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Clarkson v Wright and Anor Matter No Ca 40014/96 [1998] NSWSC 310 (30 July 1998)

Last Updated: 2 September 1998

MARK ALFRED CLARKSON v WILLIAM EDWARD WRIGHT & ANOR

CA 40014/96; CL 10906/95

30 July 1998

Mason P, Stein JA, Sheppard AJA

The Supreme Court of New South Wales Court of Appeal

NATURE OF JURISDICTION: SUPREME COURT OF NEW SOUTH WALES - LEVINE J

FILE NO/S: CA 40014/96; CL 10906/95

DELIVERED: 30 JULY 1998

HEARING DATE: 12 JUNE 1998

PARTIES: Mark Alfred CLARKSON v William Edward WRIGHT & Anor

JUDGMENT OF: MASON P, STEIN JA, SHEPPARD AJA

COUNSEL:

Appellant: In person

Respondent 1: R Horsley

SOLICITORS:

Appellant: n/a

Respondent 1: Crown Solicitor

CATCHWORDS:

REQUEST TO STATE A CASE - s 101, Justices Act 1902 - nature of proceedings -whether request to state a case must be signed personally by the informant - extension of time for service of documents.

EXTEMPORE/ RESERVED: RESERVED

ALLOWED/DISMISSED: DISMISSED

NO OF PAGES: 16

Mark Alfred CLARKSON v William Edward WRIGHT & Anor

This matter raises a number of procedural issues concerning a request to state a case made pursuant to s 101 of the Justices Act 1902 (the Act). Two issues in particular are raised. They are, whether a request to state a case must be signed by the informant personally and whether and on what basis an extension of time can be granted for service of the request to state a case.

The matter arose from the refusal of the appellant, who appeared under summons at an inquest, to take an oath or testify at the inquest on the basis of a privilege against self-incrimination. As a consequence, the appellant was charged, under the Coroners Act 1980 , with refusing to take an oath at an inquest without lawful excuse.

The magistrate dismissed the charge on the basis that a claim against self-incrimination was a lawful excuse for refusing to take an oath at an inquest. In response, a request to the magistrate to state a case was filed on behalf of the first respondent (a constable of police). The request was signed by a solicitor in the employ of the first respondent's solicitor, the Crown Solicitor.

The first respondent informed the appellant that the documents had been filed with the court but failed to send a copy of the request to state a case to the appellant, as required by the Act. The appellant submitted that the magistrate lacked jurisdiction to state a case as he had not been properly served with the documents and the request to state a case was not signed personally by the informant.

In response, the first respondent filed a summons in the Supreme Court seeking a declaration that the request to state a case was a proper and effective application. Levine J made an ex parte order confirming informal service on the appellant and declared that the request to state a case was a proper and effective application and that the magistrate had jurisdiction to deal with the request.

Significant issues raised on appeal include:

(a) Whether the proceeding was a criminal proceeding and if so, whether it

could be heard ex parte and whether the Supreme Court Rules (the SCR)

apply.

(b) Whether the request to state a case must be signed by the informant

personally or may be signed by the informant's solicitor or agent.

(c) Whether and on what basis an extension of time can be granted for service

of the request to state a case.

Held:

(1) Part 5, Division 2 of the Justices Act 1902 plainly treats stated cases as civil proceedings within the Supreme Court. The fact that a request to state a case may arise out of a criminal proceeding does not mean that the stated case is a criminal proceeding.

(2) The SCR and, in particular, Form 41A provides that the request to state a case be signed by the appellant or solicitor for the appellant. Part 66 Rule 9 of the SCR permits an agent for the solicitor to sign for the solicitor. There is no requirement, pursuant to s 101(1) of the Justices Act 1902 , that the request be signed personally by the informant.

(3) The appellant did not suffer any real or substantial prejudice from the failure to be served with the request within the time prescribed. In any event, the court has jurisdiction to make an order nunc pro tunc that would have the effect of confirming service.

ORDERS

(1) Order that the orders made by Levine J on 11 December 1995 be

varied;

a) by adding thereto:

(i) a declaration that the service of the request to state a

case be deemed effective and proper as at 9 February

1995;

(ii) an order that time for service of the request be

extended to that date;

b) by substituting for Order No 4 an order that the second respondent, pursuant to s 104 of the Justices Act 1902 , proceed to state and sign a case for the opinion of the Supreme Court pursuant to s 101 of the Act.

(2) Subject to those variations, the appeal be dismissed.

(3) The appellant pay the respondent's costs of the appeal.

Mark Alfred CLARKSON v William Edward WRIGHT & Anor

JUDGMENT

MASON P: I agree with Stein JA.

Mark Alfred CLARKSON v William Edward WRIGHT & Anor

JUDGMENT

STEIN JA:

INTRODUCTION:

This is an appeal from a decision of Levine J of 14 December 1995 quashing a decision of the second respondent (Geoffrey Bradd, SM) that he did not have jurisdiction to proceed to state a case under s 101 of the Justices Act 1902 (the Act) on the basis that the request to state a case had been signed by the informant's solicitor and not by the informant personally.

BACKGROUND

The brief history of the matter leading to the request to state a case is as follows. On 27 October 1994, Mark Alfred Clarkson (the appellant) appeared under summons at an Inquest into the suspected death of Christopher Dale Flannery. When called to the witness box the appellant declined to take an oath or to testify at all, claiming a privilege against self-incrimination.

As a consequence, an information was laid against the appellant on 11 November 1994 by the first respondent (William Edward Wright, a constable of police) charging the appellant, under s 42(1)(a) of the Coroners Act 1980 , with refusing to take an oath at an inquest without lawful excuse. The information came before the second respondent at the Downing Centre Local Court on 18 November 1994. On 23 November 1994, his Worship dismissed the summons, ruling that a claim of privilege against self-incrimination was a `lawful excuse' for refusing to take an oath at the inquest.

REQUEST TO STATE A CASE

On 20 December 1994, a request to state a case and a draft Stated Case were filed at the North Sydney Local Court on behalf of the first respondent. The request to state a case was signed by Ian David Hill, a solicitor in the employ of the first respondent's solicitor, I. V. Knight, the Crown Solicitor. The relevant portion of the document is in the following terms:

I V Knight [signature]

Solicitor for the Appellant

Ian Victor Knight

Signed in my capacity as a

solicitor employed in the

office of the said Ian Victor Knight

Ian Hill [signature] (Ian Hill) [AB 10]

On 22 December 1994, Mr Hill informed the appellant by telephone that the above documents had been filed with the court and forwarded to him a copy of the draft Stated Case and annexures. He did not, however, send a copy of the request to state a case. Also on or about 22 December 1994, the first respondent entered a recognisance to prosecute the appeal by way of a stated case.

On 9 February 1995, the appellant took a number of procedural objections before the magistrate. He submitted, among other things, that his Worship did not have jurisdiction to state a case under s 101 of the Justices Act 1902 as the request to state a case had not been personally signed by the informant. The appellant submitted that s101(1) of the Act requires that the application be made and signed personally by the informant. This submission was upheld by Mr Bradd SM, who ruled that he had no jurisdiction to consider the matter further.

In response to the ruling, on 20 March 1995, the first respondent filed a summons in the Supreme Court seeking a declaration that the request to state a case was a `proper and effective application' and that the magistrate had jurisdiction to deal with the request pursuant to the Act and the Supreme Court Rules (the SCR). An order was sought that the second respondent magistrate proceed to hear and determine the application.

The summons was listed before James J on 10 April 1995, and stood out of the list as, apparently, service of the initiating process had not been effected on the appellant.

In an affidavit sworn 11 December 1995, Mr Hill deposed to steps taken to serve the appellant with a copy of the summons. He described, among other things, a telephone conversation in November 1995 with Mr Genge, a solicitor then acting for the appellant in related dealings with the Crown Solicitor's Office. Pursuant to that conversation a copy of the summons was forwarded to Mr Genge. In a letter dated 21 November 1995, Mr Genge stated that he had no instructions to accept service of the documents and that he did not accept service of them [AB 52 L-M].

Although complaint is made by Mr Clarkson about the substituted or informal service, since he maintains that the documents did not come to his attention until after the hearing before Levine J, the appellant is content to have the matters of substance in his appeal determined. As I understand it, the appellant accepts that if Levine J was wrong in his informal service order under Part 9 Rule 11, it would be foolhardy and time-wasting to set aside all of his orders. This is because both the appellant and the first respondent are ready and desirous that the substantial issues between the parties be heard and determined by the Court of Appeal.

One other matter should be mentioned. Although Mr Clarkson has appeared for himself, unlike most litigants in person, he has not been seriously disadvantaged. He is well and truly apprised as to the issues in the appeal and more than capable in his advocacy.

THE DECISION OF LEVINE J

The matter came before Levine J on 11 December 1995. As I have said, the appellant was not present at the proceeding. Levine J made an order, pursuant to Part 9 Rule 11 of the SCR, confirming informal service on the appellant and proceeded to hear the summons. His Honour quashed the decision of the second respondent that the request to state a case did not constitute a proper and effective application under s 101 of the Act and that he did not have jurisdiction to proceed further with the stated case. He ordered the second respondent to proceed to hear and determine the first respondent's application for an extension of time to serve the appellant with a copy of the request to state a case pursuant to Part 32 Rule 20, SCR [AB 72].

The appellant appeals from the orders of Levine J on numerous grounds. Significant issues raised by the appellant include the following:

1. Whether the proceeding was a `criminal proceeding'. If so, whether the court had jurisdiction to hear the matter ex parte and whether the Supreme Court Rules apply;

2. Whether the request to state a case must be signed by the informant personally or may be signed by the informant's solicitor or agent;

3. The nature of the relief sought, i.e. whether the appropriate order is one made in certiorari or mandamus or pursuant to s 104 of the Justices Act 1902 ;

4. Whether and on what basis an extension of time can be granted for service of the request to state a case.

NATURE OF PROCEEDINGS

Before dealing with the issue of whether the informant must personally sign the request, it is necessary to consider the appellant's assertion that the present proceedings are `criminal proceedings', that Levine J was not entitled to proceed ex parte and that the Supreme Court rules relied upon do not apply.

In my view, his Honour was entitled to proceed in the manner that he did. The Act makes plain that in procedural questions, such as the one raised by this appeal, the SCR are the relevant rules to be applied. Section 107 of the Act provides that:

Subject to this Act, the practice and proceedings in reference to the stating of cases as herein

provided shall be as provided by rules of the Supreme Court made under the Supreme Court Act

1970.

Nothing to the contrary is provided in the Justices Act.

The pertinent section of the SCR is Part 32, Division 3. Rules 9 - 21 expressly apply to stated cases. Rule 9 provides:

This Division applies to proceedings under Division 1 of Part 5 of the Justices Act 1902 ...

Part 5, Division 1 of the Justices Act is entitled `Stated case to Supreme Court'. Rule 9A provides that the balance of the Supreme Court rules expressly apply in so far as they are applicable. The fact that the stated case might arise out of a criminal proceeding, such as this information alleging a breach of the Coroners Act, does not mean that the stated case is a `criminal proceeding'. Part 5, Division 2 of the Act, it seems to me, plainly treats stated cases as civil proceedings within the Supreme Court. It matters not that they relate to a criminal proceeding. Thus Levine J was not determining a criminal proceeding in the absence of the accused. In any event, as I have already recounted, the appellant does not object, indeed invites the Court to adjudicate on the issues of substance arising.

SIGNING OF REQUEST TO STATE A CASE

The appellant contends that s 101 of the Act requires that the request be signed personally by the informant. Section 101 relevantly provides that:

(1) Any party to the proceedings, if dissatisfied with the determination by any Justice... in the

exercise of their summary jurisdiction of any information or complaint as being erroneous in

point of law may, within 35 days...after such determination, apply in writing to the said

Justice...to state and sign a case, setting forth the facts and grounds of such determination for the

opinion thereon of the Supreme Court.

and

(3) Written notice that application has been made for a case to be stated and signed pursuant to

subsection (1) shall be given by the appellant to the respondent within the time prescribed by

rules of the Supreme Court.

Levine J rejected the finding of the magistrate that he had no jurisdiction to state a case under s 101 of the Act. The provision was not exhaustive in his view and did not preclude resort, by way of s 107, to the SCR and to the forms and procedures created by the Rules. Section 107 of the Act permits the SCR to make provision concerning a request to state a case. Division 3 of Part 32 of the SCR deals with `Cases Stated by Justices'. Rule 11 of Part 32 is a mandatory provision, providing that `an application to a justice to state and sign a case shall be in the prescribed form' and notes that the request to state a case is made in Form 41A. Form 41A provides that the request to state a case to be signed by the `appellant or solicitor for the appellant'. The form does not envisage the signing of the form by any other person. As indicated earlier, the request to state a case was not in fact signed by the appellant or by his solicitor, Ian Knight but by Mr Hill in his capacity as a solicitor employed in Mr Knight's office. That course is permitted under Part 66 Rule 9 of the SCR which provides in ss (1)(d) that, where any signature by a solicitor is required or permitted for the purpose of any proceedings, the signature for the solicitor by any of the following persons shall, as well as the signature of the solicitor, be sufficient. The list of persons permitted to sign for the solicitor relevantly includes the signature of a solicitor employed by the solicitor or the solicitor's employer.

It was argued, in the alternative, that the court is entitled to rely on a presumption that the signing of the request to state a case has been conducted in a regular manner. However, given that the request was effectively signed by the appellant's solicitor, Mr Knight, since Mr Hill was authorised to sign on his behalf by Part 66 rule 9, it is unnecessary to rely on the presumption. Levine J concluded correctly that the request to state a case was effectively signed by the appellant's solicitor. Although it was unnecessary to so state, his Honour also noted that such a construction is supported by principles of statutory construction and by the common law (see McRae v Coulton (1986) 7 NSWLR 644). His Honour noted that these same sections of the Act were referred to uncritically by Yeldham J in Galetta v Walter [1977] 1 NSWLR 1. I agree with Levine J with regard to his interpretation of s 101(1) and with the reasons he gave.

NATURE OF THE RELIEF SOUGHT

The appellant raises a jurisdictional question with regard to the orders made by Levine J. He asserts that, as the magistrate did not refuse to state a case but ruled that he had no jurisdiction to do so, a challenge to the magistrate's decision could not be brought pursuant to s 104 of the Act. The appellant argues that the orders made by Levine J were, in fact, in the nature of certiorari and, as such, proscribed under s 146 of the Act which prohibits the removal into the Supreme Court of any `conviction or order of a Justice or Justices, or adjudication upon appeal of the District Court'.

If, on the appellant's argument, the magistrate did not make an order, but simply stated that he did not have the necessary jurisdiction to make an order, then the decision does not fall within the ambit of s 146 of the Act. The stated case is not from a conviction or order of a justice. Orders in the nature of certiorari, made without jurisdiction or in excess of jurisdiction, are not prohibited by this section (Ex parte Blackwell; re Hately (1965) 83 WN (Pt 1) 109).

Mr Horsley, counsel for the respondent, argues that s 104 of the Act does not apply. He submits that the case law with regard to s 104 refers back to s 103, which only permits a justice to refuse to state a case where the justice is of the `opinion that the application is merely frivolous'. I do not agree. In Ex parte Greenwell; Re Williams, Boulton, and Edgecombe [1964] NSWR 975 at 982, Asprey J rejected an argument that a certificate under s 103 of the Act was a pre-condition to orders under s 104, stating that:

It appears to me to be abundantly clear that in a proper case, despite the fact that he may have acted

under s.103(1), a magistrate can be directed to state a case because s.104 expressly so provides, and I

do not think it is possible to argue validly that if a certificate of refusal is given by the magistrate at

the behest of the appellant under s. 103(2), the jurisdiction of this Court is ousted by the certificate.

In my opinion, the certificate is merely convenient evidence of the fact of the refusal of the magistrate

to state a case.

Section 104 of the Act does not contain any specific reference to s 103 and, in my view, has wider application. The better view, in my opinion, is that a challenge to the magistrate's decision that he had no jurisdiction may be brought pursuant to s 104 of the Act. The decision of the magistrate that he did not have jurisdiction to state a case, constitutes a refusal to state a case. Accordingly s 104 of the Act applies. In any event, it is open to this Court to make such a declaration. It is in the interests of all parties to the litigation that the jurisdictional issues raised are resolved to permit the issues of substance to be addressed. That is, that a case be stated for the opinion of the Supreme Court as to whether the appellant had a lawful excuse for refusing to give evidence at the inquest.

Accordingly, I would propose to add an order pursuant to s 104 of the Act that the magistrate proceed to state and sign a case under s 101 of the Act for the opinion of the Supreme Court.

EXTENSION OF TIME

The final order made by Levine J was that the second respondent hear and determine the first respondent's application, pursuant to Part 32 Rule 20 of the SCR, for an extension of time within which to serve the appellant with a copy of the request to state a case.

Part 32 Rule 12 provides that written notice, under section 101(3) of the Act, shall be given by serving a copy of the application on the respondent within three days of the application being made. Part 32 Rule 20 states that a justice may, prior to the commencement of proceedings:

on such terms and conditions (if any) as he thinks fit, extend any time fixed by this Division, as well

after as before the time expires, whether or not an application for the extension is made before the

time expires.

Levine J apparently took the view that, as the appellant had been informed by telephone that a request had been filed and had been sent a copy of the draft Stated Case, he suffered no prejudice. I agree with his Honour. The appellant has not suffered any real or substantial prejudice as a consequence of the failure to be served with the request within the time prescribed. As agreed by the appellant, by 9 February 1995 when he argued his case before the magistrate, he had available to him a copy of the request. This court has jurisdiction to make an order nunc pro tunc that would have the effect of confirming service. In my view, the court should make such an order, confirming service of the request as at 9 February 1995 and extending the time for service of the request to that date. This will alleviate the need for the magistrate to consider the application for an extension of time. Accordingly, I would set aside Order No. 4 made by Levine J and substitute an order deeming service of the request effective as at 9 February 1995 and extending the time for service to that date.

ORDERS

Accordingly, I would propose the following orders:

1. Order that the orders made by Levine J on 11 December 1995 be varied;

(a) by adding thereto:

(i) a declaration that service of the request to state a case be deemed

effective and proper as at 9 February 1995;

(ii) an order that time for service of the request be extended to that date;

(b) by substituting for Order No 4 an order that the second respondent, pursuant

to s 104 of the Justices Act 1902 , proceed to state and sign a case for the

opinion of the Supreme Court pursuant to s 101 of the Act.

2. Subject to those variations, the appeal be dismissed.

3. The appellant pay the respondent's costs of the appeal.

Mark Alfred CLARKSON v William Edward WRIGHT & ANOR

JUDGMENT

SHEPPARD AJA: In this matter I have had the advantage of reading the judgment to be delivered by Stein JA. I am in agreement with his Honour's reasons and conclusions, and with the order which he proposes.

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