Herring v Wright [2001] NSWSC 160

New South Wales Supreme Court

CITATION : Herring v Wright [2001] NSWSC 160 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 12841/00 HEARING DATE(S) : 26 February 2001 JUDGMENT DATE : 26 February 2001

Cicero Herring (Plaintiff) PARTIES : v Alwyn Wright (Defendant) JUDGMENT OF : Newman AJ

LOWER COURT Local Court JURISDICTION : LOWER COURT 20163763/00 FILE NUMBER(S) : LOWER COURT Magistrate O'Shane JUDICIAL OFFICER :

COUNSEL : P: Unrepresented D: Mr Coorey (Sol) SOLICITORS : P: In person D: Kingsford Legal Centre CATCHWORDS : Appeal from Magistrate - whether plaintiff was denied natural justice and procedural fairness - strike out - whether proceedings are incompetent and frivolous Crimes Act 1900, s562D LEGISLATION CITED : Protection of the Enviornment Operations Act 1997, s268 Justices Act 1902, s104 Interpretation Act 1987, s30E CASES CITED : n/a DECISION : Proceedings dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

NEWMAN AJ

MONDAY 26 FEBRUARY 2001 12841/00 - CICERO HERRING v ALWYN WRIGHT JUDGMENT 1 HIS HONOUR: Before the Court as the substantive proceedings is a document, "Amend Summons", which claims orders pursuant to s 562D of Pt 15A of the Crimes Act, 1900 and pursuant to s 268 of the Protection of the Environment Operations Act, 1997. 2 As part of the complex documents which constitute the matter, filed under the heading "Amend Summons" of this Court is a document headed "Request to State a Case" in which reference is made to the failure, no doubt of the Magistrate, in not allowing a judicial or procedural fairness hearing to the plaintiff in these proceedings. 3 A number of documents have been handed up to me during the course of today's hearing, including a number from the plaintiff, which make it plain that the plaintiff, in fact, is seeking to appeal to this Court on the basis that, in July, August and October 2000, the plaintiff was denied natural justice and procedural fairness by Magistrate O'Shane in proceedings brought by him against the defendant in the Local Court. 4 The respondent to the appeal, the defendant in this matter, has sought to strike out the proceedings on the basis that they are incompetent and, in a relevant sense, frivolous. 5 Let me say at once, that the matter received some ventilation before Greg James J on 11 December 2000. On that occasion, his Honour, having identified the nature of the proceedings and the manner in which the plaintiff, Mr Cicero Herring, wished to put them, granted an adjournment to the him to put before this Court such evidence as might possibly show some adequate basis for the proceedings he seeks to bring. 6 Let me also say that, in the almost three months which have passed, the plaintiff before this Court has not done that. 7 The proceedings now before the Court, because of the date of the hearing, are governed by s 104 of the Justices Act, 1902 (as amended). 8 The plaintiff sought to rely upon s 30E of the Interpretation Act, 1987 to revivify the mode of appeal formerly used in bringing appeals from magistrates before this Court, namely a stated case. Even in the form in which the plaintiff attempted to bring the case before this Court, it would have been an invalid exercise in the past because this Court does not state a case, the case is stated by the Magistrate to this Court. 9 Be that as it may, s 104 of the Justices Act is plain in its terms. It is in no way affected by s 30E of the Interpretation Act. Because of the date of the hearing before the learned Magistrate, s 104 is the statutory provision which governs the conduct of appeals before this Court from Magistrates. 10 In my view, the failure of the plaintiff/appellant to obtain evidence of the type suggested to him by Greg James J on 11 December 2000, and his persistence in maintaining a procedural situation which was hopeless, is indicative to me that to grant, as he now seeks, a further adjournment, would be futile. 11 Accordingly, I refuse the plaintiff's application for an adjournment of these proceedings. I find that the notice of motion brought by the defendant should succeed and, accordingly, I dismiss the proceedings as failing to demonstrate any reasonable cause of action. I dismiss these proceedings with costs. 12 I have considered the question of indemnity costs as the matter was raised in submissions put forward on behalf of the defendant. However, I am of the view that, as the plaintiff is unrepresented, justice demands that, in the circumstances, the ordinary costs order is the one that should be made and I so order.