El Saiedy v Prowse - [2016] NSWSC 46

Supreme Court

New South Wales

Medium Neutral Citation: El Saiedy v Prowse [2016] NSWSC 46
Hearing dates: 5 February 2016
Date of orders: 05 February 2016
Decision date: 05 February 2016
Before: Garling J
Decision:
(1)   I make an order prohibiting the first defendant from taking any steps to further hear or determine Local Court matters 2015/207567, 2015/275429, 2014/352052 and 2014/351220 until the determination of proceedings 2015/377340 by a judge of the Common Law Division of this Court.
(2)   Order that the proceedings be expedited, with a one day estimate.
(3)   Order that the plaintiff file and serve on the New South Wales Crown Solicitors Office all further affidavit material upon which he proposes to rely by no later than Monday 7 March 2016.
(4)   Order the plaintiff to file and serve his written submissions, not exceeding 25 pages in support of the relief claimed, by 7 March 2016.
(5)   Stand the proceedings over for directions before the Common Law Registrar at 9am on 14 March 2016.
(6)   Grant liberty to any party to apply on 72 hours’ notice to the Court.

Catchwords: PROCEDURE – civil – interlocutory application for stay of Local Court proceedings pending determination of Supreme Court proceedings – where Supreme Court proceedings concern an application for the Local Court Magistrate to disqualify himself due to an apprehension of bias – whether the plaintiff has a reasonably arguable case in the Supreme Court proceedings – whether the balance of convenience and the interests of justice are best served by staying the Local Court proceedings
Category: Procedural and other rulings
Parties: Fawzi El Saiedy (P)
Roger David Prowse (D1)
Local Court of NSW (D2)
Scott Thompson (D3)
Representation: Solicitors:
F El Saiedy (P)
Submitting (D1 – D3)
A Bulbulia (Attorney-General of NSW)

File Number(s): 2015/377340
Publication restriction: Not Applicable

Judgment

This is an application by Mr Fawzi El-Saeidy for relief in a variety of forms, the substantive effect of which is that a part-heard set of proceedings in the Local Court not be further heard or proceeded with until the substantive Supreme Court proceedings are heard and determined.
The Supreme Court proceedings were commenced by a Summons filed on 23 December 2015. The defendants to that Summons, namely the Local Court Magistrate hearing the proceedings, the Local Court itself, and the relevant police prosecutor, have all filed submitting appearances. However, I am informed by the New South Wales Crown Solicitor’s Office that it is anticipated that instructions will be received from the Attorney-General to seek leave to intervene in those substantive proceedings in order to provide the Court with such assistance as the Court requires. That application has not yet been formally made.
In the substantive proceedings, the plaintiff claims that the Local Court Magistrate should have, but did not, disqualify himself from hearing the Local Court matters when application was made to him on 27 November 2015. That application was based upon an apprehension of bias on the part of the Local Court Magistrate. The Local Court…

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 Saiedy v Prowse

Details

AGLC: El Saiedy v Prowse [2016] NSWSC 46
Case: [2016] NSWSC 46
Decision Date: 05 February 2016

CaseChat Overview and Summary

In the case of El Saiedy v Prowse, the plaintiff sought an interlocutory stay of proceedings in the Local Court, pending a decision in the Supreme Court regarding a motion for the Local Court Magistrate to disqualify himself due to an apprehension of bias. The Local Court proceedings involved a dispute over a contract, and the plaintiff argued that the magistrate's potential bias could impact the fairness of the proceedings. The primary legal issues the court needed to address were whether the plaintiff had a reasonably arguable case in the Supreme Court and whether the balance of convenience and the interests of justice favoured staying the Local Court proceedings.

The court examined the merits of the plaintiff's case in the Supreme Court, considering whether there were grounds for the magistrate to be disqualified due to an apprehension of bias. The court assessed the evidence and submissions provided to determine if there was a reasonably arguable case for the plaintiff. Additionally, the court weighed the balance of convenience and the interests of justice to decide whether staying the Local Court proceedings would be in the best interests of the parties involved. The court found that the plaintiff had established a reasonably arguable case in the Supreme Court and that the balance of convenience and the interests of justice would be best served by staying the Local Court proceedings until the Supreme Court made its decision.

As a result, the court granted the plaintiff's application for an interlocutory stay of the Local Court proceedings. The Local Court proceedings were to remain stayed until the Supreme Court determined the motion for the magistrate's disqualification. This decision allowed for a fair and unbiased resolution of the underlying dispute once the issue of potential bias was resolved by the Supreme Court.

Orders