Stewart v City of Belmont
[2013] WASC 366
•10 OCTOBER 2013
STEWART -v- CITY OF BELMONT [2013] WASC 366
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 366 | |
| Case No: | CIV:1912/2013 | 13 AUGUST 2013 | |
| Coram: | MARTIN CJ | 10/10/13 | |
| 24 | Judgment Part: | 1 of 1 | |
| Result: | Application for a review order dismissed | ||
| B | |||
| PDF Version |
| Parties: | PAUL CHRISTOPHER STEWART CITY OF BELMONT MAGISTRATE BAYLY MAGISTRATE HEANEY |
Catchwords: | Administrative law Application for a review order Procedural fairness Natural justice Service requirement in relation to simple offences under the Criminal Procedure Act 2004 (WA) Turns on its own facts |
Legislation: | Criminal Procedure Act 2004 (WA), s 24, s 28, s 33, s 55, s 71, s 72, s 88, sch 2, cl 3 Health (Asbestos) Regulations 1992 (WA), reg 8(4) Judiciary Act 1903 (Cth), s 78B Local Government Act 1995 (WA), s 3.25(6), s 9.14 Magistrates Court Act 2004 (WA), s 35, s 36 |
Case References: | Abbott v Magistrate Malley [2012] WASC 420 Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7 Chan v Harris (No 3) [2011] FCA 341 City of Enfield v Development Assessment Corporation (2000) 199 CLR 135 Craig v South Australia (1995) 184 CLR 163 Glennan v Commissioner of Taxation [2003] HCA 31; (2003) 77 ALJR 1195 Glew v City of Greater Geraldton [2012] WASCA 94 Glew v Shire of Greenough [2006] WASCA 260 Glew v Shire of Greenough [2007] HCA Trans 520 Grover v Scott [2010] WASCA 164 Hargreaves v Tiggemann [2012] WASCA 92 Kirk v Industrial Relations Commission (2010) 239 CLR 531 Leeth v The Commonwealth (1992) 174 CLR 455 Pennicuik v City of Gosnells [2011] WASC 63 Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217 Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 Rayney v AW [2009] WASCA 203 Re Michelides; ex parte Chin [2008] WASC 256 Saad v Baron [2012] WASC 507 Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231 Tey v City of Gosnells [2010] WASC 96 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 Tobin v Dodd [2004] WASCA 288 Van Lieshout v City of Fremantle (No 2) [2013] WASC 176 Woolworths Ltd v Pallas Newco Ltd (2004) 61 NSWLR 707 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
CITY OF BELMONT
First Defendant
MAGISTRATE BAYLY
Second Defendant
MAGISTRATE HEANEY
Third Defendant
Catchwords:
Administrative law - Application for a review order - Procedural fairness - Natural justice - Service requirement in relation to simple offences under the Criminal Procedure Act 2004 (WA) - Turns on its own facts
Legislation:
Criminal Procedure Act 2004 (WA), s 24, s 28, s 33, s 55, s 71, s 72, s 88, sch 2, cl 3
Health (Asbestos) Regulations 1992 (WA), reg 8(4)
Judiciary Act 1903 (Cth), s 78B
Local Government Act 1995 (WA), s 3.25(6), s 9.14
Magistrates Court Act 2004 (WA), s 35, s 36
Result:
Application for a review order dismissed
Category: B
Representation:
Counsel:
Plaintiff : In Person
First Defendant : Mr D P Gillett
Second Defendant : No appearance
Third Defendant : No appearance
Solicitors:
Plaintiff : In person
First Defendant : McLeods Barristers & Solicitors
Second Defendant : State Solicitor for Western Australia
Third Defendant : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Abbott v Magistrate Malley [2012] WASC 420
Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 295 ALR 638
Chan v Harris (No 3) [2011] FCA 341
Corporation of the City of Enfield v Development Assessment Corporation (2000) 199 CLR 135
Craig v South Australia (1995) 184 CLR 163
Glennan v Commissioner of Taxation [2003] HCA 31; (2003) 77 ALJR 1195
Glew v City of Greater Geraldton [2012] WASCA 94
Glew v Shire of Greenough [2006] WASCA 260
Glew v Shire of Greenough [2007] HCA Trans 520
Grover v Scott [2010] WASCA 164
Hargreaves v Tiggemann [2012] WASCA 92
Kirk v Industrial Relations Commission (2010) 239 CLR 531
Leeth v The Commonwealth (1992) 174 CLR 455
Pennicuik v City of Gosnells [2011] WASC 63
Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217; (2011) 43 WAR 319
Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144
Rayney v AW [2009] WASCA 203
Re Michelides; ex parte Chin [2008] WASC 256
Saad v Baron [2012] WASC 507
Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231
Tey v City of Gosnells [2010] WASC 96
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55
Tobin v Dodd [2004] WASCA 288
Van Lieshout v City of Fremantle (No 2) [2013] WASC 176
Woolworths Ltd v Pallas Newco Ltd (2004) 61 NSWLR 707
- MARTIN CJ:
Summary
1 Mr Paul Christopher Stewart has applied for review orders pursuant to s 36 of the Magistrates Court Act 2004 (WA) in relation to his conviction in the Magistrates Court on 16 September 2011 (Magistrate Bayly presiding) on one charge of contravention of the Local Government Act 1995 (WA) (Local Government Act), and another charge of contravention of the Health (Asbestos) Regulations 1992 (WA) (Health (Asbestos) Regulations), and from the decision of the Magistrates Court on 8 March 2013 to refuse his application to set aside those convictions (Magistrate Heaney presiding). In accordance with the usual procedure, in the first instance Mr Stewart's applications were heard by me ex parte- that is, without notice to the other parties. On that occasion, for reasons briefly given and more fully enunciated below, I dismissed the application for a review order relating to the decision of Magistrate Heaney. I directed that the other parties to the proceedings should be served, and the matter was duly listed for hearing before me. For the reasons which follow, the application for a review order relating to the decision of Magistrate Bayly should also be dismissed.
The procedural history
2 The materials before the court establish the following.
3 Mr Stewart was the owner of a residential property in Cloverdale (Cloverdale property). In October 2010, the first respondent, the City of Belmont (City), received complaints concerning the state of the Cloverdale property, relating to a large amount of rubbish and disused materials that had accumulated around the property. The material scattered around the property included full sheets and fragments of asbestos fencing.
4 The City issued notices to Mr Stewart pursuant to s 3.25 of the Local Government Act requiring the removal of the rubbish and disused materials from the property within 14 days. The City also issued notices pursuant to the Health (Asbestos) Regulations requiring removal of the asbestos material from the property to a licensed asbestos waste disposal facility within seven days. No action to remove the rubbish and asbestos sheeting was taken in response to these notices.
5 During inspection of the Cloverdale property, the City discovered that Mr Stewart had rented the property to a tenant. During the proceedings before Magistrate Bayly, a representative of the City advised the court that Mr Stewart was contacted by telephone and advised that he had not complied with the notices, and that if he did not comply he could be prosecuted (ts 16/9/11, 4). However, Mr Stewart did not take any action. The City's representative advised Magistrate Bayly that Mr Stewart could not be contacted by telephone after this point.
6 Mr Stewart was charged with non-compliance with the notices on two occasions prior to the proceedings before Magistrate Bayly on 16 September 2011; on 18 March 2011, and on 15 April 2011. He was convicted on each occasion. Following those convictions, further inspections were conducted on the premises, which revealed that Mr Stewart had not complied with the notices.
7 Relevantly to these proceedings, by prosecution notice dated 15 August 2011, Mr Stewart was charged with:
1. failing to comply with a notice under s 3.25(1) of the Local Government Act 1995 requiring him to remove disused material from the land, contrary to s 3.25(6) of the Local Government Act, in his capacity as an owner of land within the City of Belmont; and
2. failing to comply with a direction in a notice under Regulation 8(1) of the Health (Asbestos) Regulations 1992 (WA) requiring him to remove material containing asbestos from the premises, contrary to Regulation 8(4) of the Health (Asbestos) Regulations 1992 (WA). (The Charges)
8 The charges related to the Cloverdale property.
9 On or about 16 August 2011, a court hearing notice and the prosecution notice were posted, addressed to the Cloverdale property. The court hearing notice contains a certificate signed by the process server that:
On 16 August 2011, the accused was served with a copy of this notice, and the prosecution notice … at the address shown in the 'Accused's Details' of this Court hearing notice by post in accordance with Schedule 2 Clause 3 of the Criminal Procedure Act 2004 by a person authorised in writing to do so by Prosecutor.
10 The court hearing notice stated that the charges were to be heard at the Perth Magistrates Court on 16 September 2011.
11 Mr Stewart alleges that he did not receive the notices. He says that he did not reside at the Cloverdale property at any material time during the proceedings, and that he did not collect the mail from the property, and therefore had no knowledge of the charges or of the hearing.
12 The charges were heard in the Magistrates Court on 16 September 2011 before Magistrate Bayly. Mr Stewart did not attend the hearing.
13 At the commencement of the hearing, there was confusion about whether service had been effected by post, because the prosecutor erroneously lodged two copies of the court hearing notice notifying Mr Stewart of the hearing on 16 September 2011, one of which did not include the endorsement of service. Despite this confusion, the magistrate accepted that copies of the court hearing notice and prosecution notice were served by post to the Cloverdale property, and that this was proper service under the Criminal Procedure Act 2004 (WA) (Criminal Procedure Act) (ts 3).
14 The magistrate granted leave to the prosecutor to proceed with the hearing in the absence of Mr Stewart, pursuant to s 55 of the Criminal Procedure Act. This provision will be discussed further below.
15 Later in the hearing, the prosecutor brought the magistrate's attention to the fact that Mr Stewart no longer lived at the property. The following exchange occurred:
HIS HONOUR: Has somebody been in contact with them? It always worries me. Often people who are in these sort of situations suffer some sort of mental illness and the shire does nothing but fine them and fine them and eventually take their house off them when they could have sent somebody around, a social worker to go and do something about it.
PROSECUTOR: The city has attempted to contact the accused. Unfortunately the accused doesn't live at the property. We did have a telephone number for him and he did stop returning calls … notice had been served on the property. I don't know that there's much more the city can do in the circumstances. The city takes the position that the accused was made aware of it… (ts 7).
16 As the magistrate was satisfied that service had been properly effected, he fined Mr Stewart $1,000 in respect of each charge, and a daily penalty of $50 for 144 days of continuing contravention ($8,200 per charge, or $16,400 in total). His Honour also made an order requiring Mr Stewart to pay costs in the amount of $1,140.70.
17 Mr Stewart alleges that the first he heard of the charges was when he received a letter from Landgate on 28 September 2011, informing him that a memorial had been registered on the title to his property to the value of the outstanding fines.
18 On 22 October 2012, Mr Stewart applied to the Magistrates Court for orders setting aside his convictions, including the convictions before Magistrate Bayly. The application was listed on 16 November 2012 before Magistrate Wilson, but was then adjourned because the City said it had not been served with the affidavits in support of the applications.
19 On 7 December 2012, Mr Stewart's application to set aside his convictions was listed before Magistrate Wheeler. Mr Stewart told the magistrate that he did not receive copies of the notices because the Cloverdale property was an investment property, and the property had been unoccupied. Mr Stewart said that he was only made aware of the Magistrates Court proceedings in September 2011. Apparently, the only documentation filed by Mr Stewart in support of his application was a pro-forma affidavit stating that he had not received the prosecution notice. Magistrate Wheeler found that the affidavit was not sufficient to support the application, and in particular did not address the significant delay in filing his application to set aside the charges or provide any evidence or argument to the effect that he had a defence to the charges. His Honour adjourned the matter to 1 February 2013 to provide Mr Stewart with an opportunity to obtain legal advice.
20 The hearing on 1 February 2013 was listed before Magistrate Hogan. Mr Stewart did not attend the hearing, and the Magistrate dismissed Mr Stewart's application to set aside his convictions.
21 Notwithstanding those orders, Mr Stewart's application to set aside the conviction was relisted before Magistrate Heaney on 8 March 2013. At this hearing Mr Stewart said that he missed his court date on 1 February 2013 by accident. At this hearing, Mr Stewart said that the legal basis for his application was that:
The City of Belmont is trying to extract money which is not legal for them to do so [sic] as there was no contract between myself and the City of Belmont which is a corporation with no more legal capacity from a natural person and cannot legally enforce any law of local government. It has no mandate from the people for the laws and no royal assent for the laws. (ts 4)
22 He also argued that the Local Government Act had not been proclaimed, and that this meant that the fines imposed pursuant to the Act were therefore invalid.
23 Magistrate Heaney dismissed the application on the basis that the defence that Mr Stewart wished to advance was an absurdity (ts 5).
The Current Application
24 By originating motion, Mr Stewart applied under s 36 of the Magistrates Court Act for review orders declaring void the decisions of Magistrates Bayly and Heaney, on the grounds that he was denied natural justice and that the orders made by both magistrates were made without jurisdiction.
25 In relation to the decision of Magistrate Bayly, Mr Stewart contends that in proceeding with the hearing in his absence, in a circumstance in which he had not personally received the court hearing notice or prosecution notice and therefore had no knowledge of the charges or the hearing, he was denied natural justice and that Magistrate Bayly was therefore acting without jurisdiction when he imposed the fines.
26 In relation to the decision of Magistrate Heaney, Mr Stewart asserts that he was denied natural justice by the magistrate's refusal to hear his submissions regarding the constitutionality of local government.
27 I am conscious of the fact Mr Stewart represented himself in these proceedings. The considerations to be applied when dealing with litigants in person were enunciated in Tey v City of Gosnells [2010] WASC 96 [8] - [10], and Tobin v Dodd [2004] WASCA 288 [13] - [14]. In dealing with Mr Stewart's application, I have considered the difficulties that may be experienced by Mr Stewart in conducting this litigation on his own, and apply the principles enunciated in Tey and Tobin when considering his case.
Review Orders Generally
28 Section 35 of the Magistrates Court Act provides that a writ of mandamus, prohibition or certiorari may not be issued in respect of or directed to a court officer. A court officer is defined by s 3 of the Act to mean a magistrate, a justice of the peace when constituting the court or a registrar performing functions delegated under the rules of the court pursuant to s 28 of the Act.
29 However, s 36 relevantly provides:
36. Supreme Court's powers to control Court
(1) If a person is or would be aggrieved by one or more of the following -
(a) the failure of a Court officer to do any act or make any order or direction -
(i) on the ground that the officer is under a duty to do the act or make the order or direction; or
(ii) on any ground that might have justified an order of mandamus;
(b) an act, order or direction that a Court officer proposes to do or make -
(i) on the ground that it would be without jurisdiction or power or would be an abuse of process; or
(ii) on any ground that might have justified an order of prohibition;
(c) an act, order or direction done or made by a Court officer -
(i) on the ground that it was done or made without jurisdiction or power or is an abuse of process; or
(ii) on any ground that might have justified an order of certiorari,
the person may apply to the Supreme Court for an order (a review order) that requires the Court officer and any person who will be affected by the act, order or direction to satisfy the Supreme Court at a hearing that the act, order or direction should or should not be done or made or set aside, as the case requires.
(3) On an application made under subsection (1) and rules of court of the Supreme Court, the Supreme Court may make any review order that is just, whether it has been applied for or not.
(4) If at the hearing required by a review order the Supreme Court is not satisfied in accordance with the review order, or if it is just to do so, it may -
(a) order that the act, order or direction be or not be done or made or set aside, as the case requires;
(b) grant any relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari;
(c) make any necessary consequential orders.
(5) On an application made under subsection (1) in respect of an act, order or direction, the Supreme Court may -
(a) if it considers that an appeal lies under the Criminal Appeals Act 2004 in respect of the act, order or direction, order the application to be treated as if it were such an appeal and deal with the matter accordingly;
(b) if it considers that an appeal lies under the Magistrates Court (Civil Proceedings) Act 2004 in respect of the act, order or direction, order the application to be treated as if it were such an appeal and remit the matter to the District Court to be dealt with accordingly.
(6) When dealing with an appeal under the Criminal Appeals Act 2004 the Supreme Court may make a review order and, if it does, may also make an order under subsection (4).
(7) If, when dealing with an appeal under the Magistrates Court (Civil Proceedings) Act 2004, the District Court considers that a review order ought to be made it may -
(a) remit the appeal to the Supreme Court under the District Court of Western Australia Act 1969 section 77; or
(b) adjourn the appeal to enable an application to be made to the Supreme Court -
(i) under subsection (1); or
(ii) under the District Court of Western Australia Act 1969 section 76.
30 In Rayney v AW [2009] WASCA 203, McLure JA (Newnes and Buss JJA agreeing) described s 36 in the following terms:
There can be no doubt that the power in s 36 of the Magistrates Court Act is a judicial review power. The purpose of s 36 is to replace, and provide a statutory alternative to, the common law relating to judicial review of the acts or omissions of officers of the Court. The intention is to permit judicial review in those situations in which the specified prerogative writs would have been available but also to free the courts from the technical requirements associated with those ancient remedies. That purpose is evident in the language and context of s 35 and s 36. Section 35 takes away the Supreme Court's power to issue a prerogative writ in the form of a writ of mandamus, prohibition or certiorari and substitutes the remedies in s 36(4). A review order, like an order nisi, is an order to show cause why the relief in s 36(4) should not be granted.
The language and purpose of s 36 in its broader statutory context compels the conclusion that the power in s 36(4) to grant relief is only enlivened if one or more of the grounds listed in s 36(1)(a), (b) or (c) has been established [27] - [28].
31 The jurisdiction conferred upon the court by s 36 of the Magistrates Court Act is fundamentally different in character to appellate jurisdiction. Generally speaking, appellate jurisdiction involves a rehearing by the appellate court for the purpose of correcting error of fact or law on the part of the court below. By contrast, the jurisdiction conferred upon the court by s 36 of the Act is analogous to the common law jurisdiction relating to judicial review of the acts and decisions of lower courts. Hence generally, only jurisdictional errors or errors of law on the face of the record will enliven the jurisdiction of the court under s 36 of the Act, and errors of fact or errors of law not evident on the face of the record (as to which see Craig v South Australia (1995) 184 CLR 163) within jurisdiction can only be addressed through the normal appellate processes - see Re Michelides; ex parte Chin [2008] WASC 256 [75]; Abbott v Magistrate Malley [2012] WASC 420 [13]. As will be seen, the limited ambit of the judicial review available under s 36 of the Magistrates Court Act is fatal to Mr Stewart's application.
Dismissal of application for review order directed to Magistrate Heaney
32 As I have noted, on 1 July 2013 I dismissed the application for a review directed to quashing Magistrate Heaney's decision.
33 The grounds upon which Mr Stewart sought a review order with respect to the decision of Magistrate Heaney were wholly without merit. The basis for the order sought was an argument that the lack of provision for local government in the Commonwealth Constitution, and the failure of the 1988 referendum to recognise local governments in the Commonwealth Constitution, has the effect that the City had no authority to charge or impose fines upon Mr Stewart. Arguments of this kind have been rejected by this Court on numerous occasions - see, for example, Glew v Shire of Greenough [2006] WASCA 260 [22] - [25]; Van Lieshout v City of Fremantle (No 2) [2013] WASC 176; Pennicuik v City of Gosnells [2011] WASC 63; Hargreaves v Tiggemann [2012] WASCA 92; Glew v City of Greater Geraldton [2012] WASCA 94. In Glew v Shire of Greenough, Wheeler JA (Pullin and Buss JJA agreeing) held that:
So far as the 1988 referendum is concerned, the proposition appears to be that, because that referendum was defeated, there arises some prohibition upon the State which would preclude it from passing legislation setting up local government authorities. That proposition misunderstands the referendum process. The 1988 referendum contained a proposal to amend the Commonwealth Constitution by inserting a proposed s 119A, which proposed section would have required each State to provide for the establishment and continuance of a system of local government. Because it was defeated, there is no Commonwealth constitutional requirement that a State provide a system of local government. However, the absence of a requirement to establish a system of local government does not imply any absence of power to do so. Each State has always had, pursuant to the power to legislate for the peace, order and good government of that State, a power to set up a system of local government as the State sees fit [24].
34 The court's decision in Glew v Shire of Greenough was the subject of an unsuccessful application for special leave to appeal to the High Court (Glew v Shire of Greenough [2007] HCA Trans 520 (6 September 2007)). Gummow J, on behalf of the coram, stated that:
[The Local] court rejected the applicants’ argument that the Local Government Act 1995 (WA) is unconstitutional, as is s 52 of the Constitution Act 1889 (WA). The District Court of Western Australia dismissed the applicants’ appeal. In turn the Court of Appeal of the Supreme Court of Western Australia dismissed a further appeal as 'entirely lacking in legal merit'. We agree.
35 In substance, Mr Stewart's challenge to the decision of Magistrate Heaney was not an allegation of a denial of natural justice or of acting in excess of jurisdiction, but rather constituted an attempt to ask this Court to rehear the argument that the Local Government Act was constitutionally invalid, which was rejected by the Magistrate. That is not a proposition which falls within the ambit of the jurisdiction conferred upon the court by s 36 of the Magistrates Court Act. In substance, it is an attempt to appeal from the decision of Magistrate Heaney. Moreover and in any event Mr Stewart's argument is entirely without merit, and had no prospect of succeeding.
Section 78B of the Judiciary Act
36 As a side note, s 78B of the Judiciary Act 1903 (Cth) provides that a case involving a matter arising under the constitution of the Commonwealth cannot proceed until the court is satisfied that notice of the matter has been given to the Attorneys-General, including the Attorney-General of the Commonwealth. A notice under s 78B of the Judiciary Act was not issued in this case. However, s 78B does not have the effect of rendering 'invalid' any proceeding in which a notice should have been, but was not, given - Glennan v Commissioner of Taxation [2003] HCA 31; (2003) 77 ALJR 1195 [13]; Glew v The Shire of Greenough [28]; Hargreaves v Tiggemann [8]. Further, s 78B is not intended to apply where there is merely an allegation that a constitutional point arises, if the point alleged is unarguable, frivolous or vexatious: Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231 [42]; Chan v Harris (No 3) [2011] FCA 341 [15] - [18]; Hargreaves v Tiggemann [8]. The alleged constitutional points raised by Mr Stewart were frivolous and vexatious (in the legal sense of those words), and therefore a notice was not necessary.
Review order directed to the decision of Magistrate Bayly
37 On 1 July 2013, I ordered that the application for a review order relating to the decision of Magistrate Bayly be adjourned, pending receipt of the Magistrates Court files relating to Mr Stewart. Upon receipt of those files, Mr Stewart was given an opportunity to file further affidavits and make additional submissions.
38 Mr Stewart filed a further affidavit in support of his application, repeating his assertion that he did not personally receive the court hearing notice or prosecution notice for the proceeding before Magistrate Bayly on 16 September 2011, as they were posted to the Cloverdale property, which he did not occupy at the time.
39 The affidavit makes a number of other assertions, the most material of which include allegations that the hearing of charges should not have proceeded before Magistrate Bayly given the confusion regarding the duplication of court hearing notices on the file and the prosecutor's knowledge that Mr Stewart no longer resided at the Cloverdale property. Mr Stewart also asserts that under the Local Government Act fines are not meant to exceed $5,000, and as the total fine imposed on him was $8,200 per charge, including daily rates, the fines imposed were invalid.
40 I directed that Mr Stewart should serve all documents filed in support of his application on Magistrate Bayly, and the City of Belmont. Appropriately, Magistrate Bayly filed a submitting appearance.
41 The matter was then listed for hearing and I received oral submissions from Mr Stewart in support of his application. In substance, he repeated the arguments outlined in his affidavit. He also repeated his baseless assertions that the proceedings brought against him were unconstitutional. A representative of the City of Belmont also attended this hearing, and advised the court that the Cloverdale property was recorded on the City's records as Mr Stewart's last known address.
Procedural Fairness, Court hearing notices and Service
42 Under the Criminal Procedure Act,in the case of indictable offences (with limited exceptions) an accused is required to be personally present during proceedings (see s 88 of the Act).
43 By contrast, the Criminal Procedure Act 'does not always, or even generally require the personal attendance of an accused before a court in relation to simple offences'-Saad v Baron[2012] WASC 507 [47] (Beech J).
44 In the case of simple offences, an accused must be served with a prosecution notice, accompanied by either a summons or court hearing notice - s 24(1)(c); s 28(4). Section 33 of the Criminal Procedure Act deals with the contents and service of court hearing notices. It provides:
33. Court hearing notice, contents and service of
(1) A court hearing notice must -
(a) be in a prescribed form; and
(b) if issued in the first instance, must form part of or be attached securely to a copy of the prosecution notice to which it relates; and
(c) if issued after the accused has been served with the prosecution notice, must identify the prosecution notice or the charge or charges in it or be attached securely to a copy of it; and
(d) state where and when the prosecution notice will be dealt with by the court; and
(e) contain the information required by subsection (2); and
(f) contain any information prescribed; and
(g) be signed -
(i) if it is being issued by an authorised investigator, by the investigator; or
(ii) if it is being issued by a JP or a prescribed court officer, by the JP or officer.
(a) that the accused need not appear at the time when the prosecution notice to which it relates will be dealt with by the court; and
(b) that the accused may give the court written notice that the accused -
(i) pleads guilty to one or more of the charges in the prosecution notice;
(ii) pleads not guilty to one or more of the charges in the prosecution notice; and
(c) that if the accused pleads guilty in writing to a charge the accused may also, in writing -
(i) explain why the accused committed the offence;
(ii) provide information to the court that it may use when imposing a sentence for the offence; and
(d) that if the accused, in writing, pleads guilty or not guilty to a charge and does not appear, the charge may be dealt with in the accused’s absence; and
(e) that if the accused does not enter a written plea to a charge in the prosecution notice and does not appear, the charge may be dealt with in the accused's absence.
(3) A court hearing notice issued to an accused must be served on the accused in accordance with Schedule 2 clause 2, 3 or 4.
45 Clause 3 of sch 2 is relevant to this case. It provides:
3. Postal service on individuals and corporations
(1) This clause applies in relation to serving an individual or a corporation.
(2) To serve a document or other thing on a person (the named person) in accordance with this clause, a person referred to in subclause (4) or (5) must post it to the named person at -
(a) the address where the named person was last known to reside, work or conduct a business; or
(b) if subclause (6), (7) or (8) applies, the address deemed by that subclause to be the named person’s last known address, unless there is any reason for the person referred to in subclause (4) or (5) to believe that that address is not where the named person resides, works or conducts a business,
and, if necessary, in accordance with subclause (3).
(3) If the document is a court hearing notice, it must be posted under subclause (2) at least 14 days before the court date stated in the notice.
(4) If the document is an infringement notice issued under Part 2, the person who posts it must be an authorised officer (as defined in section 4).
(5) If the thing being served is or relates to a prosecution notice, the person who posts the thing must be -
(a) an officer of the court concerned; or
(b) the prosecutor; or
(c) a person authorised in writing to do so by the prosecutor.
…
(8) If the thing being served is or relates to an infringement notice or a prosecution notice that alleges the named person committed an offence under a written law, the address of the named person, or of any premises of which the person is the owner or occupier, in any licence, permit or similar document that is in force at the time of the alleged offence under that law or a law connected to that law is deemed to be the named person's last known address.
(9) For the purposes of subclause (8) a law is connected to a written law if it is -
(a) subsidiary legislation made under that written law; or
(b) the law that empowers the making of that written law as subsidiary legislation; or
(c) a code or similar provision adopted or enacted by that written law; or
(d) the law that adopted or enacted that written law as a code or similar provision.
(10) A person who serves a named person with a document or other thing under this clause must record the service information in a service certificate signed by the person.
(11) A document or other thing that is posted under this clause is to be taken to have been served on the named person on the fourth working day after the date on which it was posted unless the postal service returns it to the sender or the contrary is proved.
46 Section 55 of the Criminal Procedure Act applies when the accused has not pleaded guilty to an offence, and fails to appear at the hearing of the charge. It allows the court to hear and determine a charge in the absence of the accused if it is satisfied that the accused has been properly served with the prosecution notice and the court hearing notice. It states:
55. No appearance by accused and no plea of guilty
(1) This section applies if on a court date for a charge the prosecutor appears and the accused does not and the accused has not pleaded guilty to the charge, whether orally or by means of a written plea.
(2) If on the court date the court is satisfied that the accused has been served under this Part with the prosecution notice containing the charge and a court hearing notice, or an approved notice, notifying the accused of that date and that the court may deal with the charge in the accused's absence if the accused does not appear on that date, the court may -
(a) adjourn the charge; or
(b) hear and determine the charge in the accused's absence.
…
(4) If under subsection (2) or section 51(8)(a) the court decides to hear and determine the charge in the accused's absence and the prosecution notice is signed by a person who in the notice purports to be a person acting under section 20(3), the court -
(a) must presume, in the absence of evidence to the contrary -
(i) that the prosecution notice was signed by a person who was acting under section 20(3); and
(ii) that the person had the authority to sign the prosecution notice; and
(b) may take as proved any allegation in the prosecution notice containing the charge that was served on the accused.
(5) If under subsection (4) the court convicts the accused -
(a) the prosecutor must state aloud to the court the material facts of the charge; and
(b) section 129(4) applies; and
(c) in the absence of evidence to the contrary, the court must take as proved any facts so stated.
71. Making an application to set aside
…
(2) If in an accused's absence a court convicts the accused of a charge, the accused may apply to the court for an order that sets aside the decision and orders the charge to be dealt with again on the grounds that the accused -
(a) did not receive notice of the court date on which the conviction occurred; or
(b) did not receive such notice in enough time to enable the accused to appear on the court date; or
(c) received such notice in enough time to enable the accused to appear on the court date but did not appear for some good reason.
(3) If in an accused’s absence a court disqualifies the accused from holding or obtaining a licence under a written law, an application made under subsection (2) may include an application for an order that suspends the disqualification until the application made under subsection (2) is decided.
(4) An application made under this section -
(a) may relate to 2 or more decisions made at one hearing; and
(b) must be made -
(i) to the court's registry at the place where the decision was made; and
(ii) in accordance with the regulations.
(a) the application is made in respect of a decision after an appeal against the decision has been commenced under the Criminal Appeals Act 2004 ; or
(b) after the application is made in respect of a decision and before it is decided, an appeal against the decision is commenced under the Criminal Appeals Act 2004 .
(1) If an application made under section 71(1) is made within 21 days after the date of the decision to which it relates, the court, without hearing the parties, may grant the application if it is satisfied that the grounds of the application are made out by the application and any supporting evidence.
(2) If an application made under section 71(2) -
(a) is made within 21 days after the date of the decision to which it relates; and
(b) is not made by an accused who is in custody and who seeks to be released on bail until the hearing at which the charge is dealt with again,
the court, without hearing the parties, may grant the application if it is satisfied that the grounds of the application are made out by the application and any supporting evidence.
(3) If an application is made under section 71(3), then irrespective of whether the associated application made under section 71(2) was made within 21 days after the date of the decision to which it relates or not, the court, without hearing the parties, may grant the application if it is satisfied that there is a reasonable prospect of the application made under section 71(2) succeeding.
(4) If an application made under section 71(1), (2) or (3) is not granted, respectively, under subsection (1), (2) or (3) of this section, the court must -
(a) as the case requires, set a date for the hearing of the application made under section 71(1) or (2); and
(b) set a date for the hearing of the application made under section 71(3), if any, which may be a date before the date set under paragraph (a); and
(c) issue an approved notice to the parties advising them of the hearing date or dates, as the case requires.
(5) At the hearing of an application made under section 71(1) or (2) the court may grant the application if it is satisfied that it is in the interests of justice to do so.
(6) At the hearing of an application made under section 71(3) the court may grant the application if the court is satisfied -
(a) that there is a reasonable prospect of the application made under section 71(2) succeeding; and
(b) that it is in the interests of justice to do so.
(7) The court dealing with an application made under section 71 need not be constituted by the same person or persons who constituted the court that made the decision to which the application relates.
49 In deciding whether it is in the interests of justice to set aside the conviction and order a rehearing, the court may weigh and balance matters such as prejudice to the other party if a rehearing is granted, relevant case management principles, the effect of the conviction and any penalty imposed on the applicant, whether the applicant has an arguable defence to the charge and the reason for the non-appearance at the original hearing - Grover v Scott [2010] WASCA 164 [95].
50 As I have noted, Mr Stewart exercised the right conferred by s 71 of the Criminal Procedure Act and applied to set aside his convictions on the charges. That is the application which was heard by various magistrates, and ultimately determined by Magistrate Heaney. Given the spurious nature of the arguments advanced by Mr Stewart in support of his application, it was open to Magistrate Heaney to conclude that it was not in the interests of justice for the convictions to be set aside. There is no plausible basis for suggesting that in arriving at that conclusion, the magistrate somehow exceeded the jurisdiction conferred upon him.
51 The provisions of the Criminal Procedure Act which I have set out create a statutory scheme for the provision of notice to persons charged with simple offences of the fact that they have been charged, the terms of the charge, and of the date upon which the charge will be heard. To that extent, they define the content of that part of the rules of procedural fairness concerning the provision of notice of the case that has to be met in proceedings alleging the commission of a simple offence or offences. Mr Stewart did not contend that the legislature had gone beyond power in prescribing that aspect of the rules of procedural fairness in relation to charges of simple offences, or that the relevant provisions of the Criminal Procedure Act infringed Chapter III of the Commonwealth Constitution by depriving the Magistrates Court of an indispensable characteristic of a court invested with the judicial power of the Commonwealth - see, in this regard, Leeth v The Commonwealth (1992) 174 CLR 455, 470; Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 295 ALR 638 [177]. Whether there would be any basis for such a contention does not therefore fall for determination in this case.
52 Described in general terms, the regime created by the Criminal Procedure Act specifies a variety of ways in which notice of a charge, and of the hearing date for that charge can be given to an accused person. Service by post is one of the ways in which notice can be given. However, specific allowance is made for the possibility that an accused person may not in fact receive notice of a charge, or of the hearing date, when that notice is given by post, by providing that a conviction entered in those circumstances may be set aside and rehearing ordered if it is in the interests of justice to do so. Mr Stewart exercised his right to apply to set the convictions aside, and that application was ultimately heard by Magistrate Heaney. Magistrate Heaney determined that it was not in the interests of justice to set the convictions aside and order that the charges be reheard and, for the reasons I have given, it was plainly open to him to arrive at that conclusion, given the spurious nature of the propositions advanced in support of Mr Stewart's application. Mr Stewart did not attempt to appeal from the decision of Magistrate Heaney dismissing his application to set aside his convictions.
53 Mr Stewart's application for a review order directed to quashing the decision of Magistrate Bayly must be viewed in that context - that is, a context in which Mr Stewart has exercised the rights conferred by the Criminal Procedure Act in cases in which a person has been convicted without knowing of the court hearing date at which he was convicted, and has not sought to appeal from the dismissal of his application. That is a context which would provide a powerful argument to the effect that the court should decline to make an order for review under s 36 of the Magistrates Court Act even if Mr Stewart made out an arguable case for the grant of relief under that section, by analogy to the court's discretion to deny prerogative relief. However, in this case discretionary considerations do not arise, because Mr Stewart has failed to make out an arguable case for the grant of an order to review the decision of Magistrate Bayly, for the reasons which follow.
54 There is, of course, a well-established distinction between jurisdictional facts - facts which must exist in order to enliven jurisdiction, and facts which are to be determined in the course of exercising jurisdiction - see Corporation of the City of Enfield v Development Assessment Corporation (2000) 199 CLR 135, 148 [28]; Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 (Plaintiff M70). If jurisdiction depends upon the existence of a fact, and if it is established in proceedings for judicial review that the fact does not exist, it will follow that the decision-maker has exceeded jurisdiction and relief may be granted (Plaintiff M70; Kirk v Industrial Relations Commission (2010) 239 CLR 531 [72]). On the other hand, if the existence or otherwise of the fact is something to be determined in the course of exercising jurisdiction, it will be for the decision-maker, and not for the court exercising powers of judicial review to determine whether or not that fact exists.
55 There might be a nice question as to whether service in accordance with the provisions of the Criminal Procedure Act is a jurisdictional fact, in the sense that it is a fact upon which the court's jurisdiction depends, or whether the question of service is a fact to be determined by the court in the exercise of its jurisdiction. If it were to be concluded that service in accordance with the Criminal Procedure Act was a jurisdictional fact, and if Mr Stewart had established that service had not been duly effected, it would follow that Magistrate Bayly had exceeded his jurisdiction, and there would be an arguable case for the grant of an order of review pursuant to s 36 of the Magistrates Court Act. On the other hand, if it were concluded that the question of whether service had been validly effected was not a jurisdictional fact, but was rather a matter to be determined as a question of fact by the court in the exercise of its jurisdiction, then even if Magistrate Bayly were wrong to conclude that service had been effected, that decision would not have taken him outside the jurisdiction conferred upon the court, and would not provide any basis for the grant of relief under s 36 of the Magistrates Court Act.
56 A determination as to whether the existence of a fact is a condition of jurisdiction or a matter to be determined in the exercise of jurisdiction is essentially a question of statutory construction (Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55, 64; Woolworths Ltd v Pallas Newco Ltd (2004) 61 NSWLR 707, 710; Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217; (2011) 43 WAR 319 [106]). In some cases it can involve questions of some complexity. In this case it was not a question which was addressed by either Mr Stewart or the representative of the City during the course of the hearing before me. As the matter has not been addressed in argument, and as it is in any event unnecessary to determine, for the reasons which follow, it is preferable to avoid expressing a view on the question given the potential ramifications of the determination of that question.
57 The reason it is unnecessary to determine whether service in accordance with the Criminal Procedure Act is a fact upon which the jurisdiction in the Magistrates Court depends is because Mr Stewart has failed to establish that service was not effected in accordance with the Criminal Procedure Act. There is clear evidence to the effect that the court hearing notices and the prosecution notices were posted to Mr Stewart at the address of the Cloverdale property. The prosecution advised Magistrate Bayly that the Cloverdale property was Mr Stewart's last known address, and he was, and remained at all material times, the owner of that property. There is no evidence to suggest that Mr Stewart ever provided any other address to the City, such that it could be said that there was some other address which was 'last known'. The fact that Mr Stewart did not actually reside at the Cloverdale property at the time the notices were posted does not establish that it was not the address at which he was last known to reside, work or conduct a business within the meaning of cl 3 of sch 2 of the Criminal Procedure Act.
58 So, even if service in accordance with the Criminal Procedure Act is a fact upon which the jurisdiction of the Magistrates Court depended at the time Mr Stewart was convicted, he has failed to establish the non-existence of that fact so as to give rise to an arguable basis for the grant of a review order. On the other hand, if the question of service was not a jurisdictional fact, but rather a matter to be determined in the course of exercising jurisdiction, on the material before the magistrate it was open to him to determine that service had been effected, and it could not be plausibly suggested that in making that determination he had exceeded the jurisdiction conferred upon him.
59 For these various reasons, Mr Stewart has failed to make out an arguable case for the grant of an order to review the decision of Magistrate Bayly convicting him of the charges brought against him, on the ground that service of notice of the hearing had not been effected in accordance with the provisions of the Criminal Procedure Act.
60 The only other argument advanced by Mr Stewart in support of his challenge to the decision of Magistrate Bayly was his assertion that the fine imposed exceeded the maximum amount that could be imposed under the Local Government Act. This proposition is also wholly without merit. Mr Stewart was fined $1,000 for each offence of which he was convicted, together with a daily rate of $50 per day for each day during which the contravention continued. As I have noted, Mr Stewart was convicted of a contravention of s 3.25(6) of the Local Government Act. The maximum penalty available in the event of a conviction for that offence was a penalty of $5,000 together with a further fine of up to $500 per day during each day for which the contravention continued (Local Government Act, s 9.14). Mr Stewart was also convicted of an offence of contravening reg 8(4) of the Health (Asbestos) Regulations. The maximum penalty for contravention of that regulation was $1,000, together with a daily penalty of between $50 and $100 for each day the contravention continued. It follows that the fines imposed by Magistrate Bayly were within the range of penalties permissible under the relevant statutory provisions. Mr Stewart's argument to the contrary must be rejected.
61 For these reasons, Mr Stewart's application for an order of review must be dismissed.
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