Tey v Plotz [No 3]
[2012] WASC 25
•12 JANUARY 2012
TEY -v- PLOTZ [No 3] [2012] WASC 25
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 25 | |
| Case No: | SJA:1139/2009 | 12 JANUARY 2012 | |
| Coram: | HALL J | 12/01/12 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Applications dismissed | ||
| B | |||
| PDF Version |
| Parties: | KOK YONG TEY MARTIN DANIEL PLOTZ MICHAEL FRANCIS CARPENTER WA POLICE |
Catchwords: | Criminal appeals Costs Applications for stay of costs orders pending further appeals Whether power to order stays Whether power to make suspension orders under Civil Judgments Enforcement Act 2004 (WA) |
Legislation: | Civil Judgments Enforcement Act 2004 (WA), s 15 Criminal Appeals Act 2004 (WA), s 12, s 14, s 21 |
Case References: | Canberra Residential Developments Pty Ltd v Brendas [2010] FCA 519 Cristovao v Butcher Paull & Calder [No 3] [2011] WASCA 10 Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 Spiers Earthworks Pty Ltd v Landtec Projects Corporation Pty Ltd [2010] WASCA 226 Tey v Carpenter [2011] WASC 263 Tey v Plotz [2011] WASCA 194 Tey v Plotz [No 2] [2011] WASC 34 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
MARTIN DANIEL PLOTZ
Respondent
- Appellant
AND
MICHAEL FRANCIS CARPENTER
Respondent
- Appellant
AND
WA POLICE
Respondent
(Page 2)
ON APPEAL FROM:
For File No : SJA 1139 of 2009
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE LANE
File No : PE 41286 of 2009
For File No : SJA 1021 of 2011
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE LAWRENCE
File No : FR 1449 of 2010
For File No : SJA 1033 of 2010
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE LANE
File No : PE 41286 of 2009
Catchwords:
Criminal appeals - Costs - Applications for stay of costs orders pending further appeals - Whether power to order stays - Whether power to make suspension orders under Civil Judgments Enforcement Act 2004 (WA)
Legislation:
Civil Judgments Enforcement Act 2004 (WA), s 15
Criminal Appeals Act 2004 (WA), s 12, s 14, s 21
Result:
Applications dismissed
(Page 3)
Category: B
Representation:
SJA 1139 of 2009
Counsel:
Appellant : In person
Respondent : Mr N T L John
Solicitors:
Appellant : In person
Respondent : State Solicitor for Western Australia
SJA 1021 of 2011
Counsel:
Appellant : In person
Respondent : Mr N T L John
Solicitors:
Appellant : In person
Respondent : State Solicitor for Western Australia
SJA 1033 of 2010
Counsel:
Appellant : In person
Respondent : Mr N T L John
Solicitors:
Appellant : In person
Respondent : State Solicitor for Western Australia
(Page 4)
Case(s) referred to in judgment(s):
Canberra Residential Developments Pty Ltd v Brendas [2010] FCA 519
Cristovao v Butcher Paull & Calder [No 3] [2011] WASCA 10
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Spiers Earthworks Pty Ltd v Landtec Projects Corporation Pty Ltd [2010] WASCA 226
Tey v Carpenter [2011] WASC 263
Tey v Plotz [2011] WASCA 194
Tey v Plotz [No 2] [2011] WASC 34
(Page 5)
- HALL J:
Introduction
1 An application has been made by Mrs Tey on each of these matters by chamber summons. The application in each case is the same and is that costs orders and proceedings to enforce them be stayed, pending the resolution of appeals.
2 Mrs Tey is self-represented. She has appeared today to argue her applications for stay orders. Some allowance needs to be made for the fact that Mrs Tey is not a lawyer and may not be familiar with proper procedure. In particular, the fact that Mrs Tey has framed her applications as stay rather than suspension orders should not prevent an order of the latter type being made if it is appropriate to do so.
Background - Tey v Plotz
3 In Tey v Plotz, SJA 1139 of 2009 and SJA 1033 of 2010, Mrs Tey appealed against both her conviction and sentence in the Magistrates Court for failing to comply with a police request for personal details. Leave to appeal was refused by Jenkins J and the appeals were dismissed on 16 February 2011: Tey v Plotz [No 2] [2011] WASC 34. At that time, Jenkins J also made an order that Mrs Tey pay the respondent's costs of the appeal to be taxed if not agreed. There was also an order that the respondent pay part of Mrs Tey's costs in respect of a provisional order, but that aspect of the costs is not of concern here.
4 Mrs Tey sought leave to appeal from the decisions of Jenkins J. On 19 September 2011 the Court of Appeal refused leave in respect of both conviction and sentence and the appeals were dismissed: Tey v Plotz [2011] WASCA 194.
5 On 5 October 2011, the respondent filed a bill of costs for taxation. The taxation has been listed before a registrar on 18 January 2012. On 12 October 2011, Mrs Tey filed applications for special leave to appeal to the High Court from the decision of the Court of Appeal. It would appear that those applications have not yet been determined.
6 On 20 October 2011, Mrs Tey wrote to the court, that is this court, requesting that the taxation of costs be stayed pending resolution of the special leave applications. By letter of 3 November 2011, an associate to a registrar advised Mrs Tey that an appeal does not itself act as a stay and, in the absence of a stay order, the bills would be taxed.
(Page 6)
Background - Tey v Carpenter
7 Turning then to the background in respect of Tey v Carpenter, SJA 1021 of 2011. In that matter, Mrs Tey appealed against her conviction and sentence in the Magistrates Court for an offence of driving without a valid driver's licence. On 29 September 2011, Mazza J refused leave to appeal and the appeal was dismissed: Tey v Carpenter [2011] WASC 263. An order was also made that Mrs Tey pay the respondent's costs of the appeal, to be taxed if not agreed. Mrs Tey has sought leave to appeal from the decision of Mazza J to the Court of Appeal. That application has yet to be heard.
8 Mrs Tey failed to file her appellant's case by the required time and has now sought an extension of time. The application to extend time on that appeal is listed to be heard on 24 January 2012.
9 On 7 October 2011, the respondent filed a bill of costs for taxation. The taxation has been listed at the same time as that relating to Tey v Plotz. Mrs Tey seeks that the taxation of costs in Tey v Carpenter be also stayed pending determination of the application for leave to appeal to the Court of Appeal.
Stay applications
10 Turning then to the applications before me, on 19 December 2011, Mrs Tey filed a chamber summons in respect of each of the appeals. In each chamber summons she seeks orders that the costs orders made by Jenkins and Mazza JJ respectively be stayed. She also seeks that the taxation of costs listed for 18 January 2012 be stayed. By an undated letter to the listings officer, Mrs Tey sought that her stay applications be listed urgently and that they be listed together before the same judge.
11 In support of her applications, Mrs Tey has filed affidavits dated 19 December 2011 in each matter. The affidavits are in similar terms. As regards her grounds for seeking stays, Mrs Tey refers to injuries that she has suffered since January 2009 which she says have prevented her from earning, 'a normal income'.
12 She also refers to the decision of Newnes JA in Spiers Earthworks Pty Ltd v Landtec Projects Corporation Pty Ltd [2010] WASCA 226 in which a stay of the enforcement of a judgment and costs order was sought. In that case, Newnes JA ordered that enforcement of the costs order be stayed pending determination of the appeal and that in the meantime the appellant pay the amount of costs when taxed into an
(Page 7)
- interest bearing account in the joint names of the solicitors for the parties. Mrs Tey relies on this decision as supporting her applications for stays pending resolution of the appeals.
Merits of the applications
13 The first impediment to the applications is the question of whether I have the jurisdiction to make orders of the type sought. Stay orders in single judge appeals are ancillary orders. That is, they must attach to some presently pending proceedings. The power of a single judge to make orders in respect of an appeal from the Magistrates Court are set out in pt 2 of the Criminal Appeals Act 2004 (WA).
14 A judge can make an order suspending the decision appealed from, that is the decision of the magistrate, until the appeal is concluded: s 12(1) Criminal Appeals Act. There is, however, no power for one judge to order the suspension of the orders of another that were made in determining the appeal. If the matter is further appealed to the Court of Appeal, that court has power to suspend the decision of the single judge appealed from or any costs order made in consequence: s 12, s 18 Criminal Appeals Act. That is not, however, a power that I have.
15 It may be open to a judge to amend or suspend orders that he or she has made if those orders have not been entered. Here the orders were made some time ago, have been drawn up, passed and entered. Mrs Tey does not suggest that there was any inadvertent error in the wording of the orders, or that they do not reflect the intention of the judges concerned.
16 The general rule is that in such circumstances, the power to amend lies only with an appeal court. It is possible that what Mrs Tey was seeking to do in her chamber summons was to invoke the inherent power of the court to prevent an abuse of process: see Cristovao v Butcher Paull & Calder [No 3] [2011] WASCA 10 [17]. However, Mrs Tey in oral submissions today denies that she is seeking to invoke that power.
17 Nonetheless, if such a power was invoked, it is difficult to see how proceeding with a taxation of costs ordered by the court could possibly constitute an abuse of process. In the circumstances of this case, there is no basis for suggesting that taxation or any other action to enforce the costs orders could possibly be an abuse of the court's process.
18 Applying the relevant law to the facts of this case, the position is that in Tey v Plotz, the only pending proceedings are applications to the High Court for special leave to appeal. Appeals both to a single judge and the
(Page 8)
- Court of Appeal have been completed. There is no basis upon which I could order a stay of the costs order made by Jenkins J.
19 As regards Tey v Carpenter, the single judge appeal has been completed and there is a pending appeal to the Court of Appeal. There is no basis upon which I, as a judge of the general division, could order a stay of the costs order made by Mazza J.
20 There is another possibility which, though not specifically referred to by Mrs Tey in her applications, I should, in fairness to her as an unrepresented litigant, consider. That is whether it is open to me to make a suspension order under s 15 of the Civil Judgments Enforcement Act 2004 (WA).
21 Each of the costs orders was made pursuant to s 14(1)(h) of the Criminal Appeals Act. That subsection provides that this court can make an order as to the costs of an appeal under pt 2 of the Criminal Appeals Act. Section 21 of the Criminal Appeals Act provides that if the costs are not paid, the order can be lodged and enforced as a judgment of a court of competent jurisdiction. In such an event, the judgment would be treated as a judgment given in the exercise of civil jurisdiction by the court concerned, and the Civil Judgments Enforcement Act would apply.
22 Section 15 of the Civil Judgments Enforcement Act provides that:
A person against whom a judgment is given may apply for an order suspending the enforcement of the judgment.
23 Such an application may be made to the court that made the judgment or the court that is dealing with an appeal against that judgment. However, a suspension order can only be made if special circumstances justify it: s 15(3) Civil Judgments Enforcement Act. Special circumstances do not necessarily exist because there is a pending appeal. The principles applicable in such a case were considered in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308.
24 It is, however, important to note that an application for a suspension order is predicated upon the existence of a judgment enforceable under the Civil Judgments Enforcement Act. A costs order under pt 2 of the Criminal Appeals Act is not taken to be a judgment of that type until the procedural steps taken set out in s 21 of the Criminal Appeals Act have been taken. Those steps are that a certified copy of the order is lodged
(Page 9)
- with a court of competent jurisdiction together with an affidavit stating the extent to which the costs order has not been complied with.
25 Those steps have not yet been taken in respect of the two costs orders in this case because the nature of those orders was not to order a fixed amount to be paid but to order that the costs be paid at an agreed amount but if not agreed, to be taxed. There has been no agreement and so taxations have been listed. Until those taxations have occurred, the amount that Mrs Tey is obliged to pay is not quantified. Once quantified it is open to the respondent to make demands for payment. If not paid within 28 days, under s 21 of the Criminal Appeals Act the respondent may seek to enforce the orders under that provision in a court of competent jurisdiction. That of course need not be this court. Until that occurs, if it does, there is no basis for a suspension order under s 15 of the Civil Judgments Enforcement Act.
Conclusion
26 For the above reasons the applications for stay orders must be dismissed. In my view, I do not have the power to make such orders in either matter.
27 Furthermore, it is not open to make a suspension order in either matter, at least at this stage.
28 Even if it were open to make a stay order or a suspension order, I note that the affidavits filed by Mrs Tey do not establish that enforcement of the costs orders or the conduct of taxations of costs would render her appeals to either the Court of Appeal or the High Court nugatory or create practical difficulties in respect of the relief sought in those appeals: see Canberra Residential Developments Pty Ltd v Brendas [2010] FCA 519.
29 Mrs Tey assumes that the mere existence of pending appeals justify stay of costs orders: that is not correct. The decision of Newnes JA referred to earlier does not support Mrs Tey's position in that regard when properly understood.
30 On the face of the materials provided by Mrs Tey there would not, in my view, be a proper basis for staying or suspending the costs orders even if I had a power to do so. In those circumstances, the application on each chamber summons is dismissed.
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