Bagshaw v State of New South Wales (No 2)

[2019] NSWCA 219

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Bagshaw v State of New South Wales (No 2) [2019] NSWCA 219
Hearing dates:	5 September 2019
Date of orders:	10 September 2019
Decision date:	10 September 2019
Before:	Macfarlan JA; Payne JA
Decision:	(1)   Summons seeking leave to appeal filed 6 March 2019 dismissed. (2)   Applicant to pay the costs of the respondent.
Catchwords:	CIVIL PROCEDURE – Court of Appeal – application for leave to appeal – appeal from an interlocutory order – no question of principle – application dismissed
Legislation Cited:	Bail Act 2013 (NSW), s 79 Crimes (Appeal and Review) Act 2001 (NSW), ss 4, 12, 67 District Court Act 1973 (NSW), s 127 Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28
Cases Cited:	Bagshaw v Director of Public Prosecutions (NSW) [2016] NSWCA 340 Bagshaw v Director of Public Prosecutions (NSW) [2018] NSWCA 14 Bagshaw v State of New South Wales [2019] NSWCA 204 Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 The Age Company Ltd v Liu [2013] NSWCA 26
Category:	Principal judgment
Parties:	Leith Gordon Bagshaw (Applicant) State of New South Wales (Respondent)
Representation:	Counsel: G Mahony (Respondent)   Solicitors: Applicant (self-represented) Crown Solicitor’s Office (Respondent)
File Number(s):	2019/00072732
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 SC DCJ File Number(s): 2018/00145703

Judgment

1. THE COURT: On 14 February 2014, Mr Bagshaw was charged with menacing driving, common assault, driving a conveyance taken without the consent of the owner, intimidation and contravention of an apprehended domestic violence order. It is not necessary for present purposes to refer to the facts giving rise to those alleged offences.

2. The matter was first listed in the Parramatta Local Court on 15 February 2014. Mr Bagshaw was granted bail and the matter was adjourned. Mr Bagshaw failed to appear at Bankstown Local Court on 23 April 2014 and was convicted in his absence. On 15 May 2014, Mr Bagshaw obtained an annulment of those convictions. Mr Bagshaw was subsequently charged with failing to appear on 23 April 2014, contrary to s 79(1) of the Bail Act 2013 (NSW).

3. On 15 August 2014, Mr Bagshaw pleaded guilty in the Local Court to five of the charges identified above and the charge of common assault was withdrawn and dismissed.

4. On 17 September 2014, Mr Bagshaw’s counsel appeared before Degnan LCM at the Liverpool Local Court and was granted leave to withdraw. Mr Bagshaw then appeared in person and informed the Court that he wished to withdraw his guilty pleas. The matter was adjourned to 1 October 2014 for sentence or an application to withdraw the guilty pleas. Mr Bagshaw did not file any application seeking to withdraw the guilty pleas.

5. On 1 October 2014, Mr Bagshaw failed to appear before Degnan LCM at the Liverpool Local Court and was convicted in his absence on all remaining charges. A warrant was issued for his arrest.

6. On 13 January 2015, the warrant was executed and Mr Bagshaw was brought before the Parramatta Local Court. Bail was granted and the matter adjourned to 27 January 2015. Mr Bagshaw was also charged with failing to appear on 1 October 2014.

7. On 15 January 2015, the matter was re-listed before the Fairfield Local Court. Mr Bagshaw appeared and was represented by counsel. He did not challenge any of the convictions and his counsel sought to have the matter finalised that day. Connell LCM entered a conviction on the failure to appear on 1 October 2014 charge and proceeded to sentence Mr Bagshaw on all convictions. In relation to the two failures to appear (on 23 April 2014 and 1 October 2014), Connell LCM imposed no further penalty. In relation to the charge of menacing driving, his Honour ordered Mr Bagshaw to pay a fine of $1,000, disqualified him from driving for 12 months and ordered him to enter a good behaviour bond for a period of 3 years. In relation to the charge of driving a conveyance taken without consent, his Honour placed Mr Bagshaw on a good behaviour bond for 2 years. In relation to the charges of intimidation and breach of an apprehended domestic violence order, his Honour fined Mr Bagshaw $750 in respect of each charge.

8. On 3 February 2015, Mr Bagshaw commenced appeal proceedings in the District Court. On the face of the notice of appeal, Mr Bagshaw did not challenge his convictions on the charges of failure to appear on 23 April 2014 and 1 October 2014.

9. On 1 May 2015, the appeal was listed for call-over in the District Court at Parramatta. On that date, directions were given by the Registrar that Mr Bagshaw file and serve any notice of motion and supporting affidavits to traverse his guilty pleas in the Local Court by 12 June 2015. Mr Bagshaw did not do so. On 17 July 2015, the Registrar extended the time for Mr Bagshaw to challenge his guilty pleas in the Local Court to 14 August 2015. Again he did not do so.

10. On 4 September 2015, Mr Bagshaw indicated to Registrar Gardiner in the District Court at Parramatta that he sought to proceed on the severity appeal only. On that date, Registrar Gardiner recorded that the conviction appeal was withdrawn, vacated the hearing fixed for 22 September 2015 and fixed a fresh hearing date of 2 October 2015 for the severity appeal.

11. On 2 October 2015, Mr Bagshaw appeared in person before Sides DCJ. Mr Bagshaw informed his Honour that he now sought to appeal both his conviction and sentence. He sought and was granted leave to amend his notice of appeal to include a severity appeal. His Honour dealt with the jurisdictional question raised by the conviction appeal and adjourned the sentence appeal.

12. In an ex tempore judgment, his Honour found that Registrar Gardiner did not have power to exercise the District Court’s power under s 67 of the Crimes (Appeal and Review) Act 2001 (NSW) to grant leave to withdraw an appeal or an application for leave to appeal. His Honour found that, having been convicted by the Local Court in his absence on 1 October 2014, Mr Bagshaw was required to make an annulment application under s 4 of the Crimes (Appeal and Review) Act before applying for leave to appeal against the sentence under s 12 of that Act. As Mr Bagshaw had not made any application for annulment of his conviction, his Honour dismissed the conviction appeal for want of jurisdiction.

13. On 22 March 2016, Mr Bagshaw filed a summons in this Court seeking the exercise of its supervisory jurisdiction with respect to the decision of Sides DCJ on 2 October 2015. On 6 December 2016, that summons was dismissed: Bagshaw v Director of Public Prosecutions (NSW) [2016] NSWCA 340. This Court concluded that Mr Bagshaw’s purported conviction appeal was incompetent and properly dismissed by Sides DCJ. Barrett AJA observed:

“[79] … it seems quite extraordinary that a matter such as this should have absorbed so much time and energy in the Local Court and the District Court. It is to be hoped that, with the questions raised for decision by the Court of Appeal now determined, the proceedings arising from charges laid three years ago may be brought to a prompt conclusion under close and efficient case management.”

14. The effect of the decision was that Mr Bagshaw’s severity appeal remained for determination. That appeal came before Colefax SC DCJ on 30 January 2017. The severity appeal hearing formally commenced on 3 February 2017 before Colefax SC DCJ and proceeded over several days.

15. On 30 May 2017, the severity appeal was finalised. On that day Colefax SC DCJ informed Mr Bagshaw that he had looked at the facts on the basis of which he had pleaded guilty, his criminal history and his sentences for the matters the subject of the severity appeal, and had formed the view that Mr Bagshaw had been “dealt with leniently”. His Honour warned Mr Bagshaw, in accordance with Parker v Director of Public Prosecutions (1992) 28 NSWLR 282, that he was contemplating increasing the sentences under appeal if Mr Bagshaw did not withdraw the appeal and, accordingly, provided him with an opportunity to do so. Mr Bagshaw then applied for, and was granted, leave to withdraw his appeal. Colefax SC DCJ confirmed the conviction and penalties of the Local Court.

16. On 16 June 2017, Mr Bagshaw commenced proceedings in this Court seeking judicial review of the decision of Colefax SC DCJ.  This Court unanimously concluded that Mr Bagshaw had failed to identify any jurisdictional error which would warrant intervention by this Court: Bagshaw v Director of Public Prosecutions (NSW) [2018] NSWCA 14. Sackville AJA observed:

“[83] This application is another example of the all too common phenomenon of judicial review proceedings being used to advance wholly unmeritorious contentions and thus unnecessarily prolong litigation. Even if the applicant’s contentions had some merit, the best he could hope for would be a rehearing of his severity appeal. The fact that Colefax DCJ gave the applicant a “Parker warning” rather suggests that there would be no utility in the severity appeal being revived.”

17. On 9 May 2018, Mr Bagshaw filed a statement of claim in the District Court against the State of New South Wales and the Crown Solicitor, seeking damages. On 29 June 2018, Mr Bagshaw filed an amended statement of claim in the District Court, seeking liquidated damages of $700,734.00. In September 2018, the State of New South Wales sought an order that the proceedings be dismissed or alternatively that the statement of claim be struck out.

18. On 18 October 2018, Olsson SC DCJ made the following orders:

“1.    Dismiss Statement of Claim.

2.   Each party pay their own costs.”

19. The transcript of the exchange between Olsson SC DCJ and Mr Bagshaw on that day states as follows:

“HER HONOUR: Mr Bagshaw, I have looked at your statement of claim and it has defects in it

PLAINTIFF: Has?

HER HONOUR: Defects in it. It does not disclose a proper cause of action. That does not mean that you don’t have a cause of action, but it isn’t pleaded properly and it cannot go on. I will have to dismiss that statement of claim; it doesn’t make sense.

PLAINTIFF: So I then can bring it back with proper pleadings?

HER HONOUR: Yes, that’s right.

PLAINTIFF: Okay, thank you.

HER HONOUR: I dismiss the statement of claim. Each party pay their own costs.

PLAINTIFF: Thank you. We’ll resubmit it, thank you.”

20. On 6 March 2019, Mr Bagshaw filed a summons in this Court seeking leave to appeal from Olsson SC DCJ’s orders made on 18 October 2018.

21. On 29 July 2019, the date when Mr Bagshaw was due to file his summary of argument in support of his application for leave, Mr Bagshaw instead filed a notice of motion seeking three 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.”

22. On 20 August 2019, that notice of motion was dismissed by Leeming JA: Bagshaw v State of New South Wales [2019] NSWCA 204.

23. The effect of s 127(2)(a) of the District Court Act 1973 (NSW) is that Mr Bagshaw requires leave to appeal as her Honour’s decision was an interlocutory judgment or order. Generally speaking, it is only appropriate for this Court to grant leave in matters that involve issues of principle, questions of public importance or in circumstances where it is reasonably clear that an injustice has occurred by reason of error in the judgment, going beyond what is merely arguable: The Age Company Ltd v Liu [2013] NSWCA 26 at [13].

24. On the hearing of the application for leave to appeal Mr Bagshaw provided the Court with a copy of an extract of the decision in Bagshaw v Director of Public Prosecutions [2016] NSWCA 340 and an affidavit sworn by Lucinda Bozic on 9 August 2019. An affidavit sworn by Mr Bagshaw on 4 September 2019 was read. We have taken those documents into account.

25. Mr Bagshaw’s principal claim at the hearing in this Court was that he was entitled to have summary judgment entered in his favour as the respondent had not filed a defence to his claim. That claim must be rejected. On 31 July 2018, directions were made in the District Court adjourning Mr Bagshaw’s notice of motion seeking summary judgment to 14 September 2018. Any application by the respondent to strike out the amended statement of claim was directed to be filed and served by 7 September 2018. In the event that an application to strike out the amended statement of claim was not filed, a defence was ordered to be filed and served by 13 September. A motion seeking to strike out the amended statement of claim was in fact filed. It is clear that those orders had the effect of postponing the respondent’s obligation to file a defence to Mr Bagshaw’s claim.

26. On 14 September 2018, further orders were made in the District Court setting down all interlocutory motions for hearing before the primary judge. No issue of principle, question of public importance, or apparent injustice has been shown warranting the grant of leave about this issue. Mr Bagshaw has not demonstrated that the failure of the District Court to grant his motion seeking summary judgment gave rise to any arguable injustice.

27. The Court has read Mr Bagshaw’s amended statement of claim carefully. It does not disclose any intelligible cause of action. It was correctly dismissed by Olsson SC DCJ. Her Honour told Mr Bagshaw when making the order that it was correct that he could “bring it back with proper pleadings”. Although the wording of the order made by the primary judge was infelicitous, a reading of the whole of the transcript reveals that her Honour’s order should be understood as providing that the amended statement of claim filed on 29 June 2018 be struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) rather than the proceedings being dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules. Thus, as her Honour indicated to Mr Bagshaw when making orders, it is open to Mr Bagshaw to seek leave to file a further amended statement of claim. In making this observation we do not intend to express any view about whether Mr Bagshaw may or may not be able to plead an intelligible cause of action. That determination will be a matter for the District Court if Mr Bagshaw attempts to replead his case.

28. No issue of principle, question of public importance, or apparent injustice has been shown warranting the grant of leave.

29. Accordingly the Court makes the following orders:

1. Summons seeking leave to appeal filed 6 March 2019 dismissed.

2. Applicant to pay the costs of the respondent.

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Decision last updated: 10 September 2019