COA v HAT[2013] QCA 272

COURT OF APPEAL

MARGARET McMURDO P

MUIR JA

PHILIPPIDES J

Appeal No 3292 of 2013

DC No 3309 of 2008

DC No 3046 of 2012

CAOApplicant

v

HATFirst Respondent

QUEENSLAND COMMISSIONER OF POLICESecond Respondent

LEIGH THOMAS MADDENThird Respondent

PAUL PETER PATTYFourth Respondent

BRISBANE 

MONDAY, 23 SEPTEMBER 2013

THE PRESIDENT:  The applicant, who is self-represented, has applied for leave to appeal from an order of a District Court judge made on 15 March 2013, dismissing her application to reopen an appeal concerning a domestic violence order made against her and dismissing her appeal against the dismissal of her application to revoke that order: see CAO v HAT [2013] QDC 42.

The first respondent to her application for leave to appeal is her daughter.  The applicant's daughter indicated to the registry on 19 June this year that she wants the domestic violence order to remain in place and does not wish to be involved in the applicant's ongoing litigation in the matter.  She has no wish to make any further submission in the proceedings and does not intend to attend court hearings.  The lawyer for the second respondent, the Commissioner of Police, informed this Court today that he spoke to the first respondent this morning and she confirmed that she did not wish to appear today or make submissions to the Court.  The lawyer for the second respondent also made no written submissions and stated his client would also abide the orders of the Court in today’s proceedings.

The applicant has also applied for leave to appeal from the District Court judge’s order refusing to deal with her applications for the second, third and fourth respondents to be charged with contempt of court.  Her application for leave to appeal to this Court named the first and second respondents as parties but not the third respondent, Leigh Thomas Madden, an officer in the Magistrates Court.  Nor did it name as a party the fourth respondent, Paul Peter Patty, a legal support officer in the Office of the Director of Public Prosecutions (Queensland).

On 31 July this year, the third and fourth respondents applied to this Court to be joined as respondents to the applicant's application for leave to appeal and any resulting appeal.  In determining that preliminary application, Fraser JA found that, despite the applicant's opposition, the third and fourth respondents had a strong and direct interest in being parties to her proceedings in this Court and ordered that they be joined.

The applicant today originally sought to have the third and fourth respondents removed as respondents to her application for leave to appeal, which I note is listed for hearing before this Court on Monday 14 October.  At one point during today’s hearing, she stated that she would amend her application for leave to appeal and her proposed notice of appeal to remove all reference to the third and fourth respondents.  Counsel for the third and fourth respondents indicated that they would have no objection to such amendments; if they were made, they would withdraw from the case, provided they were given their costs of the proceedings.  The applicant then indicated that she was withdrawing her application to amend her application for leave to appeal and her proposed notice of appeal.

It follows that the application today now concerns only the applicant's application to transfer the proceedings, that is, her application for leave to appeal, to the Supreme Court of New South Wales’ Court of Appeal for hearing under the Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld).  The relevant section is s 5(2)(b)(iii).

APPELLANT:  Excuse me.  C.

THE PRESIDENT:  Just a minute.  That section relevantly provides:

5Transfer of Proceedings

…

(2)Where—

(a)a proceeding (the relevant proceeding) is pending in the Supreme Court (the first court); and

(b)it appears to the first court that—

(i)the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of another State or of a Territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or

(ii)having regard to—

(A)whether, in the opinion of the first court, apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of another State or Territory; and

(B)the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub-subparagraph (A) and not within the jurisdiction of the first court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction; and

(C)the interests of justice;

it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or

(iii)it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory;

the first court shall transfer the relevant proceeding to that other Supreme Court.

… "

Under the Cross-vesting Act, the term "proceeding" does not include a criminal proceeding: see s 3.

In support of her application, the applicant has filed an affidavit exhibiting:

• some correspondence between her and the Deputy Registrar (Appeals);
• a letter from the Office Secretary for Her Excellency the Governor of Queensland, acknowledging receipt of the applicant's letter of 23 May 2013 requesting the exercise of the Royal Prerogative of Mercy in respect of this matter;
• a letter from Ms D Antonsen, Acting Regional Manager, South-East Queensland Region, Department of Justice and Attorney-General providing an updated and corrected copy of a certificate of conviction and apologising for the earlier provision of an incomplete copy;
• the draft index prepared by the former Deputy Registrar (Appeals) in the applicant's earlier appeal CA number 127 of 2012;
• an email from the Senior Deputy Registrar (Appeals) (Civil) to the applicant indicating that he was unable to provide a copy of specified documents as they did not exist;
• an email from the applicant to the Director-General of the Department of Justice complaining about the former Deputy Registrar (Appeals)’ conduct;
• an email from the former Deputy Registrar (Appeals), disputing oral allegations made against him by the applicant and stating that if she continued to harass court staff members by phone or email and not direct her questions in writing solely to him as previously directed, he would ask the senior management to refer her contact with court staff to the police, with the possibility of it being investigated as an offence under the Telecommunications Act 1997 (Cth) of using a carriageway to harass.  The email explained that the appeal registry staff were not required to ensure that every document presented for filing was filed within a timeframe required by the rules on order of the Court and that, therefore, the outline lodged by the second respondent was accepted.  If she wished to object to its filing she could do so at the hearing; and
• a notice of address for service in respect of a second respondent dated 6 September 2012.

Although the Court granted her application to appear today by telephone, she elected to appear in person.  She handed up and then read out a 20-page submission containing many concerning factual allegations, most of which were not supported by evidence.  One of her complaints is that she claims I did not require a case manager in an earlier appeal in which she was involved to be removed from managing her case after she complained about him.  She submits that I cannot be impartial in respect of her subsequent applications in the Court of Appeal.

An objective, reasonable bystander would not consider such an administrative direction makes me biased against her in her subsequent applications.

She has also made further unsubstantiated allegations against registry and other Department of Justice and Attorney-General staff.

Another submission was that Justice Fraser demonstrated bias against her by giving his reasons ex tempore in the application to join the third and fourth respondents as parties.  Again, no objective, reasonable observer would consider this demonstrated actual or apprehend bias.

She contends that the registry of the Supreme and District Courts of Queensland, and indeed, the entire Queensland judiciary, have demonstrated both "judicial and perceived bias" towards her.  The Registrar, she claims, has ignored her correspondence and taken the side of the Crown.  She contends that the registry gave illegal access to a file to the fourth respondent by providing him with a copy of a document which the applicant says she had not seen before but which she claims was illegally held on file on the instructions of the former Deputy Registrar (Appeals).  She claims that the third respondent also gained illegal access to this document.  She submits that registry officers and the judiciary, both in the Court of Appeal and in the District Court, as well as the second respondent, are ultimately responsible for the third and fourth respondents’ contempt of court.  She argues that the interests of justice cannot be done or be seen to be done and that the Queensland justice system is non-existent.  She claims that this is demonstrated by the documents annexed to her affidavit.  She has also referred the Court to a number of authorities on the question of apprehended and actual bias.

She complains that the first respondent was never involved in the original proceedings or in the District Court proceedings.  She claims the second respondent wrongly interfered, and contends that the first respondent may not be in a position to appear for herself and protect her interests in light of the history of the relationship between the parties.  She submits that no evidence has been produced to show any animosity between the applicant and the first respondent.

There is, of course, no reason not to accept the statement of the first respondent to the registry that she wishes the orders to remain in place but does not wish to be involved in the ensuing litigation.

The applicant also contends that the second respondent has failed to comply with a subpoena requiring him to produce documentation which demonstrates that the first respondent, and not the applicant, had been causing all the trouble to date.

She argues that the District Court showed "judicial and perceived bias" against her when her Honour Judge Kingham, on 28 November 2012, refused to allow her to appear by telephone as this was inconvenient and then made orders in her absence, which the judge well knew the applicant could not comply with.  She submits that matters were made worse when his Honour Judge McGill, on 12 December 2012, refused to change Judge Kingham’s orders, thereby demonstrating "judicial and perceived bias" against the applicant.

There is no doubt, as the applicant correctly points out, that an entitlement to an impartial tribunal determining disputed issues is fundamental to our justice system.  But I cannot accept the applicant's contention that she will not achieve that impartiality in the hearing of her application for leave to appeal in this Court.  Nor can I accept her contention that the matter should be cross-vested to the New South Wales Court of Appeal.  The first difficulty with her contentions is that it is by no means certain that the Cross-vesting Act is intended to apply to quasi-criminal matters of the kind with which her application for leave to appeal is concerned, in light of the Act’s definition of the term "proceeding".

But even assuming that the Act does apply to the applicant's application for leave to appeal to this Court, she has not demonstrated that it is in the interests of justice that the application for leave to appeal be determined by the New South Wales Supreme Court.  It may be more convenient for her, as a New South Wales resident, to have the matter dealt with in that Court, but all other parties to the application reside in Queensland.  The application for leave to appeal concerns decisions of Queensland judicial officers.  Despite the applicant's apparently scurrilous contentions that the Queensland judicial system and its registry staff are guilty of actual and perceived bias against her, she has produced nothing to substantiate those allegations.

As far as I can see, on the material placed before me so far, the registry staff seem to have done all that they can to reasonably assist her in preparing her application for leave to appeal in a timely manner and in accordance with the requirements of relevant legislation and practice directions.  In any case, the registry staff do not constitute the Court who will ultimately hear her application in this Court.

That does not mean that the applicant cannot pursue her allegations of actual or perceived bias on the part of the District Court judge from which she seeks leave to appeal in her application for leave to appeal before this Court.  There is no reason to think that this Court will not deal impartially with those allegations and no reasonable observer could think otherwise.

The applicant has not demonstrated that it is in the interests of justice that her application for leave to appeal be determined by the Court of Appeal of the Supreme Court of New South Wales.  Accordingly, I would refuse her application to transfer the relevant proceedings to that court.

APPELLANT:  Your Honour ‑ ‑ ‑ 

THE PRESIDENT:  No ‑ ‑ ‑ 

APPELLANT:  Could I therefore point out you’ve made a mistake.  You’ve got first respondent not in the original proceedings, and it should be the second – the first respondent was.  The first respondent was involved, because the first respondent’s my daughter.

THE PRESIDENT:  Yes.  All right.  I’ve just – thank you.  I’ve given my reasons.  Thank you.

APPELLANT:  Well, that puts us to the point now that we have to discuss about the timetable, because obviously the third and fourth are only here to help the second get what they want.

THE PRESIDENT:  Just before you say that, I should say that I would not only refuse the transfer of the proceedings, but I will do so with costs.

MUIR JA:  I agree.

APPELLANT:  Well ‑ ‑ ‑ 

PHILIPPIDES J:  I also agree.

THE PRESIDENT:  The order is, the application to transfer the proceedings to the Court of Appeal of the Supreme Court of New South Wales for hearing is refused with costs.