Bagshaw v State of New South Wales

[2019] NSWCA 204

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Bagshaw v State of New South Wales [2019] NSWCA 204

Hearing dates:

12 August 2019

Decision date:

20 August 2019

Before:

Leeming JA

Decision:

Notice of motion filed 29 July 2019 dismissed with costs.

Catchwords:

PRACTICE – application for adjournment of hearing of leave application – application to quash guilty pleas entered in Local Court and confirmed by District Court – application to single Judge of Appeal to quash decision of District Court in civil proceedings – absence of jurisdiction – application dismissed

Legislation Cited:

Supreme Court Act 1970 (NSW), ss 46, 48

Cases Cited:

Bagshaw v Director of Public Prosecution (NSW) [2016] NSWCA 340

Category:

Principal judgment

Parties:

Leith Gordon Bagshaw (Applicant)
State of New South Wales (Respondent)

Representation:

Counsel:

 

In person (Applicant)
G Mahony (Respondent)

 

Solicitors:

  Crown Solicitor’s Office (Respondent)

File Number(s):

2019/72732

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

18 October 2018

Before:

Olsson DCJ

File Number(s):

2018/145703

Judgment

1. LEEMING JA: Mr Leith Gordon Bagshaw has sought leave to appeal from a judgment of the District Court of New South Wales summarily dismissing proceedings brought by him against the State of New South Wales. His application for leave is listed for hearing on 5 September 2019. He is unrepresented, but has told me that he is being assisted by legal practitioners or former legal practitioners. The time for him to file his summary of argument in support of his application for leave was extended to 29 July 2019. On that date, rather than filing his summary of argument, he filed a notice of motion seeking three substantive orders:

“1. To seek adjournment of the hearing of the application for leave to appeal from the orders of the District Court made on 18th October 2018.

2. To overturn/dismiss Judge E Olsson’s decision in the District Court on 18th October 2018, as a single Judge has the power to overturn a decision if that decision was based on false evidence.

3. To overturn/dismiss the guilty plea.”

2. The motion came before me on Monday 12 August 2019 when, after hearing from Mr Bagshaw for around an hour, I advised him of my preliminary view that I lacked power to make orders 2 and 3. Mr Bagshaw had indicated that he sought a further opportunity to make submissions on the question of power. With his agreement, I permitted that to occur, and provided short reasons to him, both orally and in writing (when the transcript became available) in order to assist him and those advising him of the difficulties confronting his notice of motion.

3. Mr Bagshaw, in accordance with the direction I made on 12 August 2019, supplied (on 16 August 2019) a further written submission in support of his notice of motion. His submission is of 15 paragraphs, although only the first two are directed to the question of power. Those submissions are as follows:

“1. His Honour does have the power to act to overturn the guilty plea and to also overturn Judge E Olsson’s decision in the District Court on 18th October 2018.

2. The Bar Association agrees with the above as well as Senior Counsels – as the evidence was fabricated and the Crown has not been able to produce any evidence against Mr. Bagshaw in over 6 years.”

4. I have further considered the notice of motion, in light of Mr Bagshaw’s submissions, but am of the view that I lack power to set aside the orders made by the District Court on 18 October 2018, even if, as Mr Bagshaw contends, those orders were procured by fraud. I also consider that I have no power to overturn the guilty plea entered by Mr Bagshaw in 2013.

5. It is true that the Supreme Court of New South Wales has both appellate and supervisory jurisdiction in respect of the District Court of New South Wales. Section 48 of the Supreme Court Act 1970 (NSW) allocates that element of the jurisdiction of the Supreme Court to the Court of Appeal. It is also true that the Court of Appeal may be constituted by a single Judge of Appeal in the exercise of some of its jurisdiction, notably that identified by s 46 of the Supreme Court Act. However, in order to set aside an order of the District Court, whether in the exercise of appellate or supervisory jurisdiction, it is necessary for the Court of Appeal to be constituted by three Judges of Appeal (there is an exception, in the case of orders made by consent, but that is not this case).

6. The order of the District Court made on 18 October 2018 may be set aside in the exercise of this Court’s appellate (or conceivably supervisory) jurisdiction, but not by this Court constituted as a single Judge of Appeal. Further, Mr Bagshaw’s guilty plea was entered in the Local Court and confirmed by the final decision of the District Court of New South Wales. It is necessary for Mr Bagshaw to challenge the decision of the District Court of New South Wales. That decision (being a decision of the District Court determining an appeal) is outside the appellate jurisdiction of the Court of Appeal, and the supervisory jurisdiction may not be exercised in the manner sought by Mr Bagshaw by a single Judge of Appeal.

7. A further obstacle stands in Mr Baghsaw’s way. In earlier proceedings in the Court of Appeal, in Bagshaw v Director of Public Prosecution(NSW) [2016] NSWCA 340, the Court constituted by Gleeson JA, Sackville and Barrett AJJA dismissed a summons seeking judicial review of Mr Bagshaw’s appeal to the District Court. A central aspect of that decision was Mr Bagshaw’s challenge to his conviction. I regard myself as bound by that decision of the Court of Appeal constituted by three Judges of Appeal.

8. Mr Bagshaw candidly and helpfully confirmed that the basis of his application for an adjournment was his desire, if it were possible to do so, to overturn or set aside his guilty plea prior to the hearing of his leave application. There is no power to do what Mr Bagshaw seeks.

9. There is no evidence of any basis for an adjournment of the application for leave to appeal. Further, I did not understand Mr Bagshaw to advance any submissions based on an inability to ready his application for hearing on the 5 September 2019, nor are any contained in the most recent written submissions provided by him.

10. It follows that the notice of motion filed 29 July 2019 must be dismissed. There is no reason to depart from the ordinary rule that costs follow the event.

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Decision last updated: 20 August 2019