Ponnambalam v The State of Western Australia [2013] HCATrans 91 (26 April 2013)

Last Updated: 27 May 2013

[2013] HCATrans 091

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S323 of 2012

B e t w e e n -

NAVANEETH PONNAMBALAM

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Summonses

GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO PERTH

ON FRIDAY, 26 APRIL 2013, AT 12.00 PM

Copyright in the High Court of Australia

MR N. PONNAMBALAM appeared in person.

MS K.H. GLANCY: If your Honour pleases, I appear for the respondent. (instructed by State Solicitor (WA))

HIS HONOUR: Mr Ponnambalam, I have before me your summons of 26 November 2012 together with your affidavit of that date, and the exhibits to that affidavit. I also have your summons of 13 February 2013 together with your affidavit filed on that date, and the exhibits to that affidavit. You move today on those two summonses?

MR PONNAMBALAM: Yes, your Honour.

HIS HONOUR: You read those two affidavits?

MR PONNAMBALAM: Yes, your Honour.

HIS HONOUR: You tender the exhibits exhibited to those affidavits?

MR PONNAMBALAM: Yes, your Honour.

HIS HONOUR: Is there any other material that you wish to put in evidence before me today?

MR PONNAMBALAM: Nothing further, your Honour.

HIS HONOUR: Thank you. I have read your extensive written submissions filed in support of both summonses. There is a question I want to ask you, but before I come to that specific question, is there anything you wish to add to those submissions?

MR PONNAMBALAM: Yes, your Honour. Just in relation to the summons - 13 February 2013 - I wish to withdraw order 6 that was made on that summons.

HIS HONOUR: Yes, thank you.

MR PONNAMBALAM: Thank you.

HIS HONOUR: Now, the question I want to ask you is this. You seek in paragraph 2 of your summons of 26 November 2012 a suppression order. It is not clear to me that there is any material you have filed in the High Court in support of your application for removal that you seek remain confidential. Is there any material that you have filed in support of your

application in the Registry of the High Court that you seek to remain confidential?

MR PONNAMBALAM: Just the fact of my attendance at the ACC, and I was plainly relying on the non-publication order when I sought that suppression order, your Honour, and I left it to this Court as to whether it was appropriate or not, but in the event that there is any, I am happy to leave it aside.

HIS HONOUR: Thank you. Ms Glancy, I take it there is no material you wish to put before the Court by way of evidence today?

MS GLANCY: No, your Honour.

HIS HONOUR: Thank you. I have read your helpful submissions. You do not oppose an order permitting Mr Ponnambalam to file his summary of argument today. It is obviously desirable that this matter be made ready for hearing as soon as possible. Would you be able to file a summary of argument in response by, say, 3 May? It is seven days, I think.

MS GLANCY: Within seven days? I think we would need longer than that, your Honour, perhaps 14 days.

HIS HONOUR: All right, 10 May?

MS GLANCY: Yes, 10 May. Nor, your Honour, do we oppose Mr Ponnambalam’s application to extend the page limit so that he can file his application at 12 pages as it is in his draft summary of argument, and we will assist in preparation of the books that are necessary for the hearing of the removal application.

HIS HONOUR: Thank you very much.

After a trial in the District Court of Western Australia, the applicant was convicted on 3 February 2012 of offences against section 371 of the Criminal Code (WA). He was sentenced to imprisonment for a total of eight years. The applicant has appealed to the Court of Appeal of the Supreme Court of Western Australia against both the conviction and the sentence. Those appeals remain pending.

By application filed on 9 October 2012, the applicant has sought an order under section 40 of the Judiciary Act 1903 (Cth) removing into the High Court the whole of the appeal against conviction now pending in the Court of Appeal of the Supreme Court of Western Australia. Before me today are two summonses by which the applicant seeks procedural orders in connection with the removal application. The applicant seeks orders enlarging the time for filing a summary of argument in support of the application for removal, and dispensing with compliance with the rule of the High Court Rules governing the page length of a summary of argument. Those orders are not opposed, and the summary of argument of 12 pages in length is ready to file today. I propose to make the orders sought permitting the filing of that 12-page summary of argument today.

It is clearly desirable that the application for removal be ready to be heard promptly and I propose also to make an order abridging the time for filing by the respondent of its summary of argument, which will be required to be filed by 10 May 2013.

The applicant seeks a writ of mandamus directed to the President of the Court of Appeal of the Supreme Court of Western Australia, apparently to compel an adjournment of the appeal against conviction and to compel what the applicant describes as an order to sever the appeal against sentence. A related order that he seeks appears to concern service of the application for mandamus. I leave to one side that the application for mandamus is not in the proper form required by the High Court Rules. Assuming in the applicant’s favour that the Court of Appeal may be exercising federal jurisdiction such as to ground this Court’s jurisdiction to order mandamus in accordance with section 33 of the Judiciary Act 1903 (Cth), the applicant shows no arguable jurisdictional error on the part of the Court of Appeal.

The applicant also seeks a stay of his appeal against conviction pending the determination of his removal application. This Court has power to order a stay in accordance with rule 8.07 of the High Court Rules. It will exercise that power only in exceptional circumstances. Only in the most exceptional circumstances will it do so where an application for a stay, or at least an adjournment, has not been made to and determined by the court in which the cause sought to be removed is pending.

The applicant has made an application to the Court of Appeal for an adjournment of his appeal against conviction. The application for an adjournment has been the subject of written submissions filed by each party in that court and has yet to be listed for hearing before that court. The applicant in those circumstances has not shown that there is a warrant for this Court to intervene so as to order a stay under rule 8.07 of the High Court Rules.

The applicant next seeks a writ of mandamus directed to the Attorney-General of the Commonwealth to compel a payment of money pursuant to section 78B(4) of the Judiciary Act. A related order appears to concern service of the application for mandamus. The application for mandamus arises out of unsuccessful attempts to apply for funding from the Commonwealth Attorney-General’s Department for his appeal, evidence of which the applicant has put before me today. Again, I leave to one side that the application for mandamus is not in a proper form in accordance with the High Court Rules.

Section 78B(4) of the Judiciary Act does no more than to confer power on the Attorney-General to authorise the payment by the Commonwealth of an amount in respect of costs arising out of the adjournment of a cause by reason of the operation of section 78B of the Judiciary Act itself. The applicant has not demonstrated any failure on the part of the Attorney-General to perform any duty, performance of which might be compelled by mandamus.

The applicant next seeks a suppression order mirroring a non-publication order made by an examiner of the Australian Crime Commission on 7 September 2010 as varied on 9 November 2010, 25 September 2012 and, counsel for the respondent informs me, 24 April 2013.

The applicant does not, however, point to any material that has been filed in the removal proceedings in the High Court over which he claims that there is an interest in confidentiality. In those circumstances, I do not propose to make a suppression order. The public interest in the open administration of justice weighs against the making of some order in globo of the kind sought by the applicant.

The orders I make are as follows:

1. Time for filing the applicant’s summary of argument in support of the application for removal be enlarged to 26 April 2013.
   
2. Dispense with compliance with rule 26.03.2(b) of the High Court Rules to permit the applicant to file his summary of argument of 12 pages.
   
3. Abridge the time for filing and serving of the respondent’s summary of argument to 10 May 2013.
   
4. The summonses dated 26 November 2012 and 13 February 2013 otherwise be dismissed.
   

Thank you, Mr Ponnambalam. Thank you, Ms Glancy. The Court will now adjourn.

AT 12.16 PM THE MATTER WAS CONCLUDED