Bezzina v Transport for NSW

[2025] NSWCA 216

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Bezzina v Transport for NSW [2025] NSWCA 216

Hearing dates:

22 September 2025

Date of orders:

23 September 2025

Decision date:

23 September 2025

Before:

Free JA

Decision:

The notice of motion filed 9 September 2025 is dismissed.

Catchwords:

PROCEDURAL RULINGS – Use of private solicitors by government agency – Request for order prohibiting use of private solicitors – Request for sound recording – Request for protective costs order – Oaths of office of judicial officers – De facto officers doctrine

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Free Access to Courts Act 1400 2 Hen 4 c 1

Imperial Acts Application Act 1969 (NSW), s 8(1)

Interpretation Act 1987 (NSW), s 38(b)

Oaths Act 1900 (NSW), s 11(1)

Road Transport Act 2013 (NSW), s 200(4)

Transport Administration Act 1988 (NSW), cll 1(e), 9(1), Sch 1

Uniform Civil Procedure Rules 2005 (NSW), r 42.7

Cases Cited:

Makucha v Sydney Water Corporation [2013] NSWCA 177

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; [1938] HCA 7

Category:

Procedural rulings

Parties:

Leslee-Ann Bezzina (Applicant)
Transport for NSW (Respondent)

Representation:

Counsel:
Applicant (self-represented)
G Lewer (Respondent)

Solicitors:
Hunt & Hunt Lawyers (Respondent)

File Number(s):

2025/53366

 Decision under appeal 

Court or tribunal:

District Court of New South Wales (Penrith)

Jurisdiction:

Civil

Date of Decision:

8 November 2024

Before:

Judge Everson SC

File Number(s):

2021/354847

JUDGMENT

1. FREE JA: The applicant, Ms Leslee-ann Bezzina, is aggrieved about a conviction and resulting penalties that were imposed on her in respect of an alleged incident of speeding at Mount Victoria. A speed camera allegedly detected Ms Bezzina’s vehicle travelling at 68km/hr in a zone limited to 60 km/hr. A penalty notice with a fine of $123 was issued to her. Ms Bezzina was convicted of the speeding offence in the Local Court by Magistrate Gibson on 8 August 2022. She sought to appeal that conviction to the District Court. That led to a number of listings before different judges in the District Court which in turn became a source of further grievance for Ms Bezzina. The matter was first mentioned before Judge Payne on 29 September 2023. It was subsequently listed before Judge David, when a conviction was entered, apparently in the absence of Ms Bezzina. The matter was subsequently before Judge Everson SC on 8 November 2024, when his Honour declined requests by Ms Bezzina to reconsider the matter.

2. Ms Bessina commenced proceedings in the original jurisdiction of the Supreme Court seeking judicial review of the decision or decisions of the District Court. The most recent version of the relevant originating process is a second amended summons filed 6 May 2025. In broad terms, Ms Bezzina contends that she was denied procedural fairness in the District Court and has not yet had the benefit of a fair hearing on the merits of her claim that she did not commit the speeding offence. This includes her contention that, pursuant to s 38(b) of the Interpretation Act 1987 (NSW) there is a relevant requirement that where measurements of distance are required such measurements must be carried out by reference to distances on a horizontal plane. I infer that Ms Bezzina seeks to contend that when calculations are performed to ascertain the speed of a vehicle travelling up a hill, like the steep incline of Mount Victoria, distance (as an input going to the calculation of speed) must be measured on a horizontal plane, whereas this did not occur in her case. The correctness or otherwise of Ms Bezzina’s submission, which I may not have accurately summarised, is a matter for another day.

3. By notice of motion filed on 9 September 2025 Ms Bezzina seeks the following orders:

1   Obtain an appearance for Leslee-ann Bezzina before a judge with jurisdiction to:

2   Order TRANSPORT FOR NSW to replace privately contracted lawyers Hunt & Hunt with the DPP or Crown Solicitor.

3   Order DISTRICT COURT NSW to supply the recording of Leslee-ann Bezzina's appearance before Judge D Payne at Penrith District Court on 29th September 2023.

4   Order all parties to bear their own costs, or no cost orders to be made at all.

5   Order the DISTRICT COURT NSW, or the individual judges: Judge P David, Judge C Mendes and Judge C Everson, to produce to Leslee-ann Bezzina a certified copy of the oath they swore to become a judge.

6   Order the LOCAL COURT NSW or Magistrate J Gibson to produce a certified copy of the oath he swore to become a magistrate.

4. The notice of motion was heard on 22 September 2025. Ms Bezzina appeared and presented argument in support of her notice of motion, having also filed written submissions in advance of the hearing. Ms Lewer of counsel appeared for the respondent, Transport for NSW (TfNSW).

5. In circumstances where the notice of motion was heard by a judge of the Court, the first order became redundant. The submissions of the parties were directed to the balance of the orders sought by Ms Bezzina.

Request for an order prohibiting TfNSW from retaining private solicitors

6. The solicitors on the record for TfNSW in these proceedings are Hunt & Hunt Lawyers, a private law firm. Ms Bezzina objects to this arrangement, on the basis that as an agency subject to the Transport Administration Act 1988 (NSW) (Transport Administration Act) TfNSW is acting unlawfully. According to Ms Bezzina, TfNSW cannot lawfully retain Hunt & Hunt to provide legal services. It is instead obliged to use the services of the Crown Solicitor’s Office or the Director of Public Prosecutions (NSW).

7. Ms Bezzina advanced a number of submissions, supported by various authorities, to the effect that public sector agencies like TfNSW are obliged to act in accordance with the law. So much may be accepted. The problematic step in Ms Bezzina’s argument is that which asserts that the Transport Administration Act imposes a relevant constraint on TfNSW which precludes it from engaging a private law firm to provide legal services.

8. Ms Bezzina relies on cl 1(e) of Sch 1 to the Transport Administration Act. That subclause identifies one of the general functions of TfNSW as being “[c]ontracting, on behalf of the State, with public transport agencies or the private sector, for the delivery of transport services, including the setting of performance targets and service standards.” Ms Bezzina seeks to draw from that specific function a more general negative implication, namely that TfNSW cannot contract with entities in the private sector for the delivery of other kinds of services.

9. That is not an implication that can properly be drawn from cl 1(e). That subclause deals with a particular area of activity, namely “the delivery of transport services”. In that specific context TfNSW is authorised to contract with the private sector. It is a large and unjustified logical leap to then say that by conferring a specific authority to contract with the private sector for this particular purpose the legislature must have intended that the agency cannot enter contracts with the private sector in any other area of its operations. For a large organisation like TfNSW with a wide range of functions and areas of operation, that would be a severe and improbable constraint. Clear words would be required in the statute before a negative implication of this kind could be drawn.

10. In any event, the argument overlooks cl 9(1) of Sch 1 to the Transport Administration Act, which provides that TfNSW may make or enter into contracts or arrangements with any person in connection with the exercise of TfNSW's functions. Ms Bezzina did not suggest that TfNSW was acting beyond its functions to the extent that it acted as the informant in the criminal proceedings in the Local Court and the District Court, which has led to it being named as the respondent in the Supreme Court. TfNSW is expressly authorised by s 200(4) of the Road Transport Act 2013 (NSW) to commence proceedings for an offence against the road transport legislation. Engaging Hunt & Hunt as a law firm to provide legal services in connection with these matters falls squarely within the kind of activity authorised by cl 9(1).

11. When cl 9(1) of Sch 1 to the Transport Administration Act was drawn to her attention, Ms Bezzina argued that it was inoperative to the extent it was inconsistent with Commonwealth law, in the form of the statement of principle in Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; [1938] HCA 7. The passage in question at 389 in the judgment of Dixon J, to which Ms Bezzina referred in her written submissions, concerns the uncontroversial proposition that courts must act within the limits of their jurisdiction. As noted above, the broader proposition that a public sector agency must act within the limits of its powers is also uncontroversial. But recognising that principle does not reveal any inconsistency with a State law like cl 9(1) of Sch 1 to the Transport Administration Act which confers power on an authority. Laws of that kind serve to give content to the general proposition that the law creates enforceable limits on executive activity.

12. It follows that there is no basis to issue an order that TfNSW replace its existing lawyers. In the circumstances there is no need to consider whether the Court, or a single Judge of Appeal, would have power to make such an order if it were otherwise considered appropriate.

Request for an order directing the District Court to produce a sound recording of the mention of Ms Bezzina’s matter on 29 September 2023

13. On 29 September 2023 Ms Bezzina appeared before Judge Payne in the Distrct Court at Penrith. It is apparent from the transcript, which was in evidence before me, that this was a mention of the matter in the District Court, with a view to procedural orders being made.

14. Ms Bezzina has concerns about the accuracy of the transcript. The transcript records Judge Payne as stating – “And I’m not even sure it’s the judge’s role to determine whether to issue a subpoena”. The transcript records the response of Ms Bezzina which was – “You have authority over that private company, that corporation, you’re a judge. Sorry your Honour, but who’s calling the shots?”. Ms Bezzina’s recollection is that Judge Payne responded by saying – “That’s not how it works, but I’ve probably said too much”. The transcript does not record that response. Ms Bezzina regards this comment as being an indication that there was an inappropriate element of collusion between the Court and TfNSW. Ms Bezzina says that the comment is evidence that the judge was "taking directions from the solicitor that Transport for NSW was using" and aiding the prosecution.

15. Even if the presiding judge made a comment in the terms asserted by Ms Bezzina, it would not signify any impropriety or bias of the kind that Ms Bezzina appears to allege. A fair reading of the transcript demonstrates that Judge Payne was seeking to understand the issues that Ms Bezzina wished to agitate and her desire to obtain documents from various entities, in circumstances where she had not issued subpoenas. The point being emphasised was that it was the responsibility of the parties, and not the Court, to obtain relevant documents by issuing subpoenas. By the time of the relevant exchange Judge Payne had already observed that the matter was taking up considerable time in a busy list.

16. In any event, there is a more immediate answer to Ms Bezzina’s request for an order going to production of the audio recording of the mention on 29 September 2023. The District Court did not on that date determine Ms Bezzina’s appeal from the Local Court. As Ms Bezzina appeared to accept in argument before me, the decisions that were made on her appeal were made by other judges of the District Court on other occasions. There is no basis to say that an irregularity in the conduct of the mention on 29 September 2023 would affect the validity of the substantive decisions under review. In the circumstances, an order requiring production of an audio recording of 29 September 2023 would serve no legitimate forensic purpose going to the issues to be determined in the Court of Appeal on Ms Bezzina’s application for judicial review. Assuming for these purposes that it would be within the power of the Court to make an order directed to the District Court requiring production of an audio recording of the mention on 29 September 2023, there is no justification for making such an order.

Request for a general order that each party should bear its own costs and that no costs orders are to be made

17. In paragraph 4 of her notice of motion Ms Bezzina seeks an order that "all parties [are] to bear their own costs and no cost orders to be made at all". As she confirmed in response to questions from the bench, the outcome that Ms Bezzina seeks is that she be protected from any adverse costs order in the conduct of her proceedings in the Court of Appeal.

18. Ms Bezzina’s submissions covered two related but different points. One was an assertion, invoking the Free Access to Courts Act 1400 2 Hen 4 c 1, that as a subject of the Crown Ms Bezzina is entitled to access the courts without being subject to the threat of an adverse costs order. The second point was that, even if there is no such absolute protection, the Court should in the exercise of its discretion make an order insulating Ms Bezzina generally from exposure to any adverse costs orders. Ms Bezzina sought to draw support from the approach to costs in litigation with a public interest character, as considered in Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11. In that connection Ms Bezzina sought to emphasise that she is bringing her proceedings to vindicate a broader public interest in testing the validity of speeding fines and challenging improper exercises of judicial power.

19. As with the previous orders, the request for this order raises questions about the power of the Court of Appeal (or single Judge of Appeal) to make the order sought. But once again it is unnecessary to resolve such questions because there is not a sound justification for making such an order, even assuming it could be made.

20. Contrary to the first submission, there is no doubt that there is power to make orders as to costs in respect of the proceedings in this Court, including orders requiring Ms Bezzina to pay the costs of TfNSW. Section 98 of the Civil Procedure Act 2005 (NSW) confers power on the Court to make such orders. Subject to rules of Court and any relevant legislation, costs are in the discretion of the Court and the Court has full power to determine by whom, to whom and to what extent costs are to be paid. Nothing in the Free Access to Courts Act 1400 2 Hen 4 c 1 has the effect of depriving the Court of the power to order costs. Indeed that Act no longer has application in New South Wales, by virtue of s 8(1) of the Imperial Acts Application Act 1969 (NSW).

21. As to the second submission, there is no justification at this time for the Court to make a general order that would insulate Ms Bezzina for all purposes from the prospect of an adverse costs order in this Court. The orthodox approach is that the appropriate costs order falls to be considered at each relevant phase of proceedings, including interlocutory applications (like the present one) and the substantive hearing. There would need to be a compelling reason to seek to pre-empt the outcome in each such case by making a general order of the kind now sought by Ms Bezzina. Nor does Ms Bezzina gain any support from the decision in Oshlack. Oshlack is authority for the proposition that in the exercise of its discretion a court may have regard to the public interest nature of litigation when determining that there should be no order as to costs, rather than the usual order that costs follow the event. While Ms Bezzina may perceive there to be a public interest element to her litigation, she is in substance litigating about the validity of her conviction and associated penalties. This is a matter of private interest to Ms Bezzina. While it is open to Ms Bezzina to argue in due course that there is a sufficient public interest aspect to proceedings to warrant a conclusion that there should be no order as to costs, it is far from self-evident that she will succeed in such an argument. The exercise of the Court’s discretion as to costs may well also be informed by other important considerations as matters develop, such as the reasonableness of the parties in their conduct of the litigation. The appropriate costs order to be made in respect of the substantive application made by Ms Bezzina is best resolved after that application is heard.

22. It is a necessary consequence of this approach that Ms Bezzina is at risk of facing adverse costs orders in this Court. That is no doubt an alarming prospect for Ms Bezzina, as she emphasised in submissions. But it is a consequence of choosing to litigate in this Court where costs orders can be made and are routinely made against unsuccessful litigants.

Orders requiring production of records of the oaths of office sworn by various judicial officers

23. By pars 5 and 6 of her notice of motion, Ms Bezzina seeks orders for certified copies of the oaths of office sworn by various judicial officers involved in relation to proceedings in the Local Court and the District Court.

24. Again, this request raises a question about the power of the Court of Appeal (or single Judge of Appeal) to make an order of this kind. Again, it is unnecessary to resolve that question because there is no justification to make such an order.

25. There is a significant element of fishing in Ms Bezzina’s arguments on this topic. Ms Bezzina says she seeks the production of evidence about the oaths of office having been taken "to ensure that these judicial officers had jurisdiction to make the rulings concerning me". When asked to explain if she has any particular reason to apprehend that any of the judicial officers in question failed to take the applicable oath of office, Ms Bezzina merely indicated that she has misgivings about how her matters have been dealt with. That does not provide any particular justification to question the taking of judicial oaths.

26. An additional problem is that nothing in the summons seeking judicial review raises an issue about the validity of the judicial offices held by the relevant judges, having regard to a failure to take the oath of office either at all or in the proper form.

27. I accept the submission of TfNSW that there is no legitimate forensic purpose for making an order of the kind sought, assuming that I would have power to make one. There is no demonstrated legitimate forensic purpose having regard to the issues arising on the judicial review application.

28. In any event, the underlying proposition that the proceedings in the District Court (and/or the Local Court) would be invalidated if there was shown to be some defect in the process of the judicial officers taking the oath of office is wrong. The significance of any defect in the process of a judicial officer swearing an oath of office was considered by Barrett JA in Makucha v Sydney Water Corporation [2013] NSWCA 177 (Makucha). As his Honour explained at [16]-[22], the Oaths Act 1900 (NSW) does not have the consequence of invalidating the actions of purported judicial officers in circumstances where there is such a defect. Pursuant to s 11(1) of that Act, a judicial officer who declines or neglects to take the oath of office is obliged to vacate their office, or is disqualified from taking office if they have not entered their office. Section 11 does not have the consequence of automatically vacating the office of such judicial officers. Nor does it have the effect of invalidating the judicial acts they have performed when in office. The judicial acts performed by such purported judicial officers are made secure by reason of the de facto officers doctrine: Makucha at [16].

Conclusion and costs of the notice of motion

29. For these reasons, the notice of motion filed on 9 September 2025 should be dismissed. TfNSW submits that the costs of the notice of motion should be costs in the cause. That is an appropriate outcome. No separate order is required in that regard, having regard to r 42.7 of the Uniform Civil Procedure Rules 2005 (NSW).

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Decision last updated: 23 September 2025