Christophi v Gold Coast City Council [2015] QCA 262

[2015] QCA 262 COURT OF APPEAL MARGARET McMURDO P GOTTERSON JA MORRISON JA Appeal No 11755 of 2014 DC No 388 of 2013 TALAAT CHRISTOPHI Applicant v GOLD COAST CITY COUNCIL Respondent BRISBANE FRIDAY, 4 DECEMBER 2015 JUDGMENT THE PRESIDENT: The applicant, Talaat Christophi, filed a notice of appeal in this matter on 5 December 2014 from orders of the Planning and Environment Court on 27 October 2014 that the applicant was in contempt of the order of Rackemann DCJ, dated 23 July 2013; fining the applicant $5,000; declaring that the letting of the individual rooms in the applicant’s house was a use for a purpose other than a single detached self-contained dwelling (as defined in the planning scheme of the respondent, the Gold Coast City Council); that the unlawful use of the house cease within 28 days; and that the applicant pay the respondent Council’s costs of and incidental to the application on the standard basis. Although not noticed by registry staff, the originating process in this matter was irregular. Under s 498 Sustainable Planning Act 2009 (Qld), he may appeal to this Court from a decision of the Planning and Environment Court only on the ground of error or mistake in law on the -- 1 of 7 -- 2 part of the court, or that the court had no jurisdiction to make the decision, or exceeded its jurisdiction in making the decision, and with leave of the Court of Appeal or a Judge of Appeal. The applicant should have filed an application for leave to appeal. If granted leave to appeal, the grounds of appeal he would argue, according to his purported notice of appeal, are: “I does Have a diagnosed Mental illness affect my capacity to understand legal issues” and “I don’t Have Capacity to act for myself in legal matters and also been denial Natural Justice.” The orders he seeks in his purported notice of appeal are: “the whole 5 orders made by Judge Everson DCJ to be overturn” and “to be compensate for all expenses from the date 15 July 2013 in the mediation.” The applicant has been dilatory in preparing this matter for hearing. It is appropriate to set out the efforts made by the registry to obtain information from him to progress the matter for hearing. On 17 December 2014, the registry sent the parties a timetable with directions under Supreme Court Practice Direction No 3 of 2013, requiring the applicant to file his outline and list of authorities by 16 January 2015. On 15 January 2015 the registry was advised that the applicant had been an inpatient at the Mental Health Unit, Robina Hospital since 12 January 2015 and was likely to remain there for about six weeks. As a result, an amended timetable was sent to the parties, requiring the applicant to file his material by 27 March 2015. On 25 March 2015 the registry received an email from psychiatrist, Dr Trevor Lotz, stating that the applicant was his patient and had informed Dr Lotz that he was too anxious and disorganised to attend the court hearing due later that month; that Legal Aid was assisting him; and requesting an extension of time. The registry responded requesting the details of his legal representation and stating that if the registry did not hear from the applicant by 7 April 2015 the matter would be referred to the Court of Appeal. Dr Lotz responded that the applicant had advised that he wanted to continue with the appeal; he saw Michael Maloney at Legal Aid on 17 March 2015 but Mr Maloney needed more time. On 4 May 2015 the registry again contacted Dr Lotz requesting that the applicant make personal contact with the registry. -- 2 of 7 -- 3 On 6 May 2015 Dr Lotz responded to the registry by email stating: “Yes he is still under the Doctor’s care”. Despite registry requests, the applicant has not provided details of any legal representation; nor was any medical certificate forthcoming. In fact, the applicant has not contacted the registry directly at all. On 11 May 2015 the registry wrote to the applicant and the respondent Council, advising that, if the applicant did not personally contact the registry by 4 pm on 18 May 2015, the matter would be referred to the Court. On 19 May 2015 that letter was returned to the registry with the notation on the envelope that its delivery was “Refused”. On 28 May 2015 the registry sent a further letter to the applicant stating that he must make contact with the registry by 4 pm on 3 June 2015 or the matter would be referred to the Court. On Tuesday, 9 June 2015 the solicitor for the respondent Council forwarded to the registry a copy of a letter from Dr Lotz received on 5 June 2015 advising that the applicant was his patient and that he: “suffers from Schizoaffective Disorder. He is not capable of conducting his own affairs and his mother is his representative/guardian. Please contact his mother (through an Arabic translator) if any issues, including legal issues, need to be discussed.” The Council advised the registry that it did not wish to apply to this Court to strike out or otherwise dismiss the matter and would simply abide the directions of the Court. On 14 September 2015 the registry wrote to the parties and Dr Lotz, informing them that the matter was listed before the Court of Appeal on 4 December 2015 (today) for hearing and that the applicant was to lodge his material by 12 October 2015. The applicant has not complied with that direction and neither he nor Dr Lotz has had any further contact with the registry. On 13 October 2015 the registry wrote to the applicant inviting him to contact the QPILCH Self-Representation Service or a Community Legal Centre or the Queensland Law Society which could refer him to solicitors in his area experienced in this field of law. The registry has had no further contact with the applicant. The registry also made inquiries with the Queensland -- 3 of 7 -- 4 Civil and Administrative Tribunal who had no record of the applicant’s mother being appointed his legal guardian. At the hearing this morning, the applicant’s mother, Ms Theresa Salama, was given leave to appear on behalf of her son. She is an Arabic speaker and appears to speak very little English. At times in her attempts to address the Court, she spoke in a language which was not English and which I assume was Arabic. She handed up a medical certificate from Dr Lotz, dated 2 December 2015, stating: “To The Courts, This is to confirm I have been the treating psychiatrist of Mr Talaat (Peter) Christophi who suffers Schizophrenia with anxiety and depression. His mother Ms Theresa Salama will be attending the legal proceedings on his behalf, as the stress of these proceedings could further destabilize him.” Ms Salama also handed up a copy of a two-page affidavit, which was prepared for her, she explained, by a friend who translated her Arabic into the English words used in the affidavit. I should note that the counsel for the respondent Council objected to the affidavit being filed, although it was received by the Court in order that the Court decide whether to accept it. The affidavit contained information to the following effect. There was a mediation between the applicant and the respondent Council on 15 July 2013. There was no Arabic translator and the applicant could not understand what was going on. He felt threatened by the police present and signed documents he did not understand, including an inaccurate plan of the applicant’s house. Officers of the respondent Council were trying to stop the applicant from “using the house as millions of homeowners already do”. She questioned whether this was discriminatory. Council officers, she claimed, attempted to mislead the applicant and destroy his health. She said that Judge Rackemann’s order of 22 July 2013 was not clear. Council officers were forcing the applicant to remove plumbing which had been approved by the Council. She alleged the Council’s solicitor prepared false affidavits and that many people gave false affidavits. The Council’s solicitor bullied the applicant by sending someone to pose as a tenant, to trick the applicant into providing evidence. She requested that the unjust agreement between the applicant and the Council be terminated. And she claimed that the Council’s solicitor intimidated the applicant and aggravated his ill health. -- 4 of 7 -- 5 The affidavit contains hearsay allegations. It does not assist the applicant. This Court should not receive it. She also handed up some handwritten notes prepared for her by an Arabic speaking friend, at her direction. That document is as follows: “1. All the question been prepared just for my son to read it. 2. It was seating next to my son guide him. 3. My ill son denial of Natural Justice. (a) I request that the Barrister bring Mark Edmond Hillbrick who signed an affidavit on the 27th June 14, but Judge Everson refuse. (b) also I request the witness, Alexander Gregory John Gavin to be witnessed But he escape because of the false affidavit prepare by Sibenaler. (c) Lisa Watson Supervisor who signed false affidavit and she was in court she became scared and refused to witness due to perjuring herself. (d) my friends prepare a document for my ill son to seek a judgment against GCCC officer, Mark Leon Newton who was forced by Sibenaler to do an inaccurate plan effected the agreement but Judge Everson denied the request. (e) Judge Everson was 100 per cent against my ill son all the time. (f) Judge Everson said during the proceedings he don’t understand my ill son talking. (g) Judge Everson keep cutting my ill son during his reading the question in one occasion, Sibenaler in the witness box asked question in reading Judge Everson cutt Him and I murmur to my ill son to say to Judge Everson, “What question you like me to ask then?” (h) during my son reading the questions to Officer Mark Leon Newton and he couldn’t answer for long time Judge Everson left the room to give him a breath and a time to think. During the proceedings a many many and many more in the transcript to show that my ill son been denial Natural Justice. My friends now reading the transcript to make notes of all the mistakes and wrongs during the proceeding which denied my ill son natural justice.” -- 5 of 7 -- 6 Mr Williamson, who appeared for the respondent Council, pointed out in response to this document that the evidence of Mr Hillbrick and Ms Watson was not relied on below and no evidence was given from Mr Gavin. Despite Ms Salama’s efforts, the applicant has not made out his claims that at the hearing below mental illness affected his capacity to understand legal issues and his ability to act on his own behalf. Nor has he established that he was denied natural justice. I have perused the reasons for judgment of the Planning and Environment Court to which this application relates. I have also perused the transcript of that hearing which took place over two days. The applicant, whose first language is obviously not English, was self-represented. It is true that he had difficulty communicating and did not seem to have a solid grasp of legal concepts. The judge, however, appeared to take some care to explain the relevant legal concepts to him in simple terms. The recorded exchanges between the judge and the applicant suggest that the applicant had a basic understanding of the relevant issues before the court. This was demonstrated in some of his cross-examination of the respondent Council’s witnesses, and in the submissions he made to the court. His cross-examination and submissions were no more inappropriate than that of many self-represented litigants seen in this Court whose first language is English. For those reasons, despite Ms Salama’s efforts, the applicant has not made out his claims that at the hearing below mental illness affected his capacity to understand legal issues and his ability to act on his own behalf, and nor has he demonstrated that he was denied natural justice. He certainly has not demonstrated any error of law or lack of jurisdiction on the part of the Planning and Environment Court. He has given no convincing explanation for his delay in pursuing his appeal rights. He was given every opportunity to place his best case and any properly admissible evidence of it before this Court. He has persistently failed to meet the registry directions, despite the many generous extensions given. In those circumstances, I consider that the only appropriate orders are: 1. That the notice of appeal filed on 5 December 2014 is deemed to be an application for leave to appeal; and 2. That application is dismissed with costs. -- 6 of 7 -- 7 GOTTERSON JA: I agree. MORRISON JA: I also agree and would add only this, I too have perused the transcript of the proceedings before Judge Everson and I agree with the characterisation of them by the President. THE PRESIDENT: The orders are as I have pronounced. The Court wishes to make one further observation. That is that there is absolutely no evidence before this Court to support the extraordinary allegations made by Ms Salama against the respondent Council’s solicitor. A transcript is ordered of today’s hearing, and is to be placed on the file. -- 7 of 7 --