Endemi v Ginman; Moore v Commonwealth Director of Public Prosecutions (No 2)

[2023] NSWSC 285

Supreme Court

New South Wales

Medium Neutral Citation:

Endemi v Ginman; Moore v Commonwealth Director of Public Prosecutions (No 2) [2023] NSWSC 285

Hearing dates:

20 March 2023

Date of orders:

20 March 2023

Decision date:

20 March 2023

Jurisdiction:

Common Law

Before:

Dhanji J

Decision:

The application for an adjournment is refused.

Catchwords:

CIVIL PROCEDURE – notice of motion – adjournment application – adjournment sought until the conclusion of Court of Appeal proceedings – adjournment opposed – application refused

Cases Cited:

Endemi v Ginman; Moore v Commonwealth Director of Public Prosecutions [2023] NSWSC 284

Moore v Commonwealth Director of Public Prosecutions [2022] NSWSC 1458

Category:

Procedural rulings

Parties:

Kylie Endemi (First Plaintiff)
Matthew Pawsey (Second Plaintiff)
Michelle McAlister (Third Plaintiff)
Matthew Bolton (Fourth Plaintiff)
Registrar Colette Ginman (First Defendant)
Registrar Christine Sanderson (Second Defendant)
Ian Moore (Third Defendant/Cross Claimant)
Commonwealth Director for Public Prosecutions (Cross Defendant)

Representation:

Solicitors:
Makinson d’Apice Lawyers (Plaintiffs)
Self-represented (Third Defendant/Applicant on the Motion)
S Dutaillis (Cross Defendant)

File Number(s):

2021/320939

Publication restriction:

Nil

EXTEMPORE JUDGMENT (revised)

1. HIS HONOUR: Before me is a notice of motion filed on 28 April 2022 by the applicant, Mr Moore. The applicant seeks an adjournment of the hearing of the motion.

2. In a judgment given by Chen J on 26 October 2022, prayers 1, 3 and 4 of that motion were dismissed, leaving only prayer 2: Moore v Commonwealth Director of Public Prosecutions [2022] NSWSC 1458. It is prayer 2 that is before me for hearing this morning:

3. By prayer 2, the applicant seeks:

“Pursuant to the Uniform Procedure Rules 2005 (NSW) r 49.20(1), overturn Registrar K Jones decision on the 1^st April 2022 that removed the Notice of Motion file don 11^th November 2021 from continuing together with the first Cross-Summons filed on 1^st March 2022.”

4. I am informed that the applicant seeks to amend the order sought such that it would read:

“Pursuant to the Unform Civil Procedure Rules 2005 (NSW), r 49.20(1), 49(19(1) overturn K Jones decision on the 1 April 2022 that removed the defendants Colette Ginman (first defendant) and Christine Sanderson (second defendant) in the Summons filed on 11 November 2021 by Nicholas Regener for Mr Andrew Deards of Makinson d’Apice Lawyers from continuing with Mr Moore (third defendant) in the first Cross-Summons filed on the 1 March 2022”.

5. Whilst it is not entirely clear from the form of the order, it is understood that the essence of what is sought in prayer 2 of the motion is to overturn the decision of the Registrar of this Court made on 1 April 2022. That decision was a decision to grant the plaintiffs’ leave to withdraw their summons.

6. The nature of that summons and the background to it were briefly dealt with by me in my reasons ordering that the plaintiffs be joined on this motion given this morning: Endemi v Ginman; Moore v Commonwealth Director of Public Prosecutions [2023] NSWSC 284.

7. The applicant has, this morning, sought an adjournment of this hearing until the conclusion of proceedings in the Court of Appeal. As I explained in my reasons on joinder, prayers 1, 3 and 4 of the motion were dismissed by Chen J on 26 October 2022.

8. Those prayers and the related cross-summons, also dismissed by Chen J, all relate to the decision of the Commonwealth Director of Public Prosecutions to take over the various criminal charges brought by the applicant as a private informant in the Local Court, and the consequent decision of the Commonwealth Director to discontinue those proceedings.

9. The applicant has, I am told this morning, sought by way of summons leave to appeal in the Court of Appeal against the decision of Chen J. It is his application this morning that this hearing be adjourned until after the conclusion of the Court of Appeal proceedings.

10. The applicant contends that the Court of Appeal proceedings raise issues that need to be decided before the proceedings before me can be resolved. In particular, the applicant submits that the proceedings before the Court of Appeal raise questions of some significance with respect to the jurisdiction of State courts, and in particular this Court, to hear matters with a federal component, including, in particular, challenges with respect to the powers of the Commonwealth Director.

11. It is submitted that there is an issue as to which court has proper jurisdiction to deal with questions with respect to the review of the Commonwealth Director's decisions such as those taken in the background to this case, namely, to take over and discontinue the summary proceedings brought by the applicant against the plaintiffs.

12. Mr Dutaillis appears before me for the Commonwealth Director. He informs me that the issue in the Court of Appeal is related to the question of the power of the Court of Appeal to issue the prerogative relief sought by the applicant with respect to decision of Chen J and the power of the State courts to issue prerogative relief against Commonwealth officers.

13. The Commonwealth Director opposes the application for the adjournment. Mr Deards, who appears for the plaintiffs, similarly opposes the adjournment of this hearing, albeit noting that he is not a party to the proceedings in the Court of Appeal and has no particular knowledge of them.

14. The subject matter of prayer 2 of the motion appears to me to be quite distinct from the subject matter of the applicant's cross-summons and the matters sought in prayers 1, 3 and 4 of the motion.

15. Indeed, that distinct difference in subject matter was, at least, one of the reasons why Chen J was not able to deal with prayer 2. It was also one of the reasons why I regarded it as appropriate that the plaintiffs be joined as a party to these proceedings. In short, the decision of the Registrar to grant leave to withdraw the summons issued by the plaintiffs (now respondents to this motion) does not appear to me to raise the same, or indeed any, issues with respect to the exercise by this Court of federal jurisdiction. Rather the summons, from my understanding of it, is related to the supervisory jurisdiction of this Court, a State Court, with respect to the Local Court, also a State Court.

16. In those circumstances and having regard to the fact that the plaintiffs have appeared to respond to this motion, the Commonwealth Director has also appeared to respond to this motion, and both respondents are ready to proceed, it is my view that the matter should proceed. The application for an adjournment is refused.

**********

Decision last updated: 28 March 2023