Cameron, Re; Re Cook, St Pierre & Lambert [1993] QSC 20

r,, ~ State Reporting Bureau(~-£.>:.2.C!lu•D TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CHAMBERS DERRINGTON J \OS No 55 of 1993 f REVISED COPIES lSSUED~ State Reporting Bureau Date 5 I '!::._L 9~----· IN THE MATTER OF THE JUSTICES ACT 1886-1985-Section 102A IN THE MATTER OF a private complaint by Donald James Cameron against Peter Allan Cook IN THE MATTER OF a private complaint by Donald James Cameron against Brett Andrew St Pierre IN THE MATTER OF a private complaint by Donald James Cameron against Anthony John Lambert BRISBANE .. DATE 04/02/93 .. JUDGMENT 1 -- 1 of 9 -- 040293 gc (Derrington J) HIS HONOUR: This is an appeal by the abovenamed Donald James Cameron against the striking out his private Complaints against a number of people brought in the Magistrates Court. His Complaints alleged perjury on the part of a number of the respective respondents as witnesses in a criminal trial in 10 which he was convicted of certain offences and sentenced to imprisonment. On the return date of the Complaints an application was made by the various respondents under s 102C of the Justices Act 20 for an order that they be struck out as being an abuse of process, frivolous or vexatious. The Magistrate declined to dismiss them, but made an order for the provision of substantial security for the payment of costs in the event that they should not succeed. The appellant appealed to this Jo Court against that order, but that appeal was dismissed. On the next return date of the Complaints, as the order for the provision of security for costs had not been complied with, the Magistrate made an order that the respective Complaints be struck out. This order was made under s 102C(2). The provisions of that section are as follows: "102C. Application for dismissal of frivolous or vexatious complaints. (1) At any time before evidence is lead as to the facts of a charge contained in a private Complaint, the defendant may make application for an order of a Stipendiary Magistrate that the complaint be so dismissed on the ground that it is - (a) an abuse of process; (b) frivolous; or (c) vexatious. Such application may be made orally to the Stipendiary 60 JUDGMENT 2 -- 2 of 9 -- 040293 gc (Derrington J) Magistrate before whom is the matter of the complaint, or in writing lodged with the clerk of the court at the place where the complaint is filed. Upon receipt of such an application the clerk of the court shall refer the same to a Stipendiary Magistrate at the place where the application is lodged or at the nearest place at which a Stipendiary Magistrate attends and shall inform the complainant and the defendant of the place and time appointed for hearing the matter of the application by advice signed by the clerk and given to each of them or sent by post to the address of each of them last known to the clerk. Where an application is made orally under this sub-section in the absence of the complainant, the clerk 10 of the court at the place where the application is made shall inform the complainant of the place and time appointed for hearing the matter of the application by advice signed by him and given to the complainant or sent 20 by post to the complainant at his address last known to the clerk. (2) Where an application under sub-section (1) is made the complainant shall be required to give security, in such manner and in such amount as the Stipendiary Magistrate to whom the application is made or referred may order, that he will pay to the defendant such costs incurred by the defendant on the application as the Stipendiary Magistrate who determines the matter of the 30 application may order him to pay. If a complainant ordered to give security for costs does not comply with the order within the time specified therefore or, if no time is specified, within a reasonable time the Stipendiary Magistrate before whom the matter of the application is brought shall order that the complaint to which the application relates be struck out. (3) Upon the hearing of an application made under sub-section (1)- (a) The matter shall be heard in camera; (b) The Stipendiary Magistrate shall consider all relevant evidence led before him, and all relevant written material duly exhibited or otherwise produced before him, and the submissions made before him by the complainant so and the defendant or either of them; (c) The onus shall be on the defendant to prove on the balance of probabilities the ground on which the application is made. (4) An application made under sub-section (1) may be heard and disposed of in the absence of the complainant or the defendant. JUDGMENT 3 -- 3 of 9 -- 040293 gc (Derrington J) (5) If upon an application made under sub-section (1) the Stipendiary Magistrate Qismisses a private complaint or orders that a private complaint be struck out pursuant to sub-section (2) he may award to the defendant such costs as to him seem just and reasonable but, if he does not dismiss the complaint or order it to be struck out as aforesaid, he may award to the complainant such costs as to him seem just. Such costs awarded shall constitute a debt due and owing by the person against whom they are awarded to the person to whom they are awarded and may be recovered by action in a court of competent jurisdiction." In addition it is wise to refer to s 102D, the terms of which are as follows: "102D. Appeal to Supreme Court from Magistrates decision. (1) A person aggrieved by the decision of a Stipendiary Magistrate upon an application made under section 102C to dismiss a private complaint or to refuse the application may appeal from that decision to a Judge of the Supreme Court in Chambers by way of application made by originating summons. {2) An appeal under subsection (1)- 10 20 (a) shall be instituted within 28 days after the date 30 when the Stipendiary Magistrate's decision is pronounced; and (b) shall be by way of hearing de novo, and the decision of the Judge in such an appeal shall be final. (3) Where an appeal under subsection (1) is instituted the appellant shall be required to give security, in such ~o manner and in such amount as a Judge of the Supreme Court may order, that he will pay to the respondent such costs incurred by the respondent on the appeal as the Judge who determines the matter of the appeal may order him to pay. If an appellant ordered to give security for costs does not comply with the order within the time specified therein or, if no time is specified, within a reasonable time the Judge before whom the appeal is brought shall order that the appeal be struck out. so (4) Upon an appeal the Judge may order that the order in respect of which the appeal is made be affirmed or reversed and may make such order as to costs as to him seems just. Such costs awarded shall constitute a debt due and owing by the person against whom they are awarded to the person to whom they are awarded and may be recovered by action in JUDGMENT 4 -- 4 of 9 -- 040293 gc (Derrington J) a court of competent jurisdiction. (5) Save as is prescribed by this section no appeal shall lie in respect of any order made in any proceedingrelating to a private complaint pursuant to section 102B or 102C or this section." Learned counsel for the respondent raised a preliminary point as to whether the appellant has any right of appeal because of the provisions of s 1020(5). He argues that the striking out of the Complaint by the Magistrate was not the dismissal ·of them as referred to ins 102D(1 ), but the difficulty with such a construction is that it would have deprived the appellant of any real right of appeal in respect of the two orders made by the Magistrate in this case no matter how erroneous he may have been. The order originally made by the Magistrate for the provision of security for costs was not the dismissal of the complaint and so on the construction advanced by the respondents, could not come within the provisions of the latter sub-section. Consequently, if possible one must read the appeal provisions as enabling the appellant to have a right of appeal in respect of such an order at some stage. That is easily achieved by reading the reference to dismissal of a complaint as including the process of an order for costs followed by a striking out for non-compliance. This is 10 20 30 effectively an alternative form of dismissal and is presented so by the Act as such. In the present circumstances, the provisions of the Act clearly require the Magistrate at this stage to make an order JUDGMENT 5 -- 5 of 9 -- 040293 gc (Derrington J) striking out the complaint if the security for costs order has not been complied with. The appellant must have a right of appeal in respect of that in case the Magistrate should in some way have gone wrong. The same right is vested in the respondents if the Magistrate had refused to strike the matter out, yet, on either argument, they would have had a right of appeal. It would be absurd to suggest that any manifest .error in the course of such an action could not be regarded as part of a dismissal of the complaint in order to allow for an appeal to remedy the error. The appellant has a right of appeal. However, in the present case because the order requiring the provision of security for costs has not been complied with and because in such circumstances the Act specifically commanded the Magistrate to strike the appeal out, the grounds upon which the appellant can appeal at this stage are limited to his showing that in some way the Magistrate was in error in doing what was required of him by the Act. As it turns out, he does not seek to do that and really attempted to argue the merits of the original order requiring security for costs; but that question has long since vanished. He agrees that he cannot show anything erroneous in the Magistrate's order in the light of the mandatory requirements in the Act. Consequently there are no grounds upon which he can succeed in this appeal, even though technically the right of appeal remains with him to that extent. The appeal is dismissed with costs. JUDGMENT 6 10 20 30 50 -- 6 of 9 -- tate Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION WILLIAMS J Os No 55 of 1993 IN THE MATTER OF THE JUSTICES ACT 1886 - 1985 SECTION 102 A and IN THE MATTER OF A PRIVATE COMPLAINT BY DONALD JAMES CAMERON AGAINST PETER ALLAN CORK and IN THE MATTER OF A PRIVATE COMPLAINT-BY DONALD JAMES CAMERON AGAINST BRETT ANDREW ST PIERRE and IN THE MATTER OF A PRIVATE COMPLAINT BY DONALD JAMES CAMERON AGAINST ANTHONY JOHN LAMBERT BRISBANE .. DATE 22/01/93 .. ORDER 1 -- 7 of 9 -- 220193 clc (Williams J) HIS HONOUR: I am concerned this afternoon with an application brought by Donald James Cameron. Mr Cameron has presented three complaints in the Magistrates Court. One against Peter Allan Cork, another against Brett Andrew St Pierre and, lastly, one against Anthony John Lambert. For present purposes, I will treat those complaints as alleging an offence against section 488 of the Criminal Code. Being private complaints, the provisions of sections 102 A to 102 H of the Justices Act apply. An application was made by the defendants to those complaints for security for costs pursuant to section 102 C. On 27 November 1992, the chief Stipendiary Magistrate made such an order. By its terms, the complainant was to pay $2,000 per complaint, that is, a total of $6,000 to the clerk of the Magistrates Court by 18 January 1993. By way of originating summons~ Mr Cameron has now applied to this Court for an order that the order for security for costs be set aside. Mr Cameron, who appears in person, initially submitted that he was entitled to the order by relying on the provisions of Order 13 rule 1 of the Rules of Supreme Court. However, it is obvious that he can gain no comfort from that particular provision. In essence, he is seeking to appeal from the order of the 10 20 30 40 50 Magistrate, but the procedure he has followed is inappropriate for that purpose. I would note that the appeal to a Chamber Judge pursuant to section 102 D would not, on a strict construction of that section, apply to an appeal from an order for security for costs. Even i~ I were to consider ORDER 2 60 -- 8 of 9 -- 220193 clc (Williams J) treating this application as an application for an order nisi pursuant to section 209 of the Justices Act: the application would be so out of time that no substantive order could be made. Further, it should be noted that no application is made to me, nor would it appear that I have jurisdiction in that regard, to extend the time for complying with the order for security for costs. That jurisdiction would appear to be vested in the Magistrates Court. The summons before me also seeks an order that Mr Cameron be granted leave to prosecute the matters pending in the Magistrates Court pursuant to section 486. It seems to me that given the provisions of the Justices Act to which I have 10 20 30 referred leave is not necessary at this stage. The provisions of section 686 and following of the Criminal Code, and Order 4 rule 1 of the Criminal Practice Rules are not relevant. It seems to me that there is no proper bas~s on 40 which leave could be granted in accordance with paragraph 2 of the summons. For those reasons, the summons should be dismissed with costs. ORDER 3 50 60 -- 9 of 9 --