Altaranesi v Whalan [2010] NSWSC 149 (5 March 2010)

Last Updated: 8 March 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
Altaranesi v Whalan [2010] NSWSC 149


JURISDICTION:


FILE NUMBER(S):
2009/295740

HEARING DATE(S):
25 February 2010

JUDGMENT DATE:
5 March 2010

PARTIES:
Tareq Altaranesi (Plaintiff)
Jan Whalan (First Defendant)
Chris Leahy (Second Defendant)
Robert Harding (Third Defendant)
Jackie Mills (Fourth Defendant)

JUDGMENT OF:
Harrison J

LOWER COURT JURISDICTION:
Local Court

LOWER COURT FILE NUMBER(S):
62789/09/172

LOWER COURT JUDICIAL OFFICER:
Schurr LCM

LOWER COURT DATE OF DECISION:
15 July 2009


COUNSEL:
A Britt (Defendants)

SOLICITORS:



CATCHWORDS:
APPEAL – s 56 Crimes (Appeal and Review) Act 2001 - plaintiff employed by Sydney South Western Area Health Service as a cleaner - private criminal prosecution by him in the Local Court of the defendants who were his former co-workers alleging offences under s 62(1) of the Privacy and Personal Information Act 1998 and s 68(1) of the Health Records and Information Privacy Act 2002 – where magistrate dismissed the proceedings on defendants' request on basis that the plaintiff's application was invalid by reason of duplicity and in breach of s 175 of the Criminal Procedure Act – whether decision concerned a question of law – whether s 16(2)(a) applied - whether decision erroneous – magistrate's decision not erroneous on issues decided by her – whether magistrate's decision erroneous by reason of a failure to give the plaintiff an opportunity to elect or to amend the application – limited error found - consequential orders made.

LEGISLATION CITED:
Civil Liability Act 2002
Civil Procedure Act 2005
Crimes (Appeal and Review) Act 2001
Criminal Procedure Act 1986
Health Administration Act 1982
Health Care Complaints Act 1993
Health Records and Information Privacy Act 2002
Industrial Relations Act 1996
Justices Act 1902
Local Courts (Criminal and Applications Procedure) Rule 2003
Privacy and Personal Information Protection Act 1998
State Drug Crime Commission Act 1985
Workplace Injury Management and Workers Compensation Act 1998

CATEGORY:
Principal judgment

CASES CITED:
Attorney-General for the State of New South Wales v X [2000] NSWCA 199; [2000] NSWCA 199; (2000) 49 NSWLR 653
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Blight v Inspector Barber [2007] NSWSC 448
Crothers v Sheil [1933] HCA 42; (1933) 49 CLR 399
Damjanovic v Sharpe Hume & Co [2001] NSWCA 407
Director of Public Prosecutions (NSW) v Alderman (1998) 45 NSWLR 526
Evans v Bartlam [1937] AC 473
Ex parte Burnett; Re Wicks [1968] 2 NSWR Eq 119;
Ex parte Consolidated Press Ltd; Re Harris (1961) 78 WN (NSW) 261
Ex parte Cunliffe (1871) 10 SCR (NSW) 250
Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153
Ex parte Stanton (1928) 28 SR (NSW) 516
Ex parte Williams (1909) 9 SR (NSW) 140
Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373; (2006) 165 A Crim R 151
Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467
Knaggs v Director of Public Prosecutions (NSW) [2007] NSWCA 83; (2007) 170 A Crim R 366
R v Justelius [1973] 1 NSWLR 471
R v Manwaring [1983] 2 NSWLR 82
R v Moussad [1999] NSWCCA 337; (1999) 152 FLR 373
Romeyko v Samuels (1971) 2 SASR 529
S v The Queen [1989] HCA 66; (1989) 168 CLR 266
Stanton v Abernathy (1990) 19 NSWLR 656
Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77

TEXTS CITED:


DECISION:
1. Set aside the orders made by Magistrate Schurr on 15 July 2009.
2. Direct the plaintiff within 21 days to serve upon the defendants, if so advised, any proposed draft amended application upon which he proposes or intends to rely.
3. In the event that the plaintiff complies with order 2., appoint such day as the parties arrange in consultation with my Associate for the hearing of argument upon the question of whether or not the plaintiff should be permitted to file and to rely upon the proposed draft amended application.
4. In default of compliance with order 2, order that the proceedings be dismissed.
5. Stand over the question of the costs of this application and of the adjourned hearing to such date as may be arranged.



JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

HARRISON J

5 March 2010

2009/295740 Tareq Altaranesi v Jan Whalan, Chris Leahy, Robert Harding and Jackie Mills

JUDGMENT

1 HIS HONOUR: The plaintiff was once a cleaner employed by the Sydney South Western Area Health Service. He ceased that employment on 19 January 2009. The circumstances in which that occurred are not entirely clear and may ultimately be controversial but are not presently critical. However, whatever happened to the plaintiff in that workplace has now armed him with a strong and passionate desire to seek vindication for what he feels were a series of wrongs done to him by fellow workers. To that end he has commenced several sets of proceedings in various jurisdictions. One of those was commenced in the Sutherland Local Court. The decision of the magistrate in those proceedings is the subject matter of the plaintiff's present application to this Court.

Background

2 The plaintiff instituted a private criminal prosecution against the defendants, his former co-workers, on 12 May 2009. It was heard in part on 10 June 2009. However, the plaintiff sought to amend the application. The defendants opposed this. Magistrate Schurr ultimately heard the matter on 15 July 2009 and dismissed the proceedings on the defendants' application upon the basis that it was invalid by reason of duplicity and because it was in breach of s 175 of the Criminal Procedure Act 1986 and reg 17 of the Local Courts (Criminal and Applications Procedure) Rule 2003. The plaintiff was ordered to pay the defendants' costs in the sum of $2,000.

3 These proceedings were commenced by summons filed on 7 August 2009. The plaintiff sought an order that the decision of the magistrate be set aside. He acknowledged and accepted in the proceedings before me that his application in this Court was restricted to questions of law. However, the summons did not clearly identify them. I therefore attempted to do so, with the significant assistance and cooperation of counsel for the defendants, but with less than conspicuous success. This is referred to later in these reasons.

4 The plaintiff was not legally represented in this Court or in the court below. None of the documents filed by him in either court would appear to have been prepared with legal assistance. This is particularly apparent from a review of the grounds of appeal contained in the summons which, for ease of understanding, are included in these reasons as follows:

"APPEAL GROUNDS

1. My application for breach of my privacy, which I applied through application notice signed by the registrar who approved it, this application was under and relied on Part 4 of Local Court Act 2007 and Part 9 of Local Courts (Criminal and Application Procedure) Rules 2003 under special jurisdiction, which not required to make notice issue, just application form.

2. I made the application notice and got the approval of registrar under s 47(2) of Local Courts Act 2007 and s 57(1) of Local Courts (Criminal and Application Procedure) Rules 2003.

3. I have not got any direction from court as per s 28 of Local Court Act 2007.

4. Under the rules of the Chief Magistrate, there is difference between CAN form of police and CAN form of private prosecutor.

5. I rely on s 100AB, 100AC of Justices Act 1902 which doesn't require the applicant to issue attendance notice, but police who make it.

6. Section 16(2) of Criminal Procedure Act 1986 which said no objection may be taken or allowed to any indictment.. to.. on ground any alleged defect in it in substance or in form.

7. I rely on s 62 of Local Court Act 2007 'Irregularity'.

8. I am not police force to have write 'failure to appear may result in the arrest of a respondent', and that is not including the application form I used under s 44 of Local Court Act 2007, and s 100AC of Justices Act 1902.

9. There are not dublicity [sic] in my application, some accused made many differences offences, Law part is recognised them in differences law parts. I rely on s 16(1)(d), s 16(2) and s 29 of Criminal Procedure Act 1986.

10. I wrote the date of offences and not time due to its difficult to do that due to type of offences. I relied on s 16(1)(h) of Criminal Procedure Act 1986, Hughes [2000] NSWCCA 3, Kennedy [2000] NSWCCA 487; (2000) 118 A Crim R 34, and s 17(2)(a) of Local Courts (Criminal and Application Procedure) Rule 2003.

11. I rely on s 16(1) and s 16 (2) for not writing the time.

12. For not writing the time, I rely on s 62 of Local Court Act 2007 'Irregularity' which said there is a failure to comply with the requirement of this Act or the rules, is be treated as an irregularity and does not nullify the proceedings.

13. For 'Place' not mentioned in the application, it is appear as I am ex-employee. And my employer is public agency has tow locations, and it is impossible to recognised where the breach of my privacy occurred.

14. The below court failed to take into account some consideration as I am private plaintiff, my English is second language, forcing a barrister as opponent, and court did not give any minor assistant in the procedures. I rely on UCPR r 7.1(1), Judiciary Act 1903 (Cth) s 78, Damjanovic v Sharp Hume and Co [2001] NSWCA 407, R v Zorad 91990) 19 NSWLR 91; 47 A Crim R 211, Malouf v Malouf (2006) 65 NSWLR 449; [2006] NSWCA 83 at [94]; Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, Evan v Bartlam [1937] AC 473 at 489.

15. There is absence of any explanation by court or registrar for any default Hope JA in Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503 at 506-507.

16. The court did not comment of breach of s 137 (1)(b) of Criminal Procedure Act 1986, as there were three respondent did not send defence response to me before the court.

17. The offences in my application is excluding the Summary Offences Act 1985 and Schedule 1 or 2 of Criminal Procedure Act 1986, so that I applied under special jurisdiction, which need only application notice not attendance notice.

18. Reasons of dismissal my application is excluding the s 29 of Local Courts (Criminal and Applications Procedures) Rule 2003.

19. Lower court did not explained how will I arrest the respondent, and how do I know the time of these type offences. I rely on Dornan v Riordan (1990) 24 FCR 546 (also generally, Smith 1992, Kirby 1994, Katzen 1993 and Bayne 1992).

20. And I am not liable to pay the cost to the respondent as result of dismissal. See Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398 at 420.

21. More details are in my brief."

5 Although at one level these grounds of appeal are difficult to make complete sense of, they do become easier to characterise and understand when the learned magistrate's reasons for judgment are considered.

The decision below

6 Her Honour described the plaintiff's proceedings as a private criminal prosecution, by way of an application, in the Local Court. The application, as amended, was described by her as having the following features. First, it named four respondents in the one application. Secondly, it cited a series of Acts under which it was lodged. These were the Privacy and Personal Information Protection Act 1998, the Health Records and Information Privacy Act 2002 and the Health Administration Act 1982. It referred as well to the Workplace Injury Management and Workers Compensation Act 1998, the Industrial Relations Act 1996, the Health Care Complaints Act 1993 and the Civil Liability Act 2002. Thirdly, it set out in seven paragraphs the "grounds for [the] application" of the alleged offending actions without linking those actions to the Acts concerned, and without specifying the place of the alleged offence(s) or in some cases the date of the offence(s). Finally, the application sought certain orders, including some that were beyond the jurisdiction of the Local Court, namely the following:

"Formal apologies in the public, and pay for damages and compensation. Take the necessary steps towards correction that fault, by writing to whom they disclosed my information, that they disclosed it in unlawful. Provide me with these documents immediately. Pay fines for breach of Acts as shown in each Act."

7 The grounds for the application to which her Honour referred are those contained in the original (unamended) application and are as follows:

"Ms Jan Whalan refrained me from access to health information, and issued a direction to put me on surveillance devices when I call someone to get more information and put my call on speaker in front of witnesses while I talk about privacy issues without consent from me.

Ms Mills hided a lot of my health information and personnel information when I accessed to my file.

Ms Mills refrained me from making a request for access to health and personnel information, when I requested her, but she ignored my request.

Mr Robert Harding offered to supply and disclosed personnel information and disclosed it without my consent in unlawfully purposes.

Mr Robert Harding disclosed the health information to my daughter (incapable and child as well) without consent from him.

Mr Robert Harding collected personnel information not directly from the individual, and did not make accuracy to this information, disclosed and misused it in unlawfully manner, by this behaviour he acted in false representation when he pretended that he spoke with (anonymous sister) and disclosed this untrue information directly without make accuracy, get consent from me.

Mr Chris Leahy and Ms Mills disclosed my phone number to Newtown police in unlawfully purpose without consent from me and that is not their functions."

8 Although it would appear that her Honour proceeded to deal with the matter upon the basis of the original (unamended) application, it is instructive, and in my view important, to compare these grounds with the expanded version of the grounds for the application, which was included in the amended application. Those grounds are as follows:

"I rely on Law Part 11865 of Industrial Relation Act 1996, ss 5 & 7 of Health Privacy Principles of HRIP Act 2002, s 14 of PPIP Act 1998, Law Part 11865 of Industrial Relations Act 1996, s 12 of PPIP Act 1998 and Law Part 55329 of HRIP Act 2002 for the following:

- On 14 February 2009 I applied to Ms Jackie Mills to access to my personnel and health information, but she ignored my request.

- I accessed to my file on March 2009, and I found these documents are missing, and sent a letter by this meaning on 9 April 2009.

- On 11 May 2009 I received a letter stating that these document is missing and not available.

- Mr Chris Leahy offered to me on 20 March 2009 to access to my personnel information, but he hided this information.

- Ms Mills and Mr Leahy failed to secure my personnel and health information, hided it until today and refused to give me copy of it.

- I received a letter from NSW Privacy Commission mentioned that they don't have the power to order them to give ma a copy of these document.

I rely on Law Part 12576 (Health Care Complaints Act) and s 70 of HRIP Act 2002 for the following: -

- On 5 April 2009, Ms Jan Whalan in her letter to me on 5 April 2009 mentioned that she directed some staff to put me on loudspeaker in present of witnesses, when I request or call them on my privacy. (Previously on 30 January 2009 she abused me in formal letter saying 'not respectful'.

- Ms Jan Whalan issued direction either to call on loudspeaker or not call at all.

- Mr Leahy and Ms Whalan allowed security staff to accompany me while I review my file.

- Ms Whalan and Mr Leahy forcing me to apply under Freedom of Information Act, and they impose fees to access to my personnel and health information.

I rely on Law Part 55331 (Health Record and Information Privacy Act 2002) and s 70 of HRIP Act for the following:-

- On 5 April 2009 Ms Jan Whalan refrained me from access to – health information, and forced me to apply under Freedom of Information Act, and imposed fees on me to that, plus she disallowed me to reduce the fees according to direction or NSW Premier.

I rely on Law Part 55330 (Health Record and Information Privacy Act 2002) for the following: -

- Ms Mills unlawfully persuade from making a privacy complaint as of 12 November 2008 until 14 February 2009, until I applied to apply to ADT. As I applied in formal application given to her on 23 August for disclose my health information occurred on May 2008, but she refused to make it, and on 14 February 2009 she reused to make a complain for not giving me copy of my records.

I rely on Law Part 44714 of (Workplace Injury Management and Workers Compensation Act 1998), and ss 68, 69 of HRIP Act, ss 1, 2, 3, 4 and 10 of Health Privacy Principles of HRIP Act, ss 8, 9, 10, 11, 16, 17, 18, 19 of PPIP Act 1998, Law Part 58333 of Civil Liability Act 2002, Law Part 55326 of HRIP Act 2002 Law Part 13969 of Health Administration Act 1982 and Law Part 32484 of PPIP Act 1998 for the following:-

- Mr Robert Harding made false/misleading statement in claim related document, as he applied to insurer investigator on May 2008 that my sister told him that I suffering from heart trouble, while I have no family at all in Australia or have ever got any heart trouble or visited any cardiologist at all. These mispleaded insurer and decided to decline my claim.

- Mr Chris Leahy made also false statement to insurer and disclosed my family health information.

- Mr Robert Harding disclosed health information of my incapable daughter without my consent, and misused it in unlawful purpose.

- Mr Robert Harding collected personnel information not directly from the individual, and did not make accuracy to this information, disclosed and misused it in unlawfully manner, by this behaviour he acted in false representation when he pretended that he spoke with (anonymous sister) and disclosed this untrue information directly without make accuracy, get consent from me.

- Mr Chris Leahy and Ms Mills disclosed my phone number to Newtown police in unlawfully purpose without consent from me and that is not their functions."

9 Her Honour then proceeded to deal with the defendants' submission that the plaintiff's application should be struck out on the basis that it was defective inasmuch as it did not comply with s 175 of the Criminal Procedure Act and reg 17 of the Local Courts (Criminal and Applications) Procedure Rule. Section 175 is in these terms:

"175 Form of court attendance notice

(1) A court attendance notice must be in writing and be in the form prescribed by the rules.

(2) The rules may prescribe one or more forms of court attendance notice.

(3) A court attendance notice must do the following:

(a) describe the offence,

(b) briefly state the particulars of the alleged offence,

(c) contain the name of the prosecutor,

(d) require the accused person to appear before the court at a specified date, time and place, unless a warrant is issued for the arrest of the person or the person is refused bail,

(e) state, unless a warrant is issued for the arrest of the person or the person is refused bail, that failure to appear may result in the arrest of the person or in the matter being dealt with in the absence of the person.

(4) The rules may prescribe additional matters to be included in court attendance notices.

(5) A court attendance notice may describe an offence, act or other thing in a way that is sufficient under this Act for the purposes of an indictment or an averment in an indictment."

10 Regulation 17 provides as follows:

"17 Commencement of proceedings

(1) For the purposes of section 175 (1) of the Act, a court attendance notice commencing proceedings for a summary offence is to be in the approved form.

(2) For the purposes of section 175 (4) of the Act, the court attendance notice must include the following matters:

(a) the time and date of the alleged offence or, if the exact time and date are not known, the period of time in which the offence is alleged to have occurred,

(b) the place where the offence is alleged to have occurred."

11 I observe that this regulation was repealed with effect from 18 December 2009.

12 Her Honour dealt with s 175 at [11] in the following terms:

"[11] I am satisfied that the application does not comply with Criminal Procedure Act s 175(3)(e), in that it does not inform the respondents that failure to appear may result in the arrest of a respondent or that the matter may be dealt with in his or her absence. Further, I note that the application contains references to multiple offences and accused, instead of the single 'offence' set out in Criminal Procedure Act s 175(3)(a)(b) ..."

13 Her Honour dealt with reg 17 as follows at [13]:

"[13] I am satisfied that the application does not comply with Local Courts (Criminal and Applications Procedure) Rule 2003 r 17(2) in that it does not include the place where the offences were alleged to have occurred, and does not always specify the time and date of the alleged offences."

14 Her Honour then proceeded to deal with what she described as the consequences of breaches of the Criminal Procedure Act and Regulations. At [14] her Honour said this:

"[14] The legislation is silent as to the consequences of a breach of the Criminal Procedure Act s 175. A failure to comply with the Criminal Procedure Act s 175 and subordinate legislation does not necessarily mean that the application is invalid: Knaggs v Director of Public Prosecutions & Anor [2007] NSWCA 83; Graham Blight v Inspector Barber [2007] NSWSC 448 at [28]-[29]. The issues which the court takes into consideration vary from case to case. They include the nature of the alleged offence, and considerations as to whether the savings provisions of the Criminal Procedure Act s 16 should apply."

15 Her Honour set out the terms of s 16. It is as follows:

"16 Certain defects do not affect indictment

(1) An indictment is not bad, insufficient, void, erroneous or defective on any of the following grounds:

(a) for the improper insertion or omission of the words ‘as appears by the record’, ‘with force and arms’, ‘against the peace’, ‘against the form of the statute’ or ‘feloniously’,

(b) for want of an averment of any matter unnecessary to be proved or necessarily implied,

(c) for want of a proper or perfect venue or a proper or formal conclusion,

(d) for want of any additional accused person or for any imperfection relating to any additional accused person,

(e) for want of any statement of the value or price of any matter or thing, or the amount of damage or injury, if such value, price or amount is not of the essence of the offence,

(f) for designating any person by the name of his or her office, or other descriptive appellation, instead of by his or her proper name,

(g) except where time is an essential ingredient, for omitting to state the time at which an offence was committed, for stating the time wrongly or for stating the time imperfectly,

(h) for stating an offence to have been committed on a day subsequent to the finding of the indictment, on an impossible day or on a day that never happened,

(i) if the indictment was signed by an Australian legal practitioner who has been instructed to prosecute the proceedings to which the indictment relates on behalf of the Director of Public Prosecutions-for failure by the Director to authorise the Australian legal practitioner by order in writing under section 126 (2) to sign indictments for and on behalf of the Director.

(2) No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in the Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of:

(a) any alleged defect in it in substance or in form, or

(b) any variance between it and the evidence adduced at the proceedings for the offence charged in the indictment or warrant."

16 Her Honour continued at [16] as follows:

"[16] However as was stated by Campbell JA, with whom Mason P and Tobias JA agreed, in Knaggs v Director of Public Prosecutions & Anor [2007] NSWCA 83 at [48]:

It may be that, in some circumstances, there are deficiencies in a CAN so gross that as a matter of construction section 16(2)(a) would be read as not applying to them."

17 Finally, under the heading "Duplicity", her Honour concluded her decision at [18] – [19] in these terms:

"[18] In this case in one application there are a multitude of offences alleged against four respondents. The information clearly relates to more than one act and more than one series of acts, and certainly relates to different acts at different times by different people. The particulars allege multiple criminal enterprises – that each respondent committed more than one offence. It appears from the particulars that it is alleged that Mr Leahy committed five offences, Ms Mills committed four offences, Ms Whalan committed four offences and Mr Harding committed three offences. It is settled law that separate offences should be the subject of separate charges: Walsh v Tattersall [1996] HCA 261; (1996) 188 CLR 77; R v Moussad [1999] NSWCA 337. There are practical reasons for this rule, including that it provides the court and the parties with guidance as to what evidence is relevant against an accused. The formulation of Mr Altaranesi's application causes gross unfairness to all the named respondents because of the number of offences alleged. I am satisfied that the application is bad for duplicity.

[19] I next consider whether the formulation of the information can be saved by the application of Criminal Procedure Act s 16. I am satisfied that the wording of the application is so duplicitous that it creates deficiencies which, to adopt the words of Campbell JA, are 'so gross that as a matter of construction section 16(2)(a) would be read as not applying to them': Knaggs v Director of Public Prosecutions & Anor [2007] NSWCA 83 at [48]."

18 Her Honour proceeded thereafter to dismiss the plaintiff's application on the basis that it was invalid by reason of duplicity and for breaching s 175 of the Criminal Procedure Act and reg 17 of the Local Courts (Criminal and Applications Procedure) Rule.

Consideration

19 Section 56 of the Crimes (Appeal and Review) Act 2001 provides in part as follows:

"56 Appeals as of right

(1) The prosecutor may appeal to the Supreme Court against:

(a)...

(c) an order made by the Local Court dismissing a matter the subject of any summary proceedings, ...

other than an order or sentence with respect to an environmental offence, but only on a ground that involves a question of law alone.

(2) An appeal must be made within such period after the date of the sentence or order as may be prescribed by rules of court."

20 The powers of the Court are given by s 59(2) of that Act:

"59 Determination of appeals

(1) ...

(2) The Supreme Court may determine an appeal against an order referred to in section 56 (1) (b), (c) or (d) or 57 (1) (b) or (c):

(a) by setting aside the order and making such other order as it thinks just, or

(b) by dismissing the appeal."

21 The first question is whether or not the plaintiff's contention, that her Honour's decision to dismiss his application was invalid for duplicity, is a question of law. In my opinion it is. The second question is whether or not her Honour fell into error in coming to her conclusion that the plaintiff's application was invalid for duplicity. I consider that she did not. I have come to these views for the following reasons.
Question of law

22 The defendants submitted that it was difficult to determine what errors of law the plaintiff sought to identify or rely upon. They submitted that there were no errors at all and none that was an error of law.

23 In Attorney-General for the State of New South Wales v X [2000] NSWCA 199; (2000) 49 NSWLR 653 at [25], the Chief Justice said this:

"[25] The formulation ‘question of law’ employs general words capable of application at different levels of generality. When Parliament uses such words it does not necessarily intend to encompass everything that is capable of falling within them. It is often necessary to read down words of general application."

24 His Honour continued at [37]:

"[37] It is by no means apparent that a matter which would answer the description of ‘question of law’ in the more common statutory context where an appeal, albeit limited in this way, is capable of having practical effect on the particular proceedings, will necessarily answer that description in a context where there is no such effect. In each case, the scope, purpose and subject matter of the statute may affect the construction of the words ‘question of law’."

25 In the same vein his Honour said this at [43]:

"[43] In the case of a statute where an appeal on a question of law will not have any practical implications for the particular proceedings in which the appeal is brought, the construction of the words ‘question of law’ may well be closer to the scope of the formulation ‘question of law alone’, which appears in some statutes."

26 The defendants' contention, that the issue of whether or not an application is duplicitous does not raise a question of law, should be rejected. In my view it clearly does so. In Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373; (2006) 165 A Crim R 151, the Court was called upon to determine the question of whether or not the prosecution case involved ambiguity or uncertainty. Basten JA said this at [9]:

"[9] There are two steps in the process of identifying duplicity or uncertainty. The first is to consider the statutory description of the offence in order to identify what is the act or conduct prohibited. The second is to identify the act or conduct set out in the pleading as constituting the offence in the particular case. Where a particular act is prohibited if it has one of a number of qualities, it is likely that only one offence is committed in relation to each act, even if such an act has more than one of the proscribed qualities."

27 This analysis re-emphasises that the inquiry is a legal, not a factual, inquiry and the test for determining the validity or otherwise of an information or indictment or similar instrument involves the investigation and determination of a question of law.

Duplicity

28 The plaintiff made the following written submissions on the issue of whether there was a duplicity problem in the present case:

"17. Duplicity

17.1 There are no duplicity at all, all offences are indicated in Law Parts, it is not duplicity, for example, Ms Mills refused me to access to my personnel information on 14 February 2009 and I received a letter that my record is missing (that action fallen under Law Part 55329 unlawfully persuade from making health request and breach of PPIP Act, and also fallen under Law Part 11865 of Industrial Relation Act 1996 for failing to keep records concerning employees for 6 year). And other accused made other allegations fallen under other Acts.

17.2 Some conducts are fallen under two Law Parts, I just showed it to the court to clarify the case, and I am not seeking to duplicity the punishment.

17.3 Section 16 of Criminal Procedure Act 1986 No 209 (Attached # 22)

nothing refer to the place.’ certain defects do not affect indictment:-

(d) for want of any additional accused person or for any imperfection relating to any additional accused person.

Section 16 (1)(d) of Criminal Procedure Act 1986 No 209 (Attached # 22) nothing refer to the place. ‘An indictment is not bad, insufficient, void, erroneous or defective on" for want of any additional accused person or for any imperfection relating to any additional accused person’.

17.4 Section 29 of Criminal Procedure Act 1986 (Attached #25)

states’; When more than one offence may be heard at the same time (1) A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances: (a) the accused person and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are a part of a series of offences of the same or a similar character. (2) A court may hear and determine together proceedings related to offences alleged to have been committed by 2 or more accused persons in any of the following circumstances: (a) the accused persons and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character."

29 The defendants' submissions on this issue were as follows:

"49. The principles concerning duplicity are well known (see Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467; S v The Queen [1989] HCA 66; (1989) 168 CLR 266; Stanton v Abernathy (1990) 19 NSWLR 656 and Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77). These principles are designed to enable a defendant to know precisely the charge brought against him and to prevent a situation arising where a defendant cannot ascertain either on the face of the information, indictment or otherwise, what the precise offence may be. The principles are designed essentially to prevent unfairness and prejudice.

50. The role of duplicity was explained by Gaudron and McHugh JJ in S v The Queen at 284–285 as including that:

‘... a Court must know what charge it is entertaining in order to ensure that evidence is properly admitted, and in order to instruct the jury properly as to the law to be applied; in the event of conviction, a Court must know the offence for which the defendant is to be punished; and the record must show of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict.... The rule against duplicitous counts has also long rested upon a basic consideration of fairness, namely, that accused should know what case he or she has to meet... Of course, the degree of unfairness or prejudice involved will vary from case to case, and it may be... that on occasions the uncertainty is not ‘such as to disable the defendant from meeting that charge...’ [A] duplicitous count may be productive of prejudice. If the matter proceeds to trial, there is the possibility that evidence will be wrongly admitted or that incorrect directions will be given to the jury. There is also the possibility that a jury, no matter how carefully directed, may reason from the number of offences charged that the accused must be guilty of at least one. However, it may be going too far to equate prejudice with the difficulty of raising a defence of autrefois acquit or autrefois convict...’

51. It is clear that the determination whether an application offends for duplicity involves a question of fact and degree in each case and that this depends upon the particular circumstances of the case (see Walsh v Tattersall at 108 and Carcosa Pty Limited v Czerwaniw (1977) 93 A Crim R 287).

52. The application contains more than one count against each of the Defendants and it therefore offends the rule against duplicity (see Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77 per Kirby J at 104-110).

53. Secondly, the application contains multiple Defendants and the involvement of the Defendants in the multiple offences is not sufficiently intertwined and therefore the presence of multiple accused offends the rule against duplicity.

54. In these circumstances there was no error of law in Her Honour finding that the application was duplicitous and so duplicitous that it could not be saved by s16 of the Criminal Procedure Act."

30 A court attendance notice is not necessarily invalid because it is duplicitous either on its face or having regard to the evidence led in support of it. In Stanton v Abernathy (1990) 19 NSWLR 656, the Court of Appeal considered an information in which the appellant was charged with giving "evidence that was to the knowledge of [the appellant] false in certain material particulars" before the State Drug Crime Commission contrary to s 20 of what was then the State Drug Crime Commission Act 1985. In response to a request for particulars, the subject matter of the false evidence was identified but there was no specification of the particular evidence that was alleged to be knowingly false. The Court held that allegations of a contravention of s 20 were in the same position as allegations of perjury or making false statements on oath. Each false statement involved a separate crime. Common sense and fairness will determine how many statements ought to be taken to have resulted from a number of utterances.

31 In that case the Court held that the information was duplicitous as the prosecution conducted its case on the basis that a number of pieces of false evidence on separate, although related, subjects were given, yet the information charged a single offence in the terms of the statute. Neither within the information nor elsewhere did the prosecution particularise the evidence alleged to be false or the material respects in which it was false. Section 145A of the Justices Act 1902 (see now s 11 of the Criminal Procedure Act) did not save the information as that section did not do away with the common law rule that an information must identify the essential ingredients of the actual offence. Section 30 of the Justices Act (see now s 16(2) of the Criminal Procedure Act) would avoid the consequences of technical defects but would not overcome the requirements of natural justice. The Court also held that whilst the information was defective for duplicity and lack of particulars it was not incumbent upon a magistrate in committal proceedings to dismiss it. The magistrate had an implied power to direct the furnishing of particulars and require the prosecution to elect to charge the appellant with a single false statement to the exclusion of any others or amend the information and lay one charge in respect of each alleged false statement.

32 In Romeyko v Samuels (1971) 2 SASR 529 Bray CJ said:

"The true distinction, broadly speaking, it seems to me, is between a statute which penalises one or more acts, in which case, two or more offences are created, and a statute which penalises one act if it possesses one or more forbidden characteristics. In the latter case there is only one offence, whether the act under consideration in fact possesses one or several such characteristics."

33 This approach was adopted and applied in R v Manwaring [1983] 2 NSWLR 82.

34 The issue of duplicity in relation to multiple acts of criminality was considered by the High Court in Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77. A count on an indictment is not duplicitous if it relates to one activity even though that activity may involve more than one act. The test is whether all offences were part of the one activity or transaction. It has been held that an offence is not duplicitous if it refers to a single criminal enterprise: see R v Moussad [1999] NSWCCA 337; (1999) 152 FLR 373. Whether or not the information is duplicitous or valid will depend largely upon whether the information deprived the accused of a fair hearing.

35 Section 16(2) has its origins in ss 30 and 65 of the (now repealed) Justices Act. The purpose of the provision is to overcome formal and technical objections being taken to the statement of the charge or the evidence being called to support it, in order that the matter can be determined on its merits, even if it is necessary to grant an adjournment to overcome any unfairness. However, where the information fails to disclose all the essential legal elements of the offence, the information is invalid and the section cannot be relied upon to save it: Ex parte Burnett; Re Wicks [1968] 2 NSWR Eq 119; Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153. Section 16(2) will apply where essential factual particulars have not been given, such as the time, place or the manner of the commission of the offence: Ex parte Stanton (1928) 28 SR (NSW) 516, or where the information contained wrong particulars: R v Justelius [1973] 1 NSWLR 471; or where it contained irrelevant material: Ex parte Consolidated Press Ltd; Re Harris (1961) 78 WN (NSW) 261.

36 It is erroneous for a magistrate to dismiss an information for lack of particulars without permitting the prosecution the opportunity to provide further particulars: Director of Public Prosecutions (NSW) v Alderman (1998) 45 NSWLR 526. Under the provisions of the Justices Act there was said to be some doubt as to whether an information could be amended to cure defects: see Ex parte Cunliffe (1871) 10 SCR (NSW) 250; cf Crothers v Sheil [1933] HCA 42; (1933) 49 CLR 399. It would appear now that s 21(1) of the Criminal Procedure Act, which by virtue of s 15(2) applies to a court attendance notice, would permit an amendment to cure a defect in substance or form to which the section applied. That provision is as follows:

"21 Orders for amendment of indictment, separate trial and postponement of trial

(1) If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case."

37 The section will also apply to an information which is bad for duplicity either on its face or because of the evidence led by the prosecution: Ex parte Williams (1909) 9 SR (NSW) 140. In such a case the magistrate ought to ask the prosecution to elect as to the particular offence relied upon either at the outset of the hearing or during the course of the evidence: Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467; Stanton v Abernathy.

38 Her Honour took the view that what was said by Campbell JA in Knaggs v Director of Public Prosecutions (NSW) [2007] NSWCA 83; (2007) 170 A Crim R 366 at [48] was sufficient to dispose of the plaintiff's application. However, with respect, her Honour did not reproduce the whole of the paragraph in his Honour's judgment from which the allegedly supporting words were drawn. The whole paragraph is as follows:

"[48] Fourth, by reason of the extended meaning of ‘indictment’ given by section 15(2), section 16(2) applies to a CAN. The wording of section 16(2) is broad, and its reference to a defect in a CAN ‘in substance or in form’ is capable of applying, as a matter of language, to a failure to state the particulars of the alleged offence. It may be that, in some circumstances, there are deficiencies in a CAN so gross that as a matter of construction section 16(2)(a) would be read as not applying to them: cf The King v Hickman & Others; ex parte Fox & Clinton [1945] HCA 53; (1945) 70 CLR 598. There is no need to decide whether that is so, as the argument we are asked to consider in this application is whether, when the CAN identified all the elements of the offence, any failure to comply with section 175(3)(b) has the effect that the proceedings purportedly commenced by the CAN that breaches that requirement are void."

39 Moreover, his Honour's conclusion on the question he was then considering also casts the issue into a slightly different light. His Honour said this at [60]:

"[60] In all these circumstances, and purely as a matter of construction of the legislation, I do not conclude that the legislature intended that a contravention of section 175(3)(b) would result in the invalidity of the CAN, and of any convictions that result in proceedings commenced by such a CAN."

40 In this case the issue cannot be determined without close attention to the form of the plaintiff's application. Bearing in mind the need to have regard for the fact that the plaintiff's first language is not English and to the fact that he appears without legal representation, it is difficult, although certainly not impossible, to make any sense of the application at all. The problems appear to be at least the following. First, there are several people named in the one application. The document does not make clear what is the relationship between or among them having regard to the various allegations that are made. This problem is seriously compounded when one has regard to the form of the proposed amendment to the application.

41 Secondly, there is no observable or obvious connection between the limited allegations of fact that are to be found in the application and the various sections of the several Acts cited as the sources for the offences charged. The application is simply very confusing. A named respondent ought easily and reasonably to be able to glean immediately what he or she is alleged to have done and when and by reference to specified events in which he or she was allegedly involved. In the present case there is an omnibus listing of various sections of several Acts followed by a statement of facts that are not related, and which are otherwise difficult to relate, to the sections concerned. Answers to the rhetorical questions, "What is the allegation against me?" or "What offence is it alleged I have committed?" are not readily capable of discovery.

42 Thirdly, it is not clear whether or not the same facts are alleged to give rise to more than one offence or which facts relate to which offences if not more than one. For example, s 62(1) of the Privacy and Personal Information Protection Act is in almost identical terms to s 68(1) of the Health Records and Information Privacy Act. Section 62(1) is as follows:

"62 (1) A public sector official must not, otherwise than in connection with the lawful exercise of his or her official functions, intentionally disclose or use any personal information about another person to which the official has or had access in the exercise of his or her official functions.

Maximum penalty: 100 penalty units or imprisonment for 2 years, or both."

43 Section 68(1) is only slightly different but is as follows:

"68 (1) A public sector official must not, otherwise than in connection with the lawful exercise of his or her official functions, intentionally disclose or use any health information about an individual to which the official has or had access in the exercise of his or her official functions.

Maximum penalty: 100 penalty units or imprisonment for 2 years or both."

44 The plaintiff's application does not make plain whether it is intended to charge two offences of disclosing personal information on the one hand and disclosing health information on the other hand upon the basis of different facts or whether the same facts are said to give rise to different offences. There are other instances of this. The application is embarrassing for these reasons alone.

45 The defendants made the following detailed submissions:

"Failure to comply with the Criminal Procedure Act

32. It is clear on the face of both the original and second application that they do not comply with s175 (3)(e) of the Criminal Procedure Act.

33. It is clear on the face of both the original and second application that they do not comply with s175 (3)(a) and (b) of the Criminal Procedure Act.

34. It is clear that the original application in its Grounds does not comply with s175(3)(a) in respect to Ms Whalan, Ms Mills and the third paragraph dealing with Mr Harding. In fact, the grounds against Ms Whalan, Ms Mills and the third paragraph dealing with Mr Harding do not concern an offence contained within the Privacy and Personal Information Act 1998, Health Administration Act 1982 or Health Records and Information Privacy Act.

35. It is clear that the second application in its Grounds does not comply with s175 (3)(a) in respect to Ms Mills and Mr Leahy in respect to the first ground. In fact this ground does not concern an offence contained within the Privacy and Personal Information Act 1998, Health Administration Act 1982 or Health Records and Information Privacy Act or Industrial Relations Act.

36. It is clear that the second application in its Grounds does not comply with s175 (3)(a) in respect to Ms Whalan and Mr Leahy in respect to the second ground. In fact this ground does not concern an offence contained within the Health Records and Information Privacy Act or Health Care Complaints Act.

37. It is clear that the second application in its Grounds does not comply with s175 (3)(a) in respect to Ms Whalan in respect to the third ground. In fact this ground does not concern an offence contained within the Health Records and Information Privacy Act.

38. It is clear that the second application in its Grounds does not comply with s175 (3)(a) in respect to Ms Mills in respect to the fourth ground. In fact this ground does not concern an offence contained within the Health Records and Information Privacy Act.

39. It is clear that the second application in its Grounds does not comply with s175 (3)(a) in respect to Mr Harding in respect to the fifth ground. In fact this ground does not concern an offence contained within the Workplace Injury Management Act or Privacy and Personal Information Act 1998, Health Administration Act 1982 or Health Records and Information Privacy Act or Civil Liability Act.

40. It is also clear on the face the original application that it did not comply with s175 (4) of the Criminal Procedure Act because it failed to comply with Clause 17(2) Local Courts (Criminal and Applications Procedure) Rule 2003.

41. In respect of the second application it is also clear on the face of the second application that in respect of the last grouping of grounds of the application that other than in respect to the first reference to Mr Harding it failed to comply with s 175 (4) of the Criminal Procedure Act because it failed to comply with Clause 17(2) Local Courts (Criminal and Applications Procedure) Rule 2003."

46 The defendants conceded that failure to comply with s 175(3)(b) did not by itself render the application void: Knaggs. They also conceded that failure to comply with s 175(3)(c) did not render the application void: Blight v Inspector Barber [2007] NSWSC 448 at [33]- [35]. The defendants supported the proposition that even without considering the question of duplicity the plaintiff's application was so deficient that it could not be saved by the operation of s 16(2). The defendants contended that her Honour fell into no relevant error in the way that she considered or applied the provisions of the Criminal Procedure Act, including her determination concerning s 16(2).

47 In my opinion, whether upon the basis that the application was duplicitous or was otherwise so difficult to comprehend as to amount to a denial of natural justice or procedural fairness, her Honour's conclusions were correct. The application does not conform to the common law rule that an information must identify the essential ingredients of the actual offence. The utilisation of s 16(2) can avoid the consequences of technical defects but cannot overcome the requirements of natural justice. The plaintiff's application is so offensive to this notion as to be incapable of being maintained or supported in its present form.

48 It follows in my opinion that her Honour's treatment of the plaintiff's application on these bases was not erroneous.

49 As earlier noted, the remainder of the so-called questions of law in respect of which the magistrate is said to have made errors are not easily identified. The plaintiff complained that his failure to include in the documents served on the defendants a statement that they were required to appear before the court at a specified date, time and place, and so forth, contrary to s 175(3)(d) of the Criminal Procedure Act or that failure to appear may result in their arrest or that the matter may be dealt with in their absence contrary to s 175(3)(e) of the Criminal Procedure Act should not have been treated as defects by the magistrate. Her Honour was satisfied that the application did not comply with s 175(3)(e), in that it did not inform the defendants that failure to appear may result in their arrest or that the matter may be dealt with in their absence. However, the defendants in fact appeared before her represented by counsel and the defect was inconsequential in those circumstances. Understandably, even though her Honour referred in terms to this "defect" she did not ultimately treat it or rely upon it as a defect that invalidated the plaintiff's application. The plaintiff's complaint in this Court about these matters does not identify any error by the magistrate.

50 Next, the plaintiff argued that he was entitled to some allowance for the fact that he was an unrepresented litigant and that in the circumstances of this case her Honour erroneously failed to take that matter into account. Putting to one side for the moment the issue of whether or not the plaintiff has identified a question of law, it is instructive to recall the terms of his written submissions on the topic. They were as follows:

"19. The lower Court failed into account the following consideration:

19.1 It is a burden is placed upon the court to give some assistance to the unrepresented litigant, especially when that litigant is faced by a competent legal opponent; and then there is the vexed issue as to the extent to which the tribunal can assist the litigant, whilst maintaining its impartiality. The court in its opinion that, if there is necessary to change the form, has to help unrepresented litigant to do that.

19.2 My English is not the first language, I requested local court to provide me with an interpreter but they failed to provide me an interpreter in the days of 10/6 and 8/7/2009, just only on the day of hearing the decision of the court 15 July 2009. And it is appropriate for the court to give some assistance to me in order to fulfil that duty.

19.3 In Damjanovic v Sharp Hume and Co [2002] NSWCA 407 critically dealt with the conduct of District Court Judge in relation to an unrepresented plaintiff, saying: ‘Confidence in the judicial system plays a very important part in maintaining confidence in the orderly working of society. Confidence by a judicial officer, which may cause that confidence to be diminished, is to deplored. Judicial officers must have particular regard to the due performance of their functions in situations where a litigant is in person, and does not have English as his or her first language and, as in the present case, has shown a health scepticism for the legal system. Such people should not be made to feel that because they are appearing in person, as they are entitles to do, or do not understand the language fully, they are under disadvantage. Within the rules concerning helping litigants in person, the Court should observe with scrupulous fairness the duties to which we have referred’.

19.4 In interlocutory matters, the court will normally be slow to terminate proceedings summarily because of defective pleading by an unrepresented litigant, at least where it appears that there is a viable cause of action which, with appropriate amendment and a little assistance from the court could result in a pleading being placed in proper form: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536.

19.5 The applicant does not necessarily fail for want of an adequate explanation for the default. It depends on the circumstances. ‘[I]f merits are shown, the Court will not prima facie desire to let a judgment pass on which there has been no proper adjudication’: Evans v Bartlam [1937] AC 473 at 489.

19.6 On 15 July 2009 when the interpreter came, I heard the decision, not giving me the opportunity to be asked for or make comments; subsequently I could not explain my vision for the time and date of offences as shown here, and the court made prejudice about these issues. I rely on: ‘The absence of an explanation for the default, particularly it is coupled with prejudice to the plaintiff may justify the denial of relief, but only when considered with other relevant’: Hope JA in Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503 at 506-507.

19.7 While the court dissatisfied with my application due to breach the procedure, I observed that court ignored the serious failure of the accused people to comply with s 137 (1)(b) of Criminal Procedure Act 1986 (Attached #26): ‘after the accused person has been given notice of the case for the prosecution, the accused person is to give the prosecutor notice of the defence response to the case for the prosecution (referred to in this division as the defence response)’. As three accused haven't made any notice of the defence response to the case.

19.8 The lower court failed to explain, how I will arrest the accused persons (while I am private plaintiff) or how I find the time and the date of offences. The inadequate reasons is as an error of law (and a ground of judicial review) it is well settled in federal case law that a substantial failure to produce a proper statement of reasons itself constitute an error of law where the statement of reasons is a requirement of exercise under the statute of decision-making power Dornan v Riordan (1990) 24 FCR 546 [also generally, Smith 1992, Kirby 1994, Katzen 1993 and Bayne 1992].

19.9 I have not received the reasons for imposing cost order against me.

19.10 I take the opportunity to raise my voice to whom may be concerned; I, unrepresented litigant, who is not lawyer, who has financial hardship to afford fees of lawyer, Legal Aid doesn't look in these offences, Police refused to take the prosecution for these kind of offences, obeyed the registrar of local court in filing the form of application to the court, then the court dismissed the application due to the lack of procedure (as it see) particularly when I faced Counsel in front of court, which refused to give me little assistance in the just procedure, regardless the case, as mentioned above, has the merit case, then the Lower Court made an error of Laws.

19.11 What litigant, like me have to do, to implement the fundamental Human Right, as mentioned in Declaration of Human Rights (UDHR 1948): ‘No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor attacks upon his honour and reputation. Everyone has the right to the protection of the Law against such interference or attacks’”.

51 The plaintiff has also emphasised in this context that English is not his first language. The plaintiff at the hearing placed considerable written material before her Honour. The only issue that she decided was the defendants' application to strike out the proceedings for want of compliance with formal requirements. In the course of the hearing on that issue the following passed between the plaintiff and her Honour:

"HER HONOUR: So the orders you're seeking are formal apologies in the public and to pay for damages and compensation, to take steps towards correcting fault by writing to people saying they unlawfully disclosed information, to provide documents that you want and to pay fines for breach of the Act?

APPLICANT: Yes your Honour.

HER HONOUR: Okay. What do you say – and all your reasons for and the law you base this on is set out in your application?

APPLICANT: Yes your Honour, yes."

52 Even though legally unrepresented the plaintiff appeared to apprehend enough about his case to seek to amend it. The passage last quoted suggests that the plaintiff was content, and by inference understood, that her Honour was proceeding to reserve her decision on the defendants' preliminary point. The plaintiff's limited English, and the benefits of hearing him with the aid of an interpreter, would also have been obvious to all. In this last respect I note that he appeared before me assisted by an interpreter, Mr Selim, whose help he accepted only occasionally. After a short while the plaintiff appeared to prefer to conduct the hearing by himself and apparently did so quite adequately from my point of view.

53 It does not appear from the transcript in the Local Court that the plaintiff's abilities with English caused her Honour any concerns. There are some portions of the proceedings that were incapable of transcription because they were said to be indecipherable, which I take at least in part to be the result of an inability to understand the plaintiff when he spoke. But these instances are not many and are not contextually significant. Moreover, there is nothing that emerges from that transcript that suggests that the plaintiff was not given a fair hearing on the defendants' application to dismiss the proceedings. Her Honour did not fail to afford the plaintiff any proper concession to account either for his difficulties with English or his position as an unrepresented litigant in a way that offended the principles in the cases upon which he now wishes to rely, particularly Evans v Bartlam [1937] AC 473 and Damjanovic v Sharpe Hume & Co [2001] NSWCA 407.

54 Furthermore, the plaintiff's application was in the form it was in for some time before the proceedings reached her Honour. She ultimately dismissed the proceedings on what were essentially matters of form. The plaintiff's application to amend was not directed to the critical formal defects upon which the defendants finally prevailed. There does not appear to be any tangible or practical relationship between the plaintiff's limited English or his unrepresented status and the dismissal of his application. The difficulties for a reader in understanding the plaintiff's documents as a result of his limited English or lack of legal training or assistance did not invalidate them and her Honour did not take so limited a view of them as to dismiss his case in a formal sense by reason of any such difficulties. The formal problems with the application far transcended the plaintiff's limited English or self-represented status, as her Honour's reasons make plain.

55 It will also be apparent that the plaintiff contends that her Honour fell into error because she failed to give proper or adequate reasons for her decision concerning costs. Although I was not referred to authority on the points that the plaintiff may have wished to emphasise in this regard, and bearing in mind that his written submission was limited to the single assertion that he had not received reasons for the costs order being imposed upon him, I will proceed to deal with the contention on basic and well understood principles.

56 After delivering her reasons for judgment her Honour said this:

"HER HONOUR: So I have dismissed the application for form, I note that that form issue was raised on 10 June, and when the matter was adjourned to 8 July Mr Altaranesi presented a new application. I note that this new application I found to be not in proper form for several reasons, so I have dismissed the application.

There is an application then for costs on behalf of the respondents. I note that the matter first came for mention on 10 June, it was adjourned for further mention on 8 July. Mr Altaranesi has been putting his material forward for some time. There were brief submissions made on behalf of the respondents on that day addressing the obvious issue of form and the matter was adjourned today for decision only, so there have been three appearances. Mr Britt states that he is involved with other litigation involving some of these parties.

SO I PROPOSE TO MAKE A COSTS ORDER AND PROPOSE THE COURT HAS DISCRETION FOR WHAT IS JUST AND REASONABLE. SO TAKING INTO CONSIDERATION CAPACITY TO PAY AND THE NATURE OF THIS CASE I PROPOSE TO MAKE AN ORDER FOR $2000 TO BE PAID WITHIN TWENTY-EIGHT DAYS."

57 In Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 444, Meagher JA said this:

"Another question, which need not presently be decided, is whether the failure to provide reasons or the provision of inadequate reasons constitutes either an error of law or some other appealable error. This was a question which Hope A-JA noted but found unnecessary to decide in Mifsud v Campbell (at 729). It is sufficient to note that most cases have assumed the error is one of law.

Lastly, it is noted that an appealable error arising from inadequate reasons does not necessarily mean that a new trial is required. An appeal court is entitled to consider the matter and, if appropriate reasons are given, may itself decide the matter. Thus, if the only conclusion open on the evidence available at trial was the conclusion reached by the trial judge, then, notwithstanding an inadequate statement of reasons, the matter need not go to a new trial: NSW Insurance Ministerial Corporation (formerly GIO of New South Wales) v Mesiti (Court of Appeal, 1 December 1994, unreported)."

58 I note that the plaintiff did not at any stage contend that he was not given an opportunity to be heard on the question of costs. Having regard only to the submission that her Honour gave insufficient reasons for her costs order, I can see no basis for concluding that in the particular circumstances of this case her reasons were less than required. The form of the plaintiff's application was fundamentally flawed. This was through no fault of the defendants. They took no point on the failure of the plaintiff to serve them personally as required or his failure to serve an affidavit in support in the time provided by the rules. They attended on more than one occasion to argue that the applications were bad in form. That argument succeeded, as it must have. The economy of her Honour's reasons for decision does not bespeak an error of law. In my opinion the only conclusion open on the evidence available at trial was the conclusion reached by her Honour.

Conclusions

59 Despite the fact that I am of the opinion that her Honour fell into none of the errors promoted by the plaintiff, I am mindful that the plaintiff might reasonably have anticipated that he would have been given an opportunity to make an election or to amend the application so as to put it into a proper form, in the sense referred to earlier. Section 16(2) has the purpose of overcoming formal and technical objections being taken to the statement of the charge. It cannot operate in the present case to prevent the defendants asserting, as I have found they are entitled to assert, that they would in effect be denied natural justice if committed to a defence of proceedings initiated by so offensive a document.

60 This says nothing, however, that is inimical to the plaintiff's right and ability to put the application in proper form if it is capable of such treatment. As I have indicated, the magistrate had an implied power to direct the furnishing of particulars or to require the prosecution to elect to charge the appellant in a more limited or constrained way. Nothing that was said in Knaggs appears to me to limit or restrict the power of the Court to consider or to permit an amendment even, or on one view especially, where the problems or defects are so gross that s 16(2)(a) does not operate to save them. Despite the depth and breadth of the defects afflicting the plaintiff's application, he should be afforded an opportunity to attempt to correct the defects if that is possible. In my view, her Honour's failure to give the plaintiff that opportunity amounted to error.

61 In S v The Queen [1989] HCA 66; (1989) 168 CLR 266, Gaudron and McHugh JJ said this at 286-287:

"[11] Prejudice is the focus of consideration when the question is whether some order should be made as to the conduct of the trial to avoid difficulties which may be occasioned by reason of uncertainty as to what precisely is charged. Ordinarily, those difficulties will be averted by ordering particulars, by amending the indictment, or by putting the prosecution to its election and appropriately confining the evidence to the offences charged. See Johnson v. Miller, at pp 480-481, 486, 497-498 and 501. However, when a trial proceeds without an order averting those difficulties, the question is whether there has been a blemish on the trial amounting to a substantial miscarriage of justice..."

62 I consider that these principles should inform the approach that I take to the determination of this case. In these circumstances, therefore, I propose to direct that the plaintiff furnish a draft of any proposed amended application to the defendants within a specified time for consideration by them and to appoint a date before me when any argument upon any such proposed amended application, and upon whether the plaintiff should be permitted to proceed upon it, can be heard. Such an approach falls within the general power of the Court provided by the terms of s 59 to make "such other order as [the Court] thinks just".

Orders

63 In the circumstances I will make the following orders:

1. Set aside the orders made by Magistrate Schurr on 15 July 2009.

2. Direct the plaintiff within 21 days to serve upon the defendants, if so advised, any proposed draft amended application upon which he proposes or intends to rely.

3. In the event that the plaintiff complies with order 2, appoint such day as the parties arrange in consultation with my Associate for the hearing of argument upon the question of whether or not the plaintiff should be permitted to file and to rely upon the proposed draft amended application.

4. In default of compliance with order 2, order that the proceedings be dismissed.

5. Stand over the question of the costs of this application and of the adjourned hearing to such date as may be arranged.

Some further matters

64 It will be apparent that the circumstances that give rise to these proceedings are somewhat unusual although by no means unique. As I have already noted, the plaintiff seeks some degree of recognition and vindication for the hurt he feels he has suffered at the hands of others who have been unfair to him. He told me that he had been punched and victimised and that when he reported these matters he was ignored or fobbed off. He sought redress in the Government and Related Employees Appeal Tribunal but apparently without success. I am informed that he was dismissed for misconduct but no details of that assertion are before me and it would appear to be contentious. The plaintiff has also instituted proceedings under s 84 of the Industrial Relations Act, presumably contending that his dismissal was harsh, unreasonable or unjust. He has in addition commenced a number of matters against the Sydney Southwest Area Health Service alleging breaches of the Health Records and Information Privacy Act and the Privacy and Personal Information Protection Act in the Administrative Decisions Tribunal. Some of those matters have been heard and the complaints have been dismissed. Some of them are concerned with issues that are referred to in the plaintiff's application filed in the Local Court which was heard by her Honour and which is the subject of the plaintiff's case before me.

65 The plaintiff plainly demonstrated that he is emotionally very troubled by all that has beset him. He became upset in my Court. He reiterated that what he really wanted was an apology. I have assumed that in the context of these several pieces of litigation, the notion that the defendants might apologise to the plaintiff has either been overlooked or intentionally disregarded. I recognise immediately that those from whom an apology is sought may themselves quite properly or at least understandably feel that one is neither called for nor warranted and should not be offered. I am in no position to express any view about this and I do not do so. And yet the proceedings continue.

66 The plaintiff's attempts to achieve some appropriate outcome or closure by the commencement of criminal proceedings against the defendants may appear to some to be incongruent and inappropriate and considerably less than the most suitable course to pursue towards that end. I refrain from expressing a view about that as well. I certainly consider that the plaintiff would profit from some professional legal advice and assistance about the wisdom of continuing to prosecute these proceedings to their ultimate but as yet uncertain conclusion. I can presently have no reasonable anticipation or expectation of what that conclusion may be or when it will arrive. I can say, however, that the physical and emotional toll of this type of adversarial litigious pursuit, which is so often driven by highly commendable but typically elusive matters of principle, is generally if not inevitably more destructive than restorative.

67 I trust that the plaintiff and the defendants will consider these matters, as well as the terms of s 56 of the Civil Procedure Act 2005, in the weeks ahead as they contemplate what steps they will next take in this case.

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LAST UPDATED:
5 March 2010