Rapson v Wright [1999] NSWSC 534

New South Wales Supreme Court CITATION : Rapson v Wright [1999] NSWSC 534 revised - 07/06/99 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 13988/95 HEARING DATE(S) : 12 & 18 May, 2 June 1999 JUDGMENT DATE : 2 June 1999

Dr Philip John Rapson (P1) Jennifer Margaret Rapson (P2) PARTIES : William Edwin Wright (D1) Jeffrey Ahern (D2) Kevin Maughan (D3) JUDGMENT OF : Hamilton J

LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : 358/95 LOWER COURT JUDICIAL OFFICER : Maughan M

M S Jacobs QC and A S Kostopoulos (P1 & 2) COUNSEL : P I Lakatos (D1 & 2) Submitting appearance (D3) SOLICITORS : Greg Walsh & Co (P1 & 2) Crown Solicitor (D1 - 3)) CATCHWORDS : CRIMINAL LAW [702] - Jurisdiction, practice and procedure - Stay of proceedings - Generally - Power of Court - Whether Supreme Court of NSW has power to lift or vary permanent stay. ACTS CITED : Justices Act 1902 Kable v DPP [1999] NSWSC 95 CASES CITED : Nicholas v The Queen (1998) 72 ALJR 456; 151 ALR 312 Ridgeway v The Queen (1995) 184 CLR 19 DECISION : Permanent stay of proceedings on informations in Local Court lifted insofar as necessary to permit Local Court to dismiss informations and to hear and determine application for orders for costs by defendants.

RapsonWright2jun99 04/06/99 12:16 - 4 -

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HAMILTON J WEDNESDAY, 2 JUNE 1999

13988/98 PHILIP JOHN RAPSON & ANOR v WILLIAM EDWIN WRIGHT & ORS

JUDGMENT His Honour: 1 In these proceedings I made orders on 19 December 1997 that there be a permanent stay of proceedings on two informations in the Local Court at Sutherland and subsequently gave reasons for my orders. Costs of the proceedings in the Supreme Court were awarded against the defendants, following the event of the proceedings. The formal substantive orders made were simply that the proceedings on the informations be permanently stayed. Those orders were formally entered on 13 October 1998. Essentially the basis on which I ordered that the proceedings in the Local Court be permanently stayed was that those proceedings had been brought for an improper or inappropriate purpose, being a purpose other than the due enforcement of the criminal law and were consequently an abuse of proceedings. Subsequently, the plaintiffs in these proceedings have brought proceedings in the District Court for malicious prosecution based upon the laying of those informations in the Local Court. Those proceedings are shortly for trial in the District Court. The defendants in those proceedings are propounding, amongst others, the defence that the proceedings for malicious prosecution must fail because the orders for permanent stay did not amount to a determination of the proceedings on the informations in favour of the defendants in those proceedings, a precondition to the success of an action for malicious prosecution. 2 Under the present motion the plaintiffs initially sought that I should vary or add to the orders I made by way of permanent stay by ordering that, in the proceedings in the Local Court, the informations be dismissed. I am of the view that, on the present state of the law, this Court cannot make orders for dismissal in the Local Court. A contrary view was expressed by Brennan J in Ridgeway v The Queen (1995) 184 CLR 19, but was not the view of the majority of the High Court in that case. The very reason for the orders of this Court being by way of permanent stay is that the proceedings on the informations are not in this Court but in the Local Court; no ground for a certiorari was established which would have permitted the proceedings to be removed into this Court, whereupon this Court would have had the power to make orders in those proceedings; and the orders by way of permanent stay were the way of dealing with the situation. The present plaintiffs have applied in the Local Court to have the proceedings upon the informations dismissed, but the Magistrate has declined to do this, in my view correctly, on the basis that, the proceedings being permanently stayed by order of this Court, he could or ought do nothing whatever in the proceedings. Likewise the present plaintiffs, at the time of asking for the orders of dismissal in the Local Court, asked the Local Court to order the costs of those proceedings in their favour upon dismissal, and the Magistrate refused that application for like reason. 3 However, the main thrust of debate in this case has come to be, whether the Court has power, bearing in mind that its earlier orders have been entered, to lift the stay in part in order to permit the matter to be dealt with further in the Local Court, and whether, if it has such power, that power ought in this Court's discretion be exercised to make such an order. Mr Lakatos, of counsel for the first and second defendants, has made supplementary written submissions which address these questions and which have been particularly helpful. It is conceded on behalf of the first and second defendants that the Court does have power to lift a permanent stay and in that regard reference is made to Nicholas v The Queen (1998) 72 ALJR 456; 151 ALR 312, see per Brennan CJ at [41]; and Hayne J at [255]. The power to lift the permanent stay was, in that case, conceded. However, for the reasons there stated, it seems to me that the concession made in that case was correct and that the concession made on behalf of the first and second defendants in this case by Mr Lakatos was correct and inevitable. 4 The question therefore becomes one of whether the discretion to lift the stay pro tanto should in this case be exercised. It seems to me that the correct view of the discretion is that it is at large. It must, of course, be exercised judicially, but there are no particular criteria upon which it should be exercised or preconditions to its exercise. I should say that if it were a necessary precondition to its exercise, that there should have been a change in circumstances since the making of the original order (as was provided in Nicholas by the legislative abolition of the difficulty which had led to the permanent stay being granted in the first place), then I should find that there was a relevant change of circumstances in the present case which would justify the partial lifting of the stay in that, upon malicious prosecution proceedings being brought in the District Court, the defendants have pleaded in that Court that there was a defence available to them that the proceedings in the Local Court had not been determined in favour of the defendants in those proceedings. This was a subject matter certainly not contemplated by this Court when original orders were made in December 1997. However, it seems to me that there is also a different basis upon which the discretion may be exercised in the same sense, although arising from the same subject matter, that is, that the basis of the jurisdiction to grant permanent stays is a jurisdiction that is intended to prevent injustice arising. The jurisdiction which was exercised in the present case is a jurisdiction not in respect of proceedings in this Court, but a supervisory jurisdiction over inferior tribunals which do not themselves have power to grant permanent stays or do not stay the proceedings before them. The supervision is exercised to ensure that justice is done. Justice, in my view, would not be done by this Court's orders if they were left in such a state as to prevent the dismissal by the Magistrate of the informations before him which, since they cannot proceed and cannot succeed, ought, in my view, be dismissed, particularly since there is an issue estoppel between the plaintiffs in this Court and the informant in those proceedings that the laying of the informations in the Local Court was an abuse of process. Often it will make no practical difference whether criminal proceedings are dismissed or permanently stayed, but here, where the rights of the parties may vary depending on whether the criminal proceedings are or are not dismissed, the dismissal of proceedings which cannot and ought not succeed ought be facilitated. I therefore propose to order that the permanent stays be varied so far as is necessary to permit the Local Court to dismiss the informations before it. It was at the heel of the hunt contended before me that there could be no dismissal of the informations in the Local Court by reference to s 80 of the Justices Act 1902. That contention does not appear to be correct, although it should be said that it has not been fully argued before me. 5 The question of costs in the Local Court is perhaps, in a sense, different. Certainly there are cases in this Court to which Mr Lakatos has drawn attention, including Kable v DPP [1999] NSWSC 95, where, costs having been overlooked at the time of substantive orders being made, the Court in its discretion refused subsequently to make orders for costs. In that case, however, the costs under consideration were the costs of the proceedings in the Supreme Court, which have, of course, in this case been already dealt with. Costs in the Local Court did not arise at the time the substantive orders were made in this Court, and, indeed, could not and cannot arise in the Local Court, until an order of dismissal has been made. Whilst, if the application were for a lifting of the stay to deal with costs alone, the result might be different, in my view, since the occasion for costs in the Local Court does not arise until the orders of dismissal are made in that Court, it is appropriate that that matter also now be allowed to be agitated in the Local Court when orders for dismissal of the informations are made. The order that I propose to make, therefore, is that the permanent stay granted in respect of each of the informations referred to in my earlier order be lifted so far and only in so far as is necessary to permit the Local Court to dismiss the said informations and to hear and determine an application by the defendant named in each information for an order in respect of the costs of the proceedings in the Local Court. I shall order that the first and second defendants pay the plaintiffs' costs of this motion. …o0o…