Tey v Carpenter [No 2]

[2012] WASCA 114

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   TEY -v- CARPENTER [No 2] [2012] WASCA 114

CORAM:   McLURE P

BUSS JA

HEARD:   26 APRIL 2012

DELIVERED          :   26 APRIL 2012

PUBLISHED           :  6 JUNE 2012

FILE NO/S:   CACR 164 of 2011

BETWEEN:   KOK YONG TEY

Appellant

AND

MICHAEL FRANCIS CARPENTER
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :MAZZA J

Citation  :TEY -v- CARPENTER [2011] WASC 263

File No  :SJA 1021 of 2011

Catchwords:

Appeal - Failure to file appellant's case as required by the rules - None of the proposed grounds of appeal has a reasonable prospect of succeeding - Leave to appeal refused - Appeal dismissed - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 14(1)(h), s 18, s 20
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)

Result:

Application for leave to amend the appeal notice to add the proposed new grounds of appeal dismissed
Leave to appeal refused
Appeal dismissed
The appellant to pay the respondent's costs of the appeal, fixed in the sum of $2,500

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     Ms C J Thatcher

Solicitors:

Appellant:     In person

Respondent:     State Solicitor for Western Australia

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

Tey v Carpenter [2012] WASCA 81

Tey v Plotz [2011] WASCA 194

1. McLURE P:  The reasons given by Buss JA sufficiently state my reasons for joining in the orders made by the court on 26 April 2012.

2. BUSS JA: On 27 January 2011, the appellant (Mrs Tey) was convicted in the Magistrates Court of driving a motor vehicle whilst not authorised, contrary to s 49(1)(a) of the Road Traffic Act 1974 (WA).

3. Mrs Tey appealed against conviction and sentence to the Supreme Court.  On 29 September 2011, Mazza J refused leave to appeal and dismissed the appeal. 

4. Mrs Tey then appealed to this court against Mazza J's decision on the conviction appeal. 

Mrs Tey's failure to file her appellant's case

1. Mrs Tey filed her appeal notice on 20 October 2011.

2. The Supreme Court (Court of Appeal) Rules 2005 (WA) require an appellant to file their case within 35 days after the date on which the appeal notice is filed.

3. Accordingly, Mrs Tey was required to file her appellant's case by 24 November 2011.  She did not file her appellant's case by 24 November 2011.  Indeed, as at 10 April 2012 she had still not filed her case.

4. By application dated 19 December 2011, Mrs Tey sought an extension of time to file her appellant's case.  The application also sought an order for the respondent to provide disclosure of certain information.

5. On 6 March 2012, the court heard Mrs Tey's application.

6. On 10 April 2012, the court ordered, relevantly, that:

   (a)the application for an extension of time to file the appellant's case be dismissed; and

   (b)the application for an order for the respondent to provide disclosure of certain information also be dismissed.

7. Written reasons for decision were published on 10 April 2012.  See Tey v Carpenter [2012] WASCA 81.

8. The orders made by the court on 10 April 2012 were extracted and signed by a Court of Appeal Registrar on 11 April 2012. 

The hearing as to whether the appeal should be dismissed and as to costs

1. On 10 April 2012, I ordered that the appeal be listed before the court on 26 April 2012 for the purpose of hearing from the parties as to whether the appeal should be dismissed under r 43(2)(g) of the Supreme Court (Court of Appeal) Rules (which confers power to dismiss an appeal if none of the grounds of appeal has a reasonable prospect of succeeding or the appellant has not obeyed the Rules or any order made under them), and as to costs.

2. On 26 April 2012, the court heard from Mrs Tey and counsel for the respondent in relation to these issues.  At the hearing, Mrs Tey sought leave to amend her appeal notice to add numerous additional grounds of appeal.  At the conclusion of the hearing, the court made these orders:

   (a)Application for leave to amend the appeal notice to add proposed new grounds of appeal dismissed.

   (b)Leave to appeal refused.

   (c)Appeal dismissed.

   (d)Mrs Tey to pay the respondent's costs of the appeal, fixed in the sum of $2,500.

3. When the court made the orders we said that we would provide reasons for decision later. 

My reasons for making the orders on 26 April 2012

1. These are my reasons for making the orders on 26 April 2012.  They must be read with the reasons for decision published on 10 April 2012 in Tey v Carpenter [2012] WASCA 81.

2. In Tey v Carpenter [2012] WASCA 81, I decided (McLure P agreeing) that Mrs Tey should not be granted an extension of time to file her appellant's case, for these reasons:

   First, none of the proposed grounds of appeal has a reasonable prospect of success. Secondly, Mrs Tey has not given a satisfactory explanation for her failure to file her appellant's case by 24 November 2011 or her continuing failure after that date to file her case. It is apparent from the pieces of litigation to which I have referred that Mrs Tey has been capable of preparing and filing various documents, and appearing in person, in several pending proceedings in mid to late 2011 and early 2012. I am not persuaded that Mrs Tey's injuries or her medical condition have prevented her from preparing and filing her case. Each of the reasons I have given is sufficient, of itself, to require that the extension of time sought by Mrs Tey be refused [51].

3. In Tey v Carpenter [2012] WASCA 81, I also decided (McLure P agreeing) that Mrs Tey had not established any basis for the making of an order for disclosure [40]‑ [45].

4. On 26 April 2012, Mrs Tey did not produce to the court a minute of her proposed new grounds of appeal.  Some of the proposed new grounds were barely coherent and most of them were not, either in form or in substance, proper grounds of appeal from Mazza J's decision on the conviction appeal.

5. Mrs Tey's proposed new grounds, as announced at the hearing, were as follows:

   8.That the fourth ground of appeal listed in the first draft of the grounds of appeal should be included as the eighth ground in this draft.

   9.That the current case should name the respondent, Carpenter, as the WA Police, and that the Judges should have regard to Minister for Home Affairs v Zentai (2012) HCATrans 82 and Commonwealth of Australia v Kutlu (2012) HCATrans 35.

   10.That the Appellant was denied justice by the fact that on 10 April 2012 the Court of Appeal gave the order that the application to provide disclosure of certain information be dismissed. The Appellant referred to 'the Mallard case in the High Court of Australia' as establishing the principle 'that based on one document alone … is enough to throw out the case' [sic].

   11.Referring to the order that 'the applicant's application for extension of time to file the appellant's case is dismissed', that 'You can't do that … ' because Newnes JA gave the Appellant an extension of time to file the Appellants case [in a separate civil matter, in which orders were made on 23 April 2012].

   12.As to the statement in paragraph 20 of the respondent's response to Appellant's application in an appeal dated 19 December 2011 to the effect that 'No disclosure [should] be ordered', that '[t]hey cannot say that', for two reasons:

   (a)'The opposition lawyer cannot say that'; and

   (b)being a criminal case, it must be established beyond reasonable doubt, and if they have nothing to hide they would disclose it; but here nothing was established beyond reasonable doubt by Mazza J and the magistrate.

   13.The appellant relies on the transcript of proceedings dated 6 March 2012 as a ground of appeal.

   14.The appellant relies on the transcript of proceedings relating to the taxation of costs before Registrar Boyle as a ground of appeal.

   15.That the taxation of costs performed by Registrar Boyle (in regards to which Hall J denied an application for a stay of the taxation) was performed prematurely because the case is still in process.  This amounts to intimidation, an unjustified advertisement for them and an unjustified obstruction of justice for whatever they try to prove.

   16.The appellant relies on the medical certificates filed in relation to the application for an extension of time to justify that the Appellant should be entitled to be given time to prepare her appellant's case before a proper hearing is heard.

6. Proposed new grounds 8 and 9 relate to an assertion that Mrs Tey has raised in other cases, namely, whether the prosecution should have been issued in the name of Senior Constable Carpenter or in the generic name of the WA Police.  In Tey v Plotz [2011] WASCA 194, this court decided that a prosecution should be in the name of the specific police officer rather than the WA Police. In any event, this assertion makes no difference to the merits of the case before the magistrate or the appeal before Mazza J. There is no merit in proposed new grounds 8 and 9.

7. Proposed new grounds 10 and 12 seek to re‑argue a point that was decided against Mrs Tey in Tey v Carpenter [2012] WASCA 81. Further, as I have mentioned, the orders made by the court on 10 April 2012 were extracted and signed by a Court of Appeal Registrar on 11 April 2012. There is no merit in proposed new grounds 10 and 12.

8. As to proposed new ground 11, it is irrelevant that in another proceeding Newnes JA may have granted Mrs Tey an extension of time to file her appellant's case. 

9. Proposed new grounds 13 and 14 are not, either in form or in substance, proper grounds of appeal from Mazza J's decision on the conviction appeal. 

10. The taxation of costs referred to in proposed new ground 15 relates to the taxation of costs pursuant to Mazza J's order that Mrs Tey pay the respondent's costs of the appeal from the magistrate.  Any complaint Mrs Tey may have about the taxation performed by the registrar, or any decision of Hall J refusing a stay, must be the subject of separate appeal proceedings.  It is not properly a ground of appeal in Mrs Tey's application for leave to appeal to this court from Mazza J's decision on the conviction appeal.

11. Proposed new ground 16 seeks to re‑argue a point that was decided against Mrs Tey in Tey v Carpenter [2012] WASCA 81. Further, as I have mentioned, the orders made by the court on 10 April 2012 were extracted and signed by a Court of Appeal Registrar on 11 April 2012. There is no merit in proposed new ground 16.

12. In the circumstances I have described, and for the reasons I have given, it was appropriate on 26 April 2012 to dismiss the application for leave to amend the appeal notice, refuse leave to appeal and dismiss the appeal.

13. As to costs, s 14(1)(h), read with s 18, of the Criminal Appeals Act 2004 (WA), confers on this court power, subject to s 20 of that Act, to make an order as to the costs of the appeal.

14. It was appropriate in the present case to make an award of costs in favour of the respondent. Mrs Tey failed to comply with the

    
    

    Rules in relation to the filing of her appellant's case, and the failure was significant and ongoing.  Also, her proposed grounds of appeal (including the proposed new grounds raised on 26 April 2012), and her application dated 19 December 2011, were wholly without merit.    The sum of $2,500 was a reasonable allowance for costs.  I fixed the quantum after examining the court file relating to the appeal and hearing from the parties.