Singh v Hicks and Nissan

[2021] NSWCA 80

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Singh v Hicks and Nissan [2021] NSWCA 80

Hearing dates:

7 May 2021

Date of orders:

10 May 2021

Decision date:

10 May 2021

Before:

Gleeson JA at [1]
Leeming JA at [23]

Decision:

(1)   That “NSW Police” be removed as the respondent in this proceeding and Robert Hicks and John Nissan be substituted as the first and second respondents.

(2)   Refuse to extend time for the filing of the summons seeking leave to appeal to 22 January 2021.

(3)   Summons seeking leave to appeal be dismissed.

(4)   Applicant to pay the respondents’ costs.

Catchwords:

APPEALS – application for leave – applicant convicted in Local Court of offences contrary to Inclosed Lands Protection Act 1901 (NSW) – District Court dismissed conviction and sentence appeal and confirmed orders in Local Court – where applicant refused leave to appeal to Supreme Court from interlocutory orders made in Local Court – no issue of principle or question of general importance – whether Court should extend time for filing of summons – no utility in an appeal where orders of District Court stand unreversed

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW), Pt 5, s 53

Criminal Procedure Act 1986 (NSW), s 173

Inclosed Lands Protection Act 1901 (NSW), ss 4(1), 9A

Supreme Court Act 1970 (NSW), ss 69, 101(2)(h)

Supreme Court Rules 1970 (NSW), Pt 51B, rr 3, 10(1)

Uniform Civil Procedure Rules 2005 (NSW), r 51.10

Cases Cited:

Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das[2012] NSWCA 164

Dyason v Butterworth [2015] NSWCA 52

Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27

Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121

Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206

Singh v NSW Police [2020] NSWSC 1214

Stephens v Director of Public Prosecutions (NSW) [2019] NSWSC 761

Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369

Category:

Principal judgment

Parties:

Tirath Singh (Applicant)
Senior Constable Robert Hicks (First respondent)
Senior Constable John Nissan (Second respondent)

Representation:

Counsel:
Mr T Singh (Self-represented) (Applicant)
Ms N Oreb (Respondents)

Solicitors:
Makinson & d’Apice Lawyers (Respondents)

File Number(s):

2021/19389

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

Citation:

[2020] NSWSC 1214

Date of Decision:

7 September 2020

Before:

Cavanagh J

File Number(s):

2020/247508

Judgment

1. GLEESON JA: This application for leave to appeal arises out of two proceedings brought in the Local Court by police officers as the informants charging Mr Tirath Singh with three offences contrary to s 4(1)(b) of the Inclosed Lands Protection Act 1901 (NSW) as the result of entering a Sikh temple at Jamisontown without consent. The substance of the charges was that Mr Singh had entered the land at Jamisontown, near Penrith, upon which stood a Sikh temple, in contravention of a banning notice dated 7 November 2019 signed by Mr Preet Singh Dhaliwal, the President of the Sikh Association of Australia, requiring Mr Singh to immediately and permanently cease to enter any properties of the Association, including the Jamisontown property. It seems that Mr Singh took the view that the banning notice did not prohibit him from attendance at the property for the purpose of worship at the Sikh temple.

2. In the Local Court, Mr Singh filed a notice of motion seeking a variety of relief, including summary dismissal of the charges, alternatively the provision of particulars by the “Complainant”, and also a variation of his bail conditions. Magistrate Giles dismissed that motion on 16 July 2020 except for order 4 that the two matters be heard together, which order was made.

3. By summons filed 24 August 2020 in the Supreme Court, Mr Singh sought leave to appeal from the decision of Magistrate Giles pursuant to s 53 of the Crimes (Appeal and Review) Act 2001 (NSW). In his summons, Mr Singh sought orders that the charges in the Local Court be summarily dismissed, that the trial date be vacated, his bail conditions be cancelled or varied, and costs. Mr Singh was self-represented at the hearing of the summons. In an ex tempore judgment given on 7 September 2020, the primary judge (Cavanagh J) refused leave to appeal and dismissed Mr Singh’s summons: Singh v NSW Police [2020] NSWSC 1214.

4. Subsequently, at the hearing of the Local Court proceedings on 9 September 2020, Magistrate Hiatt convicted Mr Singh on all three counts and fined him a total of $950. Mr Singh’s appeal to the District Court from those convictions was dismissed by Judge Buscombe on 18 December 2020, who confirmed the orders of Magistrate Hiatt. Mr Singh has not sought relief by way of judicial review seeking to challenge the decision of the District Court relying upon s 69 of the Supreme Court Act 1970 (NSW).

5. On 22 January 2021, Mr Singh filed a summons seeking leave to appeal from the decision of Cavanagh J. That summons was out of time by over three months: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.10(1).

6. The proper respondent to these proceedings is not the “NSW Police” as named in the summons seeking leave to appeal; “NSW Police” is not a legal entity capable of being sued. The proper respondents are the police officers who commenced proceedings in the Local Court pursuant to s 173 of the Criminal Procedure Act 1986 (NSW). Those police officers, Senior Constable Robert Hicks and Senior Constable John Nissan, were each a “person responsible for the conduct of a prosecution” and thus an “informant” as defined in Pt 51B, r 3 of the Supreme Court Rules 1970 (NSW). They are the persons who ought to have been joined as the respondents to the proceedings in the court below: Supreme Court Rules, Pt 51B, r 10(1). An order should be made that “NSW Police” be removed as a party and that Robert Hicks and John Nissan be substituted as the first and second respondents.

7. Insofar as Mr Singh made an oral application at the conclusion of the hearing to join Mr Preet Singh Dhaliwal as an additional respondent, that application should be refused. Notice of the joinder application had not been shown to have been given to Mr Dhaliwal and, in any event, the fact that Mr Dhaliwal had issued the banning notice dated 7 November 2019 did not make him a person relevantly interested in maintaining the decision under appeal to the Supreme Court: Pt 51B, r 10(1). Mr Dhaliwal had no standing or capacity to seek to maintain the decision in the Local Court.

Proposed grounds of appeal

8. Mr Singh was self-represented on this application. His draft notice of appeal contains the following proposed grounds of appeal:

That the Court erred in ruling:

1.   the appeal was not filed within the time required;

2.   there does not appear to be any orders from which the plaintiff is seeking relief;

3.   there is no basis on which I could make orders varying the bail conditions in the way suggested by the plaintiff or as sought in the summons;

4.   the plaintiff has not demonstrated any error of law unless, of course, he is really suggesting that in some way the magistrate simply failed to deal with his arguments.

9. In oral argument, Mr Singh’s main complaint was that Magistrate Giles had not ordered particulars of the behaviour or conduct the subject of the charge, referring to s 9A of the Inclosed Lands Protection Act 1901, which relevantly provides:

9A Particulars to be furnished

(1)   If a defendant charged with an offence under this Act—

(a)    has requested the informant to furnish to the defendant reasonable particulars of the behaviour or conduct the subject of the charge, and

(b)    the informant, or some person on his or her behalf, has not so furnished those particulars,

the court before which the defendant is charged is to adjourn the charge pending the furnishing of those particulars or may dismiss the charge.

…

10. Mr Singh requires leave to appeal because the order of Cavanagh J was made under Pt 5 of the Crimes (Appeal and Review) Act; Supreme Court Act, s 101(2)(h). He also requires an extension of time: UCPR, r 51.10(1)(b).

Disposition of application

11. The Court has power to extend time to file a summons seeking leave to appeal “at any time”: UCPR, r 51.10(2). Consideration must be given to four factors of general relevance: (1) the length of the delay; (2) the reason for the delay; (3) whether the applicant has a fairly arguable case; and (4) the extent of any prejudice suffered by the respondent to the application: Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [55] (Basten JA, Ipp JA agreeing).

12. Other factors may be relevant in particular cases, such as whether the delay was intentional or contumelious; or merely the result of a bona fide mistake or blunder, and whether the delay is that of the litigant or its lawyers, with which the litigant should not be saddled: Tomko v Palasty (No 2) at [56], citing Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 at [66] (Kirby J).

13. Mr Singh bears the burden of persuading the Court that there are proper grounds to grant the indulgence he seeks by way of an extension of time: Tomko v Palasty (No 2) at [80], citing Jackamarra at 540 (Kirby J).

14. Although the respondents did not suggest that they had suffered any prejudice by reason of the delay, three factors weigh against a grant of an extension of time. First, the length of the delay of over three months is significant. Second, no attempt was made by Mr Singh to explain the delay. Accepting that affording a litigant in person some latitude with compliance with the rules might be appropriate in a particular case, the present is not such a case. Third, I am not persuaded that Mr Singh has a fairly arguable case for the grant of leave to appeal.

15. As to the last matter, the criteria for leave to appeal are well-established. In this case, the proposed grounds of appeal do not raise any issue of principle or question of general public importance. Nor has Mr Singh demonstrated that he has suffered an injustice in the sense of going beyond what is merely arguable: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das[2012] NSWCA 164; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206.

16. Moreover, the proposed appeal is of no utility. The interlocutory orders of Magistrate Giles dismissing the motion seeking summary dismissal were superseded by the orders subsequently made by Magistrate Hiatt who convicted Mr Singh, finding the offences proved. The orders of Magistrate Hiatt were then confirmed on appeal in the District Court. The final orders of Magistrate Hiatt are not open to challenge by way of an appeal to this Court, let alone the earlier orders of Magistrate Giles, because the orders of the District Court supersede the orders of the Local Court.

17. The legal position in a case such as the present is explained in Dyason v Butterworth [2015] NSWCA 52, where the Court said at [34] (McColl JA, Barrett and Gleeson JJA agreeing):

… Once the District Court confirmed the Magistrate’s order, its judgment operated as a judicial determination by a competent and higher authority that the Magistrate’s order was correct and “holds the field so long as it stands unreversed, and precludes this court making any judicial determination to the contrary”: Wishart v Fraser [1941] HCA 8; (1941) 64 CLR 470 (at 478) per Starke J.

18. That reasoning was applied in Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121 where the applicant sought to challenge the conduct of the proceedings in the Local Court, despite having already unsuccessfully appealed to the District Court. I said (White JA and Emmett AJA agreeing) at [52]:

Insofar as Mr Jamal’s submissions included complaints about the conduct of proceedings in the Local Court, the orders of the Local Court are no longer open to challenge. The “all grounds” appeals to the District Court have resulted in orders of that Court which supersede the orders made in the Local Court: Templeton (a pseudonym) v Director of Public Prosecutions (NSW) at [4], citing Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8; Morgan v District Court of New South Wales (2017) 94 NSWLR 463; [2017] NSWCA 105 at [32] (Meagher JA, Beazley ACJ and Macfarlan JA agreeing); Firth v Director of Public Prosecutions [2018] NSWCA 78 at [25]; Dyason v Butterworth [2015] NSWCA 52 at [34] (McColl JA, Barrett and Gleeson JJA agreeing).

See also Stephens v Director of Public Prosecutions (NSW) [2019] NSWSC 761 at [18]-[29].

19. The relief sought by Mr Singh on the proposed appeal is that the charges against him in the Local Court be summarily dismissed and that the bail conditions be cancelled. The authorities referred to at [17]-[18] above make clear that this Court cannot make orders in those terms whilst the District Court judgment stands unreversed.

20. As to Mr Singh’s complaint that the charges in the Local Court should have been dismissed because the informants had failed to provide particulars of the behaviour or conduct the subject of the charges, there are at least four answers. First, the proper forum for this complaint was the hearing in the Local Court on 9 September 2020, and then on the appeal against conviction to the District Court. Second, there is no evidence that Mr Singh made any application in the Local Court to adjourn the hearing on 9 September 2020 until particulars had been provided. Third, as Cavanagh J noted at [28], by the time of the hearing below on 7 September 2020, the police had provided to Mr Singh all the material on which they intended to rely for the purposes of the charges against him. Fourth, on the materials before this Court, the particulars were not “reasonably” required. The transcript of the hearing before Magistrate Giles on 16 July 2020 makes plain that Mr Singh accepted that he had entered the Jamisontown property. His defence to the charges was that the banning notice was not valid and he was “lawfully there” on the Jamisontown property. An accused person is not entitled to particulars of matters on which the accused intends to rely upon by way of defence to the charges.

21. In the circumstances, it is not necessary to address any of the specific criticisms advanced by Mr Singh of aspects of the reasons given by Cavanagh J.

Orders

22. I propose the following orders:

1. That “NSW Police” be removed as the respondent in this proceeding and Robert Hicks and John Nissan be substituted as the first and second respondents.

2. Refuse to extend time for the filing of the summons seeking leave to appeal to 22 January 2021.

3. Summons seeking leave to appeal be dismissed.

4. Applicant to pay the respondents’ costs.

23. LEEMING JA: I agree with Gleeson JA.

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Decision last updated: 10 May 2021