El-Saeidy v Director of Public Prosecutions (NSW) (No 2)

[2019] NSWCA 297

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	El-Saeidy v Director of Public Prosecutions (NSW) (No 2) [2019] NSWCA 297
Hearing dates:	28 November 2019
Date of orders:	28 November 2019
Decision date:	28 November 2019
Before:	Basten JA; Leeming JA; Payne JA
Decision:	(1)   The application to vacate the hearing is dismissed.  (2)   The application to amend the summons is rejected.
Catchwords:	CIVIL PROCEDURE – judicial review – vacation of hearing date – amendment of summons in course of hearing – no basis to delay hearing – summons sought to be amended to add challenge to refusal to state a case to Court of Criminal Appeal – no evidence of application nor of a material question of law
Legislation Cited:	Criminal Appeal Act 1912 (NSW), s 5B
Category:	Procedural and other rulings
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. JUDGMENT of the COURT delivered by BASTEN JA: The applicant raised two procedural matters in the course of the hearing of his application for judicial review. Each was opposed by the respondent. Each was dismissed and ex tempore reasons given. These are the reasons given for rejecting the interlocutory applications.

Application to vacate hearing

2. At the commencement of the hearing of the application on the summons this morning Mr Livers, appearing for the applicant, sought to have the Court vacate the hearing date. It was said that that was appropriate, first, on the ground that the applicant had not taken steps to prepare material for this Court. Since the application was first raised by email to the Registrar some days ago, a significant volume of material has been prepared and provided to the registry for the purposes of the hearing.

3. In this respect, it is by no means clear that there is anything outstanding. Further, because the application is to allow a few more days before a hearing in mid-December, and because the failure to be adequately prepared is said to result from the lack of funds, the ground lacks merit. There is no basis to suppose that the position as to funds will change by mid-December, or in time to prepare more material by that date.

4. Secondly, it is said that the proceedings should be adjourned until after the date which has been set down for judgment in the District Court. The effect of that would be to prevent the continuation of the proceedings in the District Court until some later time. That is not an appropriate reason to vacate the hearing.

5. Thirdly, it is said that it is necessary to obtain production of sound recordings of earlier hearings in the District Court for the purposes of this proceeding. They have not been shown to be material in any respect.

6. Fourthly, it is said that the annulment of the conviction was wrongly refused, that is a matter which this Court should be addressing, and that cannot be done today. What happened in the District Court was that although the challenge to the refusal in the Local Court to annul a conviction was dismissed, the judge said that the merits of the charge would remain in issue and would be the subject of the outstanding appeal against the conviction. That means that there is no purpose in considering the possible annulment separately from the appeal.

7. No argument was put on behalf of the applicant which addressed the merits of the application for judicial review in this Court. As it is proposed that the hearing continue, those arguments will be addressed later. The application to vacate the hearing was dismissed.

Application to amend summons

8. At about 3.20pm on the date of the hearing of the summons for judicial review, the applicant made an application to add to his decisions, the subject of challenge in these proceedings, an alleged refusal to state a case to the Court of Criminal Appeal on a question of law, presumably pursuant to s 5B of the Criminal Appeal Act 1912 (NSW). No earlier mention had been made before the Court relevant to any such alleged application to the District Court.

9. The application has not been produced. It is said to have been made on 18 October 2019 before Judge Bennett. Of all the transcripts which have been proffered in evidence, that date is not amongst them. There is no evidence before this Court that any such event took place. The application is opposed and must be refused on the ground that it is far too late and unsupported on the material before the Court.

10. Furthermore, there is no suggestion that any material question of law was raised as a basis for such an application to state a case. Without evidence as to what that material question was, no doubt the application, if ever made, would inevitably have failed. The application to amend was rejected.

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Decision last updated: 05 December 2019