Marium v Van Zuylen [2024] NSWSC 258

Supreme Court New South Wales

Medium Neutral Citation: Marium v Van Zuylen [2024] NSWSC 258 Hearing dates: 14 March 2024 Date of orders: 22 March 2024 Decision date: 22 March 2024 Jurisdiction: Common Law Before: Davies J Decision: 1. Pursuant to r 6.29 of the Uniform Civil Procedure Rules 2005 (NSW) I remove the third and fourth defendants as parties to the proceedings. 2. Dismiss the second defendant's notice of motion filed 16 June 2023. 3. Dismiss the summons. 4. The plaintiff is to pay the second defendant's costs. Catchwords: CRIMINAL PROCEDURE – stay of proceedings – plaintiff charged by future Court Attendance Notice ("CAN") with two driving offences – where original CAN charged negligent driving occasioning grievous bodily harm – four further CANs added dangerous driving, combined two offences and added further details – plaintiff sought a permanent stay of the proceedings on two bases – Magistrate dismissed application – whether prosecutor needed leave to amend CAN – held s 20 of the Criminal Procedure Act 1986 (NSW) requiring leave to amend an indictment after it is presented does not apply to a CAN – prosecutor entitled to issue further CANs – if leave had been sought to amend, leave would have been granted – greater degree of particularity with successive CANs – no abuse of process by service of five successive CANs – whether the particulars were inadequate – CAN identifies precisely the time and date, place, act and harm suffered – CAN complies with relevant legislation and matters discussed in Johnson v Miller – plaintiff in no doubt about the case she has to meet – both bases for a permanent stay rejected – no error in the Magistrate's determination – summons dismissed Legislation Cited: Crimes Act 1900 (NSW) ss 4, 52A Criminal Procedure Act 1986 (NSW) ss 15,20, 47, 50, 172, 175 Local Court Rules 2009 (NSW) r 3.11 Road Transport Act 2013 (NSW) s 117 Supreme Court Act 1970 (NSW) s 69 Uniform Civil Procedure Rules 2005 (NSW) rr 6.29, 13.4, 14.28, 59.3 Cases Cited: Belkheir v Director of Public Prosecutions (NSW) [2023] NSWSC 1233 Downey v Acting District Court Judge Boulton (No 5) (2010) 78 NSWLR 499; [2010] NSWCA 240 Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77 Knaggs v Director of Public Prosecutions & Anor [2007] NSWCA 83 Likiardopoulos v The Queen (2012) 247 CLR 265; [2012] HCA 37 Marium v Registrar Local Court Blacktown [2022] NSWSC 1401 Maxwell v The Queen (1996) 284 CLR 501; [1996] HCA 46 Texts Cited: Nil Category: Principal judgment Parties: Marium Marium (Plaintiff) Magistrate Brian Van Zuylen (First Defendant) Mark Darley (Second Defendant) Local Court Blacktown (Third Defendant) Michael Tidball (Secretary Department of Community and Justice) (Fourth Defendant) Representation: Counsel: In person (Plaintiff) Submitting appearances (First, Third & Fourth Defendants) N Regener (Second Defendant)