Dacich v Director of Public Prosecutions (NSW); Kennedy v Director of Public Prosecutions (NSW) (No 2)

[2020] NSWCA 346

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Dacich v Director of Public Prosecutions (NSW); Kennedy v Director of Public Prosecutions (NSW) (No 2) [2020] NSWCA 346

Hearing dates:

30 November 2020; final written submissions 14 December 2020

Decision date:

18 December 2020

Before:

Basten JA

Decision:

(1)   Dismiss the applicant’s application for a stay of the orders of this Court made on 19 November 2020 pending determination of any application for special leave to appeal to the High Court of Australia from those orders.

(2)   Dismiss the applicant’s notice of motion filed on 3 December 2020.

(3) On the Director’s motion, pursuant to UCPR, r 13.4:

(a)   Dismiss the amended summons filed in matter 2019/302523.

(b)   Dismiss the amended summons filed in matter 2020/328871.

Catchwords:

JUDICIAL REVIEW – application to review numerous matters related to criminal prosecutions – need to identify decisions – need to identify grounds – repetition of grounds previously dismissed – abuse of process

JUDICIAL REVIEW – application to review sentence imposed by district Court – operation of statutory stay – stay following grant of bail – Supreme Court Act 1970 (NSW), ss 69, 69A, 69C

PRACTICE AND PROCEDURE – bail – pending application for special leave to appeal to the High Court – no evidence that application filed – special circumstances

PRACTICE AND PROCEDURE – repeat application for judicial review – reopening dismissed application – whether frivolous and vexatious – Uniform Civil Procedure Rules 2005 (NSW), r 13.4

Legislation Cited:

Criminal Appeal Act 1912 (NSW), s 5B

Crimes (Appeal and Review) Act 2001 (NSW), s 78; Pt 7

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 43, 46

Supreme Court Act 1970 (NSW), ss 69, 69A, 69C

Uniform Civil Procedure Rules 2005 (NSW), r 13.4

Cases Cited:

Dacich v Director of Public Prosecutions (No 2) [2020] NSWCA 298

Dacich v Director of Public Prosecutions (NSW) [2020] NSWCA 313

Dacich v Director of Public Prosecutions (NSW); Kennedy v Director of Public Prosecutions (NSW) [2020] NSWCA 313

Dacich v Director of Public Prosecutions [2020] NSWSC 1179

Macatangay v State of New South Wales (No 2) [2009] NSWCA 272

Category:

Procedural and other rulings

Parties:

2019/302523

Clare Dacich (Applicant)
Director of Public Prosecutions (NSW) (First Respondent)
District Court of NSW (Second Respondent)

2020/328871

Clare Dacich/Kennedy (Applicant)
Director of Public Prosecutions (NSW) (First Respondent)
District Court of NSW (Second Respondent)
Supreme Court of NSW (Third Respondent)
State of New South Wales (Fourth Respondent)
Commissioner of Corrective Services (Fifth Respondent)

Representation:

Counsel:
Applicant in person
Ms J Davidson (First Respondent)

Solicitors:
Director of Public Prosecutions (NSW) (First Respondent)
Crown Solicitor’s Office (Second and Fifth Respondents)

File Number(s):

2019/302523; 2020/328871

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

9 September 2019

Before:

Colefax DCJ

File Number(s):

2015/330425; 2016/9320; 2017/174438

Judgment

1. BASTEN JA: The applicant, Clare Dacich (also known as Kennedy), is currently serving a sentence of imprisonment imposed on her in the District Court on 9 September 2019. There was no appeal available from that sentence, but she commenced proceedings in the supervisory jurisdiction of this Court, which were dismissed on 19 November 2020. For the bulk of the time pending determination of the proceedings in the supervisory jurisdiction, the applicant was at large on bail. The entitlement to bail, and the stay of her sentence, terminated with the dismissal of those proceedings.

2. Between 19 November and 30 November 2020 the applicant filed a number of documents in this Court seeking to review the status of her current custody. When the matters were listed before this Court on 30 November 2020, she sought an adjournment to provide further documentary material. Directions were made on 30 November 2020 to allow that to occur.1 In that judgment, seven proposed orders were identified. [1]

   1. Dacich v Director of Public Prosecutions (NSW); Kennedy v Director of Public Prosecutions (NSW) [2020] NSWCA 313 (“Dacich/Kennedy No 1”).

3. One of the documents which had been supplied prior to the hearing on 30 November was a summons seeking judicial review, which was e-filed on 18 November 2020 and given the identifier as matter 2020/328871. The Director of Public Prosecutions filed a notice of motion seeking to have the matter dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

4. On 3 December 2020, the applicant e-filed a notice of motion seeking, in substance, to vary the order which prevented a statutory stay consequent upon the filing of the amended summons on 18 November 2020 from having effect, and seeking an order in the nature of mandamus directing the District Court to “reopen the sentence proceedings.”

5. Secondly, the applicant supplied a document headed “Amended Summons Commencing an Appeal (Part 50)” which was, in substance, an application for judicial review under s 69 of the Supreme Court Act 1970 (NSW). It identified nine decisions which were sought to be reviewed. It was an amalgam of documents, including page 3 from the original summons signed on 26 November 2020 but including a challenge to a decision made on 29 November 2020.

6. Thirdly, the applicant filed a document purporting to be an application for special leave to appeal to the High Court. It was signed on 28 November 2020 but there is no evidence that it has been filed. Counsel for the Director stated in a written submission that the Director had received no communication from the High Court indicating that an application for special leave had been filed, although such notification ordinarily occurs when a document has been filed identifying the Director as a party.

7. As the application identified no matter substantially different from those raised by the applicant to date in this Court, including by her amended summons, her application for a stay pending determination of the High Court special leave application will turn on the consideration of the grounds in the amended summons and the Director’s application to have the amended summons dismissed summarily.

8. For the reasons given below there is no substance in the applicant’s present complaints. Accordingly the exceptional circumstances required to warrant a stay of her sentence pending determination of the proceeding in the High Court have not been made out. That application must be refused.

9. It is convenient to deal with the remaining issues by considering the Director’s application for summary dismissal of the summons. Those matters encompass the possible bases for the relief sought in the notice of motion.

10. The orders sought in the amended summons were as follows:

“1   Leave to appeal from the whole of the decision below.

2   An order in the nature of mandamus, directing that the proceedings be remitted to the second defendant to be heard according to law.

3 Referral to the Court of Criminal Appeal for an application pursuant to s 78 of the Crimes Appeal and Review Act.”

11. The “second defendant” was the District Court. With respect to order 1, the frontsheet to the summons identified various decisions and parties, but no appeal was available with respect to most of the decisions, based on the matters identified in the grounds, to which reference will be made below. As to order 2, again it will be necessary to identify a possible ground requiring the District Court to hear and determine some matter afresh, other than the sentence proceeding which was the subject of the first judicial review proceeding in this Court which was dismissed.

12. As to order 3, as the applicant has been informed on more than one occasion, an application pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (“Appeal and Review Act”) is not a judicial proceeding and is dealt with administratively.

13. It is convenient to deal with the grounds separately as listed in the amended summons and the subject of submissions by the Director in support of his summary dismissal application.

14. Ground 1 read as follows:

“1   DCJ Colefax refusal to State a case based on error of law to the Court of Criminal Appeal, this refusal was based on the Director of Public Prosecutions was not copied into the email – decision date 10 September 2020.”

15. There is no evidence before the Court of any application for a stated case having been made to Judge Colefax. However, given the suggestion that it was determined a year after the sentencing judgment, and was not raised in the earlier application for judicial review, there is no reason to suppose that a timely application was made under s 5B of the Criminal Appeal Act 1912 (NSW). The need for such an application was identified in Dacich/Kennedy No 1 at [18].

16. Ground 2 alleged lack of jurisdiction on the part of the Local Court to hear and determine “the original matter”, the applicant being unaware of her rights. This matter was dealt with in Dacich/Kennedy No 1 at [24]. No such challenge is available following the appeal to the District Court.

17. Ground 3 alleged a refusal on the part of the District Court to “deal with an application for leave out of time to appeal against conviction”. This matter was dealt with in Dacich v Director of Public Prosecutions (No 2),[2] delivered on 19 November 2020 at [39]-[49]. An attempt to reagitate that claim is an abuse of process. [3]

    2. Dacich/Kennedy No 1 at [9].

    3. [2020] NSWCA 298.

18. Ground 4 read as follows:

“The State of New South Wales have brought Charges against the plaintiff which involve allegations of serious misconduct. Subject to current proceedings before the Court. Decision date 9.11.2020.”

19. The Director inferred that a further criminal prosecution has been commenced against the applicant, the details of which are not before this Court. Even if that is so, it is impossible to identify (i) any specific decision, (ii) any particular court before which charges are pending, (iii) any prosecutorial decision which could be subject to judicial review and (iv) any basis upon which this Court would have jurisdiction to review such matters. The ground is misconceived.

20. Ground 5 related to something said during a “detention application” as to the operation of s 69C of the Supreme Court Act. The ground may be taken to refer to a detention application heard by Ierace J in December 2019, which was rejected. The effect of the impugned statement appears to have been that no stay was ordered upon a grant of bail, as a result of which the sentence continued to run.

21. A statement made by one party in the course of submissions as to the legal effect of a particular order provides no basis for judicial review of a decision favourable to the applicant. Nor does it provide a basis for concluding that the stay did not operate upon the grant of bail. The correct legal position was explained in Dacich/Kennedy No 1 at [26]-[30].

22. Ground 6 alleged that on 28 August 2020 I made an order dismissing an application pursuant to s 78 of the Appeal and Review Act “due to judicial review proceedings.” That assertion was factually inaccurate. The proceedings were commenced in the Common Law Division. My judgment[4] explained that an application for an inquiry under s 78 was not a judicial proceeding and could not be dealt with in a Division of the Court. The administrative process identified in Pt 7 of the Appeal and Review Act was set out. I suggested that the summons should be treated as an application under s 78 and could be referred to a judge appointed by the Chief Justice, if that course were sought to be pursued.

    4. See also Dacich v Director of Public Prosecutions (NSW) [2020] NSWCA 313 at [17].

23. Ground 7 appeared to refer to a related matter to that raised by ground 4. It stated:

“7   On November 9^th 2020, proceeding[s] were initiated against New South Wales Police, for serious misconduct, if the case is proven there would questions raised to the convictions as the evidence was obtained illegally.”

24. As the Director observed, the ground appears to identify proceedings commenced by the applicant which have not yet been determined. It possibly relates to evidence obtained as the basis for new charges against the applicant, referred to in ground 4. There is no judicially reviewable decision identified, and, indeed, none appears to have been made.

25. Ground 8 was in the following terms:

“8 Whether the stay of s 69C(A) [sic] applied upon the grant of bail of Justice Rothman on the 24.10.2020.”

26. There is no s 69C(A): it may be inferred that the applicant intended to refer to s 69C(2)(a) or s 69A(3), or both. This ground appears to be related to ground 5, in so far as it suggests (though only by inference) that the sentence was not stayed upon the applicant being granted bail. This matter was disposed of in earlier proceedings, as explained at [21] above.

27. Ground 9 implied that, on 29 November (2020?) the applicant filed an application under s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”) seeking to reopen the District Court proceedings “due to an error of law.” The ground implied that the District Court refused to list the application, thereby denying the applicant procedural fairness.

28. If in fact the application was made on 29 November 2020 (which was, as the Director observed, the Sunday before the present matter was first listed before this Court), then it was an abuse of process. The application would have been an attempt to avoid the consequence of this Court rejecting the judicial review application. If, on the other hand, the application was made in November 2019, then it was a decision which should have been the subject of review (if at all) in the first judicial review application. In any event, the ground is without substance. The rejection by this Court of the supposed errors made by the District Court in sentencing the applicant left no room for the proposition that the District Court “imposed a penalty that is contrary to law” or “failed to impose a penalty that is required to be imposed by law” within the meaning of s 43(1) of the Sentencing Procedure Act. On any view the ground, whatever its provenance, is an abuse of process.

29. Rule 13.4 of the UCPR provides:

13.4   Frivolous and vexatious proceedings (cf SCR Part 13, rule 5; DCR Part 11A, rule 3; LCR Part 10A, rule 3)

(1)   If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a)   the proceedings are frivolous or vexatious, or

(b)   no reasonable cause of action is disclosed, or

(c)   the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2)   The court may receive evidence on the hearing of an application for an order under subrule (1).

30. The applicant’s amended summons purported to be filed in both matter 2019/302523 and matter 2020/328871. The former was the proceeding that was disposed of by way of judgment delivered on 19 November 2020. In so far as the amended summons sought to identify issues which had been raised, but not properly addressed, in those proceedings, it may be treated as an application to reopen the judgment of 19 November 2020. Otherwise, the summons purported to be a summons commencing new proceedings namely matter 2020/328871.

31. The grounds identified in the summons all fell within the terms of r 13.4(1)(a)-(c), whether filed in the former proceeding or as commencing the new proceeding.

32. Pursuant to s 46(1)(b), a judge of the Court has power “to dismiss an appeal or other proceedings for want of prosecution or for other cause specified in the rules”. A summons seeking judicial review is a form of “other proceeding”. The power to dismiss a proceeding summarily arises under the rules, namely UCPR, r 13.4. The power of a single judge to dispose of proceedings on that basis follows from the decision in Macatangay v State of New South Wales (No 2). [5] In accordance with the application of the Director, the amended summons discloses no reasonable cause of action and, in that sense, is frivolous and vexatious. To the extent that it seeks to relitigate issues already determined, without providing any sound basis for reopening the earlier determination, it constitutes an abuse of process.

    5. Dacich v Director of Public Prosecutions [2020] NSWSC 1179.

33. Neither in the notice of motion dated 30 November 2020, nor in the Director’s written submissions, did the Director seek costs. Accordingly, no order for costs should be made.

34. The Court makes the following orders:

1. Dismiss the applicant’s application for a stay of the orders of this Court made on 19 November 2020 pending determination of any application for special leave to appeal to the High Court of Australia from those orders.

2. Dismiss the applicant’s notice of motion filed on 3 December 2020.

3. On the Director’s motion, pursuant to UCPR, r 13.4:

1. Dismiss the amended summons filed in matter 2019/302523.

2. Dismiss the amended summons filed in matter 2020/328871.

**********

Endnotes

Decision last updated: 18 December 2020