Harb v Stapleton and Ors [2003] NSWSC 650

New South Wales Supreme Court

CITATION : Harb v Stapleton and Ors [2003] NSWSC 650 revised - 28/07/2003 HEARING DATE(S) : 08/07/03 JUDGMENT DATE : 23 July 2003

JUDGMENT OF : Shaw J at 1 DECISION : (1) That Carmel Forbes be joined as a party to these procedings; (2) That the summons be dismissed; (3) That the plaintiff pay the costs of the defendants.

CATCHWORDS : Judicial Review - whether Apprehended Violence Orders validly issued - whether order for detention valid - whether Magistrates should be restrained from issuing orders LEGISLATION CITED : Crimes Act 1900 (NSW) Part 15A; Mental Health (Criminal Procedure) Act 1990 (NSW); Raymond George Harb - Plaintiff PARTIES : Lisa Veronica Stapleton - First defendant Attorney General for the State of New South Wales - Second defendant FILE NUMBER(S) : SC 11065/03 COUNSEL : In Person - Plaintiff A Johnson - Second defendant SOLICITORS : In Person - Plaintiff Crown Solicitors - Second defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Shaw J

23 July 2003

11065 of 2003 Raymond George Harb (Plaintiff)

v

Lisa George Stapleton (First defendant);

Attorney General for the State of New South Wales (Second defendant)

JUDGMENT 1 Shaw J: By summons filed on 5 May 2003 the plaintiff claims an order that the first defendant 'breached her duty as a Magistrate in the making of a fraudulent Apprehended Violence Order'. The plaintiff seeks further orders that: 2. The same Magistrate made an illegal order to detain me in hospital. 3. To stop the issuing of illegal AVO by the above Magistrate. 2 On 23 June 2003 Greg James J allowed the second defendant to be joined to the proceedings to act as a contradictor on the hearing of the summons. 3 It should be noted that while the plaintiff's summons names the first defendant, his challenge seems to be to a decision of the Local Court differently constituted. Investigations by the Attorney General have revealed that the decision challenged by the plaintiff seems to have been made by Magistrate Carmel Forbes. By letter dated 9 July 2003, Ms Johnson, who appeared for the second defendant, informed the Court that Magistrate Forbes would consent to be joined in the proceedings, submitting to an order made except for costs. In light of those developments, I propose to order that Magistrate Forbes be joined as a defendant to these proceedings. 4 At the commencement of the hearing the plaintiff indicated that he was unhappy with the incomplete state of the evidence he proposed to tender. He said that he required the complete file from the Manly Local Court relating to his appearances in that Court including all transcripts, documents and exhibits kept by that Court. He sought an adjournment of the proceedings to subpoena that Court and also several police officers who he asserted had arrested him illegally. He also sought to subpoena evidence from the protected persons specified in the Apprehended Violence Orders mentioned in the summons to provide this Court with evidence that they have never sought protection from the plaintiff. 5 On that application, the Attorney submitted that I should not grant the plaintiff an adjournment for two reasons: 1. the adjudication of the appellant's summons for prerogative relief relating to a particular order does not require the full record of the Manly Local Court to be before the Court; and 2. that an adjournment would be conditional upon the plaintiff providing an amended summons that more accurately particularises his claim but that such an order would be futile because the proceedings are inherently flawed and should be dismissed. 6 Given that these submissions had some force, I received evidence and heard submissions from the plaintiff on the summons without deciding whether to grant an adjournment. 7 There are some fundamental problems with the summons and since the evidence sought by the plaintiff could not reasonably affect the adjudication of the issues he has canvassed, I am not persuaded that the adjournment should be granted. Further, I am satisfied that the plaintiff's summons must be dismissed with costs and my reasons for this conclusion are as follows. 8 The essence of the plaintiff's claim is that the Apprehended Violence Orders issued or confirmed by Magistrates in the Local Court were invalid or illegal. He submits that since he had no intention to intimidate one of the protected persons named in the Apprehended Violence Order -but rather, intended to 'intimidate' (a word used by the plaintiff in his submissions to the Court) her mother- the initial Interim Apprehended Violence Order issued in her name, and not in the name of her mother, was invalid.