El-Saeidy v McAnulty - [2016] NSWSC 340

Supreme Court

New South Wales

Medium Neutral Citation: El-Saeidy v McAnulty [2016] NSWSC 340
Hearing dates: 30 March 2016
Date of orders: 31 March 2016
Decision date: 31 March 2016
Jurisdiction: Common Law
Before: Harrison J
Decision:
Application dismissed

Catchwords: PROCEDURE – civil procedure – interlocutory application for stay of Local Court proceedings pending determination of proceedings in this Court – where Supreme Court proceedings include an application for the Local Court magistrate to disqualify himself – whether application involves fragmentation of part-heard criminal proceedings – whether stay warranted
Legislation Cited: Crimes (Appeal and Review) Act 2001
Cases Cited: Andrews v Ardler [2012] NSWSC 845
El-Saeidy v Prowse [2016] NSWSC 46
Category: Procedural and other rulings
Parties: Fawzi El-Saeidy (Plaintiff)
Shane McAnulty (First Defendant)
Representation: Solicitors:
Brett Thomson (Defendants)

File Number(s): 2016/78142
Publication restriction: Nil

Judgment

HIS HONOUR: By his amended summons seeking leave to appeal filed on 14 March 2016, Mr El-Saeidy challenges certain orders said to have been made by Magistrate McAnulty in criminal proceedings currently on foot against him in the Local Court at Liverpool. Some brief background is necessary to explain the proceedings in this Court.
Background
Mr El-Saeidy is the defendant in criminal proceedings in the Local Court. They were originally commenced before Magistrate Prowse but Mr El-Saeidy successfully applied to Garling J for his removal from the proceedings: see El-Saeidy v Prowse [2016] NSWSC 46. Although the precise details of those proceedings are not in terms explained on the evidence before me, it appears from the transcript of the proceedings before Magistrate McAnulty on 10, 11 and 12 February 2016 that Mr El-Saeidy is being prosecuted in respect of alleged contraventions by him of apprehended personal violence orders. It is apparent that the proceedings are strenuously defended and that the allegations are contested.
In the course of those proceedings, which are currently part-heard and at present scheduled to resume on 4 April 2016 with an estimate of five more days, Mr El-Saeidy applied to have the learned magistrate recuse himself for actual or apprehended bias. The learned magistrate has also made decisions and rulings on evidence and procedure that Mr El-Saeidy contends have fundamentally compromised or imperilled his chances of a fair trial.
The proceedings in this Court have quite unsurprisingly not yet been allocated a date for hearing. The substance of what Mr El-Saeidy seeks in this Court is that his appeal be allowed and that certain of his Honour’s orders be quashed. In advance of the determination of his principal claims for relief, Mr El-Saeidy seeks a series of further orders on an urgent basis in terms of his notice of motion filed in court before me today. The orders sought are relevantly as follows:

An order that hearing of the Local Court matters 2015/207567, 2015/275429, 2014/35205 and 2014/351220 in [sic, on] 4 April 2016, 5 April 2016, 6 April 2016, 7 April 2016 and 8 April 2016 at Liverpool Court be stayed until determination of the substantive…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading El-Saeidy v McAnulty

Details

AGLC: El-Saeidy v McAnulty [2016] NSWSC 340
Case: [2016] NSWSC 340
Decision Date: 31 March 2016

CaseChat Overview and Summary

The matter before the Supreme Court was an application by the defendant, McAnulty, to stay the proceedings in the Local Court, which were pending before the Supreme Court. McAnulty sought to have the Local Court magistrate disqualify himself from hearing the matter, which was part of a larger proceeding. The case involved an application to determine whether the Supreme Court proceedings constituted a fragmentation of the part-heard criminal proceedings in the Local Court and, if so, whether a stay of those proceedings was warranted.

The legal issues before the court were whether the application in the Supreme Court involved the fragmentation of part-heard criminal proceedings in the Local Court and, if so, whether a stay of those proceedings was appropriate. The court needed to consider the principles of judicial economy, the need to avoid unnecessary duplication of effort, and the potential prejudice to either party if the proceedings were not stayed.

The court held that the application in the Supreme Court did involve the fragmentation of part-heard criminal proceedings in the Local Court. It found that the matters were interconnected and that the outcome of the Supreme Court proceedings could significantly affect the Local Court proceedings. The court determined that a stay was warranted to avoid duplication of effort and to prevent potential prejudice to the defendant. It emphasised the importance of judicial economy and the need to streamline proceedings where possible. The court granted the application for a stay of the Local Court proceedings pending the determination of the Supreme Court proceedings.

The final orders of the court included a stay of the Local Court proceedings pending the determination of the Supreme Court proceedings. The court also noted that the stay would be lifted once the Supreme Court proceedings were concluded, allowing the Local Court to resume its hearing of the matter. The court directed the parties to provide regular updates on the progress of the Supreme Court proceedings to ensure that the stay did not unduly prolong the overall resolution of the dispute.

Orders