Liristis v Corrective Services NSW

[2018] NSWSC 1782

Supreme Court

New South Wales

Medium Neutral Citation:

Liristis v Corrective Services NSW [2018] NSWSC 1782

Hearing dates:

21 September 2018

Date of orders:

21 September 2018

Decision date:

21 September 2018

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

The Court notes:
(1)   The application before the District Court on Monday 24 September 2018 is an argument for a permanent stay of the proceedings; and

 

(2)   That the Court makes no finding in relation to that application.

 The Court makes the following order:
(1)   The matter and all motions, save for those on which judgment is reserved by Harrison J and the substantive proceedings are adjourned to 10am on Tuesday 11 December 2018 before Rothman J.

Catchwords:

PRACTICE AND PROCEDURE – application for stay of proceedings in District Court – lack of reasonable time to prepare for District Court in absence of particular laptop – orders sought remedying situation – natural justice and/or orders matter initially for District Court – motion adjourned pending hearing of application in District Court

Cases Cited:

Sullivan v Department of Transport (1978) 20 ALR 323

Category:

Consequential orders (other than Costs)

Parties:

Tony Liristis (Plaintiff)
Corrective Services New South Wales (First Defendant)
State of New South Wales (Second Defendant)

Representation:

Counsel:
Self-represented (Plaintiff)
P Herzfeld (First and Second Defendant)

  Solicitors:
Self-represented (Plaintiff)
Crown Solicitors (First and Second Defendant)

File Number(s):

2018/00229088

Ex Tempore Judgment

1. HIS HONOUR: Before the Court at the moment is the remainder of a Motion relating to orders sought against Corrective Services NSW for the provision of a laptop. The matter has been before the Court previously, and undertakings were given in relation to material that had been seized from the plaintiff and from his cell. As I understand it, there is no resistance from the defendant in these proceedings to the return of the laptop that was previously held by the plaintiff.

2. The issue that is currently before the Court, which is an issue remaining on the Motion, is an issue associated with a different laptop which is currently held by the solicitors that are acting in part of the proceedings in relation to the charges which the plaintiff faces in the District Court. The plaintiff seeks an order essentially in aid of the proceedings in the District Court to allow what the plaintiff says is a reasonable opportunity to prepare the case that is listed on Monday and otherwise to prepare the case that is listed for either six to eight or ten weeks commencing on 2 October.

3. If the proceedings on Monday are proceedings for which the plaintiff has not had an opportunity, or a reasonable opportunity, to prepare, then, under the rules of natural justice (particularly relying on the statement of his Honour Justice Deane, then a Judge of the Full Court of the Federal Court, in Sullivan v Department of Transport (1978) 20 ALR 323 at 343 and the passages leading up to it), proceeding with the case would be a denial of natural justice. But I make it clear, as did his Honour Justice Deane, that the provision of a reasonable opportunity does not require a court or tribunal to ensure that a party takes advantage of the opportunity that has been provided.

4. As I understand the factual situation at the moment, the computer, of which Mr Liristis, the plaintiff, seeks possession in his cell or at Long Bay, is a computer in the possession currently of his legal advisers, who, as I earlier mentioned, are appearing in part of the proceedings in October in relation to the cross-examination of a complainant.

5. Mr Liristis does not wish to have Corrective Services inspect the computer without him or his solicitors being present, I assume because of the possibility that they could gain access to privileged information. No doubt that is a matter that will be raised with the District Court on Monday. At the moment I do not see the need for an interlocutory hearing or an interlocutory order in circumstances where these matters are properly before the District Court and would ordinarily be within the jurisdiction of a Judge of the District Court in relation to those matters.

HERZFELD: I just want to clarify, Corrective Services were content for the solicitors to be present at the inspection in Parramatta. The issue was Mr Liristis' personal presence which could only happen at Long Bay.

HIS HONOUR: Thank you.

6. The situation is a matter ultimately to be dealt with by the District Court.

7. I note that the application on Monday is an application for a permanent stay of the criminal proceedings which is an argument that has already been agitated in the District Court and lost. There may be different matters adumbrated by Mr Liristis in the new application and I make no comment about that.

8. These are interlocutory matters. Nevertheless, at the moment, given that the matter has been previously run, I am not aware of the necessity to prepare to any greater extent than has already been done in relation to the permanent stay, but I make it clear that I am making no finding in that regard, it is just that Mr Liristis, who seeks the interlocutory orders, bears the onus of establishing that need and has not in these proceedings.

9. In those circumstances, I will not make the current orders sought, and I do not make a final determination on the Motion and instead I adjourn the matter to 10am on Tuesday 11 December 2018.

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Decision last updated: 20 November 2018