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

1. 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.

2. 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.

3. 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 proceedings, which are part-heard, are due to recommence on 10 February 2016. They are fixed to continue for three days.

4. The plaintiff submits to this Court that three days will not be enough to complete the hearing. That may be so, but this Court is not in a position to form a sensible opinion about that in the absence of seeing all of the material presently before the Local Court, and which is likely to be put before the Local Court.

5. However, proceeding on the basis that the local court matters will last for at least three days, it is undoubted that the police, Mr El-Saeidy, the Local Court and all of the witnesses who are to be called, will be put to a degree of expense and inconvenience if the proceedings continue as presently planned, and then the proceedings in this Court are ultimately successful.

6. It cannot be doubted that if three days are occupied in a busy Local Court, and those three days are ultimately wasted, there will be consequential deleterious effects on all other litigants in that Court.

7. By a Notice of Motion filed on 2 February 2016, the plaintiff seeks an interlocutory order which has the effect of preventing the hearing proceeding in the Local Court until the determination of the substantive proceedings in this Court.

8. In support of that Notice of Motion, the plaintiff relies upon the transcripts of the proceedings which have been conducted so far by the Local Court Magistrate, including the transcript of the unsuccessful argument on the disqualification application before the Magistrate on 27 November 2015.

9. It is inappropriate for me to express in this interlocutory application any view at all about whether the Magistrate made an error of law, or other errors, in his determination of the disqualification application. I do not express any such opinion.

10. In order to obtain interlocutory relief, the plaintiff must satisfy me that he has a reasonably arguable case to obtain the relief which he seeks in the substantive proceedings, and that the balance of convenience and the interests of justice are best served by the making of an interlocutory order.

11. Having read the transcript, I am satisfied that the plaintiff has a reasonably arguable case in the substantive proceedings brought in this Court. I am also satisfied that the balance of convenience and the interests of justice are best served by this Court first hearing and determining the question of the correctness of the decision of the Magistrate on 27 November 2015, before the balance of the proceedings are determined in the Local Court, either by the existing Local Court Magistrate or by another magistrate depending upon the outcome of the proceedings in this Court.

12. Accordingly, I will make the following orders:

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. I order that the proceedings be expedited, with a one day estimate.

3. I 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. I 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. I stand the proceedings over for directions before the Common Law Registrar at 9am on 14 March 2016.

6. I grant liberty to any party to apply on 72 hours’ notice to the Court.

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