Gamage v Riashi

[2023] NSWSC 1609

Supreme Court

New South Wales

Medium Neutral Citation:

Gamage v Riashi [2023] NSWSC 1609

Hearing dates:

13 December 2023

Date of orders:

13 December 2023

Decision date:

13 December 2023

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1) Order that the Notice of Motion filed by the plaintiff on 6 November 2023 be dismissed.

(2) Order that the costs of the Notice of Motion be costs in the cause.

Catchwords:

CIVIL PROCEDURE – subpoenas – to give evidence – appeal from interlocutory decision of the Local Court – whether plaintiff can call witnesses named in Notice of Motion to attend and give evidence in appeal proceedings – Crimes (Appeal and Review) Act 2001 s 53(3)(b) confined to questions of law alone – Notice of Motion dismissed

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW)

Supreme Court Act 1970 (NSW)

Cases Cited:

Not Applicable

Texts Cited:

Not Applicable

Category:

Procedural rulings

Parties:

Dan Gamage (P)
Michael Riashi (D1)
Independent Commission Against Corruption (D2)
Director of Public Prosecutions (D3)

Representation:

Counsel:
Self-represented (P)
Submitting (D1)
A Bhasin (D2)
E Jones (D3)

Solicitors:
Crown Solicitors (D1, D2)
Office of the Director of Public Prosecutions (D3)

File Number(s):

2023/228182

Publication restriction:

Not Applicable

 Decision under appeal 

Court or tribunal:

Local Court

Jurisdiction:

Civil

Date of Decision:

28 June 2023

Before:

Thomas LCM

File Number(s):

2023/228182

EX TEMPORE JUDGMENT

1. This is an application by Notice of Motion filed on 6 November 2023 by the plaintiff for orders of the Court requiring three individuals to attend and give evidence in these proceedings. Their attendance is sought either by a specific order, or else by leave to issue a subpoena for that purpose.

Summons for Leave to Appeal

2. The proceedings in which the Notice of Motion has been issued are those commenced by the plaintiff by Summons on 18 July 2023. That Summons is described as an Appeal from the Local Court against an interlocutory decision pursuant to s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) (“the Appeal Act”).

3. An appeal against an interlocutory order of the Local Court requires leave and is limited to a question of law only.

4. The plaintiff sets out in that Summons that he appeals from the order made by Thomas LCM on 26 June 2023 when his Honour refused the plaintiff’s application for a permanent stay or dismissal of the charges filed against him (“the 26 June Orders”).

5. He also appeals from the decision of that Magistrate made on 28 June 2023 to admit a recording of a telephone call made by an Independent Commission Against Corruption (“ICAC”) investigator.

6. In terms of the relevant part of the Summons for the purpose of the proceedings today, the plaintiff seeks an order that the 26 June Orders be quashed and consequential relief. He does seek a variety of other declarations about questions of law which may or may not arise in the course of his proceedings in the Local Court. They are not relevant for this judgment.

7. On 26 June 2023, the learned Magistrate made a decision declining to permanently stay the proceedings, and that he would not permit the plaintiff to call in those proceedings the three individuals who are named in the Notice of Motion.

8. The Summons for Leave to Appeal will be heard by this Court in February 2024. In advance of that appeal, the present Notice of Motion is brought seeking the orders to which I have earlier referred.

9. I note that although the Summons is headed as the exercise of a statutory appeal, in accordance with s 53(3)(b) of the Appeal Act, the nature of the relief sought seems also to call up this Court’s supervisory jurisdiction pursuant to s 69 of the Supreme Court Act 1970 (NSW). Such supervisory jurisdiction is ordinarily limited to identifying either an error of law on the face of the record, or else jurisdictional error.

Plaintiff’s Submissions on Notice of Motion

10. The plaintiff submits that the Court should make the orders so that he can, in these proceedings, in this Court, call evidence of a substantive kind which would lead to this Court ordering either a permanent stay of the proceedings in the Local Court or a dismissal of them.

11. I should note here, in case it is not clear, that the proceedings in the Local Court remain on foot, have not been finally determined by the Magistrate and are presently adjourned for directions until a date in March 2024 pending the outcome of the final hearing in the Supreme Court in February 2024.

12. The contentions are that the Magistrate made two errors of law, founded upon an underlying proposition of a failure to properly exercise the jurisdiction of the Court by refusing to permit the plaintiff to call evidence.

13. It may be - and I make no finding but will assume for the purpose of this Motion - that that decision involves a question of law. It is not necessary for me to make such a finding, and I do not, but I proceed on the basis that it does.

14. If the decision involves an error of law, it is the consequence of a failure by the Magistrate to fully exercise the jurisdiction which his Honour is given.

15. The ordinary, expected and appropriate relief by this Court would be simply to quash the decision and refer the matter back to the Local Court to be heard in accordance with the law. The finding of an error of law and such consequential orders by this Court does not involve any determination of a question of fact. Either the Magistrate made the correct decision as a matter of law, or he did not.

16. The calling of evidence here on questions of fact would involve this Court embarking on an appeal under s 53(3)(b) or an exercise of its supervisory jurisdiction, which was not limited to a question of law.

17. Accordingly, for that purpose, I am not satisfied that there is any basis at all in this Court for the plaintiff to seek to adduce the evidence of the individuals named in the Notice of Motion.

18. In his Summons, the plaintiff seeks the quashing of the order of the Magistrate.

19. If the order of the Magistrate is quashed by this Court, then because the prosecution against the defendant is ongoing, the appropriate relief, assuming the Court is persuaded that relief is to be given, is to refer the matter back to the Magistrate for hearing and determination in accordance with the law. That would mean that if any evidence of the kind foreshadowed by the plaintiff is to be called it would be called in the Local Court, not in this Court.

20. In those circumstances, having regard to the nature of the Summons seeking relief, the issues which are to be raised and the arguments that are to be put, I am satisfied that there is no proper basis for this Court to order any witness to attend and give evidence at the hearing of the Summons presently listed before the Court in February 2024.

21. In those circumstances, I make the following orders:

1. Order that the Notice of Motion filed by the plaintiff on 6 November 2023 be dismissed.

2. Order that the costs of the Notice of Motion be costs in the cause.

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Decision last updated: 18 December 2023