Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bandara v District Court of NSW [2016] NSWCA 14 Hearing dates: 15 February 2016 Date of orders: 15 February 2016 Decision date: 15 February 2016 Before: Gleeson JA Decision: (1) The hearing date fixed for 1 March 2016 is vacated. (2) The applicant is to file and serve any further written submissions and any amended summons by 22 February 2016. (3) The fourth defendant (Director of Public Prosecutions (NSW)) is to file and serve a Chronology and any relevant affidavit by 26 February 2016. (4) Note that the Court proposes to appoint an amicus curiae to provide written submissions and appear at the hearing of the appeal. (5) Stand over the proceedings before the Registrar on 29 February 2016 to fix a new hearing date and for the giving of directions for the filing and service of written submissions by the amicus curiae and the fourth and sixth defendants, and any reply submissions by the applicant. (6) The applicant's notice of motion filed 15 February 2016 be dismissed with no order as to costs. Catchwords: PRACTICE AND PROCEDURE – interlocutory application – application for judicial review of decision in District Court dismissing appeal against interim AVO – application for judicial review of decisions of Local Court concerning final AVO and costs orders –application for pro bono assistance – whether applicant lacking means to prepare written submissions – whether appropriate case to be referred for assistance – proceedings largely turning on factual issues –– appointment of amicus curiae Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 7.36 Crimes (Appeal and Review) Act 2001 (NSW) Category: Procedural and other rulings Parties: Manula Bandara (Applicant) District Court of NSW (Second Defendant) Local Court of NSW (Third Defendant) Office of the Director of Public Prosecutions (NSW) (Fourth Defendant) Bainbridge Lawyers (Sixth Defendant) Representation: Counsel: Solicitors: Mr M Bandara (self-represented) Ms H Langley (Office of the Director of Public Prosecutions (NSW) (Fourth Defendant)/and mentioned on behalf of Ms Wanschers (Sixth Defendant)) File Number(s): 2014/360661 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South WalesLocal Court of New South Wales Date of Decision: 4 December 2014 Before: Colefax SC DCJMurphy LCMBaptie LCM File Number(s): 2013/325505 2013/344585 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. GLEESON JA: Before the Court on 15 February 2016 was a notice of motion by which the applicant, Manula Bandara, sought "assistance to conduct my matter". The proceedings in this Court involve an application for judicial review relating to a decision of the District Court (Colefax SC DCJ) on 4 December 2014, dismissing an appeal against an interim apprehended violence order (AVO) made on 5 August 2014 by a Magistrate sitting in the Local Court at Parramatta (Murphy LCM). That challenge is the subject of a summons filed by the applicant on 8 December 2014. 2. Subsequently, on 22 July 2015 the applicant filed an amended summons seeking judicial review of two decisions of a Magistrate sitting at the Local Court at Parramatta (Baptie LCM). One decision related to a final AVO made on 17 November 2014. The other related to a costs order made on 11 February 2015 concerning the interim AVO made by Murphy LCM on 5 August 2014. Appeals against those decisions to the District Court were dismissed on 25 June 2015 by Sides DCJ (the applicant not appearing on that date). An application to revoke the orders dismissing those appeals (pursuant to s 22 of the Crimes (Appeal and Review) Act 2001 (NSW)) was refused by Sides DCJ on 17 July 2015 (the applicant also not appearing on that date). The grounds stated in the amended summons do not, on their face, seek judicial review of these decisions of the District Court. The challenge seems to be limited to the decisions in the Local Court by Baptie LCM. 3. At the conclusion of the hearing, I made the following orders: 1. the hearing date fixed for 1 March 2016 is vacated; 2. the applicant is to file and serve any further written submissions and any amended summons by 22 February 2016; 3. the fourth defendant (Director of Public Prosecutions (NSW)) is to file and serve a Chronology and any relevant affidavit by 26 February 2016; 4. Note that the Court proposes to appoint an amicus curiae to provide written submissions and appear at the hearing of the appeal; 5. Stand over the proceedings before the Registrar on 29 February 2016 to fix a new hearing date and for the giving of directions for the filing and service of written submissions by the amicus curiae and the fourth and sixth defendants, and any reply submissions by the applicant; 6. the applicant's notice of motion filed 15 February 2016 be dismissed with no order as to costs. 1. These are my reasons for making those orders. 2. A brief overview of the procedural history of the proceedings in this Court is as follows. On 29 June 2015 the applicant filed written submissions in support of the summons. Although an amended summons was filed on 22 July 2015, the applicant failed to file any written submissions in support. 3. On 18 November 2015, the Registrar gave notice to the parties that the proceedings were fixed for hearing on 1 March 2016. On 17 December 2015, orders and directions were made including that an amended summons (if any) and the applicant's submissions be filed and served by 11 January 2016. The applicant did not comply with those directions. The applicant's explanation, given by affidavit sworn 12 February 2016, is that he is currently held in custody at the South Coast Correctional Centre and he does not have access to CaseLaw, or any other material to assist him to make his written submissions. 4. Although the applicant has not filed any further amended summons as directed on 18 November 2015, he clarified during argument that he intends to pursue the application for judicial review in respect of the decisions of both the District Court and the Local Court, the subject of challenge in the summons and the amended summons, respectively. 5. There are a number of matters which need to be addressed for the purposes of a referral of the applicant to the Registrar in order to obtain pro bono assistance under Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 7.36. The first is the means of the applicant. This was not addressed in the applicant's affidavit. The next matter is the capacity of the litigant to obtain legal representation outside the scheme. Again, the applicant's affidavit did not address what attempts have been made to obtain legal assistance outside the scheme. If those were the only matters to consider then it may have been possible, particularly in the absence of evidence to the contrary, to draw favourable inferences that the applicant is a student, apparently without means and currently held in custody, and that he has failed to obtain assistance outside the scheme. 6. However, the Court is also required to take into account the nature and complexity of the proceedings, together with any other matter that the Court thinks appropriate (Uniform Civil Procedural Rules r 7.36(2)(c)-(d)). 7. In this case, the applicant's written submissions clearly identified the asserted error in the District Court's dismissal of his appeal against the interim AVO. It is contended that Colefax SC DCJ failed to deal with the merits of the applicant's appeal, namely that the interim AVO was made by Murphy LCM on 5 August 2014 on the mistaken ground that an earlier order had been made against the applicant on 6 June 2014, when that was not the case. It seems that Colefax SC DCJ did not address this asserted error and instead dismissed the appeal on the basis that, by the date of the appeal, the interim AVO had been overtaken by the making of the final AVO. My present understanding of the matter is that the applicant's challenge to the decision of the District Court involves an assessment of the factual position, the matters of fact being understood by the applicant. 8. With respect to the decisions in the Local Court, the applicant contends in his amended summons that he was denied procedural fairness on the hearing of the final AVO on 17 November 2014, because he was unrepresented and he was not afforded legal representation before Baptie LCM. He also contends that the costs order made by Baptie LCM on 11 February 2015 relating to the interim AVO made by Murphy LCM is erroneous, because Baptie LCM lacked jurisdiction to award costs relating to the earlier application. It is asserted that the earlier interim application had been finalised and there had been no application for costs (on 5 August 2014), nor an order that costs be reserved. These challenges also largely involve an assessment of the factual position, the matters of fact being understood by the applicant. 9. Insofar as the applicant's challenges turn on legal issues, I did not consider them to be of such complexity that this is an appropriate case to be referred for pro bono assistance. Accordingly, the applicant's notice of motion filed in court on 15 February 2016 was dismissed. The fourth respondent, the Director of Public Prosecutions (NSW) (the DPP), did not seek any order as to costs and the orders mentioned above reflect that position. 10. Nonetheless, as the applicant is self-represented, I informed the parties that I considered the Court would be assisted at the hearing by the appointment of amicus curiae to provide written and oral submissions. This course was supported by the fourth defendant, and was not opposed by the applicant. 11. The next question which arose was the parties' readiness for the hearing fixed for 1 March 2016. It became apparent during exchanges with the parties that they would not be ready for the hearing, particularly given the absence of any written submissions from the DPP and the sixth respondent, and the need to allow a short period of time for the amicus to be appointed and prepare written submissions. Accordingly, although unfortunate, it was necessary to vacate the hearing date. 12. One further matter should be mentioned. It seems that the DPP has taken the position that it could not prepare its submissions because it was unaware of the precise case the applicant seeks to make, having regard to the different challenges in the summons and amended summons. As stated above, the applicant clarified that he seeks to pursue both challenges in his application for judicial review, that is, the challenge to the decision of the District Court on 4 December 2014 and the decisions in the Local Court on 17 November 2014 and 11 February 2015. The fourth and sixth respondents are on notice of how the applicant intends to advance his case. 13. The orders and directions set out above made provision for the preparation of the proceedings for hearing. It is anticipated that at the directions hearing on 29 February 2016, the Registrar will be in a position to fix a new hearing date. ********** 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: 17 February 2016