Brian FRUGNIET v ATTORNEY GENERAL OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MAHONEY ACJ, MEAGHER JA and GILES AJA 28 October 1996 [1996] NSWCA 194 Mahoney ACJ. This application comes before the Court this morning as the result of a notice of motion filed on 15 October 1996. In order to understand the terms of the notice of motion and what is the nature of the present application, it is necessary to refer briefly to the history or some aspects of the history of this matter. I shall take details of what I shall say from the affidavit which Mr Frugniet has placed before the Court this morning and from the court papers. Insofar as the material which I shall refer to is stated by him, it should not be inferred that, by referring to the matters as stated in his affidavit, I am accepting or rejecting the correctness of what he says. I am merely recording these matters from the material which at the moment is before the Court. It appears from that material that on 12 December 1994, Mr Frugniet was convicted of serious criminal offences relating to matters of dishonesty. He was on 25 January 1995 sentenced to imprisonment for two years. The imprisonment was to consist of a fixed term of one year and six months and an additional term of sixmonths. He was granted bail pending the hearing of his appeal to the Court of Criminal Appeal. On 30 April 1996 the Court of Criminal Appeal heard the appeal and, on 21 June 1996, that appeal was dismissed. It appears from the material before the Court that an appeal or appeals against what has been done in the criminal proceedings have been lodged in the High Court. I say an appeal: by that I mean an application for leave to appeal. The Court is informed that the hearing date for that application for leave to appeal is 15 November 1996. Pending the progress of these matters, an application has been made (I put the matter briefly) for the transfer of Mr Frugniet to Victoria to answer further charges raised in that State. Proceedings have been brought before a Local Court magistrate (I take these details from the judgment of Simpson J of 8 August 1996) and the Local Court magistrate made an order for the transfer of Mr Frugniet to Victoria in accordance with the provisions of the Prisoners Interstate Transfer Act 1982. An appeal was brought to Simpson J in relation to those orders and other matters were agitated before her. On 8 August 1996 her Honour made orders dismissing the applications that were before her. Her Honour delivered a long judgment dealing with the matter. The judgment, which extends over some twenty-six pages, details the relevant facts as they were before her and I shall refrain from repeating any of the details that were then in question. An appeal has been lodged to this Court against the orders of Simpson J. Whether an appeal lies as of right or whether leave is necessary is not a matter which need be considered at the present time. A notice of appeal has been lodged and that appeal is now pending. 2 UNREPORTED JUDGMENTS When the notice of appeal was lodged the matter appears to have come before the judge presently concerned with the listing arrangements of this Court, Clarke JA. His Honour appears to have directed (I have recorded the memorandum from which I draw this information) that the appeal should be dealt with upon an expedited basis. This was done, apparently on 26 September 1996. A note was given by the judge tothe Registrar in accordance with the ordinary practice and procedure of the Court indicating that in the view of the list judge the matter warranted being dealt with in an expedited way. Apparently the parties were unaware of this practical direction given by Clarke JA. On 30 September 1996 the Crown Solicitor of New South Wales, acting for the respondent parties, filed a notice of motion seeking an order that the appeal should be expedited and that application was supported, I am told, by an affidavit. Ms Latham, for the respondent parties, has informed the Court that the notice of motion and the affidavit were served and that does not appear to be in question. That notice of motion provided that it should come before the Court on 14 October 1996. There is no information before the Court as to what actually happened in relation to that notice of motion. I do not know whether specific orders were made on the basis of it or whether in fact the matter was treated as having been dealt with by the judge pursuant to the direction which is recorded in the memorandum of 16 September 1996 to which I have previously referred. The present position is, as the Court is informed, that the matter will be listed before the Registrar on 6 November 1996 as on a call-over to fix a date for the hearing. The Registrar will no doubt on that date take into account the view expressed by Clarke JA that the matter is appropriate to be dealt with by way of an expedited hearing, that is, an earlier rather than a later hearing. On the date of the call-over it will be open to either party to put matters before the Registrar in support of the fixing of an early date or against the fixing of such a date. I see no objection to the parties properly presenting to the Registrar on that date material to enable the Registrar to fix a proper date for hearing which was not before the list judge. If the hearing of the application for special leave to appeal to the High Court is heard on 15 November 1996 and that matter is disposed of in November, a date may be fixed for hearing of the appeal from Simpson J after that date, on such date as maybe appropriate. Thus, if the application for leave to appeal is granted then the High Court may perhaps indicate what the position should be in relation to the hearing of the appeal against the orders made by Simpson J. If the application to the High Court is dismissed then there would apparently be no reason why the hearing of the present appeal against the orders of Simpson J should not be fixed at some date soon after 15 November 1996. However, I see no reason why the Registrar should not take those matters into account, in addition to other appropriate matters, when on 6 November 1996 he comes to determine the date for hearing of the particular appeal. In these circumstances I have suggested to Mr Frugniet in the course of discussion that the application contained in paragraph | of the notice of motion is 'misconceived'; it appears to be based upon a wrong assumption. The assumption is that the order directing expedition was made pursuant to Pt 51 r 18A. From the material before the Court at the present time it does not appear that that is the way in which the matter will come before the Registrar for fixing the date at the call-over of 6 November 1996. In the circumstances therefore that UFBJian FRUGNIET v ATTORNEY GENERAL OF NEW SOUTH WALES (Mahoney ACJ) 3 portion of the notice of motion appears to be at least inappropriate and I do not think any order should be made upon it. I would propose that that part of the application be dismissed. There remains the other part of the notice of motion. Paragraph 2 of the notice of motion seeks an order, 'That the second respondent transfer the appellant to a minimum security correctional centre such as Silverwater so that the appellant is able to diligently prosecute his two High Court appeals and this appeal without obfuscation and hindrance'. It has been suggested, accurately or not I do not determine, that Mr Frugniet was transferred from a less secure to a maximum security imprisonment in or about June 1996. He says or suggests that that being so his preparation of his applications to the High Court has been interfered with; it is suggested that he cannot appropriately deal with those matters. It may be in principle that a court is able to make appropriate orders if it appears that its process is being interfered with by the actions of the executivegovernment authorities. I have in mind orders made by the High Court staying the execution of a prisoner pending the hearing of his appeal: see Tait VR (1962) 108 CLR 620. It is not necessary to pursue that aspect of the matter. No doubt the High Court or this Court would, if it were satisfied that there was ground to do so, make appropriate orders if it felt that a person pursuing proceedings before it was, I take an example, deliberately interfered with in relation to his or her preparation of the case. I do not suggest that that is the present case but I merely refer to the position so that it will not be thought that these matters have been overlooked in this Court. But as far as concerns the order sought in par 2 of the notice of motion, I do not think that primarily that is a matter for this Court and in any event I do not think that orders should be made in that regard. The evidence does not support the power or the propriety of the Court making such orders. I record that when the proceeding commenced Mr Frugniet sought to call on subpoena for a number of documents relating to the orders sought in par 2. The Court indicated that it did not see that this Court had jurisdiction to deal with that matter or at least it did not feel that it ought to deal with the matter in the circumstances. Therefore it did not direct that the subpoenas be called upon. They are, as a matter of record, placed with the Court papers. In the circumstances it is my opinion that no order should be made in relation to par 2 of the notice of motion. I have detailed these matters as a matter of record and perhaps unnecessarily. The Court, taking into account all the circumstances, should, in my opinion, dismiss the notice of motion both in respect of pars 1 and 2 of it. I would propose that the notice of motion be dismissed accordingly. Meagher JA. I agree. Giles AJA. I also agree. Mahoney ACJ. The order of the Court therefore is that that notice of motion is dismissed. The matter will then come before the Registrar for the fixing of a date for the hearing of the appeal against the orders made by Simpson J. It will no doubt comebefore him on 6 November 1996 and he will have the benefit of what has been said here for his consideration when he fixes the date. It may be that the parties will wish to put appropriate submissions to him (I do not mean at length) in relation to the matter, and he, taking into account what has been said, will be in a position to fix an appropriate date. The orders of the Court are therefore as have been indicated and the Court will now adjourn. 4 UNREPORTED JUDGMENTS Orders accordingly.