Supreme Court New South Wales Medium Neutral Citation: Woods v Director of Public Prosecutions (NSW) ; Fantakis v Director of Public Prosecutions (NSW) (No 2) [2016] NSWSC 448 Hearing dates: 8 April 2016 Date of orders: 08 April 2016 Decision date: 08 April 2016 Jurisdiction: Common Law Before: Campbell J Decision: (1) Application for a stay of proceedings refused Catchwords: PROCEDURE– criminal law – application for stay of committal proceedings in the Local Court – where judicial review application pending in Supreme Court Category: Procedural and other rulings Parties: Andrew Keith Woods; Terry Fantakis (Plaintiffs) Director of Public Prosecutions (NSW) (First Defendant) Local Court of NSW (Second Defendant) File Number(s): 2016/10749;2016/144322016/36676 ex tempore judgment (rEVISED) 1. For reasons given earlier today, I have adjourned the hearing of these applications for judicial review arising in the context of committal proceedings in the Local Court for the offence of murder. 2. The plaintiffs who are to face committal proceedings commencing on Monday in the Burwood Local Court with a listing of five days have applied for a stay of those proceedings pending the disposition of their applications for judicial review. It had been hoped that this Court could dispose of the applications today and orders were made in that regard on Monday by Wilson J to attempt to give effect to that purpose. For the reasons I have explained earlier, that has not been possible. 3. Generally speaking the power of an appellate court to order a stay of proceedings in lower courts proceeds on the basis of established principles, as Mr Smith of counsel has reminded me. Essentially, although referred to as a stay, such an order amounts to the grant of an interlocutory injunction. Generally to justify a stay of legal proceedings it is necessary for the applicant to demonstrate a fairly arguable case for the relief sought in this Court and that the balance of convenience favours the grant of the stay. When one speaks of the balance of convenience in this context, it is usually necessary to show that the benefit of the remedy sought in the Supreme Court is likely to be rendered nugatory if the stay is not granted. 4. These general principles are not exhaustive statements of the relevant considerations which inform the exercise of this power. Matters such as those referred to by Mr Fantakis like the futility of allowing the proceedings below to continue also have some relevance and may be weighed when assessing where the balance of convenience lies. In truth, the real question is what the interests of justice, and the administration of justice, require. 5. This is a very complicated case. The brief of evidence apparently runs to 50 volumes. It seems clear to me, the plaintiffs and Mr Smith of counsel, that it is very unlikely that the committal proceedings will conclude within the available of five days. 6. The substantive point made by the plaintiffs is that if Mr Fantakis' summons based upon what he asserts is the bias, actual or apprehended, of the learned Magistrate is made good, the whole proceedings will be rendered nugatory and will have to start again involving a great waste of public money. So much may be accepted. Because of the circumstances which have led to the adjournment today, it has not been possible for Mr Fantakis to take me through the material which he relies upon to demonstrate the basis for his claim that the learned Magistrate has, or at least appears to have, materially prejudged these matters. Therefore, I am simply not in a position to make an informed decision about whether the contention is fairly arguable. As that is not a fault that can be laid at Mr Fantakis' feet, given the efforts he has made to obtain the necessary material before the matter came to Court, I am prepared to assume in his favour that his claim in that regard is at least fairly arguable. 7. I turn then to the balance of convenience. It is certainly true that the costs of next week, both the public cost, and the private cost to the parties are likely to be wasted if the plaintiffs win this case. They will equally be wasted if I order a stay of them now. And it seems to me that that consideration is neutral for that reason. Moreover, it is inherent in the process of judicial review that if the case is successful a legal decision already made is set aside and generally speaking the decision has to be made again by the Lower Court, either constituted by the same officer or constituted by another officer if bias is made good. 8. Given that it seems very unlikely that the case will finish next week in the Local Court, and even assuming a fairly arguable case of bias, I am not persuaded that the benefit of any order Mr Fantakis and Mr Woods persuade this Court to grant, will be lost or rendered nugatory. I am of the view that the balance of convenience, given that these are essentially challenges to what are interlocutory determinations made in the committal proceedings - I acknowledge the importance of the case so far as it relies upon bias - favours the committal proceedings continuing. I repeat, I acknowledge that that may result in a waste of time and money. Should I stay the proceedings now at the same time and the same money will be wasted. 9. I am conscious of the fact that Mr Fantakis has organised a new legal team. And that they are not available to represent him at the committal next week. As I sought to explain in the course of argument that is not a matter relevant to the determination I have to make today. I am not exercising a power to simply adjourn proceedings in the Local Court. 10. For these reasons I am not satisfied that grounds for granting a stay have been made out. And I refuse the application for a stay. ********** Amendments 18 April 2016 - Title change from "Department" to "Director" of Public Prosecutions 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 April 2016