Supreme Court New South Wales Medium Neutral Citation: Ali Kalache v Local Court of New South Wales [2017] NSWSC 1606 Hearing dates: 16 – 17 November 2017 Date of orders: 17 November 2017 Decision date: 17 November 2017 Jurisdiction: Common Law Before: Hamill J Decision: (1) The matter is adjourned for hearing on Tuesday 21 November 2017 with a judge to be allocated; (2) The application for a stay of the Local Court hearing is refused, noting that the presiding judge next week may revisit the matter if the matter is not concluded; and (3) The question of costs for yesterday and today is reserved to the judge who hears the case. Catchwords: CIVIL LAW – stay of part heard criminal proceedings in the Local Court – summons seeking an order prohibited Magistrate from further hearing case – delay in filing application – where stay sought 8 days prior to continuation of part heard proceedings – where explanation for delay difficult to accept – where Court able to deal with matter to finality before the date scheduled for summary hearing to continue Legislation Cited: Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Supreme Court Act 1970 (NSW) Surveillance Devices Act 2007 (NSW) Category: Principal judgment Parties: Ali Kalache (Plaintiff/Applicant) Local Court of New South Wales (First Defendant/Respondent) Ivan Hughes (Second Defendant) Attorney General (NSW) (Amicus Curiae) Representation: Counsel: Mr P Lange (Plaintiff/Applicant) Ms S Given (Second Defendant/Respondent) Ms Marsic (Attorney-General of NSW, Amicus Curiae) Solicitors: Aquila Lawyers (Plaintiff/Applicant) Office of the General Counsel for New South Wales Police (Second Defendant/Respondent) File Number(s): 2017/335821 EX TEMPORE JUDGMENT 1. This matter came before me in circumstances of great urgency in the course of yesterday's duty list. That urgency is a little bewildering, given that the decision under review was made in the Local Court on 25 August 2017, that counsel appearing in the present application and his solicitor appeared in the Local Court and the fact that the criminal proceedings are due to continue part-heard in the Local Court next Friday. 2. The way in which the matter came before the Court on an urgent basis has created difficulties. Some of those difficulties were not much more than minor inconveniences, but at least one of the difficulties had the potential to create a significant obstacle to the matter proceeding fairly and properly. The plaintiff in this Court is the defendant in criminal proceedings before the Local Court at Sutherland. 3. By summons dated 6 November 2017, he seeks (1) an order staying the criminal proceedings (presumably on an interim basis pending the determination of the substantive issue in the second order) and (2) an order under s 69 of the Supreme Court Act 1970 prohibiting the Magistrate from hearing the proceedings. He also seeks costs. The basis of the application is the apprehension of bias in the magistrate hearing the case. 4. The summons was returnable yesterday before the Registrar at 9am. The plaintiff asked that the matter be referred to the duty judge in order to determine whether an order staying the continuation of the hearing would be granted. 5. The first defendant, that is the Local Court, was not represented and presumably has filed or will file a submitting appearance. The second defendant is the informant in the proceedings before the Local Court. He is a police officer and was represented yesterday by a legal practitioner in the employ of the Police Force's General Counsel's Office. 6. There was a spirited debate as to whether the second defendant was properly named in the summons and, initially, an application was made for his name to be removed from the initiating process. That application appears to have been ill-founded. [1] In any event, when I directed the lawyers to speak to one another, the application was not pressed. 7. However, the more strident and justified complaint was that the way in which the plaintiff had brought the proceedings to a head meant that there was no contradictor. In the ordinary course of events, in a case like this, both defendants would submit to the orders of the Court and, more often than not, the Attorney General would seek to intervene, and counsel instructed by the New South Wales Crown Solicitor's Office would appear as amicus. However, because of the delay in filing the summons, notifying the defendants and communicating with the Attorney General or Crown Solicitor's Office, no decision had been made by the Attorney as to whether or not he would intervene. Accordingly, when the matter came before me yesterday, there was no contradictor. 8. Equally, for the matter to proceed, either on the stay, which I gather to be a temporary or interim stay, or on the final relief, there was no contradictor. Further, no application has been made to the Magistrate to adjourn the proceedings to allow the Supreme Court proceedings to be litigated. In that regard, I should outline briefly what happened in the Local Court on 25 August 2017. 9. The matter commenced and there was an objection as to the lawfulness of a recorded conversation between the complainant and the (now) plaintiff. As I understand it, that objection was based on the provisions of the Surveillance Devices Act 2007 (NSW) and the Evidence Act 1995 (NSW). The Magistrate overruled the objection and gave brief reasons. In the course of delivering those reasons, the Magistrate referred to the fact that the defendant had pleaded guilty to breaching an apprehended violence order. I take it that this was a reference to an order relating to the complainant or alleged victim in the proceedings that were then before his Honour. In any event, there was no evidence of that fact and it seems the Magistrate's comments were based on material in the court papers (that were not part of the evidence). 10. His Honour made other comments in the course of his judgment or ruling on evidence that are, or may be, relevant to the application that followed and the proceedings currently before this Court. 11. Counsel then asked for a little time to take instructions and then made an application for the Magistrate to disqualify himself, or, more correctly, that the Magistrate was disqualified. The basis of that application, as recorded in the transcript of the proceedings at Sutherland, is the same as the basis of the application before this Court. 12. Further, in the course of making the application, counsel requested that the recording of the Magistrate's reasons on the evidentiary ruling be replayed. This was to be sure that counsel knew what it was the Magistrate said that formed the basis of the application for the Magistrate to disqualify himself. The transcript records, and Mr Lange has now confirmed, that there was indeed a replay of what the Magistrate said. 13. That is somewhat significant in view of the stated reason for the delay in filing the summons, namely, that the plaintiff's lawyers were waiting to receive the transcript. While that may be understandable in a matter of such moment, the fact is that the same legal representatives who now appear were present in the Local Court when the Magistrate made the impugned comments and when those very comments were specifically replayed in open court. The Magistrate then acknowledged that he had taken into account an irrelevant matter or irrelevant material and revised his reasons for the evidentiary ruling, although he did not change that ruling. 14. He then heard counsel on the application that he was disqualified from hearing the matter on the grounds of apprehended bias but refused the application. It appears that no application was made at that stage to adjourn the proceedings to allow that ruling to be tested in this Court. Rather, the case commenced and the complainant was called to give evidence. Partway through her evidence-in-chief, an issue, that appears to have been foreshadowed earlier, arose as to the accuracy of certain translations of conversations between parties who I understand to be the complainant and the now plaintiff, that is, the defendant in the Local Court hearing. 15. That issue concerning the translation caused the proceedings to be adjourned. A timetable was set for the parties to exchange material relevant to the translations and the matter was adjourned part-heard until Friday 24 November 2017, which is to say, seven days from today or eight days from the day that the plaintiff sought to ventilate the first order in his summons. 16. The Magistrate was in fact offering an earlier date to continue the hearing but counsel said: "Could I ask for a few weeks further, only for this reason: Both my instructor" - which I take to be a reference to his instructing solicitor - "and I are starting a trial on 16 October which is expected to finish in the week of 20 November, so some time later in that week, 24 November 2017." 1. The Magistrate accommodated counsel and his solicitor and the matter was adjourned part-heard until that day. 2. As I apprehend it, there was no suggestion that the plaintiff might seek prerogative or other relief in this Court or any submission that the matter be adjourned until such an application was determined or a decision was made as to whether to test the Magistrate's refusal to disqualify himself. 3. There is no evidence that the plaintiff's solicitor asked the Magistrate to order, direct or request that the transcript be prepared on an urgent basis. 4. In the circumstances, it is not surprising that the solicitor who appeared yesterday for the second defendant suggested that the plaintiff, or more correctly, his legal team, was attempting to obtain some forensic, strategic or tactical advantage by conducting the litigation in this way. She pointed to the timing of the application and noted that the three month time limit provided in r 59.10 would expire on 24 November 2017. 5. It is unnecessary to resolve that issue and, as I suggested in argument, it was a serious allegation and there may be other explanations for the delay. The stated explanation that the plaintiff was waiting for the transcript is hard to accept in the circumstances. 6. I stood the matter down until 2pm and directed the parties to speak to one another about the correct naming of the second defendant and to make contact with the Crown Solicitor's Office. In the meantime, I made contact with the list judge. At 2pm, a solicitor from the Crown Solicitor's Office appeared. She explained the unsurprising difficulties confronting her office and advised the Court that the Attorney General had not yet made a decision to intervene, or not to intervene. 7. The matter was adjourned until 3:30pm today. The solicitor from the Crown Solicitor's Office also indicted that both her office and the Attorney's office were putting themselves in a position when they could consider the matter urgently. 8. I indicated to the parties that the Court may be in a position to list the matter for final determination next week on either Tuesday 21 November or Wednesday 22 November. 9. I have now been told that the Attorney intends to seek to intervene and that counsel, of significant skill and experience, is available on either the Tuesday or the Wednesday, although, given the amount of time she will need to prepare the matter, has a preference for the matter being heard on the Wednesday. 10. Regrettably, Mr Lange, who has been in this matter since it was in the Local Court and made the original application and prepared submissions that bear the date 6 November 2017 – possibly provided to the other parties at about that time, although there was a dispute whether it was provided – is not available next Wednesday because he has other matters in the Court of Criminal Appeal. 11. It might be thought that his convenience, in the circumstances, is a matter to which the Court might properly be supremely indifferent. Nevertheless, his client is entitled, I think, to counsel of his choice and his choice is counsel currently appearing. And there is also an issue of costs if another counsel was required to get on top of the material in a short space of time. 12. Accordingly, notwithstanding the situation of counsel who will seek to intervene on behalf of the Attorney General, it seems to me appropriate to list the matter on a date when both Mr Lange and Ms Edwards, who I am told will be counsel for the Attorney, are both available and that indeed is Tuesday 21 November. 13. On the material before me, I am not prepared to order a stay of the Local Court hearing. The complainant is part-heard in evidence and there is a general reluctance in the courts to fragment criminal proceedings. It should also be noted that the conduct of the litigation in this Court militates strongly against making an interim or a conditional order staying the proceedings. I accept Mr Lange's submission that, if the summary hearing proceeds and the applicant is convicted and then this application ultimately succeeds, the continued hearing would turn out to have been a futile exercise. 14. But balancing the various competing considerations, I am not minded, at this stage, to grant a stay. Further, the Court is, fortuitously in a position to determine the matter, or at least hear the matter to conclusion of submissions, next week and before the matter is due to be back in the Local Court. The Judge who is allocated the matter next week will have more time available to consider the matter, having received all of the material and heard more extensive submissions, including submissions from the other side, than I have had. 15. If the case cannot be finalised next week, the judge presiding over the hearing will be able to determine whether or not it is appropriate to grant a stay of the Local Court proceedings pending their decision. 16. The solicitor for the second defendant sought an order for costs for yesterday and made fairly strong, not to say strident, submissions in that regard. However, that application should also be dealt with by the judge who hears the matter. 17. There has been a transcript taken out of what went on yesterday, there will be a transcript taken out of what goes on today, as well as a copy of this judgment that will assist the presiding judge to determine where the balance lies in terms of the issue of costs. And as I said, in the course of yesterday's hearing the second defendant's primary position that they were improperly or incorrectly named in the summons, and that, on my very quick reading of the matter and the sections that Mr Lange took me to, may have been a misconceived submission. 18. Accordingly, I order that: 1. The matter is adjourned for hearing on Tuesday 21 November 2017 with a judge to be allocated; 2. The application for a stay of the Local Court hearing is refused, noting that the presiding judge next week may revisit the matter if the matter is not concluded; and 3. The question of costs for yesterday and today is reserved to the judge who hears the case. I note that counsel for the plaintiff has already filed submissions and they will be provided to the judge who is allocated the matter. If counsel for the Attorney is able to provide submissions in the short amount of time available, I am sure that the allocated judge would greatly appreciate it, but would also understand if it is not possible to get them to the judge very much before the Court commences on Tuesday. ********** Endnote 1. Criminal Procedure Act 1986 (NSW), ss 14 and 173; Uniform Civil Procedure Rules 2005 (NSW), r 59.3. 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: 22 November 2017