Balsiene v Department of Housing, New South Wales Land and Housing Corporation

[2022] NSWSC 47

Supreme Court

New South Wales

Medium Neutral Citation:

Balsiene v Department of Housing, New South Wales Land and Housing Corporation [2022] NSWSC 47

Hearing dates:

25 January 2022

Date of orders:

25 January 2022

Decision date:

25 January 2022

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1)   Grant the plaintiffs expedition of these proceedings.

(2)   Order the proceedings to stand over before the Registrar of the Common Law Division at 9am on 7 February 2022 for directions.

(3)   Grant the plaintiffs and the defendant liberty to apply to the Duty Judge on short notice if any further urgent relief is required.

(4)   Reserve all questions of costs.

Catchwords:

CRIME — Appeal and review — Appeal from Local Court to Supreme Court — Procedure — Stay pending appeal — Local Court proceedings not concluded — Separation of criminal proceedings undesirable — Stay refused

Legislation Cited:

Crimes Act 1900 (NSW)

Cases Cited:

Not Applicable

Texts Cited:

Not Applicable

Category:

Procedural rulings

Parties:

Genute Balsiene (P1)
Saule Balsyte (P2)
Department of Housing, New South Wales Land and Housing Corporation (D)

Representation:

Counsel:
Plaintiffs (self-represented)
T Di Francesco (D)

File Number(s):

2022/00018244

Publication restriction:

Not Applicable

EX TEMPORE Judgment

1. This a matter brought urgently before me in the duty list.

2. The plaintiffs Ms Balsiene and Ms Balsyte have filed a Summons seeking leave to appeal in respect of three convictions entered on 22 December 2021, in the Local Court by Covington LCM. The three convictions relate to offences of dishonestly obtaining a financial advantage by a deception contrary to s 192E of the Crimes Act 1900 (NSW). The sum of money involved I am told is in the order of $14,500.

3. The matters are fixed for sentence submissions and the imposition of sentence, if appropriate, on 31 January 2022. On the case for the prosecutor in the Local Court and defendant here, the New South Wales Land and Housing Corporation, and as I understand all of the facts, matters and circumstances including the subjective circumstances of the plaintiffs in this Court, the convictions are unlikely to result in the imposition of a custodial sentence.

4. In addition to filing the Summons seeking leave to appeal, the plaintiffs have filed a Notice of Motion seeking expedition of the hearing of the Summons. That order is not opposed. They also seek an order or injunction to stay the proceedings in the Local Court or to stay the execution of sentence until the appeals to this Court are determined. These orders are opposed.

5. For the purposes of this application, I assume in the plaintiffs’ favour that they have a reasonably arguable case on appeal. It is, of course, impossible for me to know that because, at the moment, I do not have any of the facts, the transcript or other material before me, and I do not have the assistance of both parties with full arguments on the merits of the appeal. But it is proper that I assume in favour of the plaintiffs that they have a reasonably arguable case, and that they have a reasonably arguable prospect of having the convictions set aside.

6. The proceedings have been on foot in the Local Court for a considerable period of time. They seem to have been commenced some time in 2017 and were certainly before the Court, as I am informed, for the determination of at least one legal issue in 2018. This is a period of time considerably longer than one would ordinarily expect for the disposition of criminal proceedings in the Local Court. I do not know why the proceedings have been so extended, and it is not necessary for me to enquire. The fact of the matter is this: the proceedings having been on foot for a considerable period of time and they will be completed in a week's time on 31 January 2022 by the imposition of some sentence or other. Whether or not the Magistrate chooses to enter a conviction, I do not know. What penalty he may choose to impose, I do not know. But it is important, and a matter of public interest, that criminal proceedings of this kind are brought to a close as soon as is possible before any appeal is heard by this Court and the issues raised for appeal are determined.

7. In those circumstances, and because it is unwise for a superior court such as this Court to make orders which would effect a separation of criminal proceedings and not hear all issues at the same time, I am not prepared to grant a stay of the Local Court proceedings, nor could I grant a stay of execution of any penalty in circumstances where no penalty has as yet been imposed.

8. It is open, of course, to the plaintiffs to seek a stay of the proceedings from the Magistrate. Whether they succeed or not, I do not know. That will be a matter for the Magistrate. It is also open, in the unlikely event that the Magistrate imposes a custodial penalty, for the plaintiffs to seek a grant of bail pending the hearing of the appeal to this Court. If, of course, they are not granted bail which, again, would be somewhat surprising, then it is open to them to make a prompt application that day, or the following day, to this Court for relief.

9. These are all possibilities. None of them has arisen.

10. In those circumstances I am not prepared to make any order staying the Local Court proceedings. It is in the public interest that they be completed on 31 January 2022.

11. However, I will make the following orders:

1. Grant the plaintiffs expedition of these proceedings.

2. Order the proceedings to stand over before the Registrar of the Common Law Division at 9am on 7 February 2022 for directions.

3. Grant the plaintiffs and the defendant liberty to apply to the Duty Judge on short notice if any further urgent relief is required.

4. Reserve all questions of costs.

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Decision last updated: 03 February 2022