Supreme Court New South Wales Medium Neutral Citation: Slaveski v Connell [2012] NSWSC 810 Hearing dates: 16 July 2012 Decision date: 16 July 2012 Jurisdiction: Common Law Before: Beech-Jones J Decision: Proceedings dismissed. Catchwords: JUDICIAL REVIEW - Appeal from interlocutory Local Court decision to refuse to require prosecution witnesses to give oral evidence at committal hearing - Table 1 offences dropped - committal hearing dispensed with - whether appeal against ruling frivolous - whether adjournment should be granted. Legislation Cited: Crimes Act 1900 - s 59(2), s 60, s 93C(1) Crimes (Appeal and Review) Act 2001 - s 53(3) Criminal Procedure Act 1986 - s 91, s 260 Mental Health (Forensic Provisions) Act 1990 - s 32 Road Rules 2008 - cl 265 Summary Offences Act 1988 - s 4A Supreme Court Act 1970 - s 69 Uniform Civil Procedure Rules 2005 - r 13.4 Cases Cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 McBain, Re; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 Minister for Immigration and Multicultural and Indigenous Affairs, Re; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 211 CLR 441 Slaveski v Longley LCM [2011] NSWSC 933 Category: Interlocutory applications Parties: Ljupco Slaveski (First Plaintiff) Angeleska Snezana (Second Plaintiff) Magistrate Conell (First Defendant) Director of Public Prosecutions (Second Defendant) Representation: Counsel: No appearance for Plaintiffs Submitting appearance (First Defendant) Ms C.A. Webster (Second Defendant) Solicitors: Solicitor for Public Prosecutions (Second Defendant) File Number(s): 2011/289669 EX TEMPORE Judgment 1Before me is the second defendant's notice of motion seeking the summary disposal of the plaintiffs' summons, together with what is in effect an application by the plaintiffs for an adjournment of that motion. 2The plaintiffs' summons seeks leave to appeal from, and judicial review of, a decision of a magistrate refusing an application under s 91 of the Criminal Procedure Act 1986 ("the Procedure Act") to require witnesses to give oral evidence in committal proceedings concerning the plaintiff. Since his Honour's determination, all of the charges against the plaintiffs which were to be dealt with on indictment have been withdrawn and the remaining charges against them will be dealt with summarily. It follows that there will not be any committal hearing to which any order under s 91 would be applicable. These proceedings are therefore futile. Background 3On 1 July 2010 some form of altercation occurred involving the plaintiffs and members of the New South Wales Police Force. This led to the plaintiffs being charged with a number of offences including: affray, assault occasioning actual bodily harm in company, assault, and a number of strictly summary offences. Those charges were filed in the Local Court at Bankstown and thereafter transferred to Burwood Local Court. 4The charge of affray under s 93C(1) of the Crimes Act 1900 is a so-called Table 1 offence; that is, an indictable offence which by operation of s 260(1) of the Procedure Act can be dealt with summarily unless the prosecutor or the accused elects to the contrary. In the case of the first plaintiff, he made an election for that charge against him to be dealt with on indictment. At a point when the second defendant assumed control of the prosecution, it made a similar election in respect of the charge under s 93C(1) as against the second plaintiff so as to ensure that the proceedings continued together. It was those circumstances that led to there being a need for a committal hearing. 5The plaintiffs made an application to the Local Court at Burwood under s 91 of the Procedure Act for some of the witnesses to give evidence orally at a committal hearing. On 3 May 2011 that application was dismissed. 6In April 2011 the plaintiffs brought proceedings in this Court, seeking orders in the nature of mandamus, requiring a transfer of the committal proceedings listed before the Local Court at Burwood to the Local Court at the Downing Centre. 7On 23 August 2011 Fullerton J dismissed those proceedings (Slaveski v Longley LCM [2011] NSWSC 933). 8On 8 September 2011 the plaintiffs filed their summons seeking leave to appeal in respect of the determination made on 3 May 2011. The judgment or order appealed against is described as an "order made by Magistrate Connell dismissing the applicant's application in regards to s 91 to call the witnesses to court". The relief sought is that the appeal be allowed, the order be set aside and an order which, amongst other things, required that the police witnesses to "come at court and give evidence". 9The proceedings continued in the Local Court at Burwood. They were fixed for a paper committal in February of this year. 10On 20 February 2012 the prosecution withdrew a number of the charges against both plaintiffs and amended others. The remaining charges as against the first plaintiff, Ljupco Slaveski, as at that date were: a charge of use offensive language contrary to s 4A(1) of the Summary Offences Act 1988; a charge of drive with unrestrained passengers under the age of 16 years contrary to cl 265(3) of the Road Rules 2008; two counts of assault occasioning actual bodily harm in company with the second plaintiff contrary to s 59(2) of the Crimes Act; and two counts of common assault against police officers contrary to s 60 of the Crimes Act. The remaining charges as against the second plaintiff, Angeleska Snezana, are two counts of assault occasioning actual bodily harm in company with the first plaintiff and two counts of common assault. 11All of the remaining assault related charges are so-called Table 2 offences; that is, offences which, by the operation of s 260(2) of the Procedure Act, are to be dealt with summarily by the Local Court unless the prosecution elects in accordance with Chapter 5 of the Procedure Act to have those offences dealt with on indictment. No such election has been made. The end result is that what is left in the Local Court are a number of charges which will be dealt with by way of summary hearing in that court irrespective of whether the plaintiffs wish the Local Court to hear them or would prefer trial by jury. There will not be any committal hearing. The adjournment application 12It seems that the two plaintiffs are resident in Victoria. There have been a number of directions hearings in these proceedings which have mostly, if not on every occasion, proceeded with one or other or both of the plaintiffs appearing via telephone. On various occasions they have corresponded with the Court and the defendants by email, sometimes in the name of one of them and sometimes in the name of both. Generally, as the plaintiffs have brought the one case and appear content for one or other of them to speak on behalf of both, I do not consider there is any basis for differentiating between the knowledge of two of them in relation to the listing of the matter for hearing. 13On 20 April 2012 the matter was listed for a directions hearing before the Registrar. The first plaintiff appeared by telephone. The second defendant advised the Court of its intention to bring the notice of motion before me, bearing in mind the position it had taken in respect of the outstanding charges. The Registrar ordered the "plaintiff to advise the DPP as to whether he intends to discontinue by 25 May 2012". For the reasons that I have indicated, this should be taken as a reference to both plaintiffs. This order was made to allow the plaintiffs to consider their position in light of the change in circumstances arising from the withdrawal of the charges that I have described. Neither of the plaintiffs elected to take up that opportunity. Instead, they indicated by email that they wished to continue. The Registrar's orders also provide that, in the event the plaintiffs wished to continue with the proceedings, the second defendant could file a motion together with affidavits in support and submissions, seeking the summary dismissal of the proceedings. The matter was listed for hearing today. In accordance with those directions, the second defendant filed a motion and an affidavit as well as submissions and served them on the plaintiffs. 14On 26 June 2012 the second plaintiff emailed the solicitor for the second defendant, advising that her and the first plaintiff would be overseas from early July until the end of August 2012. She stated that she was not aware of the hearing date of 16 July "until a few days ago as I was not in Australia on 20 April 2012". The solicitor for the second defendant advised her that if she wanted to vacate the hearing then she should seek to have the matter listed before the Court. This was followed up by another email on 28 June 2012 in which the second plaintiff was advised that it was her responsibility to list the application before the Court. 15On 3 July 2012 an email was sent under the name of both plaintiffs to an email address at the Court and to the solicitor for the second defendant, seeking an adjournment. This was brought to the attention of the Registrar. 16On 5 July 2012 an email was sent from the Court to the plaintiffs in response. It informed them that the request to vacate the hearing date had been declined and advised them to "file notice of motion with affidavit in support prior to hearing date" and "if not, the case will be dealt with your absence and possibly struck out" (sic). 17On 13 July 2012 the solicitor for the second defendant emailed the plaintiffs. Amongst other things, she advised them of the authorities that would be relied upon in support of the motion and again reminded them of the hearing date. 18Yesterday evening an email was sent from the two plaintiffs to the Court and the solicitor for the second defendant, again requesting an adjournment. The email advised that the hearings of the outstanding charges in the Local Court had been adjourned to 23 October 2012 and stated, "I think it will proceed under s 32 due to me being on disability pension". This is a reference to the proceedings against the first plaintiff, which had been adjourned to that date part-heard from a date in early July 2012. Apparently an application had been made by the prosecution to have the first plaintiff dealt with under s 32 of the Mental Health (Forensic Provisions) Act 1990. Based on that, the plaintiffs seek an adjournment of these proceedings until "a later date after 1 September 2012" and assert that "it will be in the interests of justice to adjourn the hearing". 19In considering the application for adjournment, it must be remembered that these are proceedings brought by the plaintiffs. In commencing proceedings, they assumed a responsibility to conduct them expeditiously. When the matter was given a hearing date on 20 April 2012, no reference was made by the first plaintiff to an impending overseas trip. While the second plaintiff may not have been aware that there was to be an impending overseas trip, she left it to the first plaintiff to appear on her behalf on 20 April 2012. Parties who commence proceedings cannot assume that any hearing date will be vacated to suit their convenience in that way. This is especially the case for appeals from interlocutory decisions made in the course of criminal proceedings. Such proceedings should not be fragmented (see Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 339 per Mason CJ). Moreover, in this case, adjourning a proceeding which has become futile is not in any party's interest nor is it in the "interests of justice". I refuse the adjournment application The motion to dismiss 20There are two sources of jurisdiction by which this Court can "review" decisions of magistrates under s 91 of the Act. The first is s 53(3) of the Crimes (Appeal and Review) Act 2001, which provides: "(3) Any person against whom: (a) an order has been made by a Magistrate in relation to the person in any committal proceedings, or (b) an interlocutory order has been made by the Local Court in relation to the person in summary proceedings, may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court." 21The second is the supervisory jurisdiction of this Court which is confirmed by s 69 of the Supreme Court Act 1970. This provision enables the Court to grant relief in the nature of that which was previously effected by the granting of writs of prohibition, mandamus and certiorari. 22The grant of relief by way of mandamus, certiorari or prohibition is always discretionary (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 211 CLR 441 at 472; Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372). One matter that bears significantly on the exercise of any such discretion is the existence of an alternative means of appeal or review, which in this case is s 53(3). In the ordinary course, an applicant who is refused leave under s 53(3) could expect to have so much of their case that remains which invokes s 69 of the Supreme Court Act dismissed on discretionary grounds. This is particularly so in a case which involves an appeal from an interlocutory order made in ongoing criminal proceedings (see Australian Broadcasting Tribunal v Bond). 23It is unnecessary to consider this further as the second defendant does not seek the dismissal of the proceedings on any such discretionary basis. Instead, it invokes r 13.4 of the Uniform Civil Procedure Rules 2005, which provides: "(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (2)the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2)The court may receive evidence on the hearing of an application for an order under subrule (1)." 24As is clear from the above recitation of the background, the matter in issue in these proceedings - namely, the validity of the determination under s 91 of the Procedure Act made on 3 May 2011 - has become irrelevant. No right, interest or expectation of the plaintiffs is now affected by that determination. These proceedings are now truly frivolous within the meaning of the rules and should be dismissed. 25I note that there is no application for costs by the second defendant. Accordingly, the order of the Court is the proceedings are dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 July 2012