA 149
Re Jones; Ex parte The Commissioner of Police [1999] WASCA 246
Re JRL; Ex parte CJL (1986) 161 CLR 342
Re Mulligan; Ex parte Isidorso [1979] WAR 198
Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78
Samuels v The State of Western Australia (2005) 30 WAR 473; [2005] WASCA 193
Smolarek v Brian Keith McMaster as administrator of Eznut Pty Ltd [No 2] [2008] WASCA 234
Smolarek v McMaster [2006] WASC 109; (2006) 58 ACSR 199
Vakauta v Kelly (1989) 167 CLR 568
WHEELER & PULLIN JJA: We agree with the reasons of Newnes JA.
At the beginning of the appeal, the appellant applied orally to have us disqualify ourselves on the ground that we had been members of the Court of Appeal in Smolarek v Brian Keith McMaster as administrator of Eznut Pty Ltd [No 2] [2008] WASCA 234 and would not bring an open mind to this appeal. The application was dismissed with reasons to be given later. These are the reasons.
The test to be applied in determining whether a judge is to be disqualified by reason of apprehended bias is set out in the reasons of Newnes JA. While a reasonable apprehension of bias may arise where a judge has previously heard a case and made findings of fact which are relevant to the determination of a subsequent case, or has expressed views about the credibility of a witness who has to give evidence in a subsequent case, it is not so obvious that it can arise where the previous decision is one of law. Whether the fact that a judge had previously decided a question of law (be it the same or some other question of law) adversely to one of the parties who comes before that judge in a subsequent case, can give rise to a reasonable apprehension of bias, is a question that is unnecessary to decide in this appeal.
In Re JRL; Ex parte CJL (1986) 161 CLR 342, Mason J said at [352] that there may be many situations in which previous decisions of a judicial officer may generate an expectation that he or she is likely to decide issues in a particular case adversely to one of the parties. Mason J pointed out that this did not mean that the judge will approach the issues in the case otherwise than in an impartial or unprejudiced way in the sense in which that expression is used in the authorities, or that the judge's previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that the judge will approach the issues in that way. In Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78 at 86, Brennan, Gaudron and McHugh JJ indorsed what was described as 'the caution' which Mason J had expressed in the Re JRL case.
Smolarek v McMaster [No 2] was an appeal by this appellant against the declaration made by Simmonds J that the administrators of the Company were validly appointed. The appeal involved a number of issues of law, but did not require the Court of Appeal to make any findings of fact or findings as to the credibility of any witness.
It seems that the appellant's apprehension is that we were members of the court who decided in Smolarek v McMaster [No 2] that the administrators were validly appointed and that we would not depart from that view on this appeal and that our minds were made up. That apprehension is based upon a misunderstanding of the issue before this court. On this appeal, the only question was whether there was evidence before Magistrate Pontifex upon which it was open to her Honour to find beyond reasonable doubt that the administrators were validly appointed. The fact that in Smolarek v McMaster [No 2] we were members of the court which concluded that on the facts before Simmonds J, he had correctly found (on the balance of probabilities) that the administrators were validly appointed, could not give rise to an apprehension on the part of a reasonable observer that we would not bring an impartial and unprejudiced mind to the question whether on the evidence before the magistrate, she was entitled to find that the prosecution had proved beyond reasonable doubt that the administrators were validly appointed. For those reasons, we refused to disqualify ourselves.
NEWNES JA: The appellant appeals against two decisions of Templeman J. The appellant appeals against his Honour's decision of 15 May 2008, dismissing an application by the appellant for an order under s 36 of the Magistrates Court Act 2004 (WA) to set aside her conviction of an offence under the Corporations Act 2001 (Cth) on the ground that the Magistrates Court had no jurisdiction.
The appellant also appeals against his Honour's subsequent decision of 4 July 2008, dismissing the appellant's application for leave to appeal against her conviction.
The two appeals arise out of related matters and were heard together.
Background
By a prosecution notice dated 11 August 2006, the appellant was charged with two offences under the Corporations Act. The complainant was the respondent, an employee of the Australian Securities and Investment Commission (ASIC) who was authorised to institute prosecutions on behalf of ASIC. One of the charges was later abandoned and it is unnecessary to refer to it. The relevant charge was that, the appellant
being a director of Eznut Pty Ltd ACN 102 508 789 ('the Company')
did commit an offence by virtue of subsection 1311(1)(b) of the Corporations Act 2001 ('the Act') in that the accused contravened
subsection 438B(4) of the Act by failing to comply with the requirements of subsection 438B(1) of the Act to deliver to the Administrator of the Company all books of the Company in the accused's possession relating to the Company, other than books the accused is entitled to retain, and tell the Administrator where the books relating to the Company are, as soon as practicable after the Administrator was appointed to the Company on the 27th day of January 2006.
The matter became before Magistrate Nicholls in the Magistrates Court in Perth on 15 September 2006. At that time, the appellant contended that the Magistrates Court had no jurisdiction to hear the charge on the ground that ASIC did not have any power to prosecute her for the offence. Magistrate Nicholls adjourned the matter to enable the issue of jurisdiction to be heard. It was noted on the prosecution notice that the appellant challenged the jurisdiction of the court.
The matter next came on before Magistrate Heaney on 7 December 2006. Magistrate Heaney read the charges and informed the appellant that he had read 'her affidavits'. The affidavits are not specifically identified but his Honour was apparently referring to two affidavits of the appellant sworn on 7 September 2006.
Before Magistrate Heaney, the appellant submitted, in effect, that, pursuant to s 49 of the Australian Securities and Investments Commission Act 2001 (Cth) (the ASIC Act), ASIC could only cause a prosecution to be commenced against a person for an offence under the Corporations Act if, as a result of an investigation conducted under the ASIC Act, it appeared to ASIC that the person may have committed an offence against the Corporations Act for which they ought to be prosecuted. The appellant argued that in this case ASIC had not conducted any investigation, and therefore had not made any assessment that she may have committed an offence for which she ought to be prosecuted. Accordingly, ASIC had no power to commence the prosecution and the Magistrates Court had no jurisdiction to hear it.
In support of that submission, the appellant relied, in substance, upon a telephone conversation she had had with a Ms Renton of ASIC, deposed to in one of the appellant's affidavits of 7 September 2006. In that affidavit, the appellant said she telephoned ASIC on 15 August 2006, upon receipt of the prosecution notice, and spoke to Ms Renton. The appellant continued in the affidavit (the terms are as they appear in the affidavit):
I asked her what was the base for ASIC initiation of criminal prosecution against me and she said that the base was the liquidators' [sic] complaint.
I asked if that was all, whether there was any further enquiry ASIC conducted and she asked what enquiry I had in mind;
I said I did not know, just wanted to find out whether complaint ASIC received was the only base on which ASIC decided to prosecute and she said yes. (BAB 157)
Annexed to the affidavit is a facsimile which the appellant sent to ASIC later the same day in which, among other things, she confirmed the alleged telephone conversation (BAB 161).
There is also annexed to the affidavit a letter dated 24 August 2006 from Mr Borchok, the Director, National Assessment & Action, of ASIC, which was written in response to the appellant's facsimile. In the letter, Mr Borchok said, among other things:
Based on the information currently before ASIC, there are reasonable grounds to suspect that you have contravened section 438B(4) of the Act … On this basis ASIC has commenced prosecution proceedings against you. (BAB 163)
The appellant submitted that if ASIC had conducted an investigation pursuant to s 49 of the ASIC Act, Mr Borchok would have referred to it in his letter. There was no reference to any such investigation.
In the course of argument, Magistrate Heaney (ts 25) rejected the appellant's argument that if ASIC had conducted any investigation it would have produced evidence of it. His Honour said, in effect, that there was no evidence that an investigation had not been conducted and there was no onus on ASIC to prove that it had conducted an investigation. However, his Honour did not make any express finding in relation to the jurisdiction of the Magistrates Court but simply fixed 31 January 2007 as the date for the substantive hearing of the charge.
There is nothing in the materials available on the appeal to indicate that at that (or at any subsequent) stage of the prosecution any plea to the charge was entered beyond the appellant's original plea that the court had no jurisdiction in the matter (BAB 318).
On the limited materials in the appeal books it is not possible to trace the progress of the matter thereafter with any degree of precision. In particular, we do not have a complete transcript of the trial but only certain portions of it. (I do not say that by way of criticism of the appeal books as it appears they were compiled with a view to avoiding this court being engulfed by voluminous but largely irrelevant material.)
The hearing of the charge commenced before Magistrate Pontifex on 4 April 2007 and was adjourned, part‑heard, to 2 August 2007.
At the hearing on 2 August 2007 (as indeed had occurred at each previous occasion the matter had come on for hearing), the appellant renewed at the outset her contention that the court did not have jurisdiction to hear the charge. Although the trial was in mid‑stream, Magistrate Pontifex heard argument on the issue of jurisdiction and held that the court did have jurisdiction. The magistrate said she would provide reasons for her decision at the conclusion of the trial. The trial then continued and was apparently again adjourned part‑heard.
At the resumption of the hearing on 29 October 2007, Magistrate Pontifex gave oral reasons for decision on the jurisdiction issue. At that stage the trial had still not been completed but the magistrate noted in giving her reasons that the question of jurisdiction had been raised by the appellant on a number of occasions and it was therefore appropriate to provide reasons for decision on that question during the course of the trial.
In her reasons, Magistrate Pontifex concluded that, by reason of s 9A of the Administrative Decisions (Judicial Review) Act 1977 (Cth), it was not open to the court to enquire into whether ASIC had conducted an investigation under s 49 of the ASIC Act before the prosecution was brought. Her Honour went on to say that, even if she were wrong in that, she was satisfied in the light of the evidence, that an investigation had been carried out by ASIC as required by s 49(1)(a) of the ASIC Act.
It appears that the trial was completed on 20 February 2008. The appellant was convicted and fined $500 and ordered to pay costs of $1,000. I should mention that the appellant did not give evidence at the trial.
The appellant applied by notice of originating motion dated 29 February 2008 for a review order under s 36 of the Magistrates Court Act, requiring Magistrate Pontifex and ASIC to show cause why the appellant's conviction should not be quashed. The substantive ground of the application was that ASIC had no power to commence the prosecution.
The notice of originating motion was heard by Blaxell J on 19 March 2008. His Honour ordered that a review order be granted, limited to the ground that the magistrate had failed to try the issue of jurisdiction as required by s 127 of the Criminal Procedure Act 2004 (WA), following the entry of a plea by the appellant under s 126(1)(a) of that Act.
On 15 May 2008, the review order was heard by Templeman J, who dismissed it.
In the meantime, on 17 March 2008, the appellant applied for leave to appeal against her conviction. That application came before Templeman J on 4 July 2008. His Honour refused leave to appeal.
Findings of Templeman J on review order
Templeman J did not publish reasons for decision but a copy of what is described as a 'draft judgment' is contained in the appeal papers. It appears his Honour gave an ex tempore judgment and the 'draft judgment' was prepared from the transcript of that judgment.
Templeman J held there was no basis upon which the Magistrates Court was entitled to question the validity of the prosecution notice. His Honour said that although there was no trial of the issue of jurisdiction in the sense of witnesses being examined and cross‑examined, the issue had been heard by Magistrate Heaney on the basis of the appellant's affidavits. Although one of those affidavits disclosed an admission by an officer of ASIC that there had been no investigation, it did not disclose any evidence upon which it would have been open to the Magistrates Court to act in determining that the prosecution notice was invalid. Any challenge of that kind could only have been determined, if at all, in the prerogative jurisdiction of the Supreme Court. It was therefore appropriate for the magistrate to send the matter to trial.
His Honour noted that the question of jurisdiction had also been raised at the trial before Magistrate Pontifex. His Honour said that the position remained the same. There was nothing before Magistrate Pontifex which could have been relied upon by the appellant in support of the proposition that the court had no jurisdiction. His Honour found that there was no onus on ASIC to prove that the prosecution notice was valid, in the sense of proving that things happened before the notice was issued which gave rise to the prosecution. If a prosecution notice was duly signed by an appropriate officer of ASIC, the court must accept it and cannot go behind it, at least not in the Magistrates Court.
Templeman J dismissed the application.
Findings of Templeman J on leave to appeal against conviction
Templeman J described the proposed grounds of appeal as 'lengthy and … somewhat convoluted'. His Honour considered, however, that certain issues could be discerned from the grounds and he dealt with the matter on that basis.
His Honour rejected the appellant's contention that the magistrate should have found that the administrators had not been duly appointed. His Honour referred to the passage in her Honour's reasons where her Honour found their appointment proved by the company extract tendered as part of the prosecution case. Templeman J also noted that the validity of the appointment of the administrators had been the subject of separate proceedings in the Supreme Court involving the appellant and that in those proceedings the appointment of the administrators had been held to be valid. He said that the magistrate was obliged to give effect to that decision.
Templeman J also rejected the appellant's contention that she was not a director of the Company at the relevant time, and therefore not subject to s 438B of the Corporations Act. His Honour held that the company extract tendered in evidence by the prosecution at the trial showing that the appellant was a director at the relevant time was proof of that fact, there being no evidence to contradict it.
The third issue concerned a contention by the appellant that she had entered into an agreement with Mr McMaster, one of the administrators, that she need not deliver the books until the validity of the administrators' appointment had been determined in court. His Honour noted that the appellant had put that proposition to Mr McMaster in cross‑examination and Mr McMaster had denied it. His Honour rejected a complaint by the appellant that Mr McMaster was an unreliable witness whose evidence should not have been accepted by the magistrate. He found that the magistrate had given proper consideration to all of the evidence and was entitled to accept the evidence of Mr McMaster, as she had done.
Templeman J also rejected a contention by the appellant to the effect that the magistrate erred in failing to find the prosecution had not proved the absence on the appellant's part of an honest and reasonable belief that she was entitled to retain the books. His Honour held that if the appellant was relying upon such a defence, she needed to raise it by evidence. She had not done so.
His Honour further rejected a contention by the appellant that, having regard to her personal circumstances, she had delivered the books to the administrators as soon as practicable. His Honour said that that was a matter which could only be raised on evidence, of which there was none.
Templeman J similarly rejected an argument that the appellant had believed at the time that it was sufficient to provide the administrators with copy documents rather than originals. His Honour pointed out there was no evidence of that belief.
Templeman J rejected the appellant's contention that there was no evidence she had failed to disclose to the administrators the existence and whereabouts of a 2002 ‑ 2003 tax return of the Company. His Honour noted that in her reasons for judgment Magistrate Pontifex had concluded that it was clear from exchanges between Mr McMaster and the appellant during cross‑examination, and from the tenor of the appellant's closing submissions at the trial, that the tax return existed and that the appellant knew its whereabouts, but that she had not informed the administrators of those matters. Templeman J accepted the appellant's argument that her closing submissions were not evidence. He found, however, that the exchanges between Mr McMaster and the appellant during cross‑examination involved the giving of evidence by Mr McMaster and the magistrate was entitled to find on the basis of that evidence that the appellant had failed to disclose the whereabouts of the tax return.
His Honour rejected, as without substance, a contention by the appellant that as she had supplied photocopies of the documents, the failure to provide originals was a trifle which could not give rise to an offence.
Templeman J also rejected a number of submissions made by the appellant to the effect that Magistrate Pontifex was biased and that her Honour had failed to allow the appellant to adduce relevant evidence. His Honour found that there was no substance in those complaints. His Honour further rejected a contention by the appellant that ASIC had not disclosed to her the evidence on which the prosecution was based. His Honour found that Magistrate Pontifex had correctly ruled that there was no obligation on the prosecution to make such disclosure. His Honour further concluded that it was not a matter relevant to the application before him in any event.
Templeman J dismissed the application for leave to appeal.
Grounds of appeal
The grounds of appeal are, with respect to the appellant, far from easy to follow. Many are expressed in such clipped language as to be quite obscure. None of them goes any way towards complying with r 32(4) of the Supreme Court (Court of Appeal) Rules 2005 (WA). In the appeal against the refusal of the review order, there are effectively eight grounds of appeal. In the application for leave to appeal against conviction, there are twenty one proposed grounds of appeal, a number of which are repetitive or overlapping.
Assuming that it were possible to do so in any coherent way, I do not think that in either case any purpose would be served by attempting to consider each of the grounds of appeal in turn, as they currently stand. It is necessary to distil from them the substantive matters upon which the appellant relies, viewing the grounds of appeal against the background of the appellant's written and oral submissions. I propose to deal with the appeals on that basis.
Appeal on review order
Grounds of appeal
I consider that two substantive issues can be distilled from the grounds of appeal. They are that:
1.Templeman J erred in finding that there had been a trial of the issue of jurisdiction as required by s 127 of the Criminal Procedure Act;
2.Templeman J erred in finding that ASIC had authority to commence the prosecution and therefore in finding that the Magistrates Court had jurisdiction to hear it.
Disposition of the appeal
The question before Templeman J was not, of course, whether or not the Magistrates Court had jurisdiction to hear the charge but whether there had been a trial of that issue, pursuant to s 127 of the Criminal Procedure Act. That was the consequence of the order made by Blaxell J on 19 March 2008. Despite Blaxell J's order the appellant persisted in her submission that the Magistrates Court had no jurisdiction, and the respondent acknowledged at the appeal that before Templeman J both parties had treated the question of whether the Magistrates Court had jurisdiction to hear the charge as being in issue and his Honour went on to consider it. The issue of jurisdiction was also the subject of argument on this appeal. As a result, it is appropriate to deal with it.
It was submitted, in effect, by the appellant, as it had been below, that the power of ASIC to prosecute for an offence under the Corporations Act was to be found solely in s 49 of the ASIC Act. It followed from the terms of s 49 that ASIC had no power to institute a prosecution unless it first conducted an investigation and was then satisfied, as a result of that investigation, that the appellant may have committed an offence and that she ought to be prosecuted for it. No such investigation had been conducted before the prosecution was commenced and therefore ASIC had no power to prosecute her. The appellant argued that if ASIC had no power to prosecute then it followed that the Magistrates Court had no jurisdiction to hear the prosecution.
Counsel for the respondent submitted that the appellant's contention that ASIC did not have power to prosecute her for the offence was misconceived. It overlooked ASIC's general power to prosecute for an offence under the Corporations Act, pursuant to s 1315 of that Act. It was submitted that s 49 of the ASIC Act was irrelevant to the prosecution.
It is necessary to consider the relevant statutory provisions in their context.
Section 49 of the ASIC Act is to be found in div 5 of pt 3 of the ASIC Act. Part 3, which comprises 10 divisions, deals with investigations and information‑gathering by ASIC. Division 1 deals with ASIC's powers of investigation, the circumstances in which ASIC may, and those in which it must, prepare a report on such an investigation, and the extent of distribution of such a report. Division 2 deals with ASIC's powers of examination of persons and the manner in which such examinations are to be conducted. Division 3 deals with ASIC's powers to inspect books required to be kept under the corporations legislation (as defined); its power to require auditors and other persons to produce books or to provide information; and its power to seize books. Division 4 deals with ASIC's powers to require the disclosure of information concerning financial products. Division 5 deals with proceedings that may be commenced by ASIC after it has conducted an investigation under pt 3. Division 6 deals with ASIC's power to hold hearings and the conduct of those hearings. Division 7 deals with offences under pt 3. Division 8 deals with ASIC's powers where information cannot be obtained because a person has failed to comply with a requirement under pt 3. Division 9 deals with the evidentiary use that may be made of statements made at an examination and certain other documents. Division 10 deals with various miscellaneous matters.
Against that background, I return to div 5. That division contains two provisions, s 49 dealing with prosecutions and s 50 dealing with civil proceedings. Section 49 provides (relevantly):
(1)This section applies where:
(a)as a result of an investigation; or
(b)from a record of an examination;
conducted under this Part, it appears to ASIC that a person:
(c)may have committed an offence against the corporations legislation; and
(d)ought to be prosecuted for the offence.
(2)ASIC may cause a prosecution of the person for the offence to be begun and carried on.
Section 50 provides, in effect, that where as a result of an investigation or examination conducted under pt 3, it appears to ASIC to be in the public interest for a person to bring certain civil proceedings, ASIC may cause such proceedings to be brought and carried on in the person's name.
It is, in my view, clear both from its express terms and its context that s 49 does not set out exhaustively the power of ASIC to commence prosecutions for offences against the Corporations Act. Section 49 applies to circumstances where, as a result of the exercise of its powers of investigation or examination under pt 3, it appears that a person may have committed an offence and ought to be prosecuted for it. The provisions of div 5 of pt 3 make it clear that the use to which ASIC may put information gained by means of its investigatory and examination powers under pt 3 are not limited to the provision and publication of reports of those activities pursuant to div 1 but include, by s 49, the power to prosecute. Section 49 is not, however, concerned with other circumstances where ASIC considers that a person ought to be prosecuted for an offence.
Indeed, were it otherwise it would be difficult to see the purpose of s 1315(a) of the Corporations Act. Section 1315 is contained in div 2 of pt 9.4 of that Act. Division 2 deals with the prosecution of offences against the Corporations Act. It commences with s 1311, the general offence provision, which provides, in effect, that (subject to any other specific offence provisions in the Act) a person who does any act forbidden by the Act, or fails to do anything they are required to do by or under the Act, or otherwise contravenes the Act, is guilty of an offence. Other provisions of div 2 deal with offences committed partly in and partly out of the jurisdiction (s 1313A), continuing offences (s 1314), the persons who may commence a prosecution for an offence (s 1315), the time for instituting criminal proceedings (s 1316), the exclusion of the privilege against self‑incrimination for a body corporate (s 1316A), and persons who are required to assist in a prosecution (s 1317).
Section 1315 provides (relevantly):
(1)Subject to this Act, in any proceedings for an offence against this Act, any information, charge, complaint or application may be laid or made by:
(a)ASIC; or
(b)a Commission delegate; or
(c)another person authorised in writing by the Minister to institute the proceedings.
(2)A delegation for the purposes of paragraph (1)(b), or an authorisation for the purposes of paragraph (1)(c), may relate to all offences, or to specified offences against this Act.
Section 1338C of the Corporations Act provides, in effect, that in proceedings for summary conviction the laws of criminal procedure of the State or Territory in which the person is charged apply.
Under s 20 of the Criminal Procedure Act, a prosecution for an offence may be commenced in the Magistrates Court by any person or class of person who is authorised under a written law to commence a prosecution for that offence.
The appellant was charged with having failed to comply with s 438B of the Corporations Act. Section 438B provides (relevantly):
(1)As soon as practicable after the administration of a company begins, each director must:
(a)deliver to the administrator all books in the director's possession that relate to the company, other than books that the director is entitled, as against the company and the administrator, to retain; and
(b)if the director knows where other books relating to the company are - tell the administrator where those books are.
…
(4)A person must not fail to comply with subsection (1) …
(5)An offence based on subsection (4) is an offence of strict liability.
(6)Subsection (4) does not apply to the extent that the person has a reasonable excuse.
('Books' are defined by s 9 of the Corporations Act to include 'any … record of information; … financial reports or financial records; and … a document'.)
It is clear that the respondent was authorised in writing under the ASIC Act to commence prosecutions on behalf of ASIC and I did not understand the validity of that authorisation to be in issue before Templeman J or on this appeal. Rather, the appellant's contention concerned the more fundamental and antecedent question of ASIC's power to commence this prosecution.
In my view, it is quite plain that, by virtue of s 1315 of the Corporations Act, ASIC (or a duly authorised officer of ASIC, in this case the respondent) was entitled to commence the prosecution against the appellant. It was a prosecution for an offence under the Corporations Act and fell squarely within s 1315. While a good deal of attention below was focussed on s 49 of the ASIC Act, that was, with respect, entirely misdirected. For the reasons I have given, s 49 of the ASIC Act was irrelevant to the prosecution.
Accordingly, no question of the jurisdiction of the Magistrates Court to hear the prosecution arose.
There is also, in my view, no substance in the appellant's contention that her plea of no jurisdiction had not been tried as required by s 127 of the Criminal Procedure Act.
Section 126(1)(a) of the Criminal Procedure Act provides (relevantly) that where an accused must plead to a charge, the accused may plead that the court does not have jurisdiction to deal with the accused or the charge. Section 127(2) provides (relevantly) that if an accused enters such a plea the court must try any issue raised by the plea.
In this case, the appellant's plea that the Magistrates Court had no jurisdiction to deal with the prosecution was argued before Magistrate Heaney on 7 December 2006. While it is regrettable that his Honour did not make an express finding, it is, I think, clear from what his Honour said in the course of argument, and from the fact that at the end of the hearing he set the charge down for substantive hearing, that his Honour found that the court had jurisdiction. Although it appears his Honour was not directed to s 1315 of the Corporations Act, his Honour was correct in the observation he made in the course of argument that it was not incumbent upon ASIC to show that it had conducted an investigation before commencing the prosecution.
In any event, a further finding that the court had jurisdiction was made by Magistrate Pontifex on 2 August 2007, after the issue had been argued again before her. It is not to the point that her Honour was again not referred to s 1315, and decided the jurisdiction point on other grounds. If there had been no previous determination by Magistrate Heaney in relation to the issue of jurisdiction, the proper course for Magistrate Pontifex would have been, on a plea to the jurisdiction, to have determined that issue prior to proceedings to hear the charge against the appellant. However, in the present case it was not suggested that any injustice flowed from the manner of her Honour determining that question. It does not appear, for example, that the appellant might have conducted her defence differently had the jurisdiction issue been determined first.
Similarly, in my view, if it is the fact that an express plea of not guilty was not entered by or on behalf of the appellant, nothing turns on that. (I say 'if it is the fact' because although no plea is indorsed on the prosecution notice, in her reasons for decision (BAB 331) Magistrate Pontifex noted that the appellant had pleaded not guilty to the charge.)
Under s 126(5) of the Criminal Procedure Act, if when a court requires an accused to plead to a charge the accused enters a plea other than a plea which is permitted by that Act or does not plead, then (except in certain circumstances which do not apply here) the court must enter a plea of not guilty on behalf of the accused. Such a plea has the same effect as if it had been entered by the accused: s 126(6). Section 127(4) provides (relevantly) that if a court rejects a plea of no jurisdiction under s 126(1), the court must require the accused to enter a different plea to the charge. If no plea is then entered by the accused, the court must enter a plea of not guilty on behalf of the accused: s 127(5).
In the circumstances of this case, once the jurisdiction issue was decided adversely to her, the only pleas available to the appellant were pleas of guilty or not guilty. The appellant has maintained throughout that she is not guilty of the charge and the parties proceeded, and the case was conducted in the Magistrates Court, on the basis (or the assumption) that a plea of not guilty had been entered. In that connection, the appellant attended the trial and cross‑examined witnesses called by the prosecution. In the circumstances, no question of a miscarriage of justice could arise. Nor, contrary, to the appellant's submission, did the lack of an express plea (if that is in fact the case) mean that the Magistrates Court lacked jurisdiction to deal with the matter.
Conclusion
Although for somewhat different reasons, I consider that Templeman J was correct in dismissing the appellant's application under the Magistrates Court Act. It follows that this appeal should be dismissed.
Appeal against conviction
It is necessary then to turn to the appellant's application for leave to appeal against the decision of Templeman J dismissing her application for leave to appeal against her conviction.
Grounds of appeal
I consider that the appellant's proposed grounds of appeal can be distilled into the following substantive propositions:
1.Templeman J erred in failing to find that:
(a)ASIC had no authority to commence the prosecution and therefore the Magistrates Court had no jurisdiction to hear it;
(b)the prosecution notice was invalid by reason of duplicity;
(c)the prosecution notice was invalid by reason of the failure of the respondent to provide particulars;
(d)the respondent had failed to prove beyond reasonable doubt essential elements of the charge, in respect of which the burden of proof lay on the respondent, and, in particular, that:
(i)the appellant was a director of the Company at the relevant time;
(ii)the appellant was not entitled to retain the Company's books;
(iii)the appellant had not made an arrangement with the administrator that she did not have to deliver the books to him until the Supreme Court decided upon the validity of his appointment;
(iv)the administrator was duly appointed;
(v)the appellant was not under a mistaken belief of fact, alternatively had a mistaken claim of right, that the administrators had not been duly appointed and therefore there was no obligation on her to deliver up the books;
(e)the decision of the magistrate was unreasonable and contrary to the evidence; and
(f)that the magistrate was biased against the appellant.
2.Templeman J:
(a)failed to provide adequate reasons for decision; and
(b)was biased against her.
Disposition of the application for leave to appeal
The appellant requires leave to appeal against the decision of Templeman J. The leave of the court is required for each ground of appeal and the court must not grant leave unless it is satisfied the ground has a reasonable prospect of succeeding: s 27, Criminal Appeals Act 2004 (WA); that is, in effect, that it has a real prospect of success: Samuelsv The State of Western Australia (2005) 30 WAR 473; [2005] WASCA 193, [56]. It is therefore necessary to give consideration to the merits of the appeal in order to determine whether leave to appeal should be granted.
I have dealt with the jurisdiction issue above and will not repeat what I have said. That ground has no prospect of success.
In my view, the appellant's contention that Templeman J should have found that the prosecution notice was invalid by reason of duplicity also has no prospect of success.
Schedule 1, div 2, cl 2(5) of the Criminal Procedure Act requires that, where a prosecution notice contains more than one charge, each charge must be in a separate and consecutively numbered paragraph. The appellant contends, in effect, that, contrary to that requirement, the prosecution notice rolled up two separate charges under s 438B, one being a failure to deliver books of the Company in her possession to the administrator and the other being a failure to tell the administrator where other books were located.
The appellant's complaint of duplicity is, in my view, the product of a misunderstanding on her part as to the nature of the offence contained in the prosecution notice. The appellant's complaint of duplicity is founded on the proposition that s 438B provides for two separate and distinct offences, one being an offence of failing to deliver all of the books of the company under subparagraph (a) and the other an offence of failing to tell the administrator of the whereabouts of any other books of the company under subparagraph (b).
In my view, however, there is only one offence and the appellant was charged with only one offence. The obligation of a director under s 438B(1) is both to deliver all of the books of the company to the administrator and, if the director knows where other books of the company are, to tell the administrator where those books are. Section 438B(4) provides that 'a person must not fail to comply with subsection (1)'. An offence under s 1311 of the Corporations Act is committed where a director fails to do either one or both of the things specified in s 438B(1).
Accordingly, whether the charge relates to a failure to do one or both of those things, it is a single offence of failing to comply with the requirements of s 438B(1). In this case, the appellant was charged with having failed to do both. It was a single charge and no question of duplicity arose. It follows that Templeman J was plainly correct in rejecting this ground.
The appellant further contended, in effect, that the prosecution notice was invalid for lack of particularity, in that the respondent did not particularise the books which it was alleged the appellant should have delivered to the administrators.
The Criminal Procedure Act provides, by sch 1, div 2, cl 5(1), (relevantly) as follows:
(1)A charge in a prosecution notice … must inform the accused of the alleged offence in enough detail to enable the accused to understand and defend the charge, and in particular must -
(a)describe the offence with reasonable clarity;
(b)identify the written law and the provision of it that creates the offence;
(c)identify with reasonable clarity -
(i)the date when the offence was committed or, if the date is not known, the period in which the offence was committed; and
(ii)where the offence was committed;
…
It was not suggested by the appellant that she made any request for particulars, or any complaint about any lack of particularity, before or at the trial. Nor, it appears, was the matter raised before Templeman J (WAB 28, par 149). The issue appears to have been raised for the first time on this appeal. In any event, I do not consider there is any substance in it.
It is, I think, evident from the submissions she made on this appeal that the appellant is again under a misapprehension as to the nature of the charge she faced. The appellant's complaint appears to proceed from a mistaken belief that the offence charged was a failure to deliver particular books, or particular classes of books, of the Company to the administrators, as opposed to a failure to deliver all of the Company's books to the administrators. How the appellant came to understand the charge in that way is not clear. It does not stem from a fair reading of the charge. But when the charge is properly understood, I do not consider that any further particulars were necessary to enable the appellant to defend the charge. There has been no miscarriage of justice. If the appellant wished to obtain further particulars of the charge she should have sought those particulars before (or at least, at) the trial and the matter could have been dealt with then. No appeal lies because she did not do so.
As I have mentioned, the appellant's appeal in relation to the manner in which the trial was conducted appears to involve five broad issues. I will deal with each of those in turn.
The appellant's first contention was that Templeman J should have found that the respondent had failed to prove the appellant was a director of the Company at the material time. In my view, there is no substance in that. An extract from ASIC's national database showing that the appellant was a director of the Company at the material time was tendered in evidence at the trial. It was prima facie evidence of that fact: s 1274B, Corporations Act. There was no evidence to the contrary.
The appellant's next contention, that Templeman J should have found that the respondent had failed to prove that she was not entitled to retain the books in question, disregards the effect of s 13.3 of the Criminal Code 1995 (Cth). Section 13.3 provides (relevantly):
(3)A defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter. The exception, exemption, excuse, qualification or justification need not accompany the description of the offence.
(4)The defendant no longer bears the evidential burden in relation to a matter if evidence sufficient to discharge the burden is adduced by the prosecution or by the court.
(5)The question whether an evidential burden has been discharged is one of law.
The provision in s 438B that a person is not required to deliver to the administrator books which the person is entitled to retain, is clearly a qualification within the meaning of s 13.3(3). As the magistrate correctly noted, the appellant therefore bore an evidential burden in relation to that, although that burden may be discharged by evidence adduced as part of the respondent's case. Her Honour found that the original bank statements were not documents of a kind which, absent evidence to the contrary, a director would be entitled to retain as against the Company and the administrator, and there was no evidence to the contrary.
On this appeal, the appellant did not point to any evidence of her entitlement to retain the Company's original bank statements. That is hardly surprising given the nature of the documents. In the absence of such evidence, however, it follows that the appellant failed to discharge the necessary evidential burden. This ground of appeal is without substance.
It was also asserted by the appellant that Templeman J should have found the magistrate erred in failing to uphold the appellant's assertion that there was an arrangement between the appellant and Mr McMaster that the appellant was not required to deliver the books to the administrators until their appointment was found to be valid by the Supreme Court. In my opinion there is no substance in this. That assertion was put by the appellant at trial and rejected by the magistrate as a matter of fact. The magistrate (as she was entitled to do) accepted Mr McMaster's evidence that there was no such arrangement. The appellant did not give evidence. In my respectful view, Templeman J was plainly correct in concluding that the appellant had failed to show any basis for disturbing the finding of the magistrate.
The appellant's next contention, that Templeman J should have found the respondent had failed to prove at trial that the administrators had been duly appointed, is also without merit. The extract from the ASIC database which went into evidence at the trial, and to which I referred previously, recorded that Mr McMaster and Mr Oren Zohar were appointed administrators of the Company on 27 January 2006 and that their appointment ceased on 28 August 2006. (I might note that it also records that Mr McMaster and Mr Zohar were appointed liquidators of the Company on 29 August 2006.) There was no evidence to the contrary. Templeman J correctly found that it was open to the magistrate to conclude, as she did, that the appointment of Mr McMaster and Mr Zohar as administrators had been proved beyond reasonable doubt.
On this appeal, a submission was put by the appellant to the effect that such a finding by the magistrate in some way usurped the decision of the Supreme Court in respect of proceedings in this court in which the validity of the appointment of the administrators was in issue. I must say, with respect, that I do not understand that submission. In any event, the Supreme Court proceedings do not assist the appellant in any way. Those proceedings were brought by Mr McMaster and Mr Zohar, as administrators, seeking a declaration that they had been validly appointed as administrators of the Company. The appellant was a respondent to those proceedings, the validity of the administrators' appointment having been challenged by the appellant. On 16 June 2006, a declaration was made by Simmonds J that Mr McMaster and Mr Zohar had been validly appointed as administrators: Smolarek v McMaster [2006] WASC 109; (2006) 58 ACSR 199. The appellant appealed against that decision. On 19 November 2008, the appeal was dismissed: Smolarek v McMaster [No 2].
However, with respect to Magistrate Pontifex and Templeman J, I should say that I do not consider that those civil proceedings were determinative of the validity of the administrators' appointment for the purposes of the prosecution. Apart from the question of an identity of parties, in my view there was not an identity of issues between the earlier civil proceedings and the prosecution. In Smolarek v McMaster [No 2], the issue as to whether the administrators had been validly appointed was determined on the balance of probabilities. The issue in the prosecution was whether it had been proved beyond reasonable doubt. Whether a fact has been proved on the balance of probabilities is not the same issue as whether that fact has been proved beyond reasonable doubt: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, 635. I do not consider that anything said in Re Mulligan; Ex parte Isidorso [1979] WAR 198 is to the contrary. There it was held that the acquittal of the applicant in earlier criminal proceedings involving the same parties precluded the respondent later seeking to prove the same facts in civil proceedings involving a refusal by the respondent to renew the applicant's processing licence. (See also the discussion in Re Jones; Ex parte The Commissioner of Police [1999] WASCA 246, [26] ‑ [29].) That, however, is quite different to the present case.
The appellant's contention that the prosecution had failed to negative a claim of right relies upon s 9.5 of the Criminal Code. Section 9.5 provides, relevantly:
A person is not criminally responsible for an offence that has a physical element relating to property if … at the time of the conduct constituting the offence, the person is under a mistaken belief about a proprietary or possessory right; and … the existence of that right would negate a fault element for any physical element of the offence.
The appellant's contention, as I understood it, was that the prosecution had failed to prove she did not hold the belief that she was entitled to possession of the books as against the administrators, on the basis that the administrators had not been validly appointed.
There are, however, two fundamental problems with that. First, if such a defence was available an evidential burden would lie on the appellant. It was not contended by the appellant that there was evidence capable of discharging that burden, and in circumstances where the appellant did not give evidence at the trial it is not to be expected that there would be such evidence. Secondly, and even more significantly, an offence under s 438B does not involve an element of fault; it is an offence of strict liability: s 438B(5). Accordingly, no defence under s 9.5 was available to the appellant.
The appellant also submitted that the prosecution had failed to prove she did not have a mistaken but reasonable belief that the appointment of the administrators was invalid and therefore that she did not have to provide the books to them. The appellant apparently relies upon s 9.2 of the Criminal Code. Section 9.2 provides, relevantly:
(1)A person is not criminally responsible for an offence that has a physical element for which there is no fault element if:
(a)at or before the time of the conduct constituting the physical element, the person considered whether or not facts existed, and is under a mistaken but reasonable belief about those facts; and
(b)had those facts existed, the conduct would not have constituted an offence.
Again, an evidential burden lay on the appellant in respect of any such defence. The magistrate found that there was no evidence before her capable of discharging that burden. On this appeal, the appellant did not point to any such evidence and, again, in circumstances where the appellant did not give evidence at the trial that is hardly surprising. This ground must fail.
The assertion by the appellant that Templeman J should have found the decision of the magistrate to be unreasonable and contrary to the evidence appears to relate to three findings of the magistrate. First, that the appellant had in her possession books of the Company, being original bank statements of the Company, which she did not deliver to the administrator as soon as practicable after the administration began (BAB 343 ‑ 344); secondly, that the administrators had not received the original bank statements; and thirdly, that the appellant knew of the existence and whereabouts of books of the Company, being a tax return of the Company for the financial year 2002 ‑ 2003, and she did not tell the administrator where that document was as soon as practicable after the administration began (BAB 348).
I did not understand the facts, as found by the magistrate, in relation to the original bank statements to be put in issue on this appeal. They can be summarised as follows. On 27 January 2006, Mr McMaster, in his capacity as administrator, wrote to the appellant informing her of the requirements of s 438B(1) of the Corporations Act and enclosing with the letter a notice requiring her to submit the books and records of the Company to the administrators. The notice gave examples of such books and records, including among those examples, bank records and statements. The request for the documents was repeated by a letter dated 16 June 2006 from Mr McMaster, after the declaration as to the validity of the appointment of the administrators had been made by the Supreme Court. A similar letter followed on 20 June 2006.
At a meeting on 7 July 2006, the appellant informed Mr McMaster, among other things, that she had some business records at her home. On 17 July 2006, the appellant sent scanned copies of bank statements of the Company to the administrators by email. As at 11 August 2006, when the prosecution was commenced, the originals of the bank statements had not been provided to the administrators. In the meantime, Mr McMaster wrote to the appellant on 12 July 2006, and again on 19 July 2006, repeating his request for the Company's documents. I would add that there was also, as the magistrate found, evidence of Mr Liwszyc, a director of the Company, that the appellant ran the day to day operations of the Company and was responsible for keeping the Company's records (BAB 18).
The magistrate was satisfied beyond reasonable doubt that the appellant was in possession of the original bank statements and that she had not provided them to the administrator as soon as practicable after the administration began. In my view, Templeman J correctly concluded that that finding was open to the magistrate. This ground must also fail.
The appellant submitted that the respondent had failed to prove that the administrators had not received the original bank statements because Mr McMaster was not asked at the trial whether in fact he had received them. I do not consider there is any substance in that. At the trial, Mr McMaster set out all of the documents of the Company which had been provided to the administrators. The documents that Mr McMaster said had been provided did not include the original bank statements. On the basis of that evidence, it followed inexorably that the original bank statements had not provided to the administrators.
It was also argued on this appeal that the provision to the administrators of copies of the bank statements was compliance with the requirements of s 438B. I do not accept that. Plainly, a director who has in his or her possession original 'books' (as defined) of a company is required to provide the original books to the administrator.
In my view, Templeman J correctly found that there was no substance in this ground.
The appeal in relation to the magistrate's finding as to the tax return falls, however, into a different category. Counsel for the respondent, quite properly, acknowledged that there were difficulties with this finding.
Having found that in respect of certain other documents the evidence was insufficient to establish that the appellant had the documents in her possession or knew their whereabouts, the magistrate then turned to the tax return:
However, it is clear in my view from exchanges between Mr McMaster and [the appellant] during cross‑examination and from the tenor of [the appellant's] closing submissions that there is no doubt at all that there is in existence a tax return for [the Company] for the 2002 ‑ 2003 tax year and that [the appellant] knew its whereabouts, namely that it was with an accountant. It is also beyond doubt that Mr McMaster was not advised of the whereabouts of this document and that it would answer the description of a book relating to the company. A company tax return is also a document of a kind which, in the absence of any evidence to the contrary, a director would not be entitled to retain as against the company and the liquidator [sic]. (69) (BAB 348)
The exchange between the appellant and Mr McMaster referred to by the magistrate occurred during the appellant's cross‑examination of Mr McMaster, when there was something of a role reversal. In response to a question by the appellant, Mr McMaster stated the grounds for his assumption that the Company had submitted tax returns. The following exchange the occurred:
[The appellant] Well? --- [Mr McMaster] Is that not correct?
No, it's not correct. That's the point. That the last tax return - there was only one tax return done for 2002 and 2003, that's all? ---Where is it?
It's with the taxation office? --- Where's the company's copy?
Accountant has got it. Well, what's so funny? [The appellant then moved onto another topic].
Counsel for the respondent acknowledged, again quite properly, that the statement by the appellant that the accountant had the tax return was not evidence of that fact. While Mr Walczuk gave evidence (ts 77) that the Company submitted a tax return for the 2002 ‑ 2003 financial year, and the evidence of Mr McMaster (to which I referred earlier) as to the particular Company documents that had been provided to the administrators established that the administrators had not been provided with a copy of the tax return, that was as far as the evidence went.
In my view, on the evidence it was not open to the magistrate to find that the charge was made out in respect of the tax return. The evidence was incapable of establishing beyond reasonable doubt that the appellant knew at the relevant time where the tax return was. I consider, with respect, that Templeman J should have found that, so far as it concerned the magistrate's finding that the appellant contravened s 438B of the Corporations Act in respect of the tax return, the appeal was made out. That does not, of course, affect the appellant's conviction in light of the magistrate's finding that the appellant was also in breach of s 438B in failing to provide the original bank statements to the administrators.
The final issues involve an allegation that Templeman J failed to provide adequate reasons for decision and allegations of bias directed to both Magistrate Pontifex and Templeman J.
Turning to the first of those issues, the appellant complains that while the reasons of Templeman J dealt with most of her proposed grounds of appeal, he did not deal with all of them and did not explain why leave to appeal was refused.
The relevant principles can be shortly stated. The content of the obligation to state reasons is not the same for every judicial decision and no mechanical formula can be given for determining what reasons are required: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 443. What is necessary in any particular case will depend upon the nature of the case. Reasons need not be lengthy and elaborate. They must, however, disclose the basis for the decision, as otherwise the losing party cannot know whether there has been a mistake of law or of fact: Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273; [2004] WASCA 149, [27] ‑ [28].
But as the Full Court pointed out in Mount Lawley (at [29]), inadequacy of reasons does not necessarily amount to an appealable error. An appeal court will only intervene when no reasons have been given in circumstances in which they were required, or when the inadequacy is such as to give rise to a miscarriage of justice.
I do not accept that the reasons given by Templeman J were inadequate. His Honour gave detailed ex tempore reasons which were subsequently prepared as a 'draft judgment'. I might say in passing that the description 'draft judgment' is perhaps in those circumstances an unfortunate one. That description might suggest they are in some way provisional, when I think it is clear that, at least in their substance, that was not the position.
It is the case that his Honour did not deal expressly with each and every one of the proposed grounds of appeal. In his reasons he explained (BAB 3) that because those grounds were 'lengthy and … somewhat convoluted' he would refer instead to the points the appellant took as her submissions unfolded. The proposed grounds of appeal before his Honour were not included in the appeal books but, having regard to the grounds of appeal relied upon in this appeal, I do not doubt the accuracy of his Honour's description of them. Nor, in the circumstances, do I consider any valid criticism can be made of his Honour's approach - indeed, it does not differ materially from the approach that I have felt compelled to take in this appeal in what appear to be similar circumstances.
The appellant did not before us identify any specific matters raised in her proposed grounds of appeal below which were not canvassed in his Honour's reasons and, having regard to the matters raised on this appeal, none is evident. The basis upon which his Honour refused leave to appeal is stated in his reasons. This ground of appeal must fail.
I also consider that no basis has been made out for the allegations of bias. Nothing has been put before us which would have justified a finding by Templeman J that the magistrate was biased and equally nothing has been put before us which is capable of making out the allegation that Templeman J was biased.
In Australia, the test to be applied in determining whether a judge is disqualified by reason of the appearance 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: Johnson v Johnson (2000) 201 CLR 488, 492. The plurality in that case pointed out (at 493) that in applying that test two things need to be remembered: the observer is taken to be reasonable, and the person being observed is a professional judge whose training, tradition and oath or affirmation require the judge to discard the irrelevant, the immaterial and the prejudicial.
The assertion that Templeman J should have found the magistrate was biased against the appellant appears to be based upon an allegation that the magistrate acted inconsistently by admitting evidence tendered by the prosecution but refusing to admit evidence sought to be admitted by the appellant. Two specific instances were referred to in the appellant's written submissions. However, from the transcript of the trial to which the appellant referred it appears that the magistrate's decision was correct on both of those occasions. In any event, even if were made out that the magistrate was in error on those occasions, that would not be sufficient to establish bias. Nothing else has been advanced which is capable of making out this ground and it must fail.
The substantive complaint of bias in respect of Templeman J appears to be one of a lack of impartiality, or as the appellant put it in her written submissions, that he 'descended into the arena and assumed the mantra of the prosecutor'. As I understand that complaint, it arises from the fact that the proceedings before Templeman J were marked by frequent exchanges between the appellant and his Honour, and that his Honour did not permit the appellant to pursue a number of matters which, contrary to the appellant's strongly held views, his Honour considered were not relevant to the issues he had to decide.
There are undoubtedly circumstances in which the nature or extent of judicial intervention in the course of a hearing may lead to a reasonable apprehension of bias. But that does not mean it behoves a judge simply to sit quietly and listen. Indeed, the High Court said in Vakauta v Kelly (1989) 167 CLR 568:
It seems to us that a trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated. (571)
Substantial judicial intervention is, of course, by no means unusual in proceedings involving a litigant in person. Indeed, it is commonplace as frequently the real matters in issue would otherwise not sufficiently emerge and the hearing would be sidetracked, if not overwhelmed, by irrelevancies. In the present case, having read the transcript of the hearing before Templeman J, I am satisfied that there is no basis at all for the appellant's contention that the nature or extent of his Honour's intervention in the course of the hearing went beyond proper bounds or manifested bias on his part. It is clear that his Honour was endeavouring to keep the hearing on track and to ensure that the appellant dealt only with matters reasonably germane to the determination of the application. The extent of his Honour's intervention was, with respect to the appellant, caused by the difficulties his Honour encountered in doing so, not by any manifestation of bias on his Honour's part.
I consider that the above matters cover the substantive issues sought to be raised by the appellant on this appeal. For the reasons I have given earlier, I have not traversed every one of the appellant's proposed grounds of appeal. I am satisfied, however, that there is no substance in any of them.
Conclusion
None of the appellant's proposed grounds of appeal has any reasonable prospect of succeeding and I would therefore refuse leave to appeal.
Proposed orders
I would:
1.dismiss the appeal in CACV 68 of 2008;
2.refuse leave to appeal in CACR 105 of 2008.
I would hear the parties on the question of costs.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SMOLAREK -v- ROPER [2009] WASCA 124 (S)
CORAM: WHEELER JA
PULLIN JA
NEWNES JA
HEARD: 6 MAY 2009 & ON THE PAPERS
DELIVERED : 16 JULY 2009
SUPPLEMENTARY
DECISION :1 SEPTEMBER 2009
FILE NO/S: CACV 68 of 2008
BETWEEN: HANNA SMOLAREK
Appellant
AND
NICHOLAS KENNETH ROPER
Respondent
FILE NO/S :CACR 105 of 2008
BETWEEN :HANNA SMOLAREK
Appellant
AND
NICHOLAS KENNETH ROPER
Respondent
ON APPEAL FROM:
For File No : CACV 68 of 2008
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :Templeman J
File No :CIV 1202 of 2008
For File No : CACR 105 of 2008
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :Templeman J
File No :SJA 1024 of 2008
Catchwords:
Costs - Appellant unsuccessful on appeal - Whether costs should follow the event - Relevance of impecuniosity of appellant - Appeal turned on matter not argued below - Turns on own facts
Legislation:
Nil
Result:
Appellant to pay respondent's costs of appeal
Category: B
Representation:
CACV 68 of 2008
Counsel:
Appellant: In person
Respondent: Mr S Vandongen
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (Cth)
CACR 105 of 2008
Counsel:
Appellant: In person
Respondent: Mr S Vandongen
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Scott v Secretary, Department of Social Security (No 2) [2000] FCA 1450
Smolarek v Roper [2009] WASCA 124
JUDGMENT OF THE COURT: On 16 July 2009, this court dismissed two appeals by the appellant. The first (CACV 68 of 2008) was an appeal against a decision of Templeman J of 15 May 2008 dismissing an application by the appellant for an order under s 36 of the Magistrates Court Act 2004 (WA) to set aside her conviction for an offence under the Corporations Act 2001 (Cth) on the ground that the Magistrates Court had no jurisdiction. The second appeal (CACR 105 of 2008) was against a decision of Templeman J of 4 July 2008 dismissing the appellant's application for leave to appeal against her conviction. See Smolarek v Roper [2009] WASCA 124.
The respondent has applied for an order for costs in respect of each of the appeals. That application is opposed by the appellant. The parties were given leave to file written submissions on the issue of costs and the issue was to be determined on the papers. Those submissions have now been filed.
Costs on appeal CACV 68 of 2008
While the court has a wide discretion in relation to the costs of an appeal, the usual order is that costs follow the event. That is because ordinarily it is just that the party who turns out to have unjustifiably brought the other party before the court should be required to pay the other party's costs.
The appellant resists an order for costs on a number of bases. First, that the effect of s 35 of the Criminal Appeals Act 2004 (WA) is that no order for costs can be made on the appeal. Secondly, that the court had no jurisdiction in the substantive matter and therefore has no power to award costs. Thirdly, that the appellant was wrongly convicted and it would be morally repugnant to punish her by the imposition of an order for costs. Fourthly, the ground on which the outcome of the appeal turned was not a matter argued in the courts below. Fifthly, the appellant is suffering financial hardship and would be unable to pay any costs awarded against her. In that connection, the appellant referred to s 16C of the Crimes Act 1914 (Cth), which provides, in effect, that before imposing a fine on a person for a federal offence, a court must take into account the financial circumstances of the person. Under s 3(2) of the Crimes Act, a 'fine' includes 'costs … ordered to be paid by offenders'.
In our view, none of those grounds provides any basis upon which it would be appropriate to depart from the general rule that costs follow the event.
The first ground is misconceived. This was an appeal from the decision of a single judge on an application made under s 36(1) of the Magistrates Court Act and pursuant to O 56A of the Rules of the Supreme Court 1971 (WA). It was not an appeal under the Criminal Appeals Act. While s 36(5)(a) of the Magistrates Court Act provides, in effect, that in certain circumstances a court hearing an application under s 36(1) may order that the application be treated as if it were an appeal under the Criminal Appeals Act, it appears that no such order was made in this case. In any event, even if such an order had been made, for reasons we will come to when dealing with the appeal in CACR 105 of 2008, s 35 could have no application to the appeal.
Nor is there any substance in the appellant's next two grounds, to the effect that no offence was committed by her and that the court has no jurisdiction. They are simply an attempt by the appellant to re‑agitate matters decided adversely to her in the substantive appeal.
In relation to the fourth ground, it is the case that on the appeal the question of jurisdiction turned on s 1315 of the Corporations Act, rather than s 49 of the Australian Securities and Investments Commission Act 2001 (Cth) (the ASIC Act) as it had been argued both in the Magistrates Court and before Templeman J. We concluded that s 49 of the ASIC Act was irrelevant. However, the appeal in this court was fully argued on the basis of s 1315 of the Corporations Act and resisted throughout by the appellant.
Finally, the appellant says she is impecunious and for that reason no order for costs should be made against her. The appellant has filed an affidavit in which she says that she has not been gainfully employed since June 2005 and that she has exhausted all her savings. Since May 2009 she has been receiving support from Centrelink which is barely enough to sustain her.
We consider that the appellant's reliance on s 16C of the Crimes Act is again misconceived. Section 16C is contained in pt 1B of the Crimes Act, dealing with '[s]entencing, imprisonment and release of federal offenders' and, in particular, in div 2 of that part, dealing with '[g]eneral sentencing principles'. In our view, it is clear that s 16C is concerned with (relevantly) costs imposed in the sentencing process in relation to the offence; it is not concerned with the costs of an appeal of the present nature.
The issue of impecuniosity is to be determined on ordinary principles, and, in particular, on the principle that the inability of an unsuccessful party to meet a costs order is not a sufficient reason to deny a successful party their costs: Scott v Secretary, Department of Social Security (No 2) [2000] FCA 1450.
In our view, costs should follow the event. We would therefore order that the appellant pay the respondent's costs of the appeal.
Costs on appeal CACR 105 of 2008
The appellant relies on similar grounds to resist an order for costs in this appeal. The appellant's reliance on s 35 of the Criminal Appeals Act is misconceived. Section 35 applies to appeals to the Court of Appeal under pt 3 of the Act; that is, to appeals in respect of matters dealt with on indictment in a superior court. This was not an appeal under pt 3. It was an appeal under div 3 of pt 2; that is, an appeal to the Court of Appeal from the decision of a single judge on an appeal from a court of summary jurisdiction. Pursuant to s 19 of the Act, on an appeal under div 3 of pt 2 the court may, among other things, make an order as to the costs of the appeal.
The appellant's contentions that no offence was committed by her and that the court has no jurisdiction in the matter are again simply an attempt to re‑agitate matters decided adversely to her in the substantive appeal.
In respect of the outcome of the appeal, it is the case that on the appeal to this court the appellant was successful in one respect. We found that Templeman J erred in upholding the magistrate's finding that the appellant had contravened s 438B of the Corporations Act by failing to inform the administrator of the whereabouts of the company's 2002 ‑ 2003 tax return. However, that finding was a minor part of the appeal, it was not essential to the appellant's conviction on the charge, and it did not alter the outcome. There was no substance in any other of the appellant's extensive grounds of appeal.
For the reasons we have given above, s 16C of the Crimes Act does not assist the appellant.
We are satisfied that it is appropriate the appellant pay the respondent's costs of this appeal.
Conclusion
We would order that:
1.the appellant pay the respondent's costs of the appeal in CACV 68 of 2008 to be taxed; and
2.the appellant pay the respondent's costs of the appeal in CACR 105 of 2008 to be taxed.
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