Supreme Court New South Wales Medium Neutral Citation: Kostov v Commissioner of Police [2020] NSWSC 678 Hearing dates: 29 May 2020 Decision date: 29 May 2020 Jurisdiction: Common Law Before: Adamson J Decision: (1) Refuse the plaintiff's application that the proceedings not be heard on 29 May 2020. Catchwords: CONSTITUTIONAL LAW — Notice to Attorneys General — Judiciary Act 1903 (Cth) s 78B — whether notice discloses a matter arising out of the Constitution or concerning its interpretation Legislation Cited: Commonwealth Constitution Crimes Act 1900 (NSW) Judiciary Act 1903 (Cth), s 78B Cases Cited: Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 Texts Cited: International Covenant on Civil and Political Rights Category: Procedural and other rulings Parties: Adriana Kostov (Plaintiff) Commissioner of Police, NSW Police Force (Defendant) Representation: Counsel: Self-represented (Plaintiff) K Curry (Defendant on all issues other than s 78B of the Judiciary Act 1903 (Cth)) R McEwen (Defendant on issues under s 78B of the Judiciary Act 1903 (Cth)) Solicitors: Not applicable (Plaintiff) Office of the General Counsel, NSW Police Force (Defendant) File Number(s): 2020/55717 Decision under appeal Court or tribunal: Local Court Date of Decision: 13 August 2019 Before: Milledge LCM File Number(s): 2019/82890 Judgment (EX TEMPORE) 1. Adriana Kostov (the plaintiff), who appears in person, has sought an adjournment of the proceedings as a consequence of her identification of a matter said to fall within s 78B of the Judiciary Act 1903 (Cth). These proceedings comprise her application for leave to appeal or appeal against orders entered by Magistrate Milledge for convictions of two offences under the Crimes Act 1900 (NSW). 2. The plaintiff has not been prepared to identify orally the issues which she says fall within s 78B. However, I have before me and marked as MFI 1 her s 78B notice and I also have her application for removal dated 27 May 2020, which is to be, or has been, filed in the High Court, MFI 2. 3. It would appear from these documents that the plaintiff contends that the right to legal representation provided for in the International Convention of Civil and Political Rights (ICCPR) gives rise to an equivalent right under the Australian Constitution. That would appear to be a significant legal misapprehension on her part. 4. Section 78B(1) of the Judiciary Act relevantly provides: "Where a cause pending in a Court of a State involves a matter under the Constitution or involving its interpretation it is the duty of the Court not to proceed in the cause unless and until the Court is satisfied that notice of the cause specifying the nature of the matter has been given to the Attorneys General of the Commonwealth and of the States and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys General for the question of intervention in the proceedings or removal of the cause to the High Court." 1. As the Court of a State, I am obliged to decide whether these proceedings involve a matter arising under the Constitution or involving its interpretation or could, on any reasonable construction of that section, involve such matters. 2. Having had the benefit of the two documents which I have marked MFI 1 and MFI 2, I am satisfied that none of the matters raised by the plaintiff falls within s 78B. Where an international treaty, such as the ICCPR, purports to confer rights on individuals, such rights are not enforceable in Australian courts except to the extent that they have become part of Australian law. The entitlement of a litigant to legal representation is, relevantly, governed by the common law. In the criminal context, it was the subject of consideration by the High Court in the matter of Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57. The High Court recognised that the right to legal representation was not a separate, stand-alone right but was an aspect of the right of an accused person, when charged with a criminal offence, to have a fair trial. Where legal representation is a condition precedent to having a fair trial, as it tends to be when an accused is charged with a serious offence, that may effectively give rise to a right to legal representation. 3. However, this is not a matter which arises under the Constitution or involves its interpretation within the meaning of s 78B, it being pre-eminently a matter governed by the common law. 4. Accordingly I find that the matter does not fall within s 78B. Orders 1. For the reasons given above, I make the following order: 1. Refuse the plaintiff's application that the proceedings not be heard on 29 May 2020. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 June 2020