Nichles v Attorney General of New South Wales

Case •

[2025] NSWCA 132

•

16 June 2025

No judgment structure available for this case.

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Nichles v Attorney General of New South Wales [2025] NSWCA 132
Hearing dates: 17 April 2025
Date of orders: 16 June 2025
Decision date: 16 June 2025
Before: Ward P at [1]; McHugh JA at [99]
Decision:

1.   In each proceeding, summons for leave to appeal dismissed with costs

Catchwords:

APPEALS – leave to appeal – where the applicant seeks to appeal two District Court decisions made on 23 September 2024 relating to the applicant’s criminal proceedings – where the related criminal proceedings have since been resolved – whether the District Court had jurisdiction to hear the appeal from the decision of the magistrate –whether the present appeal lacks utility – leave refused

APPEALS – leave to appeal – where the applicant was a party to parenting proceedings before the Federal Circuit and Family Court of Australia – where the applicant sought to commence a private prosecution against the judge who made the parenting proceeding orders – where the applicant seeks leave to appeal from orders made on 10 October 2024 and on 15 August 2024 dismissing an application for review of a Local Court Registrar’s decision to refuse to issue the Court Attendance Notice for the applicant’s private prosecution – leave refused

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 4, 67, 144, Sch 1

Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 11A, 12, 53(3)

Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 14, 98ZN

Crimes Act 1900 (NSW), s 43B

Criminal Code Act 1995 (Cth), ss 273B.4, 273B.6, 274.2

Criminal Procedure Act 1986 (NSW), ss 49, 174

Disability Discrimination Act 1992 (Cth)

District Court Act 1973 (NSW), s 127, Pt 3

Local Court Act 2007 (NSW), ss 12, 39, 44, 70, Pt 4

Local Court Rules 2009 (NSW), rr 6.2, 8.4(1)

Supreme Court Act 1979 (NSW), s 69

Uniform Civil Procedure Rules 2005 (NSW), Pt 59

Vexatious Proceedings Act 2008 (NSW)

Cases Cited:

Attorney General v Wentworth (1988) 14 NSWLR 481

Berejiklian v Independent Commission Against Corruption [2024] NSWCA 177

Connor v State of Queensland (Department of Education and Training) (No 2) [2019] FCA 366

Degiorgio v Dunn (No 2) (2005) NSWLR 284; [2005] NSWSC 3

Director of Public Prosecutions (NSW) v Hamzy (2019) 101 NSWLR 405; [2019] NSWCA 314

Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129

Ebner v Official Trustee in Bankruptcy(2000) 205 CLR 337; [2000] HCA 63

GLJ v Trustees of Roman Catholic Church for Diocese of Lismore (2023) 414 ALR 635; [2023] HCA 32

Golden v Howard [2025] NSWCA 117

House v King (1936) CLR 499; [1936] HCA 40

Huang v Nazaran (2021) 106 NSWLR 219; [2021] NSWCA 243

Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Kassam v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299

Markisic v Attorney General for New South Wales [2011] NSWSC 776

Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46

Minister for Immigration and Multicultural Affairs vJia Legeng (2001) 205 CLR 507; [2001] HCA 17

Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26

Nichles v R (No 1) [2024] NSWDC 625

Nichles v R (No 2) [2024] NSWDC 626

Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19

Potier v Huber (2004) 148 A Crim R 399; [2004] NSWSC 720

Potier v Magistrate O’Shane [2008] NSWSC 141

Tebbutt v Egg Marketing Board (NSW) [1976] 2 NSWLR 179

Category:Principal judgment
Parties:

Proceedings 2024/00410621
Kimberley Nichles (Applicant)
Attorney General of New South Wales (First Respondent)
Commissioner of Police, New South Wales Police Force (Second Respondent)

Proceedings 2024/00410579
Kimberley Nichles (Applicant)
Attorney General of New South Wales (First Respondent)
Attorney-General of the Commonwealth of Australia (Second Respondent)
Representation:

Counsel:
K Nichles (Self represented)
NA Wootton (Attorney General of New South Wales and Commissioner of Police)
L Dargan (Attorney-General of the Commonwealth of Australia)

Solicitors:
Crown Solicitor’s Office (Attorney General of NSW and Commissioner of Police)
Australian Government Solicitor (Attorney General of the Commonwealth of Australia)
File Number(s): 2024/00410579; 2024/00410621
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:

Proceedings 2024/00410621
District Court of New South Wales; Local Court of New South Wales

Proceedings 2024/00410579
District Court of New South Wales; Local Court of New South Wales
Jurisdiction:
Criminal
Citation:

Proceedings 2024/00410621

[2024] NSWDC 625; [2024] NSWDC 626

Date of Decision:

Proceedings 2024/00410621
23 September 2024

Proceedings 2024/00410579
10 October 2024; 15 August 2024
Before:

Proceedings 2024/00410621
Neilson DCJ

Proceedings 2024/00410579
Ellis DCJ; Maiden LCM
File Number(s):

Proceedings 2024/00410621
2024/00065034

Proceedings 2024/00410579
2024/00277983

JUDGMENT

  1. WARD P: Before this Court are two applications for leave to appeal brought by way of summonses dated 30 October 2024 and filed on 1 November 2024 by the applicant (Ms Kimberly Nichles). Ms Nichles, who informed the Court that she is studying law, represented herself on the respective leave applications.

  2. In proceedings 2024/00410621 (relating to criminal proceedings brought against the applicant in which she was found not guilty of the offence with which she was charged), the applicant seeks leave to appeal from two decisions of Neilson DCJ in the District Court made on 23 September 2024. The first of those decisions (the Stay Decision) was the dismissal by Neilson DCJ of a Notice of Appeal filed by the applicant in relation to a decision of Magistrate Milledge made in the Local Court on 24 July 2024, declining permanently to stay the then pending criminal proceedings against the applicant. The second of those decisions (the Subpoena Decision) was the dismissal by Neilson DCJ of a Notice of Appeal filed by the applicant in relation to a decision of Magistrate Shields made in the Local Court on 9 August 2024, dismissing an application for review of a Local Court Deputy Registrar’s decision relating to the issue of subpoenas (in the context of the criminal proceedings the subject of the Stay Decision). Both the Attorney General of New South Wales and the Commissioner of Police, New South Wales Police Force, have been joined as respondents to this proceeding (the Stay/Subpoena Leave Application).

  3. In proceedings 2024/00410579 (relating to an application by the applicant to file a Court Attendance Notice in the Local Court to commence a private criminal prosecution of a judge of the Federal Circuit and Family Court of Australia), the applicant seeks leave to appeal from orders made by Ellis DCJ in the District Court on 10 October 2024 (the District Court Decision) and from the decision of Maiden LCM of 15 August 2024 (the Magistrate’s Decision), dismissing an application for review of a Local Court Registrar’s decision to refuse to issue the Court Attendance Notice. The applicant sought to commence a private criminal prosecution against Baumann J relating to his Honour’s exercise of jurisdiction in family law proceedings, involving the making of parenting orders that were adverse to the applicant. Both the Attorney General of New South Wales and the Attorney-General of the Commonwealth of Australia have been joined as respondents to this proceeding (the Private Prosecution Leave Application).

  4. For the reasons set out below, leave to appeal should not be granted in either proceeding and both applications should be dismissed with costs. In summary, in relation to the Stay/Subpoena Leave Application, there is no right of appeal (even by leave) to this Court from interlocutory decisions of the District Court in its criminal jurisdiction (and in any event Neilson DCJ did not err in concluding that his Honour did not have jurisdiction to determine the appeals lodged by the applicant from the decisions of the respective magistrates). Further, there is no utility in the proposed appeals since the criminal prosecution has been determined in the applicant’s favour. As to the Private Prosecution Leave Application, again there is no right of appeal to this Court from the decisions of Ellis DCJ and Maiden LCM. Both sets of leave applications were misconceived and should be dismissed with costs.

Stay/Subpoena Leave Application (2024/00410621)

  1. The background to this application can be briefly stated.

  2. The applicant was charged on 19 February 2024 with an offence contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (Crimes (Domestic and Personal Violence) Act), namely, the offence of having knowingly contravened a restriction specified in an apprehended violence order.

  3. The applicant applied on 24 July 2024 to the Local Court seeking a permanent stay of the proceedings. The application was dealt with in chambers and dismissed by Milledge LCM on the basis that the proceedings were not demonstrated to be oppressive nor an abuse of process. On 29 July 2024, the applicant filed a Notice of Appeal in the District Court from the decision of Magistrate Milledge.

  4. The applicant requested that a number of subpoenas for production be issued by the Local Court in the context of the criminal proceedings. Those requests were refused by a Deputy Registrar of the Local Court pursuant to r 6.2(2)(b) of the Local Court Rules 2009 (NSW) (Local Court Rules), on the basis that the subpoenas would be oppressive. An application to review the Registrar’s decision was listed on 9 August 2024 and the applicant was granted leave to appear via audio-visual link (AVL) on that application. Shields LCM dismissed the application on that occasion due to the applicant’s non-appearance (attempts having been made unsuccessfully to contact the applicant that morning for her AVL appearance). On 14 August 2024, the applicant filed a Notice of Appeal to the District Court in relation to the decision of Magistrate Shields. (Although, in her reply submissions on the Stay/Subpoena Leave Application, the applicant asserts a lack of procedural fairness in the subpoena application not being re-opened at the ultimate hearing before Magistrate Milledge of the criminal prosecution – see below – it is not apparent that any application to re-open the subpoena application was made at that time.)

District Court decision

  1. Neilson DCJ dismissed the applicant’s appeal from Magistrate Milledge’s refusal to grant a permanent stay on the basis that the Court did not have jurisdiction to hear an appeal in relation to “any interlocutory order or failure to make an interlocutory order by the Local Court” (see Nichles v R (No 1) [2024] NSWDC 625 at [36]). His Honour dismissed the subpoena appeal on the same basis (see Nichles v R (No 2) [2024] NSWDC 626 at [25]), but went on to observe (at [26]-[28]) that, if it were open to the Court to determine the matter in substance, the subpoenas were clearly oppressive, had no legitimate forensic purpose and that it was apparent that the subpoenas were issued for an ulterior purpose.

  2. His Honour’s decisions were made on 23 September 2024. On 11 November 2024, the criminal prosecution of the applicant proceeded in the Local Court at Waverley. In the course of the hearing, video footage was produced in relation to the incident that was the subject of the charge, following which Magistrate Milledge concluded that there was no case to answer. Magistrate Milledge found the applicant not guilty and dismissed the charge against her. Notwithstanding this, the applicant foreshadowed in her reply submissions an amendment to her proposed grounds of appeal to assert bias and lack of procedural fairness on the part of Magistrate Milledge.

Proposed grounds of appeal

  1. The applicant’s proposed grounds of appeal from the respective decisions of Neilson DCJ are discursive and comprise large slabs of submissions. Seven of those proposed grounds of appeal relate to the dismissal by his Honour of the appeal from Magistrate Milledge’s refusal of the applicant’s application for a permanent stay of the criminal proceedings. The remaining seven relate to his Honour’s dismissal of the appeal from Magistrate Shields’ dismissal of the applicant’s application for review of the Registrar’s dismissal of her request for the issue of subpoenas. The submissions will be broadly summarised but are not exhaustively reproduced here. They have all been considered.

  2. Ground 1 asserts that his Honour erred in refusing to exercise jurisdiction to decide the appeal, where the applicant asserts that jurisdiction was within his power under s 70(1) of the Local Court Act 2007 (NSW) (Local Court Act) for the exercise of the District Court’s special jurisdiction (the applicant here citing Huang v Nazaran (2021) 106 NSWLR 219; [2021] NSWCA 243 (Huang) at [22]-[24] per Meagher JA).

  3. Ground 2 contends that his Honour made an error of law in stating that the matters should be raised under prerogative writs of mandamus and certiorari.

  4. Ground 3 contends that his Honour dismissed the appeal despite prima facie evidence of an abuse of power and abuse of Court process by the police and the complainant (the applicant’s former husband) and repeated serious harassment, torture and oppression of the applicant (by police, Courts and the complainant) for approximately seven years.

  5. Ground 4 contends that his Honour dismissed the appeal despite “significant” evidence of: police and prosecutorial misconduct in relation to the complaint; deliberate false statements made to police in acts of malice and family violence by the complainant to invoke the police (ERISP) interview of the applicant; use of that interview to “change tact [sic] and to hunt for ways to invoke a charge” and evidence that the apprehended domestic violence order issued against the applicant in Queensland was falsely obtained; and therefore the Queensland orders were made ultra vires, such that the charges brought by NSW Police are invalidly made.

  6. Ground 5 contends that his Honour dismissed the appeal despite significant evidence of oppression (including the continuous bringing by the complainant of prosecutions against her to torture her, resulting in serious PTSD, anxiety and major depressive disorder).

  7. Ground 6 contends that his Honour refused to exercise jurisdiction to hear the appeal by way of re-hearing to take into account fresh evidence (said to demonstrate police misconduct, ill-informed judgments and a refusal to investigate matters).

  8. Ground 7 is an assertion that his Honour had the power to revoke the apprehended domestic violence order under s 98ZN of the Crimes (Domestic and Personal Violence) Act and permanently to stay the proceedings due to abuse of process and serious oppression but refused to exercise jurisdiction and his discretionary powers despite the evidence before him.

  9. As noted above, the further seven proposed grounds of appeal relate to the dismissal of the applicant’s appeal in relation to the Subpoena Decision by Magistrate Shields. Many of the above complaints are again raised in the context of this second decision by Neilson DCJ.

  10. Ground 8 raises the asserted error in Ground 1.

  11. Ground 9 raises the asserted error in Ground 2.

  12. Ground 10 raises the asserted error in Ground 6.

  13. Ground 11 is a complaint that his Honour dismissed the appeal despite prima facie “evidence” (identified in Ground 11 as: the refusal of police to issue the full brief of evidence to the applicant; alleged existing permission by Magistrate Milledge (contained within the orders of her Honour’s dismissal of the application for a permanent stay) for the issue of any subpoenas required by the applicant to run her case in defence; and that no permission was granted for the Registrar to refuse subpoenas).

  14. Ground 12 raises a contention of apprehended “confirmation bias” on the part of the primary judge and a denial of natural justice.

  15. Ground 13 in substance repeats (and adds to) the matters raised by Ground 3.

  16. Ground 14 is a submission as to the evidence giving “immediate grounds” to issue the subpoenas which it is asserted were for a clear legitimate forensic purpose.

  17. In her written submissions, the applicant identifies various questions of law said to arise both from the decisions of the respective magistrates and the decisions of Neilson DCJ, including matters such as: whether the magistrates failed to afford her procedural fairness by failing to afford her an oral hearing or right of reply; whether there was a breach by Magistrate Milledge of the requirements of the Disability Discrimination Act 1992 (Cth); and whether Neilson DCJ erred in failing to refer the matter to the Supreme Court (by reference to s 144(2) of the Civil Procedure Act 2005 (NSW)) (Civil Procedure Act).

  18. The applicant submits that the proposed appeal (from both the Stay Decision and Subpoena Decision) raises issues of principle and general public importance, as well as an injustice to her which is reasonably clear. The applicant identifies the principles raised by the Stay Decision as principles regarding the behaviour of, and treatment by, police of people with trauma disabilities who are victims of serious domestic and family violence; and the Court’s failure to exercise jurisdiction where the applicant asserts it was mandatory to do so or to refer matters to the Supreme Court. In relation to the Subpoena Decision, the applicant identifies the principles raised as those “regarding the State’s requirement to provide all information pertaining to a person held on public record to that person, for their knowledge, and for the purposes of investigating matters affecting them”, in this case for the purposes of utilising that material within the trial for cross examination of the complainant, his character, intent and motive to harm, and to challenge or correct the information that the complainant provided to police.

  19. As adverted to above, in her reply submissions, the applicant has foreshadowed amendment to her proposed grounds of appeal to extend to an appeal from the refusal of Magistrate Milledge at the commencement of the criminal prosecution to grant a temporary stay pending the District Court appeal. The applicant argues that procedural fairness required both the temporary stay application and the permanent stay application to be heard prior to the trial and for the subpoena application to be reopened on the day of the hearing (due to a technology failure which the applicant says had prevented her appearing by AVL on the day of the subpoena application). The applicant also accuses Magistrate Milledge of bias in favour of the police and the complainant: in stating in her initial stay judgment that there was a “prima facie” case that could be established that there was no abuse of process by the police and in “improperly lecturing” the applicant about persecuting the police and the complainant. The applicant’s accusation of bias extends to complaint as to comment made by the Magistrate referring to the applicant as a “sovereign citizen” (see 28/03/2024; T 1.37, which records Magistrate Milledge referring to an affidavit of the applicant as having “the trappings of a sovereign citizen”), which the applicant speculates may have caused Magistrate Milledge to deny any hearing for a permanent stay.

  20. The applicant contends that leave to appeal should be granted to prevent “further abuses of process” by police and “further refusals” by magistrates to perform their statutory duties.

Determination

  1. A fundamental difficulty for the applicant in seeking leave to appeal from the two decisions of Neilson DCJ here impugned by her is the lack of utility of any such appeal in circumstances where the criminal prosecution against her has already been heard and determined in her favour.

  2. So much can be seen from the applicant’s submission that this Court should now make the decision to issue the subpoenas “free of charge” for the (asserted) legitimate forensic purpose of the applicant in these proceedings. The applicant had sought the issue of those subpoenas to prepare her case in defence of the criminal proceedings that have now been resolved. There is no little force in the respondents’ submission that, the criminal proceedings now having concluded, the subpoenas could now only be sought for an ulterior (or not legitimate) purpose. They are certainly not necessary for the purpose for which they were initially sought. The applicant’s response to this is that the subpoenas should now be issued in this Court as this would demonstrate that the issue of the subpoenas would have aided the case at trial. There is no point to such an ex post facto justification (particularly since the video evidence to which the applicant refers in her submissions was in fact adduced at the trial, albeit, according to the applicant, by her “clever questioning” of the police witness and the complainant rather than in answer to any subpoena).

  1. The applicant, in her reply submissions, appears to accept that the appeal lacks utility. Her answer to the (with respect, obvious) inutility of the proposed appeal from the Stay Decision appears to be that the subject of her appeal is now not whether to grant the permanent stay but, rather, to determine, first, whether it should have been heard and, second, whether it should have been granted (“amongst many other questions about the content and conduct of the proceedings at Local Court and District Court jurisdictions”, to quote her submissions in chief).

  2. The suggestion that there should now be a wide-ranging inquisition into the conduct by the police and the Court of the proceedings in those jurisdictions misapprehends the function of an appeal proceeding, which is not to conduct “an investigation or examination on behalf of society at large” (see, in the context of first instance proceedings, what was said by the High Court in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; [2023] HCA 32 at [19]-[20] and see Golden v Howard [2025] NSWCA 117 at [10] per Payne JA). Further, as the respondents note, an appeal should not be entertained for the purposes of issuing an advisory opinion (the respondents referring to what was said by Bell P, as the Chief Justice then was, in Kassam v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299 at [28]); nor should declaratory relief be granted where it would produce no foreseeable consequences for the parties (the respondents pointing here to Tebbutt v Egg Marketing Board (NSW) [1976] 2 NSWLR 179 at 185 per Hutley JA).

  3. Further, the applicant argues that the only reason that the appeal now lacks utility is because Magistrate Milledge, on 11 November 2024 (the day the criminal trial commenced), refused to grant a temporary stay of the proceedings pending the District Court appeal. The applicant complains that Magistrate Milledge failed to consider or apply the principles applicable to such applications, specifically in failing to weigh the risk that an appeal may be rendered nugatory if a stay is not granted (that being recognised as a substantial factor in determining whether it is appropriate to grant a stay). As adverted to above, the applicant has foreshadowed that the (proposed) notice of appeal should now be amended “to become an Appeal against […] Magistrate [Milledge]’s failure to hear the Temporary Stay, and her failure to grant the Stay pending Appeal, as well as the Subpoena matters”.

  4. Leaving aside the question of the inutility of the proposed appeal, which of itself is sufficient to warrant dismissal of the Stay/Subpoena Leave Application, the conclusion by Neilson DCJ that the District Court did not have jurisdiction to hear the appeals lodged by the applicant from the decisions of the respective magistrates was clearly correct (and appears ultimately to have been conceded by the applicant in oral submissions – see AT 11.36). Rather, the applicant’s complaint is that both Neilson DCJ and Ellis DCJ in the respective District Court appeals “misled” her by hearing the “appeal” before in the end dismissing it for want of jurisdiction rather than transferring it at once.

  5. The District Court possesses no inherent or supervisory jurisdiction. It possess only the jurisdiction expressly conferred on it by statute or arising by necessary implication for the effective exercise of a jurisdiction which is expressly conferred on it (see Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19 at [50] (Gaudron, Gummow and Callinan JJ); Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46 at 17 (Dawson J)).

  6. The District Court’s powers to hear appeals from decisions of the Local Court in its criminal jurisdiction derive from ss 11, 11A and 12 of the Crimes (Appeal and Review) Act 2001 (NSW) (Crimes (Appeal and Review) Act) and are limited to appeals from conviction or sentence. Those provisions do not confer jurisdiction on the District Court to determine appeals from interlocutory decisions of the Local Court, as the permanent stay and subpoena decisions sought to be challenged by the applicant in the District Court clearly were. Nor is there any basis on which a power of the District Court to review the respective magistrates’ decisions could be said to arise as being necessary for the effective exercise by the District Court of such powers as are expressly conferred on it (pursuant to ss 11, 11A or 12). For completeness, it may be noted that the District Court has jurisdiction to hear an appeal against a judgment or order of the Local Court sitting in the Small Claims Division (though only on the ground of a lack of jurisdiction or denial of procedural fairness – see s 39 of the Local Court Act) but the decisions sought to be challenged by the applicant do not fall within that category of case.

  7. Nor is any error demonstrated in the fact that Neilson DCJ did not exercise the “special jurisdiction” to hear the appeals (as the applicant contends) and did not transfer the proceedings to the Supreme Court once he determined that the District Court did not have jurisdiction.

  8. As to the assertion that Neilson DCJ had power to exercise “special jurisdiction” in the matter, Pt 4 of the Local Court Act sets out the “Special Jurisdiction” of the Local Court. Section 70(1) of the Local Court Act (which is contained in Pt 4), confers jurisdiction on the District Court (and the Supreme Court) to hear appeals in relation to “any order arising from an application notice”. Section 44 provides that s 70 applies to any proceedings with respect to matters for which jurisdiction is conferred on the Court by or under any other Act or law, other than criminal proceedings or proceedings with respect to any matter for which jurisdiction is conferred on the Court by Pt 3. Both of the decisions of the Local Court the subject of the applicant’s appeal to the District Court were interlocutory decisions in criminal proceedings. Section 70 does not apply to those proceedings.

  9. Insofar as the applicant relies upon Huang (citing this incorrectly in her submissions as “[2023] NSWCA 8”) for the proposition that Neilson DCJ did have jurisdiction to determine her appeal, that submission is misconceived. As noted above, s 70 did not provide a basis for the District Court to determine an “appeal” from the respective magistrates’ decisions (nor does it confer a power on this Court to determine an appeal from the District Court decision). In Huang, the appeal was against orders of the Local Court exercising special jurisdiction arising from an application notice. Here, however, the respective magistrates’ decisions sought to be impugned were not decisions of the Local Court exercising special jurisdiction pursuant to Pt 4 of the Local Court Act nor were the orders arising from an application notice.

  10. As to the applicant’s complaint that Neilson DCJ did not transfer the proceedings to the Supreme Court when he determined that he did not have jurisdiction, the applicant here relying on s 144 of the Civil Procedure Act, that is also misconceived. Section 144 applies to “proceedings under Subdivision 2 of Division 8 of Part 3 of the District Court Act 1973 (NSW)” (see s 144(1)). Part 3 of the District Court Act 1973 (NSW) (District Court Act)relates to the civil jurisdiction of the District Court, and Subdivision 2 of Division 8 relates to proceedings for “[p]ossession of land, equity and other proceedings”. The proceedings by the applicant in the District Court do not fall within that subdivision and hence Neilson DCJ could not have transferred the proceedings to the Supreme Court pursuant to s 144(2).

  11. Further, even if there were an arguable case that Neilson DCJ had erred in one of the ways contended by the applicant, there is no right of appeal (even by leave) to this Court from the two impugned decisions of the District Court. They were appeals brought in the criminal jurisdiction of that Court and hence they do not fall within s 127 of the District Court Act, which confers a right of appeal only against a “judgment or order in an action” (the definition of “action” in s 4(1) not including “any proceedings under Division 8 of Part 3 or under Part 4”, the latter being the part under which criminal jurisdiction is conferred on the District Court).

  12. Insofar as the applicant has submitted that the application for a stay of the criminal proceedings was a proceeding brought pursuant to s 67 of the Civil Procedure Act (and therefore a civil proceeding), that section applies only to civil proceedings in the Local Court (see s 4 and Sch 1) and does not confer jurisdiction to grant a stay of criminal proceedings in the Local Court. The respondents nevertheless accept that the Local Court has either an inherent or implied power to prevent its own processes being abused (referring by way of example to Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129, 134-135 (Mason P), citing Maxwell v The Queen (1996) 184 CLR 501, 512 (Dawson and McHugh JJ); [1996] HCA 46; Director of Public Prosecutions (NSW) v Hamzy (2019) 101 NSWLR 405; [2019] NSWCA 314 at [49] (Gleeson JA)).

  13. In circumstances where the decision of Neilson DCJ that he did not have jurisdiction to determine the appeal is undoubtedly correct, any grant of leave to appeal from that decision would be moot. As it is, the evident lack of utility for the proposed appeal leads irresistibly to the conclusion that the Stay/Subpoena Leave Application should be dismissed.

  14. In her reply submissions, the applicant belatedly seeks to adopt a course adverted to in the respective respondents’ submissions on the Private Prosecution Leave Application (see below), submitting that this Court should now treat the present application (for leave to appeal from the Stay Decision and the Subpoena Decision) as an application for judicial review of the respective magistrates’ decisions pursuant to s 69 of the Supreme Court Act 1979 (NSW) (Supreme Court Act), citing Markisicv Attorney General for New South Wales [2011] NSWSC 776 (Markisic)).

  15. The applicant submits that this Court “may then make findings and declarations of fact that clarify what really occurred and what actions should have been taken by the Magistrate’s Court and NSW Police Service”. The applicant submits that “a Judicial Review may be able to correct the injustices caused by the Magistrate’s Court [sic] failures to exercise jurisdiction, identify NSW Police perjury and abuses of process (systems abuse) in situations of serious domestic violence; particularly in cases where the victim was wrongly identified as the offender on the Domestic Violence Order; and make appropriate findings of fact on the evidence before the Court”. Indeed, the applicant goes so far in her reply submissions as to make the very serious accusation, without any foundation whatsoever on the material before this Court, that the various judicial officers in this matter have perverted the course of justice. Complaints as to lack of procedural fairness or lack of natural justice or apprehended “confirmation bias” have similarly been made (with no apparent hesitation or reticence) in the applicant’s submissions without any foundation in the material before this Court.

  16. It is not appropriate to treat the present application for leave to appeal (whether on the initial proposed grounds of appeal or the foreshadowed amended grounds of appeal, which include the now proposed appeal from Magistrate Milledge’s decision not to hear the stay application at the hearing of the criminal proceeding nor to reopen the subpoena application) as an application for judicial review of the respective magistrates’ decisions under the supervisory jurisdiction in s 69 of the Supreme Court Act. The applicant was alerted by the Registrar of this Court to the difficulties in framing the present proceeding as an application for leave to appeal yet insisted on so proceeding. While, as a self-represented litigant, the applicant should be given some latitude, the applicant clearly made a forensic decision to follow the path she had adopted and to pursue her misconceived application for leave to appeal.

  17. An application for judicial review would ordinarily be one brought before a single judge sitting in the Common Law Division, not two judges of appeal (as is on the present leave application) or three judges of appeal (if leave were to be granted); and it would need to be properly constituted as a summons seeking judicial review. The procedures for seeking judicial review (in Pt 59 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR)) have not been followed and the respondents have not had a proper opportunity to respond thereto. The respondents should not be prejudiced by the applicant’s insistence on having her day in Court on an application for leave to appeal which was misconceived from the outset. Nor should this Court be asked to determine a judicial review application when all the relevant material is not necessarily before the Court.

  18. In any event, judicial review proceedings would, as the respondents point out, suffer from the same difficulty as the proposed appeal proceedings, namely a lack of utility as the criminal proceedings have now been determined in the applicant’s favour.

Costs

  1. This leads to the issue of costs. The respondents seek their costs of the application for leave to appeal. The applicant resists such an order arguing that both the NSW Police and the Court have caused serious mental and physical harm to her: the police, by forcing her to proceed to a criminal trial (where, among other things, the applicant says that there was critical video evidence not produced until demanded by the Magistrate which confirmed that no offence was committed by the applicant); the Court, by failing to afford procedural fairness in hearing the permanent stay application, failing to issue subpoenas which, in their absence, may have led to a conviction (of the applicant) (i.e., had the video not eventually been produced) instead of a dismissal, and failing to exercise jurisdiction to hear the appeal or refer the appeal so it would be heard in time for a permanent stay to be granted; hence forcing the applicant to trial.

  2. Further, in reply submissions, the applicant asserts that it was the respondents’ own employee (the Magistrate) that caused the appeal for which leave was here sought to become nugatory by denying the applicant her right to be heard on the stay application and refusing her right to conduct a thorough investigation into the matter via the review of subpoena material. The applicant argues that the State is vicariously liable for this.

  3. In this regard, the applicant misunderstands the position of the magistracy in our Court system. A magistrate is not an “employee” of the Attorney General of New South Wales let alone of the Commissioner of Police but is appointed by the Governor of the day on the advice of the Executive Council (see s 12 of the Local Court Act). In this regard, the respondents note, by way of analogy, the decision in Connor v State of Queensland (Department of Education and Training) (No 2) [2019] FCA 366 at [5] per Rangiah J. Furthermore, the suggestion that the decisions of the respective magistrates “caused” the appeal cannot be accepted in circumstances where, as the respondents point out, it was open for the applicant to have discontinued the present application after the resolution in her favour of the criminal proceedings and before costs were incurred by the respondents in responding to the application.

  4. Costs should follow the event.

Orders in proceedings 2024/00410621

  1. For the above reasons, the following orders should be made:

  1. Summons filed 1 November 2024 seeking leave to appeal from the decisions of Neilson DCJ on 23 September 2024 is dismissed.

  2. The applicant is to pay the respondents’ costs of the summons for leave to appeal.

Private Prosecution Leave Application – 2024/00410579

  1. Again, the background to this application can be relatively briefly stated.

  2. As already noted, the applicant was a party to parenting proceedings before the Federal Circuit and Family Court of Australia in which orders were made in relation to her children. The applicant contended that her children were at risk of sexual harm (from their father).

  3. The applicant sought to file Court Attendance Notices in the Local Court to commence a private prosecution against the judge who made those orders (Baumann J), alleging that his Honour had committed offences contrary to ss 273B.4 and 274.2 of the Criminal Code Act 1995 (Cth) (the Code). Pursuant to s 273B.4, it is an offence for a Commonwealth officer to fail to protect a child at risk of sexual abuse, where the person is a child under the defendant’s care, supervision or authority in the person’s capacity as a Commonwealth officer. Pursuant to s 274.2, the offence of torture is committed if a person engages in conduct that inflicts severe physical or mental pain or suffering on a person and the conduct is engaged in for the proscribed purposes and in an official capacity.

  4. A registrar of the Local Court, Registrar L Pennell, rejected that application on 29 July 2024, pursuant to ss 49 and 174 of the Criminal Procedure Act 1986 (NSW) and Rule 8.4 of the Local Court Rules (the Registrar’s Decision). Section 49(2) of the Criminal Procedure Act (which relates to indictable offences) prohibits a registrar from signing a court attendance notice if the registrar is of the opinion that: the notice does not disclose grounds for the proceedings; the notice is not in the form required by or under the Local Court Act; or a ground for refusal set out in the rules applies to the notice. Section 174 of the Criminal Procedure Act, which is in substantially the same terms as s 49, applies where the alleged offences are summary offences. Relevantly, r 8.4(1) of the Local Court Rules prohibits a registrar from signing a court attendance notice in proceedings commenced by a person other than a police officer or a public officer if the registrar is of the opinion that the proceedings “are frivolous, vexatious, without substance or have no reasonable prospect of success”.

  5. In the present case, the Registrar determined the matter to be “without substance” and that it had “no reasonable prospect of success”. The Registrar also noted that the notices were not in the form required by or under the Local Court Act. (The applicant here complains that the reasons for the Registrar’s conclusion were inadequate.)

  6. Section 49(3) of the Criminal Procedure Act provides that if a registrar refuses to sign a court attendance notice proposed to be issued by a person other than a police officer or public officer (i.e., here, the applicant), the question whether the court attendance notice is to be signed and issued is to be determined by a magistrate on application by the person. The applicant sought review of the Registrar’s Decision pursuant to s 49(3). That application was determined by Maiden LCM on 15 August 2024 on the papers. Magistrate Maiden noted that it was not necessary to find error in the Registrar’s Decision, approaching the decision-making afresh without reference to the Registrar’s reasons or any error therein. Magistrate Maiden concluded that the prosecutions were without substance or had no reasonable prosects of success; and accordingly refused to sign and issue the Court Attendance Notices.

District Court Decision

  1. The applicant then sought to appeal to the District Court from Magistrate Maiden’s decision, that application being heard on 10 October 2024 by Ellis DCJ. His Honour dismissed the appeal for want of jurisdiction. The applicant here seeks to challenge that conclusion (and the anterior decision of Magistrate Maiden), invoking both s 70(1) of the Local Court Act and s 53(3) of the Crimes (Appeal and Review) “on implied powers pursuant to Huang” (again, citing Huang and the Crime (Appeals and Review) Act). Again, in oral submissions the applicant conceded that she does not assert that Ellis DCJ erred in finding that he had no jurisdiction.

Proposed grounds of appeal

  1. Again, the applicant’s proposed grounds of appeal are discursive and contain much by way of submission and will not be recounted here in exhaustive detail (but have been carefully considered). Various of the grounds repeat matters that the subject of the proposed grounds already considered in relation to the Stay/Subpoena Leave Application.

  2. In summary, the applicant seeks to challenge the decision of Ellis DCJ on four grounds.

  3. Ground 1, that his Honour erred in refusing to exercise jurisdiction to decide the appeal, where the applicant contends that “jurisdiction was within his power” under s 70(1) of the Local Court Act for the exercise of the District Court’s special jurisdiction (the applicant here again citing Huang at [22]-[24]). This ground also includes reference to McGrath DCJ who conducted the first directions hearing in relation to the appeal to the District Court and listed the matter for hearing on 10 October 2024. It is by no means clear what error it is contended that his Honour made, the decisions the subject of the challenge here being those of Ellis DCJ and Magistrate Maiden.

  4. Ground 2, that Ellis DCJ made an error of law in stating that the matters should be raised under prerogative writs of mandamus and certiorari.

  5. Ground 3 is not a ground of appeal at all but, rather, a request that, if the matter is to be dealt with on the basis of a writ of mandamus and certiorari, this Court exercise discretion to file the matter in the Supreme Court and, on review of the prima facie evidence, proceed with the prosecution as an ex officio indictment “taking Attorney General consent as having been given by the silence is acceptance rule pursuant to the Appellant’s evidence” [emphasis as per the proposed notice of appeal].

  6. Ground 4, is that Ellis DCJ dismissed the appeal despite prima facie evidence of various matters (including the “Magistrate refusing to read all of the evidentiary materials, making judgment without reading all available materials before the Court, and failing to afford an oral hearing of the matter” to the applicant), which the applicant contends demonstrate beyond reasonable doubt the guilt of the judicial officer, warranting an ex-officio indictment to face trial for his (alleged) crimes against ss 273B.4 and 274 of the Code.

  7. In her written submissions, the applicant largely addresses the proposed appeal from Maiden LCM’s decision, identifying the proposed grounds of appeal in relation to Magistrate Maiden’s decision as: failure prudently to exercise jurisdiction (referring to House v King (1936) CLR 499; [1936] HCA 40); procedural unfairness (referring to Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26); apprehended bias (referring to Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63; Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48); actual bias (referring to Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17); errors of fact (at [35] and [36] of the reasons); wrong interpretation of Federal legislation (s 273B.4 of the Code); error of jurisdiction (“by pretending a Family Court judgment and the way they manage their jurisdiction has anything to do with this Criminal matter and a Criminal Jurisdiction”); gross miscarriage of justice against the children and the applicant; and criminal acts (failure to follow s 43B of the Crimes Act 1900 (NSW) and attempting to conceal the crimes of a Federal Judge by refusing to file the proceedings).

  8. The applicant alleges, in support of those grounds: a failure to read the filed materials, a failure to hold an oral hearing, a failure to assess the criminal case and “apply Criminal jurisdiction”; analysis of evidence constrained to Baumann J’s judgment “trusting the alleged Criminal simply because he is a Federal Judge and a superior legal fraternity colleague of the Magistrate, hence he loosely controls her career”, and making false and misleading statements about the applicant, alluding to the applicant being “a ‘disgruntled person unhappy with the outcome’ of a Civil Matter”.

  9. The applicant also alleges that there has been procedural misconduct of the Registrar, alleging that the Registrar cannot make any finding about prospects of success if she has not reviewed the evidence and therefore the refusal to file (the Court Attendance Notice) is a matter of judicial misconduct.

  10. Noting that s 273B.6 of the Code requires the consent of the Attorney-General, which the applicant says has been sought twice without response, the applicant says that the Attorney-General is liable to prosecution under s 273B.4 of the Code, “as Australia’s Chief Legal Officer has not done everything in his power to protect the Children from sexual abuse despite holding the prima facie evidence that the Children are at definite risk of sexual harm; and have been at risk for the past 6 years known by the Government and Judges of the Federal Circuit and Family Court of Australia and refusing to remove the children from that risk of sexual harm”. The applicant further complains that the Government is knowingly allowing corruption in the Family Courts to continue, causing the sexual and other abuse of children by paedophile fathers and domestic and family violence perpetrators.

  11. In summary, the applicant contends that “[t]his matter concerns a perversion of the course of justice and corruption by the lower courts in a Criminal Mater [sic], where those Courts are deliberately preventing a Private Prosecution by the Appellant of the Defendant, such that they can aid and abet the Defendant to get away with a serious indictable offence, which the AFP refuse to prosecute by abusing their prosecutorial discretion”.

  12. The applicant argues emphatically that this matter must “as a Constitutional requirement”, proceed to trial before a jury to determine the guilt or innocence of the judge in question (and that it cannot be tried by the judge’s peers or any lower or superior judicial officer in the judicial hierarchy).

  13. In her reply submissions, the applicant complains that the legislation does not identify the Magistrate’s decision not to sign the Court Attendance Notice as an “Administrative Decision” and poses a series of asserted questions of law arising in that regard (i.e., whether the “Request to File” is a Civil Application; whether the assessment of the application by a magistrate is an administrative review or judicial review; whether there is such a thing as an “Administrative Review by a judicial officer” (where the applicant asserts judicial officers are confined to judicial decisions by the doctrine of separation of powers); whether the “Decision to File” is a judicial decision and whether the decision is then subject to appeal, and if so, in which Court, by what law and what power; if the “Decision to File” is an administrative decision, whether that decision is then subject to judicial review, and if so, in which Court, by what law and what power; where, if anywhere, is this procedure outlined on the Official NSW Courts website for the civilian Common Informer or Private Prosecutor). Most of those questions have already been answered in Markisic and Potier v Magistrate O’Shane [2008] NSWSC 141 (Potier) (as explained below). The applicant appears to question the correctness of the conclusion in Markisic at [21] (that under s 49(3) of the Criminal Procedure Act there is no express statutory basis for an appeal from such a decision made by a magistrate) and maintains that, in requesting a judicial review by the Magistrate of the Registrar’s decision, the review “by its very nature is Judicial”.

  14. The applicant also makes submissions in reply to the effect that there was a failure by the Registrar and the Magistrate to consider the tests as to whether proceedings are vexatious (citing Attorney General v Wentworth (1988) 14 NSWLR 481 at 491 per Roden J and referring to the meaning of vexatious proceedings in the Vexatious Proceedings Act 2008 (NSW)) or have no reasonable prospects of success (citing Degiorgio v Dunn (No 2) (2005) NSWLR 284; [2005] NSWSC 3); and hence the applicant submits that there was a failure to exercise jurisdiction and “non-feasance”.

  15. Ultimately, the applicant argues that whether the correct approach is by way of appeal or judicial review, the filing of the Court Attendance Notice could not be rejected and the matter should have proceeded through the normal process for prosecution of Commonwealth offences to committal hearing and an indictment from 17 July 2024 onward.

Costs

  1. As to costs, the applicant argues that costs should not follow the event because the Registrar “chose” to file the “Appeal matter” before the District Court; and because she says that the judges in every Court were equally confused and that, as a self-represented litigant, she could not be expected to know the correct answer. The applicant also complains about the lack of “any legible Processes, Work Instructions, Templates or Sample Documents for self-represented litigants or Common Informers to assist in guiding a person through the process of Private Prosecution” and submits that costs should not follow the event as access to justice for impecunious applicants is required to ensure justice is delivered for all “Victims of Crime” (counting herself as one such victim).

Determination

  1. The applicant has filed lengthy submissions, in chief and in reply, in support of her contention that Magistrate Maiden made errors of law, jurisdiction and fact in failing properly to exercise jurisdiction and acted with procedural unfairness. In the course of these submissions, among other things, the applicant complains that Magistrate Maiden “trivialised the issue”, which the applicant says is about “certain Federal Judges authorising Incest and Sexual Servitude (Sexual Exploitation) of Australian Children by knowingly placing them in the direct unsupervised care of paedophiles”.

  2. What the applicant’s submissions do not do is address the question of error in the decision of Ellis DCJ, except as is asserted in the proposed grounds of appeal.

  3. The respective respondents (the Attorney General of New South Wales and the Attorney-General of the Commonwealth of Australia), who are separately represented, each contend that Ellis DCJ was correct in concluding that he did not have jurisdiction to hear the appeal lodged against the decision of the Magistrate.

  4. The fundamental difficulty for the applicant’s application for leave to appeal from the decision of Magistrate Maiden is that this was an administrative (not judicial) decision (made pursuant to s 49(3) of the Criminal Procedure Act) (see Potier at [16]; Markisic at [21]). In Markisic, where the application similarly related to a decision of a magistrate to refuse to sign a Court Attendance Notice under s 49(3) of the Criminal Procedure Act, Hoeben J (as his Honour then was), pointed out that “there is no express statutory basis for an appeal from such a decision” (at [21]).

  5. In Potier v Huber (2004) 148 A Crim R 399; [2004] NSWSC 720 at [4]-[8], Kirby J explained that s 49 requires the intervention of a registrar or magistrate in recognition of the fact that private citizens may have a personal interest in the outcome of a prosecution and may not be in a position to assess its appropriateness, prospects of success or the possibility of adverse consequences for them.

  6. As noted above, the District Court does not have inherent or supervisory jurisdiction over the Local Court or decisions made by a Magistrate and the powers conferred by ss 11, 11A and 12 of the Crimes (Appeal and Review) Act do not apply to the Magistrate’s decision not to file a Court Attendance Notice (see Markisic at [21]-[26]). Nor does s 53(3) of the Crimes (Appeal and Review) Act assist the applicant, since that provision only confers a limited right of appeal (with leave) to the Supreme Court against a decision of the Local Court by any person who has been convicted or sentenced by the Local Court.

  7. Insofar as the applicant again seeks to invoke s 70 of the Local Court Act, as conferring jurisdiction either on this Court or on the District Court, for the reasons set out in considering the Stay/Subpoena Leave Application, s 70 does not apply in the present case (nor does Huang assist the applicant).

  8. Thus, there was no right of appeal to the District Court from the decision of Magistrate Maiden in refusing to sign the Court Attendance Notices and Ellis DCJ was correct to determine that he lacked jurisdiction. (Insofar as this Court could deal with the matter by way of judicial review of the decision of Ellis DCJ, there was no jurisdictional error in the denial by his Honour of the existence of jurisdiction and hence such an application would be moot.)

  9. As with the position in relation to the Stay/Subpoena Leave Application, the applicant has belatedly sought for the present application to be treated as an application for judicial review of Magistrate Maiden’s decision pursuant to s 69 of the Supreme Court Act (as occurred in Markisic). For similar reasons, it is not appropriate here to do so.

  10. The process for commencing an application under s 69 of the Supreme Court Act (pursuant to Pt 59 of the UCPR is different from that applicable where leave to appeal is sought (including requirements as to the content of the originating process and responses thereto). While it is acknowledged by the respondents that the applicant is self-represented and that an error as to form does not deprive this Court of jurisdiction to determine a claim for prerogative relief (see by way of example not only Markisic but also Berejiklian v Independent Commission Against Corruption [2024] NSWCA 177 at [4] per Bell CJ and Meagher JA), they argue that not all of the relevant material may be before the Court (which the applicant disputes) this being relevant particularly where the complaints made include a lack of procedural fairness. Further, such an application would ordinarily be assigned to the Common Law Division not the Court of Appeal.

  11. It is important to note that up until now the applicant has here made a clear forensic decision not to follow the course of seeking judicial review. This forensic choice can be gleaned from the proposed Ground 2 of the grounds of appeal which asserts, in effect, that Ellis DCJ was wrong to say that the appropriate mechanism to challenge the Magistrate’s Decision was by way of an application for judicial review in the Supreme Court. Moreover, the first respondent points out that when the matter was listed for directions in this Court on 10 February 2025, the applicant said that she did not seek judicial review of the Magistrate’s Decision.

  12. In her reply submissions, the applicant identifies the primary issue or real question in the matter before this Court as being whether “the matter [should] have been filed by Maitland Local Court on 17 July 2024 and proceeded through the normal prosecution process for Commonwealth offences”. The applicant asserts that the issues addressed within the respondents’ submissions are procedural and not substantive in nature “and hence are matters of frivolity delaying a genuine criminal prosecution of very serious crimes by a Federal Judge”, characterising the issues noted by the respondents as being “[i]n what Court does this matter belong?”. Matters of jurisdiction cannot properly be so described.

  13. In that regard, the applicant appears to lay blame (for her “Appeal” “ending up in the incorrect Court”) at the feet of the District Court Registrar, asserting that it is a matter for the Registrar (who performs a public service) to ensure that the matter filed is within the jurisdiction of the Court or referred to the correct Court, so as not to delay the matter or bring complexity and cost to the proceedings. The applicant submits that for this very reason a costs order should not be made against her.

  14. The submission that the District Court Registrar is somehow to blame for accepting for filing the applicant’s notice of appeal in the first place misconceives the role of the Registrar in providing procedural assistance to self-represented (or other) litigants. Apart from the fact that it would be inappropriate for a Registrar to give legal advice and it is not the Registrar who is responsible for a litigant’s decision to file an originating process in the Court, it is tolerably clear that the applicant made her own decision as to how to proceed in this matter given that she refused to heed the matters raised by the Registrar in this Court as to the nature of the proceedings. The second respondent notes in this regard that the applicant was informed by the District Court some months ago that the appropriate mechanism by which to challenge the Magistrate’s decision was by way of an application for judicial review to the Supreme Court, yet the applicant has at all times pressed on with a misconceived application for leave to appeal from the District Court decision.

  15. In circumstances where I am of the view that this Court should not now treat the application for leave to appeal in this matter as an application for judicial review of the decision of Magistrate Maiden, it is not appropriate to determine whether (as submitted by the second respondent whose submissions are adopted by the first respondent) there are no arguable grounds for the grant of prerogative relief in relation to that decision (save to observe that those submissions on their face have considerable force having regard to the materials presently before this Court).

  16. In summary, the conclusion of Ellis DCJ that he did not have jurisdiction to hear an appeal from the Magistrate’s decision to refuse to issue a Court Attendance Notice was correct (see Markisic and Potier). The Magistrate’s decision was made pursuant to s 49(3) of the Criminal Procedure Act, in the exercise of an administrative (not judicial) decision. The fact that judicial review may be sought in relation to that administrative decision does not mean that it thereby becomes a judicial decision; nor does it involve a breach of the doctrine of separation of powers (as the applicant suggests).

  17. The only avenue for challenging the Magistrate’s decision in this Court would be an application for judicial review. It appears that this was drawn to the applicant’s attention both when the matter was in the District Court and when the matter came before the Registrar in this Court. The applicant chose not to take that course. It is not appropriate, for the reasons given in relation to the Stay/Subpoena Leave Application and above, for this Court now to treat the summons seeking leave to appeal as an application for judicial review (and, for the reasons given by the second respondent, any such application for judicial review would appear unlikely to succeed).

  18. Finally, the myriad of complaints (as to Registry or Court processes and the like) are extraneous to the question before this Court, namely whether leave to appeal should be granted and are not therefore further addressed.

  19. Therefore, the Summons seeking leave to appeal from the decisions of Ellis DCJ and Maiden LCM should be dismissed. For the reasons given earlier in relation to the Stay/Subpoena Leave Application, the applicant should pay the respondents’ costs of the Summons. The suggestion that the Registrar or the Court was in some way responsible for those costs being incurred (by failing to give the applicant legal or procedural advice) is unsustainable, not least in circumstances where the applicant adamantly refused to heed the procedural advice given by the Registrar in this Court (and, it seems, when the matter was before Ellis DCJ). The appropriate order is that the Summons be dismissed, with costs.

Orders in proceedings 2024/00410579

  1. For the above reasons, the following orders should be made:

  1. Summons filed 1 November 2024 seeking leave to appeal from the decisions of Ellis DCJ on 10 October 2024 and Maiden on 15 August 2024 is dismissed.

  2. The applicant is to pay the respondents’ costs of the summons for leave to appeal.

  1. McHUGH JA: I agree with the President.

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Decision last updated: 16 June 2025

Cases Citing This Decision

0

Cases Cited

26

Statutory Material Cited

13

Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
Berejiklian v Independent Commission Against Corruption [2024] NSWCA 177