Mahmoud v Sutherland

[2011] NSWCA 66

This decision has been amended. Please see the end of the decision for a list of the amendments.

Court of Appeal

New South Wales

Case Title:

Mahmoud v Sutherland

Medium Neutral Citation:

[2011] NSWCA 66

Hearing Date(s):

18 March 2011

Decision Date:

18 March 2011

Jurisdiction:

Before:

Beazley JA at 1;
Macfarlan JA at 43;
Sackville AJA at 44

Decision:

1. The summons is dismissed;
2. The applicant is to pay the respondent's costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

ADMINISTRATIVE LAW - judicial review - application for prerogative relief - whether dismissal of notice of motion constituted error of law

ADMINISTRATIVE LAW - judicial review - application for prerogative relief - whether applicant entitled to have unresolved notice of motion determined

Legislation Cited:

Crimes (Appeal and Review) Act 2001
Crimes (Domestic and Personal Violence) Act 2007

Cases Cited:

Texts Cited:

Category:

Principal judgment

Parties:

Tosson Mahmoud (Applicant)
Vincent Sutherland (Respondent)

Representation

- Counsel:

In person (Applicant)
In person (Respondent)

- Solicitors:

N/A

File number(s):

2011/51406

Decision Under Appeal

- Court / Tribunal:

- Before:

King DCJ

- Date of Decision:

27 October 2010

- Citation:

- Court File Number(s)

DC 2009/327342

Publication Restriction:

JUDGMENT

1. BEAZLEY JA : By summons filed on 16 February 2011, the applicant sought prerogative relief to set aside orders made by Judge King of the Criminal Division of the District Court on 27 October 2010 in relation to orders sought in notices of motion filed by the applicant on 14 September 2010 and 11 October 2010, which notices of motion were accompanied by affidavits also sworn and filed on those respective dates. The applicant also seeks that the orders requested in those two notices of motion be made.

2. The applicant has filed detailed submissions in support of his application for prerogative relief.

3. The background to the summons for prerogative relief is as follows. On 24 December 2009, the applicant filed an application for an apprehended personal violence order against the respondent under the Crimes (Domestic and Personal Violence) Act 2007. The applicant and the respondent at the time resided in a large Department of Housing unit complex in Surry Hills.

4. In his application for an apprehended personal violence order, the applicant alleged that an incident happened on 18 December 2009 in the elevator in the unit complex. The respondent is said to have acted on that occasion in a manner which was threatening and intimidating and, as a result, the applicant said he held genuine fears for his safety.

5. An interim apprehended personal violence order was made on 6 January 2010. The respondent was present in court when the order of that date was made. On the same day, the application was listed for a hearing on 20 April 2010.

6. On 20 April 2010 the application came on for hearing before Magistrate Heilpern in the Downing Centre Local Court. The applicant appeared in person, and the respondent was represented by a legal practitioner.

7. His Honour dismissed the application for an apprehended personal violence order on the basis that the applicant was refusing to answer questions. His Honour made a costs order in favour of the respondent. One question that the applicant refused to answer was in respect of his date of birth.

8. The applicant appealed to the District Court against the dismissal of the application for an apprehended violence order and/or against the costs orders made against him. The listing date for the appeal was 3 June 2010.

9. An appeal to the District Court is provided for by the Crimes (Domestic and Personal Violence) Act , Pt 10, Div 7 and in particular, s 84(2)(a)(i).

10. Section 84(3) provides that any such appeal may be made under the Crimes (Appeal and Review) Act 2001, Pt 3 in the manner which is prescribed in that section. The Crimes (Appeal and Review) Act , Pt 3, Div 1, s 18 provides, relevantly, that such an appeal is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided in s 19. Section 18 further provides in subs (2) that fresh evidence may be given by leave of the District Court, which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given.

11. Pursuant to the Crimes (Appeal and Review) Act , s 19 there is also power in the District Court to direct that evidence may be given in person. Whether the District Court does so on an appeal is a matter for the judge hearing the matter in the District Court, as is the question as to whether or not fresh evidence may be given in the District Court appeal proceedings.

12. On 31 August 2010 his Honour, Judge Solomon, made orders by way of directions in the District Court appeal as follows:

    "1. Appellant to file any amendments relied upon by him in the transcript of proceedings within 14 days of today;
    2. Appellant to serve such amendments on the respondent, Robert Sutherland, at ***** ****** Street, Surry Hills, within 14 days of today;
    3. Appellant to file a Notice of Motion setting out the contents of the documents he wishes to tender on appeal within 21 days of today;
    4. The appellant to serve a copy of the Notice of Motion and all documents therein upon the respondent at the above address within 21 days of today."

13. The District Court record of the proceedings on that date also records that the notice of motion was stood over for hearing to 27 October 2010 and that the appeal hearing was stood over to 16 November 2010. There is a further notation on the record of a direction that the respondent was excused from attendance on the notice of motion on 27 October 2010 if he so wished. The formal record of the court refers to the name of the respondent as Robert Sutherland. That is an error and I note that the respondent's name is Vincent Sutherland.

14. On 14 September 2010 the applicant filed a notice of motion in which he sought the following nine orders.

    "01 That the court orders and sets a date for a hearing session of the tape carrying tape library No. Z2863 -- Appln No. 675/10 of the afternoon hearing by Magistrate Heilpern of the Downing Center Local Court on 20-04-2010 as for a quarter of that tape as a sample, that is for the first five pages of the transcript executed by the court, in order to ascertain the falsification of the transcript by the transcript writer.

    02 In reference to No.1 above, that the court orders that that tape, which was supplied to the appellant by the court and which is in his possession, be used by the appellant in court with his equipment to be listened to by the court.

    03 In reference to Nos. 1 and 2 above and based on the evidenced falsification of a quarter of the tape, that is a quarter of the whole transcript executed by the court, that the court orders that the whole transcript not be used as evidence in the case, not be used as a material to be relied upon in the case, be set aside and disregarded as it is invalid and falsified and as it is not a true version of the tape itself.

    04. That the court orders and sets a date for a hearing session of the tape carrying tape library No. Z3088 - Appln No. 511/10 of the morning direction hearing at the Downing Center Local Court on 20-04-2010 in order to ascertain that the transcript written by the appellant is a true version of that tape.

    05. In reference to No. 4 above, that the court orders that that tape, which was supplied to the appellant by the court and which is in his possession, be used by the appellant in court with his equipment to be listened to by the court.

    06. In reference to Nos. 4 and 5 above, in reference to the transcript of the tape written by the appellant and included in the affidavit of the appellant to the court and based on the verification by the court, after listening to the tape and comparing it with the transcript, that that transcript is a true version of the tape, that that transcript can be used as evidence in the case and be used as a material to be relied upon in the case.

    07. That the court orders a temporary stay of the order of the court on 31-08-2010 to the appellant to file a notice of motion within 21 days setting up contents of documents which he wishes to tender to the appeal until the unexpected new issues as mentioned from Nos. 1 to 6 above are dealt with and finalized.

    08 That the court orders a temporary stay of the order of the court on 31-08-2010 for the hearing of the notice of motion and affidavit on the 27th of October, 2010 until the unexpected new issues as mentioned from Nos. 1 to 6 above are dealt with and finalized.

    09 That the court orders a temporary stay of the order of the court on 31-08-2010 for the hearing of the appeal on the 16th of November, 2010 until the unexpected new issues as mentioned from Nos. 1 to 6 above are dealt with and finalized."

15. On the same date, that is, 14 September 2010, the applicant filed an affidavit to which there was annexed a two page document setting out errors that he said were contained in the transcript of the hearing in the afternoon of 20 April 2010 before Magistrate Heilpern (Annexure A). In essence, the applicant stated in his affidavit that in his list of falsifications set out in Annexure A to the affidavit, he had only gone through a quarter of the transcript and he said it would be unfair to him to have to review the remaining 75 per cent of the transcript. The affidavit contains a number of other paragraphs to which it is not presently necessary to refer.

16. On 20 September 2010, the matter was again listed before Judge Solomon. The applicant appeared in person and there was no appearance for the respondent. The court record states that the respondent was excused. On that occasion, Judge Solomon made the following orders:

    "1. Leave is granted to the appellant to file and serve the Notice of Motion referred to in orders 3 and 4 made 31.08.2010, within 21 days of today upon the respondent at ***** ****** Street, Surry Hills;

    2. I confirm the hearing date of the Notice of Motion as 27 October, 2010;

    3. I confirm the hearing date of the Appeal as 16 November 2010."

17. The notice of motion to which his Honour referred in order 1 was the notice of motion he had directed to be filed on 31 August 2010, that is, a notice of motion setting out the contents of the documents the applicant wished to tender on appeal.

18. On 11 October 2010, the applicant filed a notice of motion together with an affidavit in support. That notice of motion is contained at p 23 of the application book and sought the following orders:

    "01. That the court orders and sets a date for a hearing session of the tape carrying tape library No. Z2863 - Appln No. 675/10 of the afternoon hearing by Magistrate Heilpern of the Downing Center Local Court on 20th of April, 2010 as for the last 15% of that tape where Magistrate Heilpern stated very unashamedly blunt lies on the ground of which he made his very wrong and illegal decision to dismiss my case and to order legal costs of the defendant against me.

    02. In reference to No.1 above, that the court orders that that tape, which was supplied to the appellant by the court and which is in his possession, be used by the appellant in court with his equipment to be listened to by the court.

    03. In reference to Nos. 1 and 2 above and based on the evidenced blunt lies of Magistrate Heilpern and his errors of law on the ground of which he established the basis of his decision and judgment to dismiss my application for an APVO and to award costs against me, that the court orders that the decisions of Magistrate Heilpern to dismiss my case and to award the legal costs of the defendant against me be both quashed.

    04. That a new hearing of the case be conducted at the District Court.

    05. That the defendant files and serves a medical report showing details of the alleged injury to his legs that is forcing him to walk using underarm crutch pair at the hearing at the local court on the 20th of April, 2010, at the District court on the 15th of July, 2010 and only at all his appearances in the District Court.

    06. That the defendant is an unreliable witness given the crime of tampering with the file of the court, the false appearance of showing and acting as an incapacitated person walking using underarm crutch pair and his lies in his version of the events of all his numerous attacks on me.

    07. That the defendant arranges with his alleged witnesses, whom he named and on whose alleged behalf he filed statements, alleged written by them, to the Local Court at the Downing Centre on the 17th of February, 2010, to come to court on the date of the hearing of the case on the 16th of November, 2010 to appear before the court, to take the stand at the witness box and to be cross examined by the applicant otherwise all their alleged statements will be regarded by the court as void and they will not be taken into account by the court in making its ruling and its decision on the application of the applicant.

    08. That the alleged witnesses and their alleged statements filed at the Local court on the 17th of February, 2010 are unreliable, void and vexatious and will not be taken into account by the court when making a determination on the matter of the application of the applicant.

    09. In accordance with the Crimes (Domestic and Personal Violence) Act 2007 No 80, Part 5, Section 19 the court makes those orders, which are stated in the application of the Applicant filed on the 24th of December, 2009, against the defendant for the protection of the Applicant for a period of five years."

19. On 27 October 2010, the matter was listed before Judge King in the District Court. The applicant informed his Honour that the only matter before the court on that day was a notice of motion filed on 14 September 2010. The applicant also said to his Honour that the notice of motion and the affidavit of 11 October 2010 was for the court to look at on that day on the basis that it was only meant for the court "to look at them to decide it's okay" to proceed to the hearing (Tr 2, application book 85).

20. The applicant also informed his Honour that the notice of motion filed on 14 September 2010, was for decision that day to ensure that the transcript of the Local Court was excluded from the hearing of the appeal which was set down for 16 November 2010. His Honour Judge King stated, at p 6 of the transcript of that day, which is p 89 of the application book, that the notice of motion before him for hearing was filed on 11 October 2010. His Honour also stated and I quote from the transcript at p 89, line 46:

    "Your notice of motion is not to have a hearing today in relation to the tape."

21. As I understood that reference by his Honour as recorded in the transcript, he was referring to the notice of motion of 14 September 2010. The applicant informed his Honour that no order was required regarding the notice of motion of 11 October 2010. At transcript 7, p 90 of the application book, the applicant said:

    "... I need a clear, crystal clear, order by the Court today, on the notice of motion 14 September."

22. His Honour stood the matter down until 2 pm. Upon resumption, the Applicant said to his Honour that orders must be made that day regarding the two notices of motion. His Honour delivered judgment shortly thereafter.

23. In his judgment, Judge King stated that the notice of motion of 14 September 2010 had been replaced and largely replicated by a notice of motion filed on 11 October 2010. His Honour then proceeded to deal with the matter on the basis that the relevant notice of motion before him for hearing and determination that day was the notice of motion filed on 11 October 2010. His Honour then dealt with the nine orders the applicant sought in the notice of motion of 11 October 2010. His Honour dismissed that notice of motion. As I have indicated, the applicant seeks prerogative relief in respect of the dismissal of the notice of motion of 11 October 2010 and also seeks prerogative relief in respect of the notice of motion of 14 September 2010.

24. I turn now to deal with the reasons his Honour gave in respect of ach order sought in the notice of motion of 11 October 2010. His Honour first referred to orders 1, 2 and 3, together with the affidavit in support. At p 3 of his judgment his Honour stated that none of the assertions made by the applicant in that part of the affidavit which supported orders 1, 2 and 3 in the 11 October 2010 notice of motion were germane in any way to the decision made by the Magistrate in dismissing the application for an apprehended personal violence order. His Honour noted that the reason for the dismissal of that application by the magistrate was the respondent's refusal to answer questions by counsel for the respondent which were relevant and appropriate.

25. His Honour next dealt with order 4 which sought that a new hearing be conducted in the District Court. His Honour held that there was nothing in the affidavit or the documents that would justify a new hearing. I have already referred to the provisions of the Crimes (Domestic and Personal Violence) Act and the Crimes (Appeal and Review) Act which govern the applicant's appeal to the District Court and the statutory provisions which must apply. There was no basis for ordering a new hearing as such in the District Court other than as prescribed by the legislation and that will be determined by the trial judge hearing the appeal.

26. His Honour rejected order 5 which sought that the respondent be required to serve medical reports detailing what was said to be alleged injuries to his legs which required him to use crutches when he appeared in court. His Honour said there was no basis for requiring the respondent to do any of the things sought in order 5.

27. His Honour rejected order 6 which alleged that the respondent was an unreliable witness who, among other things, had pretended to act as an incapacitated person and had given lies in his version of the events. His Honour noted that the respondent had not been required to give evidence in the Local Court. His Honour also observed that whether or not he needed crutches was not relevant to the matter on the appeal.

28. His Honour next rejected order 7 which sought an order that the respondent arrange for his witnesses who had filed statements in the Local Court to be brought to the court for hearing on 16 November 2010 to be cross-examined. The order also sought that these statements were to be regarded as void and not to be taken into account unless those witnesses attended for cross-examination. His Honour noted that the hearing before the Magistrate had been terminated during the course of the applicant's evidence and the respondent's witnesses had not given evidence in the Local Court.

29. His Honour rejected order 8 essentially on the same basis as order 7.

30. His Honour rejected order 9 which, in effect, sought an apprehended violence order, as his Honour noted that was the ultimate issue to be determined on the appeal which at that stage had been set down for hearing on 16 November 2010.

31. In support of his application for prerogative relief, the applicant advanced the arguments set out in his written submissions. It is not necessary to repeat those in these reasons. They are on the record.

1. During his oral submissions, the applicant advanced what I understand to be his essential complaints about Judge King's decision. He submitted that the District Court must decide on the notice of motion filed on 14 September 2010 and he also complained that the District Court did not meet the requests he made in his notice of motion of 11 October 2010.

2. Before moving to what I consider are the determining matters in this appeal, I will make this comment only about the transcript in the proceedings before the Magistrate. The applicant complains that there are errors in that transcript. One of the matters of which he complains is that there is a statement in the transcript that he has "no fear". I will read out the transcript reference verbatim. It is p 2 of the transcript of 20 April 2010, p 65 of the application book. The transcript records the applicant as saying:

   "Yes but I'm not having fear and the plaintiffs ..."

3. The transcript then records that what followed thereafter was not transcribable. The applicant complains that he never said he had no fear, that in fact, he said the converse. Regardless of what is recorded in the transcript, it is apparent from other portions in the transcript that the Magistrate understood that the applicant's complaint was that he had fear. This is apparent, for example, from the Magistrate's questioning which appears at p 8 of the transcript, p 71 of the application book. At line 15, the Magistrate asked this question of the applicant:

   "Sorry, tell me what you say happens? There was banging on the door?"

   The applicant replied:

   "Yes."

   The Magistrate asked:

   "It caused you to be frightened?"

   The answer was:

   "Yes."

4. Although there may have been errors in the transcript, it seems to me that on that very central issue, the Magistrate was not suffering under any misapprehension as to what the applicant said.

5. If prerogative relief is to be granted, it is necessary for an applicant to establish an error of law. The only alleged error of law that could be discerned in this matter from the orders sought and from the applicant's written and oral submissions was that Judge King had failed to deal with the Appellant's notice of motion filed on 14 September 2010.

6. When regard is had to the orders made by Judge Solomon on 20 September 2010, it is apparent that the only matter listed before Judge King for hearing on that day was the notice of motion of 11 October 2010 which was filed by the applicant pursuant to the directions made by Judge Solomon on 20 September 2010. However, the applicant asked Judge King on 27 October 2010 to deal with the earlier motion as well, as I have already set out. Judge King correctly pointed out to the applicant that the earlier motion was not before him for determination. His Honour also pointed out that there was some overlap in the relief sought in each of the motions.

7. The applicant asserted from the bar table that Judge Solomon had made orders other than those recorded in the copy sealed order in the application book on 20 September 2010, the effect of which was that the notice of motion of 14 September 2010 was to be listed for hearing on 27 October 2010. However, the applicant accepted there was nothing in the application book to suggest that the orders, set out above at [16], were not correctly recorded. He also accepted that he had no formal documentation which suggested that the orders by Judge Solomon were incorrectly or incompletely recorded. The applicant, therefore, has failed to establish that Judge King erred in failing to deal with the motion of 14 September 2010.

8. As I have already stated, Judge King considered that the notice of motion of 11 October 2010 had largely overtaken the earlier notice of motion. There is an overlap in the orders in the two notices of motion and it does appear that his Honour dealt at least with the substantive part of order 1 of the 14 September 2010 notice of motion. However, it is possible that the District Court has not yet fully dealt with the notice of motion of 14 September 2010. There is no order of the court in the documents which are before this Court to indicate that there has been an order disposing of that notice of motion.

9. To the extent that any issues raised by the notice of motion of 14 September 2010 remain unresolved, the applicant may approach the District Court to have that notice of motion determined. He may do that on 24 March 2011, when his appeal from the Local Court is listed, or he may approach the Court for an earlier date for the hearing of that motion if he so wishes. It will be a matter for the District Court as to whether it has any available time before then to deal with the notice of motion.

10. In my opinion, there is no error of law in Judge King's decision dismissing the notice of motion of 11 October 2010. It is not for this Court to order the judge to make the orders sought in that notice of motion. As I have indicated, it may be that the notice of motion of 14 September 2010 has not yet been dealt with by the District Court. That is not a matter for this Court to deal with.

11. Accordingly, I propose that the summons for prerogative relief be dismissed with costs.

12. MACFARLAN JA : I agree.

13. SACKVILLE AJA : I agree. I add only one observation.

14. The applicant's written and oral submissions incorporate a number of unsubstantiated allegations of misconduct against judicial officers, transcript writers and others. It is inappropriate even for an unrepresented litigant to make allegations of this kind without a cogent basis, founded on evidence, for doing so. The applicant could have advanced the arguments relevant to his application for prerogative relief without make any of the inappropriate allegations to which I have referred. The fact that the allegations in the written submissions are recorded in the court file should not be taken as lending any credence to them.

15. I agree with the reasons that have been given by the presiding judge and with the orders that her Honour proposes.

16. BEAZLEY JA : Accordingly, the orders of the Court are the summons is dismissed. The applicant is to pay the respondent's costs.

    **********

Amendments

30 Mar 2011 Asterisks inserted to anonymise address in Surry Hills. Paragraphs: 12 and 16