Supreme Court New South Wales Medium Neutral Citation: Marium v Registrar Local Court Blacktown & Ors [2022] NSWSC 528 Hearing dates: 27 April 2022 Date of orders: 03 May 2022 Decision date: 03 May 2022 Jurisdiction: Common Law Before: Walton J Decision: The Attorney General shall bring in short minutes of order reflecting this judgment, on or before 4pm on Wednesday 4 May 2022. Catchwords: Judicial review – challenge to decision of Registrar Local court - notice of motion seeking leave to intervene - application by Attorney General granted Legislation Cited: Judiciary Act 1903 (Cth) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 Cases Cited: Attorney General v The Times Newspapers Ltd [1974] AC 273 Levy v State of Victoria (1997) 189 CLR 579; [1997] HCA 31 Markisic v Magistrate David Heilpern [2011] NSWSC 410 R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13 Wentworth v Wentworth (Unreported, NSWSC, Santow J, 4 October 1996) Category: Procedural rulings Parties: Marium Marium (Plaintiff) Registrar Local Court Blacktown (First Respondent) Constable Mark Daley (Second Respondent) Local Court Blacktown (Third Respondent) Secretary, Department of Communities and Justice (Fourth Respondent) Representation: Counsel: Marium Marium (Self Represented) N A Wootton (Attorney General for NSW, Applicant on the motion) Solicitors: Makinson d'Apice Lawyers (Second Respondent) Crown Solicitor's Office (Attorney General for NSW, Applicant on the motion) File Number(s): 2021/307325 Publication restriction: Nil Judgment 1. By a summons filed on 9 October 2021, "the summons", Marium Marium ("the plaintiff"), sought orders against the Registrar of the Blacktown Local Court ("the first respondent"), Constable Mark Darley, ("the second respondent"), the Blacktown Local Court ("the third respondent") and the Secretary of the Department of Community and Justice ("the fourth respondent"). 2. The relief sought concerned a decision by the first respondent on 27 October 2021 (the plaintiff contending that the decision-maker was in fact anonymous), not to list the plaintiff's notice of motion filed in criminal proceedings on 27 October 2021 ("the motion"). (The proceedings brought by the summons shall hereinafter be referred to as "the proceedings"). 3. It is unnecessary to recite at length the grounds relied upon in the summons save to note that the plaintiff contended there was an impermissible delegation of power to a person, making the decision to refuse the motion, a denial of natural justice, an excess of jurisdiction in reaching the decision and that the decision maker had failed to consider relevant matters. 4. On 4 November 2021, Notices of Appearance submitting to orders of this Court, save as to costs, were filed on behalf of the first, third and fourth respondents. The second respondent has foreshadowed an intention to enter a submitting appearance in the event that the Attorney General for NSW ("Attorney General") was granted leave to intervene in the proceedings. The application to seek leave to intervene in those proceedings is the subject of this judgment. 5. By notice of motion filed by the Attorney General filed on 3 March 2022, the Attorney General sought leave to intervene in the proceedings. (The notice of motion shall hereinafter be referred to as "the application" or "the motion"). 6. The application was supported by two affidavits of Jake Marusich affirmed respectively on 3 March and 14 April 2022. The Attorney General also relied upon an affidavit by the plaintiff dated 4 February 2022, filed in the proceedings ("4 February affidavit"). Whilst it had been contended by the Attorney General that the 4 February affidavit was filed in support of the summons, it ultimately became common ground that the affidavit was filed in the proceedings by the plaintiff, in anticipation of the filing of an interlocutory application concerning some issues raised in correspondence by a Kathy Frost, dated 25 January 2022. The plaintiff maintained that such an interlocutory application would be made by notice of motion in the proceedings in due course and that the affidavit would be relied upon in support of that motion. The affidavit was admitted in the Attorney General's application to intervene over objection for the non-hearsay basis to prove allegations had been made in the court against various persons, including the Registrar of the Local Court and others, at the interlocutory stage. 7. In opposing the application, the plaintiff relied upon her affidavit of 5 April 2022. 8. The Attorney General sought leave to intervene pursuant to s 23 of the Supreme Court Act 1970 (NSW). That provision grants the Court jurisdiction which may be necessary for the administration of justice in New South Wales. The Court also has power to grant leave to an individual to be joined as an intervenor, flowing from the Court's inherent jurisdiction to regulate its own procedures: Markisic v Magistrate David Heilpern [2011] NSWSC 410 at [18] (per Johnson J) ("Markisic") citing Levy v State of Victoria (1997) 189 CLR 579; [1997] HCA 31 ("Levy") at [601]. In Wentworth v Wentworth (Unreported, NSWSC, Santow J, 4 October 1996), Santow J observed that as an incident of its inherent jurisdiction, the Supreme Court has all those powers necessary to enable it to act effectively within its jurisdiction and to control its own process and proceedings and is empowered to permit intervention by persons who are not originally parties to a given set of proceedings. 9. Rule 6.24(1) of the Uniform Civil Procedure Rules 2005 ("UCPR") provides that, if the Supreme Court considers that a person ought to have been joined as a party or is a person, whose joinder as a party is necessary to the determination of all matters in dispute in any proceeding, the Court may order that the person be joined as a party. 10. The plaintiff contended that the statutory basis for the intervention of the Attorney General was, in fact, s 78A of the Judiciary Act 1903 (Cth) and that the requisite conditions for intervention specified in that provision had not been established in the present application. However, the difficulty with that submission is that the Attorney General did not apply for intervention in these proceedings as a matter of right under the provision and the limitations within Section 78A were not presently relevant. The source of power for the Court is that which I have identified above. 11. It may also be noted that the plaintiff submitted that the Attorney General's interest did not rise above an indirect affection of legal interest and thereby enlivened no absolute right to intervene, relying upon the judgment in Levy at 603 (per Brennan CJ). It was also submitted that the Attorney had only sought to intervene to stand in the stead of the defendants and that this was an insufficient basis to establish a right to intervene. Again, the Attorney General did not assert an absolute right to intervene in the proceedings or a direct effection of legal interest but relied upon various factors to which I will return. 12. I turn then to matters of principle and, in that respect, note my acceptance in broad terms of the submissions advanced for the Attorney General. 13. The importance of the role of the Attorney General in relation to the administration of justice, as the first law officer of the State, is uncontroversial. It was described in the following terms by Lord Diplock in Attorney General v The Times Newspapers Ltd [1974] AC 273 at [311]: 311. He is the appropriate public officer to represent the public interest in the administration of justice. In doing so he acts in constitutional theory on behalf of the Crown, as do Her Majesty's judges themselves; but he acts on behalf of the Crown as 'the fountain of justice' and not in the exercise of its executive functions. 1. In Xie v Shaoji [2008] NSWSC 224, Simpson J granted the Commonwealth Attorney General leave to intervene in a matter concerning important matters of jurisdiction. Her Honour summarised the propositions that arise from Levy, stating (at [30]-[31]): 30.… in Levy, two points emerge. The first is that the interests of a non-party may be affected or potentially affected by a decision; where that is established, in the view of Brennan CJ, the pre-condition for the grant of leave to intervene is satisfied. The second point that emerges from Levy is that leave to intervene may be granted where it can be seen that the parties to the particular proceeding may not fully present the submissions on a particular issue, where such submissions would assist the court to reach a correct determination. Axiomatically, that is so where one party has not appeared and has not presented argument. 31. In these circumstances, the Attorney General of the Commonwealth is in a position to assist the Court to reach a correct determination of important matters of jurisdiction. He is in a position to guide the Court in respect of the correct application of the FSI Act, for example. 1. In Markisic, after referring to Levy, Johnson J granted leave to the Attorney General to intervene in circumstances where allegations were made against a Magistrate of the Local Court, who had filed a submitting appearance. His Honour explained (at [21]): 21. There remains, in any event, the certain need for an effective contradictor in each set of proceedings. Further, an effective contradictor is required in the context of proceedings in which allegations are made against judicial officers. The Court will be assisted by an intervenor as a party who would put alternative arguments to those of the Plaintiffs. 1. In the proceedings, the plaintiff sought to impugn a decision made by the first respondent. The plaintiff also brought the proceedings against the third respondent, being a court. It is generally inappropriate for a judicial officer, court or tribunal to take an active role in proceedings challenging its decision, in accordance with the principle in R v Australian Broadcasting Tribunal; Ex parte Hardiman ("Hardiman") (1980) 144 CLR 13; [1980] HCA 13. In that case, the High Court stated (at 35-36) that the usual course is for a respondent tribunal to submit to such orders as the Court may make. That is extracted below: If the tribunal becomes a protagonist, it may endanger the impartiality which it is expected to maintain in subsequent matters if relief is granted. 1. In Markisic, Johnson J accepted that "[t]he Attorney General may take the role of substantial contradictor to ensure compliance with the principles in [Hardiman]" (at [19]). 2. Upon the basis of the aforementioned principles, the Attorney General has established, in my view, that leave to intervene in the proceedings should be granted for the following reasons: 1. The first respondent has entered a submitting appearance consistent, in my view, with the principles stated in Hardiman. Whilst the third respondent is not the subject of orders sought in the summons as such, it has been made a defendant in the proceedings and likewise has entered a submitting appearance. Intervention by the Attorney General would ensure that there is an active contradictor and would provide assistance to the Court in determining contested factual issues as well as in respect of the law relevant to the decision under review. 2. I do not consider that the application is premature as contended by the plaintiff. The matters raised in the summons concern the proper administration of justice in that they challenge a decision of the Registrar not to list a notice of motion in pending criminal proceedings before the third respondent. It is appropriate for the Attorney General to be joined as an active party at this juncture and in those circumstances because of that subject matter. 3. The Attorney General is the appropriate public officer to represent the public interest in the administration of justice as raised in that context. It is not to point, as contended for by the plaintiff, that there is no dispute with the Attorney General at this stage or that it might not be possible to identify in advance the precise situations in which the Attorney General may assist the court as an active contravener. The subject matter of the proceedings provides ample basis to establish that it is appropriate for the Attorney General to be joined as an active party. 4. Whilst the above reasons are sufficient in and of themselves to establish an appropriate basis for the grant of leave to intervene, some observations may also be made about the statements made by the plaintiff in the 4 February affidavit. In that affidavit, various statements are made by the plaintiff against the first respondent and the employees of the third and fourth respondent as well as the fourth respondent as an entity. It is sufficient to observe that, contrary to the submissions of the plaintiff, the statements were in the nature of allegations and were of a serious nature. Whilst the employment of the affidavit by the plaintiff is pending, it awaits the filing of a notice of motion by the plaintiff seeking interlocutory relief, and is therefore yet to be reached in the proceedings, the plaintiff confirmed that she intended to move on such a motion in seeking interlocutory relief and to rely upon the affidavit in support thereof. 5. In circumstances where serious allegations of impropriety are made in this way, and as stated in Markisic, there is a "certain need" for an effective contravener. In other words, leave should be granted to the Attorney General to intervene as an active contradictor in respect of arguments put by the plaintiff in response to those allegations of impropriety. 6. It is true that the second respondent maintained an active participation in the proceedings as of the date of the hearing of the application. It was made clear, however, that a submitting appearance would be entered in the event that leave to intervene was granted to the Attorney General. 1. It is appropriate to deal briefly with some further contentions advanced by the plaintiff. First, I do not consider that the Crown Solicitor has a conflict of interest in acting for the Attorney General in circumstances where the Crown Solicitor's office had filed submitting appearances on behalf of the first, third and fourth respondents. The Attorney General has sought leave to intervene because those respondents have filed such appearances and will not act as contradictors in the proceedings. 2. A criticism was made of counsel appearing for the Attorney General because of a mistaken assertion in a communication that the Attorney General had already been granted leave to appear in the proceedings. It is sufficient to observe that no part of the conduct of counsel in that respect was in breach of her professional obligations. 3. By the motion, the Attorney sought to be joined as a party to the proceedings so that he can adduce evidence, should it be appropriate to do so, in the event that the factual allegations made by the plaintiff as described above are pressed. Having regard to the primary matters joined in issue with respect to the summons and the allegations made in the 4 February affidavit, it is appropriate that the leave granted to the Attorney General to intervene, extend to the status of party. In those circumstances, it is unnecessary to deal with submission regarding the alternative submission that leave be given to assist the court as amicus curiae. 4. The application should be granted in the terms proposed in the motion. 5. In my view, given the stage of proceedings, costs should be in the cause. 6. The Attorney General shall bring in Short Minutes of Order reflecting this judgment by 4pm on Wednesday 4 May 2022. ********** Amendments 03 May 2022 - Amended typographical error on Coversheet. 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: 03 May 2022