Slaveski & Anor v Longley LCM & Ors [2011] NSWSC 933

Supreme Court New South Wales

Medium Neutral Citation: Slaveski & Anor v Longley LCM & Ors [2011] NSWSC 933 Hearing dates: 22/08/2011 Decision date: 23 August 2011 Jurisdiction: Civil Before: Fullerton J Decision: 1. The summons is dismissed. 2. The plaintiffs are to pay the costs of the third defendant. Catchwords: PROCEDURE - s 69 Supreme Court Act - mandamus - transfer of committal proceedings between local courts Legislation Cited: Criminal Procedure Act 1986 Director of Public Prosecutions Act 1986 Supreme Court Act 1970 Category: Principal judgment Parties: Ljupco Slaveski (1st Plaintiff) Snezana Angeleska (2nd Plaintiff) Christopher Longley LCM (1st Defendant) Timothy Keady LCM (2nd Defendant) Director of Public Prosecutions (3rd Defendant) Representation: In person (Plaintiffs) CA Webster (3rd Defendant) In person (Plaintiffs) Director of Public Prosecutions (3rd Defendant) File Number(s): 2011/79281

Judgment HER HONOUR: 1By an amended summons dated 12 April 2011 the plaintiffs seek relief which, so far as I am able to discern, is for an order under s 69 of the Supreme Court Act 1970 in the nature of mandamus transferring committal proceedings currently listed before Burwood Local Court for hearing to the Downing Centre Local Court after an application for transfer was effectively refused by Connell LCM on 3 May 2011. 2Although the amended summons seeks "an injunction against Magistrates Longley and Keady" (respectively the first and second defendants) from presiding over the committal hearing, the plaintiffs clarified their position at the commencement of the hearing before me and pressed only for an order that the committal proceedings listed for hearing tomorrow be transferred to the Downing Centre Local Court. 3In written submissions filed in support of the summons the plaintiffs contend that they will not receive a fair hearing from any Magistrate presiding in the Local Court at Burwood because of what they claim to be unfair treatment of one kind or another by each of three Magistrates who have had occasion to deal with their criminal case at that court complex since November 2010. They submit that for this reason, and because of what they perceive to be a conspiracy of adverse judicial attitude towards them, any Magistrate listed to hear the committal proceedings at Burwood will be prejudiced against them. 4The plaintiffs are self-represented in this Court. They have each been represented in the Local Court from time to time by the Legal Aid Commission. On other occasions one or both plaintiffs have been self-represented in that Court. They are both charged with offences of assault police, resist arrest and affray arising out of a connected series of incidents in July 2010 after police directed Mr Slaveski to pull over the motor vehicle he was driving because of an alleged infringement of the motor traffic laws. 5The charges were originally laid by police but taken over by the Director of Public Prosecutions under s 9 of the Director of Public Prosecutions Act 1986 in November 2010. Although the matters are susceptible to being disposed of in the Local Court, Mr Slaveski, who was charged upon his arrest, elected to have his matters dealt with on indictment and Ms Angeleska, who was served with Court Attendance Notices some months later, has also made that election. In the result, all charges involving both plaintiffs are to be prosecuted on indictment and for that reason they have been processed in the Local Court in accordance with Chapter 3 of the Criminal Procedure Act 1986. 6I have not been invited to consider any of the evidence relied upon in support of the criminal charges or whether there is any substance in the claim by each of the plaintiffs that the charges were fabricated by police as a result of a vendetta against each of them and their children. That is because that evidence is simply irrelevant to any issue that I am to decide in these proceedings. They are matters that may be addressed in the pending committal proceedings or at the plaintiffs' trial in the District Court in the event that they are committed for trial and that a bill to prosecute is found and the charges are defended. 7The proceedings are listed for hearing at Burwood Local Court tomorrow for "a paper committal" in accordance with Divisions 2 and 3 of Chapter 3 of the Criminal Procedure Act after the plaintiffs' application to have 23 witnesses attend for cross-examination under s 91 of the Criminal Procedure Act was refused. 8That application was heard and determined by Connell LCM on 3 May 2011 after which his Honour listed the matter for a committal hearing on 24 August 2011. In final submissions Mr Slaveski suggested to his Honour that it would be "for the best" that the further conduct of proceedings be transferred to the Downing Centre because, in his assessment, that would be "a neutral zone". At that time Mr Slaveski also submitted that he had evidence of "corrupt practices" at the Court (which he claimed would be the subject of evidence in the proceedings in this Court) and because he did not feel safe in the Burwood Court complex. 9The plaintiffs tendered the audio recording of the proceedings before his Honour on that occasion. In my view there was nothing in the conduct of proceedings that would give rise to any suggestion that his Honour prejudged any of the issues that were for him to determine on the application for witnesses to attend for cross-examination. His Honour was patient and courteous, being at pains to have the plaintiffs understand the nature of the proceedings over which he was presiding. In fixing the matter for committal hearing on 24 August 2011 (there being no proper basis to warrant the proceedings being transferred to the Downing Centre), his Honour was also patient and courteous giving appropriate weight to the need to ensure that court time and resources were optimised. 10The plaintiffs also tendered an audio recording of an appearance before Longley LCM on 18 April 2011 when his Honour listed the hearing of the application under s 91 of the Criminal Procedure Act for a full day on 3 May 2011. No doubt concerned to ensure a full hearing of the application under s 91 by each of the plaintiffs, and equally no doubt conscious of the multiple occasions when the matter had been the subject of mention in the Local Court over the preceding nine months, his Honour listed the matter for a full day, ordered that the case have priority on that day and that Mr Slaveski's bail continue in the interim. I also note that 3 May 2011 was a date appointed by his Honour to accommodate Mr Slaveski's plans to travel overseas on 4 May 2011. There was nothing that I could discern in his Honour's conduct of the proceedings on that occasion warranting criticism of any kind. 11I also received in evidence a transcript of proceedings before Longley LCM on 24 November 2010 and 9 March 2011 and before Keady LCM on 9 January 2011, 9 March 2011 and 23 March 2011. On each occasion the plaintiffs were given an adequate opportunity to be heard as procedural questions were raised by the parties in advance of the committal hearing. On each occasion the presiding Magistrate was conscious of the plaintiffs' position as residents of Victoria and for the most part that they were unrepresented. 12After considering the evidence and after hearing oral argument from the plaintiffs to supplement their written submissions, I am not persuaded that there is any foundation in fact or any proper basis in law for the order sought by the summons. It is simply not a function of this Court in its supervisory jurisdiction to review the listing practices of the Local Court whether to meet the needs of unrepresented litigants or to indulge the perceptions of some that they have been treated unfairly because the Court has not done as they have asked. 13The jurisdiction of this Court under s 69 of the Supreme Court Act is limited to where it is able to be clearly demonstrated that there is an actual or constructive failure to exercise the jurisdiction of the Local Court. That has not been established on the evidence. 14Accordingly, I make the following orders: 1. The summons is dismissed. 2. The plaintiffs are to pay the third defendant's costs.