El-Saeidy v Director of Public Prosecutions (NSW)

[2019] NSWCA 289

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

El-Saeidy v Director of Public Prosecutions (NSW) [2019] NSWCA 289

Hearing dates:

28 November 2019

Date of orders:

28 November 2019

Decision date:

29 November 2019

Before:

Basten JA at [1];
Leeming JA at [61];
Payne JA at [62]

Decision:

(1)   Direct that the first defendant be identified as Director of Public Prosecutions (NSW).

 

(2)   Dismiss the proceedings in this Court.

 (3)   Order that the applicant pay the costs of the Director of Public Prosecutions (NSW) in this Court.

Catchwords:

JUDICIAL REVIEW – appeal pending in District Court – criminal jurisdiction – appeals from convictions and imposition of apprehended domestic violence order IN Local Court – review of interlocutory decisions – review of rejection of recusal application

 

PROCEDURAL FAIRNESS – bias – recusal application based on apprehended bias – appeal from refusal – when interlocutory appeal available

PROCEDURE – solicitor on record – professional responsibilities – instructions terminated after failed adjournment application – limiting scope of solicitor’s instructions – application of Uniform Civil Procedure Rules 2005 (NSW), Pt 7, div 7

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW), ss 4, 8, 18, 19
District Court Act 1973 (NSW), ss 8, 176
Supreme Court Act 1970 (NSW), s 69

Uniform Civil Procedure Rules 2005 (NSW), rr 7.27, 7.29, 7.30, 59.10

Cases Cited:

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10
Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115
In the matter of SM Project Developments Pty Ltd (In liq) [2017] NSWSC 1010
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Malouf v Malouf (2006) 65 NSWLR 449; [2006] NSWCA 83
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Muldoon v Church of England Children’s Homes Burwood (2011) 80 NSWLR 282; [2011] NSWCA 46

Category:

Principal judgment

Parties:

Fawzi El-Saeidy (Applicant)
Director of Public Prosecutions (NSW) (First Respondent)
District Court of New South Wales (Second Respondent)

Representation:

Counsel:
Applicant self-represented for substantive hearing
Ms J Davidson (First Respondent)

  Solicitors:
Slattery Thompson Solicitors (For Applicant on adjournment application)
Applicant self-represented for substantive hearing
Office of Director of Public Prosecutions (NSW) (First Respondent)
Crown Solicitor’s Office (Second Respondent)

File Number(s):

2019/293092

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

16 July 2019

Before:

Bennett SC DCJ

File Number(s):

2016/323816; 2016/178780; 2016/205238

Judgment

1. BASTEN JA: The applicant, Fawzi El-Saeidy, has three proceedings pending in the District Court at Parramatta arising out of a criminal conviction, the imposition of an apprehended domestic violence order (AVO), and a conviction for breach of an interim AVO in the Local Court. The proceedings are part heard before Bennett SC DCJ. The last order made by the judge included directions for further written submissions to be filed and the listing of the matter for judgment on 17 December 2019.

2. There is no appeal from the exercise by the District Court of its appellate criminal jurisdiction. [1] Further, the jurisdiction of this Court under s 69 of the Supreme Court Act 1970 (NSW) (commonly referred to as the supervisory jurisdiction) is constrained by a privative clause in s 176 of the District Court Act 1973 (NSW), the effect of which is to protect from review any order or adjudication of the District Court in its appellate jurisdiction, except for jurisdictional error. [2] Because courts of record, a designation which includes the District Court of New South Wales,[3] have jurisdiction to determine questions of law which arise in proceedings before them, challenges based on jurisdictional error will rarely succeed.

   1. District Court Act 1973 (NSW), s 127, s 4 action; Muldoon v Church of England Children’s Homes Burwood (2011) 80 NSWLR 282; [2011] NSWCA 46 at [42], [43], [45], [64]-[66].

   2. Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 at [10].

   3. District Court Act, s 8.

3. It should be stated without equivocation, but with a particular potential qualification, that the underlying purpose of the supervisory jurisdiction vested in this Court is directed to the final orders or determinations of other courts and tribunals; it is not to be used to raise legal challenges to interlocutory and procedural determinations. Were it not for the privative clause in s 176 of the District Court Act, s 69(3) of the Supreme Court Act would permit an order quashing “the ultimate determination of a court or tribunal … on the basis of an error of law that appears on the face of the record of the proceedings.” The reference to “the ultimate determination” reflects the function of the former writ of certiorari which is “to quash the legal effect or the legal consequences of the decision or order under review.”[4]

   4. Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 580 (Mason CJ, Dawson, Toohey and Gaudron JJ); [1992] HCA 10.

4. There are a number of powerful considerations militating against any expansion of the supervisory jurisdiction into review of decisions which do not immediately and finally affect legal rights. First, decisions made in the course of a trial may be varied as the matter progresses. Secondly, decisions which are material to the final outcome may be challenged by whatever form of appeal or review is available after the final decision has been made. If not challengeable at the end of the process, there will rarely be justification for challenging them at an interlocutory stage. Thirdly, the fragmentation of trials, particularly criminal proceedings, is to be avoided because it is disruptive of the orderly administration of justice.

5. The one qualification to the foregoing principles, which has relevance in this case, is that where a recusal application is refused, it may be reasonable to expect the unsuccessful applicant to challenge that refusal immediately, rather than proceed to a hearing which may be lengthy, but prove to have been fatally flawed from the outset. However, such interlocutory appeals should be approached with caution, and only be pursued where there is a substantial prospect of success, and in circumstances where reserving the point for later challenge could involve a lengthy, but futile, trial. [5]

   5. Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [84]-[86].

Procedural history

6. On 16 June 2016 an interim apprehended domestic violence order (ADVO) was made against the applicant for the protection of his wife and children. On 1 July a charge was laid for assault occasioning actual bodily harm, arising out of events which preceded the interim ADVO. Five days later, the applicant was charged with a contravention of the interim ADVO.

7. These proceedings followed a desultory course through the Local Court, with multiple applications for adjournments, the applicant sometimes being legally represented and sometimes appearing for himself.

8. On 27 March 2018 an apprehended domestic violence order was made to protect the applicant’s former wife, current for two years, expiring on 26 March 2020. A notice of appeal was filed by the applicant in the District Court challenging the making of the apprehended violence order.

9. On 13 April 2018 the assault proceedings were completed in the Local Court in the absence of the applicant. On 20 April Magistrate Still convicted the applicant of the assault and imposed a $1,000 penalty and imposed a good behaviour bond for 12 months. At the same time, an apprehended violence order was made for a period of 12 months for the protection of the applicant’s children.

10. On 1 May 2018 the applicant sought an annulment of the apprehended violence order made on 20 April, apparently on the basis that it was made in his absence. However, the application appears to have been withdrawn. On the same day the applicant filed an appeal in the District Court against his conviction for assault.

11. On 16 April 2019, some 12 months after the conviction, the applicant filed a further application in the Local Court for an annulment of his conviction. On 3 July 2019 Magistrate Denes dismissed the application.

12. Three appeals were brought by the applicant in the District Court. These involved challenges to (i) the AVO of 27 March 2018, (ii) the conviction for contravention of the interim AVO and (iii) the conviction for assault. After relatively extensive interlocutory hearings, the hearing of those appeals appears to have commenced before Bennett SC DCJ on 11 July 2019. The hearing continued on 12 July and 16 July. No final orders were made on 16 July, with two minor qualifications. First, an appeal from the refusal of the Local Court to annul the assault conviction was dismissed, but the matter was allowed to proceed as an appeal against the conviction. Secondly, Judge Bennett refused an application to disqualify himself on the ground of apprehended bias. Other procedural orders were made and the matter was stood over to 21 October 2019. The applicant was refused leave to give evidence, but directions were given for the exchange of written submissions, with the applicant to provide his by 23 August with a reply by the prosecutor by 6 September.

13. On 19 September 2019 the applicant filed a summons in this Court seeking judicial review of certain orders made on 16 July. On 8 October an amended summons was filed together with an affidavit in support.

14. When the matter returned to the District Court on 21 October, Judge Bennett refused a request for the applicant to be supplied with sound recordings of the District Court proceedings and the hearing was adjourned to 17 December 2019, for judgment.

Proceedings in this Court

15. The amended summons filed on 8 October 2019 sought six orders. First, it sought an order to quash the “Court decision of 16 July 2019 of Judge Bennett…” (par 1). Although the only decision under review was identified as that of Judge Bennett of 16 July 2019, the other orders sought were not directed to that decision.

16. Secondly, it sought an application to extend time to file the summons (par 2). However, the summons was filed within three months of the “decision” under review, and was thus was within the time prescribed in the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 59.10(1). No extension of time was necessary.

17. Thirdly, an order was sought staying the proceedings in the District Court until disposal of the proceedings in this Court (par 5). No interlocutory relief was pursued in these terms and, as the matter is to be disposed before the next date for hearing in the District Court, a stay, if otherwise available, would now have no utility.

18. Fourthly, the summons sought two orders relating to sound recordings of the proceedings in the District Court and transcripts of the hearings. One paragraph appeared to require the Court to issue subpoenas to obtain the sound recordings and transcripts of the proceedings in the District Court (par 3); a second sought directions that the applicant be entitled to file further grounds upon receipt of the recordings and transcripts (par 4). A similar application had been made to Judge Bennett and refused.

19. Fifthly, an order was sought prohibiting the use in any court proceedings of a mobile phone allegedly taken by a police officer from the applicant on 6 July 2016 (par 6). It was not clear that there was any order in these terms sought in the District Court.

20. Sixthly, the applicant sought an order providing him with access to subpoenaed documents produced to the District Court (par 7). There was no attempt to identify the documents, nor when and on what grounds access had been refused.

21. The summons also contained a number of “grounds”, identified in the following terms:

“1.   Judicial error breaching natural justice.

2.   Failure to allow oral evidence.

3.   Court denied the existence of jurisdiction.

4.   Court proposes to act in circumstances where that event or fact has occurred.

5.   Error of law, to ignore material or make an erroneous finding actin[g] in bad faith.

6.   Breaching the hearing of [sic] bias rules of natural justice.”

22. These grounds appear to have been drafted with an eye to the language of jurisdictional error although, with the exception of (2) they were devoid of content.

23. On 8 October 2019 the applicant filed an affidavit in support of the summons which stated (par 7):

“I was denied procedural fairness as a result of the judge refusal to allow me access to the sound recordings and I am a party to the proceeding before the district court.”

This appears to have been an attempt to review a decision identified in an email from the Acting Registrar, Parramatta Court, to the applicant dated 9 August 2019 which included the following statements:

“Judge Bennett has instructed that he will not authorise the release of any electronic recording of the proceedings in these matters conducted in court before him. Transcripts of those proceedings may be provided by arrangement with the Registrar.

In accordance with Judge Bennett’s order, I approve a partial waiver of transcript fees in relation to the following transcripts: [six dates being identified].

…

The Local Court electronic recording of 3.7.19, which you applied for on the same application is ready for you to collect.

Applications for any future transcripts will be considered on their merits, in accordance with Court Services guidelines.”

24. On 27 November 2019 (the day before the hearing in this Court), the applicant’s solicitor, Mr Peter Livers of Slattery Thompson Solicitors, filed a notice of motion seeking to have the hearing date vacated. That application had been foreshadowed in an email to the Registrar, and the applicant had been directed to make the application in Court. The motion also sought leave to have access to sound recordings and the corrected transcripts before Judge Bennett, “in order to file further grounds of appeal”, and leave to file a further amended summons and affidavit and “order to access subpoena.”

25. The affidavit in support of the motion, sworn on 27 November 2019, stated that the applicant needed further time to obtain and present to the Court material which he stated was relevant to the present application and to obtain assistance from his legal adviser, Mr Livers, who had appeared on occasion and for limited purposes at various stages of the proceedings in the District Court and in the Local Court.

26. Annexed to that affidavit was an unpaginated collection of transcripts from proceedings in the Local Court and the District Court, including a number of transcripts which were, in part, already contained in the White Book filed in this Court. In addition, the applicant provided to the Registry a volume containing an affidavit with extensive annexures, bearing the date 11 November 2019, but not filed until 27 November 2019.

27. The annexures included a draft further amended summons, seeking many proposed orders (perhaps more than 40 – the numbering was not consistent) and covering some 67 pages. The bulk of the content was patently irrelevant and, despite Mr Livers being the solicitor on the record, it was equally clearly not prepared by a lawyer. An application to rely upon it was rejected.

Procedural issues

28. There are procedural matters which should be noted before addressing the substance of the proceedings. First, the amended summons identified as the first defendant, “Office Director of Public Prosecutors NSW”. This is an incorrect description of the proper respondent in this Court, who is the Director of Public Prosecutions (NSW).

29. Secondly, Mr Livers had on occasion appeared for the applicant in the course of his various proceedings in the District Court and the Local Court. However, it is not clear that he took responsibility for the conduct of those proceedings. In this Court, Mr Livers signed some documents, including the amended summons, and the notice of motion seeking to vacate the hearing date. He appeared to present the oral submissions in this Court, although he had prepared no written submissions. He commenced with the application to vacate the hearing date. When that application was refused, he took instructions from his client and announced that his instructions had been terminated and he no longer acted for Mr El-Saeidy. When invited to say whether he had come to Court prepared to argue in support of the orders sought in the summons, or whether his responsibility was limited to seeking to vacate the hearing date, he acknowledged that he had instructions to appear in the matter generally.

30. Although he remained on the record until there could be compliance with the relevant rules of court, Mr El-Saeidy was given leave to present oral submissions in support of his case. Mr El-Saeidy explicitly stated that Mr Livers had had no instructions to appear beyond seeking a vacation of the hearing date. There may be an issue as to the true nature of Mr Livers’ role in these proceedings as he was the solicitor on the record at a time when plainly inadmissible affidavits were filed in support of patently untenable claims. He was also the solicitor on the record at the time the further amended summons was prepared. Where a solicitor appears without having control of the conduct of the proceedings, there will be doubts as to his or her ability to fulfil the ethical obligations of a solicitor in that role.

31. These problems are not entirely novel: they were addressed in Malouf v Malouf,[6] where Mason P stated:

“[170]   A litigant is entitled to be self-represented or to retain one or more practising lawyers to act as his or her advocate(s). But the litigant has no entitlement to address or otherwise conduct the case at a time when represented before the court. This prohibition cannot be circumvented by the device of dismissing the lawyer whose services are no longer required part way through the hearing. A choice must be made at the outset.

[171]   Splintered advocacy has the tendency of much mischief.

[172]   Proceedings are likely to be prolonged unnecessarily through overlapping.

[173]   The device would enable the litigant to propound untenable or scandalous submissions that would not be advanced if the matter remained in the hands of lawyers who may have greater cause to fear disciplinary or costs sanctions than the lay client. This may of course happen if the litigant is wholly unrepresented, but that is the consequence of the right of the self-represented to appear. It does not suggest a reason why the court should countenance what I would term a right of dual or splintered advocacy.

…

[178]   When a lawyer, usually a barrister, accepts responsibility to conduct a case, he or she assumes duties to the court, including duties aimed at the efficient administration of justice (see generally New South Wales Bar Association Rules). These include the obligation to seek to ensure that the case is confined to identified issues that are genuinely in dispute. There are also duties to the court and to the opposing side that may be triggered by matters arising during the course of the hearing. The capacity to perform these duties would be compromised by the practice now under consideration. Where ‘… a litigant is not suing in person (a risk to which any defendant is, of necessity, subject to in the interests of justice) his agent should be a duly-qualified [lawyer] who accepts a professional responsibility for the initiation and conduct of the litigation on the plaintiff's behalf and is subject to the disciplinary powers of the Court’…. [7]

[179]   The matters I have addressed are limited to those arising out of an attempt to split the public advocacy role (including by written as well as oral submissions). There is a wider discussion about the concept of ‘unbundling’ legal services, in which a lawyer is retained to assist in the preparation of process or submissions that the client presents to the Court as his or her own…. [8] Unbundling raises legal, ethical and prudential issues for the lawyer and other issues for the court, but they can be left for another day.”

6. (2006) 65 NSWLR 449; [2006] NSWCA 83 (Mason P, McColl and Bryson JJA).

7. (Hubbard Association of Scientologists International v Anderson and Just (No 2) [1972] VR 577 at 580, per Adam J (for the Court; Adam J, Little J and Gowans J) (reference in judgment).

8.    (See, for example, Alberta Law Reform Institute, Alberta Rules of Court Project, Self Represented Litigants Consultation Memorandum (March 2005) No 12.18 at [104]-[111]; Macken, ‘Unbundling Legal Services: Step-in, step-out litigation’, (2003) 41(6) NSW Law Soc J 48) (references in judgment).

32. In Malouf, the appellant did not have a solicitor, but briefed counsel directly, on a limited basis. The situation where a party has a solicitor on the record raises the issues identified by the President in more extreme ways. The functions and responsibility of the solicitor on the record cannot be limited by agreement between the litigant and lawyer.

33. It would appear that the appeal in Malouf commenced before the commencement of the UCPR, which, accordingly, did not apply to those proceedings. Certainly, there was no reference in the judgment to the UCPR. Nor, did the case involve the role of a solicitor on the record. When Mr Livers announced that his instructions had been terminated, the Court drew his attention to certain provisions in the UCPR which limited the effect of the termination of his authority. These rules are as follows:

7.27   Removal of solicitor

(1)   A party that terminates the authority of a solicitor to act on the party’s behalf must file notice of the termination.

(2)   A copy of the notice of termination, as filed, must be served on all other active parties and, if practicable, on the former solicitor.

(3)   Filing and service of the notice of termination on the other parties may be effected by the former solicitor.

(4)   This rule does not apply to a change of solicitor referred to in rule 7.26.

…

7.29   Withdrawal of solicitor

(1)   A solicitor who ceases to act for a party in any proceedings may file notice of the change and serve the notice on the parties.

(2)   Except by leave of the court, a solicitor may not file or serve notice of the change unless he or she has filed and served on the client a notice of intention to file and serve the notice of change—

(a)   in the case of proceedings for which a date for trial has been fixed, at least 28 days before doing so, or

(b)   in any other case, at least 7 days before doing so.

(3)   Unless notice of the change is filed with the leave of the court, a solicitor filing such a notice must include in the notice a statement as to the date on which service of the notice of intention required by subrule (2) was effected.

(4)   A solicitor may serve a notice of change or notice of intention under this rule on the former client by posting it to the former client at the residential or business address of the former client last known to the solicitor.

7.30   Effect of change

A change for which notice is required or permitted to be given under this Division does not take effect—

(a)   as regards the court, until the notice is filed, and

(b)   as regards any person on whom it is required or permitted to be served, until a copy of the notice, as filed, is served on that person.

34. In In the matter of SM Project Developments Pty Ltd (In liq) [9] Black J stated that the purpose of r 7.29 was “to address the risk that a solicitor’s ceasing to act, after a hearing date has been set, has the capacity to cause significant prejudice to the client; also to the community, so far as it may have the consequence that the hearing cannot proceed; and also to the wider interests of justice which include the interest in the timely determination of proceedings.” That case concerned a solicitor seeking to act where the client had failed to provide funds to cover disbursements. The present case was rather different: the solicitor sought leave to cease to act on the basis that the client had terminated his authority, for the apparent purpose of allowing the client to present his own case.

    9. [2017] NSWSC 1010 at [2].

35. The factual waters were somewhat muddied by the applicant’s assertion, when he took over the carriage of the matter, that Mr Livers had never had authority to do more than present submissions for vacating the hearing date. None of that alters the fact that, pursuant to r 7.30, no notice of ceasing to act had been filed and accordingly, pursuant to r 7.30, the solicitor remained on the record. In fact Mr Livers stayed in court and provided some assistance until lunchtime, but then did not return after the luncheon adjournment, at which time Mr El-Saeidy was continuing submissions on his own behalf.

36. This was not a case in which the litigant used the termination of authority of his legal representative as a basis for seeking an adjournment in order to obtain alternative representation; that was, perhaps, because Mr El-Saeidy had always intended to present the substantive argument if the hearing went ahead. Whether that was in fact known to Mr Livers before appearing in Court need not be pursued: the task of the Court in this matter is to determine the application for judicial review on its merits. In any event Mr Livers remained responsible for earlier defaults, including the failure to file and serve written submissions in time, or at all.

37. It is necessary to identify the scope of the evidence before the Court. The material sought to be tendered or read by the applicant in this Court fell into two categories. First, there was much material going to the substantive issues which were the subject of the proceedings in the Local Court and the District Court, none of which is presently relevant. Secondly, there was a volume of material which indicated the issues raised in the proceedings in the District Court and the manner in which the applicant has conducted himself in those proceedings. Most of the material, other than transcripts of the proceedings in the District Court was not referred to in submissions. It has been marked for identification only.

Determination of application

(1)   failure to allow oral evidence

38. It is convenient to deal first with three specific decisions identified in the amended summons. The first concerns the refusal of the judge to allow the applicant to call oral evidence in support of his appeal against conviction in the Local Court. First, it may be noted that the appeal to the District Court proceeds, somewhat awkwardly given the designation of the appeal as primarily an appeal “by way of rehearing on the basis of evidence given in the original Local Court proceedings”, by the prosecutor calling or tendering the relevant evidence. That will, in accordance with s 18 of the Crimes (Appeal and Review) Act 2001 (NSW) (“Appeal and Review Act”), usually involve tender of the transcript of the proceedings in the Local Court. For a person to be permitted to attend and give evidence, a direction is required by the judge in the District Court: s 19(1). When, as in this case, the appeal relates to an offence involving violence against “that person” the court must be satisfied that there are “special reasons” why the person should attend and give evidence: s 19(1)(a). Otherwise, the court must be satisfied that there are “substantial reasons” why the person should attend and give evidence. There are procedural constraints on a party making an application for such a direction: s 19(2).

39. The District Court judge declined to give such a direction in the present case.

40. The possibility of judicial review on the grounds of jurisdictional error with respect to such a ruling is remote. The statute requires that the District Court judge hearing the appeal be affirmatively satisfied that there are “special reasons why, in the interests of justice” (in relation to the victim) or, in any other case, “substantial reasons why, in the interests of justice,” the person should be directed to attend and give evidence. This language confers a broad (though not wholly unfettered) discretionary power on the judge hearing the appeal. It appears to qualify the provisions with respect to “fresh evidence” in s 18(2). However, that provision is also limited by the need to satisfy the judge that the giving of fresh evidence is “in the interests of justice”.

41. There was no suggestion that the judge in the present case did not understand the scope and nature of the function conferred on him by these provisions: indeed the applicant made no reference to these provisions. However, given the stage at which the proceedings presently stand, the judge has not yet given reasons for his refusal of the application, pursuant to s 19(3). In refusing the application to give evidence (and the application with respect to annulment), the judge stated that he would give reasons in due course, treating the matter as an appeal from conviction and from the orders consequent upon that conviction. There is, accordingly, no merit in the specific ground raised, even putting to one side general reasons why the Court would not intervene at this stage.

(2)   refusal of challenge to annulment

42. The second decision concerned a challenge to a refusal of the Local Court to annul the conviction for assault. Similar issues arise with respect to the purported appeal from the refusal to annul the applicant’s conviction in the Local Court. The circumstances in which an application can properly be made for annulment under s 4(1) of the Appeal and Review Act, and the relevant requirements for annulment under s 8, were not addressed, nor were the circumstances in which an appeal properly lay from the refusal of the Local Court to annul a conviction. Again, the judge having reserved his reasons in this regard, it is impossible to find on the material before this Court that the judge did not properly understand the nature and scope of the function imposed on him by the statute. Unsurprisingly, the discussion in the transcript suggests otherwise.

43. So far as there is a challenge to this aspect of the decisions made on 16 July, and setting to one side questions as to the general availability of judicial review, the application must be refused.

(3)   Bias

44. The third specific decision involved a recusal application made to the judge below and rejected. The basis of the recusal application was somewhat obscure. However the judge understood, a proposition which has not been challenged in this Court, that the application related to the circumstances in which a solicitor appearing for the Director of Public Prosecutions, Mr Kiru, withdrew from the proceedings. It appears from the material presented by the applicant in this Court that he had sent an email to the Director accusing Mr Kiru of describing him as a “vexatious litigant” in a conversation with his solicitor, Mr Livers. In the course of proceedings on 1 March 2019, Mr Kiru indicated to the Court that statements had been made in relation to his conduct and that the Director had been requested to remove him from his role as prosecutor. Mr Kiru did not indicate the content of the complaint, but the judge said:

“As far as the Court is concerned Mr Crown I have no issue with your performance and I have no issue with you remaining in the matter.” [10]

10.    Tcpt, 01/03/19, p 1(50).

45. After some discussion as to production of material on subpoena, Mr Kiru returned to the question of his disqualification and invited Mr Livers, then appearing for the applicant, to indicate whether he was proceeding with an application that Mr Kiru should be disqualified from appearing. The judge asked Mr Livers if that application was to be pursued, to which Mr Livers replied: “No your Honour.” [11]

    11.    Tcpt, p 3(38)-(46).

46. On 10 July the appellant sought to have the judge recuse himself, but no further information had been supplied at that stage. [12] On 11 July 2019 the applicant repeated his application that the judge disqualify himself. The judge commenced by noting that “at the moment there is no basis upon which I should disqualify myself from these proceedings.” [13] The judge continued: [14]

“Let’s look at it this way. You made what was on any view the most serious allegation you could make against a legal practitioner without any material before me to justify it.”

The judge proceeded, not without interruption, stating: [15]

“You listen to me while I’m speaking to you and then you will have the opportunity to respond. Magistrates time after time have commented upon your arrogance, your petulance, your querulous attitude and your behaviour in court. Now, I will not tolerate it. I will give you the fairest hearing that I could possibly give you regardless of your behaviour in my Court which I find unacceptable.”

12.    Tcpt, 10/07/19, p 14(35)-(40).

13.    Tcpt, 11/07/19, p 42(15).

14.    Tcpt, p 42(40).

15.    Tcpt, p 43(17).

47. Shortly after that exchange, the following further exchange occurred: [16]

“APPELLANT: First of all, when I complained, my complaint was based on what Mr Kiru said to Mr Livers on the phone and I worked with Mr Livers in his office.

HIS HONOUR: And he said that you were a vexatious person.

APPELLANT: Yes.

HIS HONOUR: And I can tell you that other judicial officers have come to the same view.

APPELLANT: No, no, no this is wrong your Honour. Did any judge – any judgment from a judge in Local … or in Supreme Court.

HIS HONOUR: I don’t need to go to the judgment. I just need to go to the exchanges that occurred where people have tried to facilitate your – even a magistrate along the interlocutory road, sought to assist you and provide guidance and help and you were belligerent with her.”

16.    Tcpt, p 44(6).

48. In reasons delivered on 16 July 2019, the judge noted that Ms Blizard, Crown Prosecutor, had replaced Mr Kiru. He stated:

“There had in the interim been an application made by the appellant to have Mr Kiru remove himself from the proceedings because of some alleged misconduct. In response to that allegation I recall that I made comment expressing surprise that such an allegation could be made against Mr Kiru, a solicitor with whom I have had a great deal of experience over my career including as a judge of this Court since 2006. I found it surprising that such an allegation could be made.

In the meantime, the appellant has sought to have me disqualify myself for having expressed that view. It was not necessary to determine the application with regard to Mr Kiru that he remove himself from the proceedings, a power … which the Court did not in any event have, as I perceive matters, because Mr Kiru stood aside voluntarily and Ms Blizard has appeared in his stead.

I do not agree that I should disqualify myself from the proceedings for the reasons that were advanced by the appellant, either in writing or viva voce, and I have continued to hear these various applications as they have continued to come before the Court.”

49. As counsel for the Director noted in her helpful written submissions, the well established test of prejudgment based on apprehended bias requires that the court consider “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.”[17] Particular words relied on as indicating prejudgment must be read in their context. That context includes at least some passing knowledge of the history of proceedings in the District Court over several days of hearings and the various exchanges between the applicant and the Court.

    17. Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).

50. The context is not readily summarised. However, the transcripts in evidence demonstrate the accuracy of the following description given by Judge Bennett in his reasons delivered on 16 July 2019: [18]

“I have had filed in this Court a raft of material provided by the appellant. I have envelope after envelope of documents sought via subpoenae, all of which he would wish to put before the Court as evidence relevant to the appeals which call for the determination of whether or not he ought to have been found to have committed an offence of assault occasioning actual bodily harm against his daughter and whether or not an apprehended violence order or orders ought to have been made and ought to continue.

The material that I have reviewed from time to time as the matter has unfolded speak to conduct in a much broader context which could not, in my assessment, have any relevance to the determination of these appeals, other than to satisfy aspects of curiosity of the personal lives of the members of this family.

I do not propose to spend more time in this Court listening to Mr El-Saeidy present oral argument. He has a difficulty when it comes to focusing his submissions. He is easily deflected from the point that is under consideration. The Court does not have the time to extend to him the opportunity to address as he would wish without giving any firm consideration to the relevance of what he is saying to the issues that have to be resolved.

The best course, in my assessment, is to allow him to provide what he wishes to say in writing against the risk that his approach to this matter and the extent to which he presents oral argument might leave the Court with a chance of falling into error by not taking into account something that he might wish to say. I do not see it as appropriate to consume more resources of the Court and the services that support the Court in providing transcript after transcript to decipher from the oral representations made by the appellant his point and what he has in support of the point.”

18.    Judgment, 16/07/19, pp 6-8.

51. That description is aptly reflected in the material available to this Court and the manner in which Mr El-Saeidy has presented material and submissions to this Court, both in writing an orally. The applicant’s submission was that the statement by the judge noted above had in effect adopted the views of Mr Kiru as alleged in the email, that he, the applicant, was “a vexatious litigant.” There was however no evidence that the judge said that the applicant was a vexatious litigant, nor that he accepted that Mr Kiru had said that, nor that he was commenting at all about things said out of court. The judge rejected the recusal application; it was properly rejected on the material before this Court on the basis that it was without substance.

(4)   sound recordings

52. Reading paragraphs 3 and 4 of the amended summons together, the applicant was seeking to have the Court obtain the sound recordings of the various hearing before Judge Bennett, from which could be prepared corrected transcripts, so as to allow him to file further grounds of judicial review. In the course of oral submissions, he sought to establish that there were errors and omissions in the transcripts of the various hearings of the District Court proceedings.

53. This basis of the application was misconceived for a number of reasons. First, that there may have been errors or omissions in the transcripts was of itself an irrelevant allegation. In order to provide a basis for arguing jurisdictional error, it would have been necessary to show that, in some fundamental respect, the judge failed to understand the submissions being made to him by the applicant. Yet, no submission was made to that effect. Nor could it have been: it is clear from reading the transcripts that the judge was well able to understand the applicant’s submissions. The difficulties the judge had with the submissions revolved around their lack of focus, repetition and refusal to comply with directions.

54. Nor was it explained in what way the appellant was unable to formulate grounds of judicial review in the absence of corrected transcripts. One may assume that he understood the nature of the submissions he had been making and, indeed, the oral submissions demonstrated that knowledge by identifying specific errors and indicating what had likely been said. There is no substance in this complaint.

(5)   use of mobile phone

55. An order to exclude evidence might have been made in the Local Court (or in the District Court) on the basis that it was unlawfully obtained. It is not necessary to consider factors relevant to such an application, because no determination of any such application was identified. If there is such an application outstanding, it is to be determined by the judge below in due course.

(6)   access to documents

56. The orders sought in the amended summons granting the applicant access to “all the subpoenaed documents produced to the District Court”, and an order that he be allowed to “use these documents in his submissions” in the District Court was, at least implicitly, a challenge to rulings which had been made on access to and use of subpoenaed material in the course of the District Court proceedings. Nevertheless, there was no attempt to identify the documents or the rulings. Nor would this have been relevant in the course of judicial review proceedings. Interlocutory rulings in relation to such matters provide a paradigm example of the kind of issues which can be raised in challenging a final order in respect of a particular matter, if the interlocutory ruling can be shown to be material to the outcome. It is sufficient for present purposes to conclude that no basis has been established to suggest any jurisdictional error in relation to any identifiable ruling.

(7)   other matters

57. To the extent that the orders sought involved an attempt to direct the District Court as to how to conduct proceedings in that Court, they form no part of the proper exercise of this Court’s jurisdiction and must be refused.

58. The attempt to expand these proceedings by reliance on a further amended summons was rejected, for reasons which were given at the time and will be published separately, with the reasons for refusing to vacate the hearing date.

Costs

59. The applicant, in accordance with the usual practice in the civil jurisdiction, sought an order for costs in the event that he was successful. He has been entirely unsuccessful; the Director of Public Prosecutions seeks an order that the amended summons be dismissed with costs: orders to that effect should be made.

Orders

60. The Court orders:

1. Direct that the first defendant be identified as Director of Public Prosecutions (NSW).

2. Dismiss the proceedings in this Court.

3. Order that the applicant pay the costs of the Director of Public Prosecutions (NSW) in this Court.

61. LEEMING JA: I agree with Basten JA. Interlocutory applications alleging jurisdictional error by the District Court exercising its appellate jurisdiction are apt to fail in all save truly exceptional of circumstances. Even in such circumstances, they need to be brought promptly, not – as in the present case – months after the conclusion of a multi-day hearing, and when judgment is imminent.

62. PAYNE JA: I agree with Basten JA's reasons which reflect my own for joining in the orders made on 28 November.

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Endnotes

Decision last updated: 29 November 2019