El-Saeidy v Prowse; El-Saeidy v McAnulty

[2017] NSWSC 1610

Supreme Court

New South Wales

Medium Neutral Citation:

El-Saeidy v Prowse; El-Saeidy v McAnulty [2017] NSWSC 1610

Hearing dates:

22 November 2017

Date of orders:

23 November 2017

Decision date:

23 November 2017

Jurisdiction:

Common Law

Before:

Schmidt J

Decision:

(1)   The proceedings in matter numbers 377340 of 2015 and 78142 of 2016 be dismissed.

 (2)   Mr El-Saeidy is to pay the Attorney General’s costs, as agreed or assessed.

Catchwords:

PROCEDURE – notice of motions – orders seeking proceedings to be dismissed – orders made – costs

Legislation Cited:

Civil Procedure Rules 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Garde v Dowd [2011] NSWCA 115
Wishart v Fraser [1941] HCA 8; (1941) 64 CLR 470

Category:

Procedural and other rulings

Parties:

Matter 377340 of 2015

 

Fawzi El-Saeidy (Plaintiff)
Roger David Prowse – Local Court Magistrate (First Defendant)
Local Court of NSW – Liverpool (Second Defendant)
Scott Thomson – Police Prosecutor (Third Defendant)
Attorney General for New South Wales (Fourth Defendant)

 

Matter 78142 of 2016

  Fawzi El-Saeidy (Plaintiff)
Shane McAnulty – Local Court Magistrate (First Defendant)
Local Court of NSW (Second Defendant)
Scott Thomson – Police Prosecutor (Third Defendant)
Attorney General for New South Wales (Fourth Defendant)

Representation:

Solicitors:
Crown Solicitor’s Office (Fourth Defendant)

File Number(s):

2016/78142

Publication restriction:

None

Judgment

1. By notices of motion filed in both matters on 18 October 2017, the Attorney General sought orders dismissing the proceedings under Rule 12.7 of the Uniform Civil Procedure Rules 2005 (NSW), or in the alternative, under Rule 13.4. The motions were supported by affidavits sworn by Mr Mykkeltvedt, a solicitor employed by the Crown Solicitor, on 17 October and 31 October 2017.

2. The matter came into the list today before the Registrar, when there was no appearance by Mr El-Saeidy. The motion was then referred to me, sitting as duty judge. Before the matter came on for hearing of the motions, Mr El-Saeidy approached the Attorney, seeking consent to the adjournment of the hearing. Even though that was not forthcoming, there was no appearance for Mr El-Saeidy to oppose the orders sought.

3. Mr El-Saeidy having not appeared to make an adjournment application, or otherwise appearing to resist the Attorney’s application, the hearing proceeded in his absence.

4. The order pressed by the Attorney was that both proceedings be dismissed under Rule 13.4, on the basis that the proceedings do not disclose a reasonable cause of action.

5. In the circumstances disclosed on the evidence, I am satisfied that the order sought should be made, consistently with the obligations imposed by s 56 of the Civil Procedure Act 2005 (NSW) on the Court, the parties and their legal representatives, namely to “to facilitate the just, quick and cheap resolution of the real issues in the proceedings” and what the dictates of justice require in the circumstances revealed on the evidence: s 58(1).

6. By the summons filed in the first proceedings brought by Mr El-Saeidy in December 2015, he sought to prevent various criminal proceedings brought heard in the Local Court, proceeding before Prowse LCM, on the basis of apprehended bias and errors of law. Garling J made orders in 2016, which had the result that the hearing of those matters proceeded before McAnulty LCM.

7. Mr El-Saeidy’s application to vacate the proceedings in the Local Court in February 2015, was refused by Davies J. In March, Mr El-Saeidy then brought his second proceedings in this Court, seeking to prohibit McAnulty LCM from hearing the criminal proceedings and vacating a hearing fixed for April. That application has not been heard.

8. Mr El-Saeidy did not appear before the Registrar when that matter was listed for directions on 1 and 19 September, 29 November 2016, or 28 April 2017. A letter was then sent to him under Rule 13.6, advising that the proceedings may be dismissed, if he did not attend at the adjourned hearing.

9. On 1 June a timetable was fixed, giving Mr El-Saeidy a further opportunity to file an amended statement of claim and supporting evidence. He did not comply with those orders. On 16 June, the timetable was extended to 25 August, but still Mr El-Saeidy did not comply.

10. On 29 August the Attorney was given leave to intervene in the proceedings and was joined as the fourth defendant.

11. On 8 September Mr El-Saeidy’s position before the Registrar changed. Then he said that he would rely on the summons filed in December 2015. He was given further leave to serve evidence by 29 September, but still he did not comply. On 9 October this leave was extended to 16 October, on the basis that in the event of non-compliance, the matter would be referred to the duty judge, to consider whether the proceedings should be dismissed. Still no evidence has been filed.

12. In the meantime, Mr El-Saeidy appealed his conviction in the Local Court. On 13 October 2017, Delaney Acting DCJ gave judgment, upholding his appeal in respect of one conviction and dismissal his appeal against three other convictions.

13. I am well satisfied that, as the Attorney submitted, this procedural history establishes that these proceedings have not been pursued with due despatch. Nor has Mr El-Saeidy complied with the obligations imposed upon him by s 56 of the CivilProcedure Act, given his repeated failures to comply with the Court’s orders. Judgment now having been given in the District Court on Mr El-Saeidy’s appeal, the Local Court decisions the subject of these proceedings have been overtaken.

14. As discussed in Wishart v Fraser [1941] HCA 8; (1941) 64 CLR 470 at 478 orders of the Local Court cannot be challenged when they have been affirmed by the District Court: see also Garde v Dowd [2011] NSWCA 115 at [11]-[13]. It follows that pursuit of these proceedings is now incompetent and they should be dismissed under Rule 13.4.

15. The usual order as to costs is that costs, as agreed or assessed, follow the event. In this case that is an order in favour of the Attorney, who did not seek an order on other than the usual basis.

Orders

16. For these reasons, I order that:

1. The proceedings in matter numbers 377340 of 2015 and 78142 of 2016 be dismissed

2. Mr El-Saeidy is to pay the Attorney General’s costs, as agreed or assessed.

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Decision last updated: 23 November 2017