Spajic v Robertson & Ors [2007] NSWSC 553

New South Wales Supreme Court

CITATION : Spajic v Robertson & Ors [2007] NSWSC 553 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 28 May 2007

JUDGMENT DATE : 30 May 2007

JURISDICTION : Common Law

JUDGMENT OF : Michael Grove J at 1

DECISION : Summons Dismissed

CATCHWORDS : PREROGATIVE RELIEF - CONVICTIONS BY LOCAL COURT FOR OFFENCES RELATING TO UNREGISTERED VEHICLE - EX PARTE HEARING - PROCEDURE ADOPTED BY MAGISTRATE VALID - CHALLENGE TO LEGISLATION MISCONCEIVED - PROCEEDINGS FUTILE AND SHOULD BE DISMISSED

LEGISLATION CITED : Criminal Procedure Act 1986

PARTIES : Igor Spajic v Brian Robertson (Director of the State Debt Recovery Office of NSW), Magistrate Ian Barnett and Gary Smith

FILE NUMBER(S) : SC 2006/16293

In person (Plaintiff) COUNSEL : Miss B. Baker (1st & 3rd Defendants) Submitting Appearance (2nd Defendant)

SOLICITORS : N/A (Plaintiff) I.V. Knight (Crown Solicitor)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MICHAEL GROVE J

Wednesday 30 May 2007

2006/16293 - IGOR SPAJIC v BRIAN ROBERTSON (DIRECTOR OF THE STATE DEBT RECOVERY OFFICE OF NSW) & ORS

JUDGMENT

1 HIS HONOUR: This is a summons brought by the plaintiff, who appears in person, which is titled "application for prerogative remedy". 2 Earlier this week I dealt with a notice of motion and also with an application by the plaintiff for adjournment of the hearing of this summons. 3 Subsequent to the hearing, which occurred consequent upon my refusal of the adjournment, the plaintiff sought leave to supplement what he wished to submit by way of written submissions. I have received those written submissions and they will remain with the papers. 4 It can be said that those written submissions, in substance, add very little to what was contained in an earlier affidavit which itself really amounted to submissions rather than assertions of fact. 5 One of the reasons, in addition to giving the plaintiff the opportunity to make those written submissions, that the matter was adjourned to today was to enable me to look more carefully at written material, including the depositions of proceedings before the magistrate, which I had previously only had the opportunity to scan. As I shall later indicate, the opportunity to read that material in detail rather provided a key to what is necessary to determine this matter. 6 In broad terms, the complaints of the plaintiff for which he seeks relief arise out of proceedings brought against him for offences relating to the non-registration of a vehicle. Those proceedings were commenced in the Local Court by way of the issue of Court Attendance Notices. 7 It is important to observe that those notices had a return date of 19 April 2004 and the records show that the plaintiff appeared in person on that return date. 8 The matters were then listed for hearing at the Sutherland Local Court scheduled to be heard on 25 June 2004. As I have stated, the records show that the plaintiff was present when that fixture was directed. 9 Subsequent to 19 April the plaintiff made applications, in effect, to vacate the date of 25 June 2004 and adjourn the matter to another date. 10 Those applications were made on the basis that his legal representative would not be available on 25 June. 11 As appears from the transcripts the legal representative to whom he referred was somebody whom he nominated as a common law attorney, which he ultimately defined as a "McKenzie" friend. That person is not a qualified barrister or solicitor. Nevertheless, nothing turns upon this in relation to the determination of the present summons. 12 The applications to vacate the hearing date on 25 June failed. The plaintiff then simply absented himself on that date. 13 He must have been well aware that the previous applications to vacate the date had been refused. 14 What happened on that date was that a magistrate dealt with the matters in his absence. He was authorised so to do specifically by provision in the Criminal Procedure Act, relevant to which is section 199(1) which provides: "The court may determine proceedings heard in the absence of the accused person on the basis of the Court Attendance Notice without hearing the prosecutor's witnesses or any other additional evidence of the prosecutor if it is of the opinion that the matters set out in the Court Attendance Notice are sufficient to establish the offence".