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[2025] NSWCA 264
respondent. Time to file the summons was extended to 24 June 2025; leave to rely on all evidence from the Local Court and District Court proceedings was refused; the judicial review summons was dismissed with...
The applicants challenged three procedural decisions made during their still-pending District Court conviction appeals. The Court of Appeal held that it could review those decisions only for jurisdictional error, not simply because the applicants considered them wrong. It found that the hearing could proceed on the motion and material already before the District Court, that the applicants had not established bias or a failure to perform the judicial task, and that the judge could refuse the lengthy stated-case request. The Court extended time because the applicants had periods without legal representation and there had been uncertainty about the correct court, but it dismissed their judicial review application with costs. Their conviction appeals remained undetermined.
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2,771 words · generated 06/10/2026
14 cited instruments linked from this judgment.
The NSW Court of Appeal considered a judicial review application brought by Genute Balsiene and Saule Balsyte against three interlocutory decisions made by Williams SC DCJ in the District Court. The decisions arose during the applicants’ still-pending appeals against Local Court convictions. The Court of Appeal stressed that it was not deciding those conviction appeals, nor determining whether the applicants were guilty or innocent: the District Court’s conviction appeals had not yet been heard ([1], [115], [181]).
The underlying prosecution concerned alleged unauthorised subletting of a public housing apartment in the Sirius Building. On 22 December 2021, the applicants were each convicted of three fraud offences relating to January to June 2011. Other charges were dismissed as not proved beyond reasonable doubt ([9], [13]). Each applicant later appealed the convictions to the District Court ([15]).
The first challenged decision concerned an application made on 24 November 2023 to introduce fresh or new expert evidence on the conviction appeals under s 18(2) of the Crimes (Appeal and Review) Act 2001 (NSW). The proposed reports addressed, among other things, digital material and photographs relevant to the prosecution evidence ([15]-[17]). The motion was listed for hearing on 18 December 2024. On that day, the applicants’ counsel did not appear. A solicitor from the same practice attended late, said he had no knowledge of the matter, and sought an adjournment to allow the applicants to obtain other counsel ([22], [29]-[38]).
The District Court refused the adjournment and dismissed the fresh-evidence motion. Its reasons included that there was no explanation for why the evidence had not been sought or used during the lengthy Local Court hearing, and that the applicants could continue with their conviction appeals on other grounds ([60]-[69]). The applicants complained that they had explanations and submissions they wanted put before the judge, but that their solicitor did not convey them. The Court of Appeal treated complaints about the lawyers’ work as outside the legal questions it had to decide in judicial review ([20], [112]-[116]).
The third challenged decision followed an email request on 12 March 2025 asking the District Court judge to state a case to the Court of Criminal Appeal under s 5B of the Criminal Appeal Act 1912 (NSW). The request contained 43 proposed questions. On 14 March 2025, the judge’s associate advised that the judge did not propose to state a case ([70]-[71], [173]).
The applicants first pursued an appeal in the Court of Criminal Appeal. That Court held in May 2025 that the appropriate forum to review these decisions was the Court of Appeal ([89]). The applicants then filed their judicial review summons in the Court of Appeal on 24 June 2025, outside the usual period for challenging the December decisions ([5], [107]). The Court extended time, refused permission to rely on the entire evidentiary record from the Local Court and District Court, and dismissed the judicial review summons with costs ([108], [110], [182]).
The controlling boundary was the difference between judicial review and merits review. The Court said that there was no right of appeal to it from a District Court decision in an appeal against a Local Court conviction or sentence. It nevertheless had supervisory jurisdiction, but s 176 of the District Court Act 1973 (NSW) meant the applicants had to establish jurisdictional error. They could not use judicial review simply to argue that the District Court judge had reached the wrong view of the evidence or should have exercised a discretion differently ([2]).
On the adjournment application, the Court accepted that a refusal to adjourn a criminal proceeding can, in an appropriate case, deny procedural fairness. The relevant question was whether the circumstances here made the refusal legally unfair. The motion had been listed months earlier. The applicants had been represented in preparing it, and the District Court judge had the previously filed affidavit and written submissions. The solicitor who appeared on the hearing day said he knew nothing about the matter, but did not foreshadow a further motion, further evidence, or a particular additional submission that required more time ([118]-[123]).
The Court characterised the situation as a last-minute adjournment request arising from the absence of the applicants’ counsel and the unexplained absence of their solicitor on the record. It concluded the judge was not obliged to grant the request, particularly when the filed material was already available and there was no suggestion it failed to address the motion before the Court ([120]-[121]). This conclusion was about the fairness of the process on the facts before the Court, not a general rule that adjournments should be refused when counsel is unavailable.
The procedural-fairness argument about the fresh-evidence motion also failed. The Court noted that the applicants’ solicitor was present and could have sought time, made submissions, or requested that the applicants be allowed to speak. The first reference to further submissions came during an interjection while the judge was giving ex tempore reasons, after the adjournment had been refused and submissions on the motion had been considered ([118], [137]). The Court did not treat the applicants’ dissatisfaction with their solicitor’s handling of the hearing as a defect in the judge’s legal process ([112]-[116], [123]).
The Court also separated procedural complaints from complaints about the substance of the District Court’s decision. The applicants argued that their expert evidence was important, that the judge misunderstood its significance, and that the judge should have assessed it differently. The Court treated these as challenges to the merits of the fresh-evidence ruling, not proof that the judge had failed to exercise jurisdiction ([125]-[128], [139]). The governing approach to constructive failure, as the Court explained by reference to Ming, requires a substantive failure to undertake the task, such as failing to address an essential matter or fundamentally misunderstanding the case. The Court found that had not happened ([138]).
The bias ground failed under the test associated with Ebner and Jamal. The applicants relied on the judge’s preliminary discussion with the first respondent’s counsel, questions about the applicants’ objection to a report, reliance on existing material, and refusal to hear an interjection once reasons were being delivered ([143]-[153]). The Court found no identified matter that could lead a fair-minded observer reasonably to apprehend that the judge might not decide the matter on its legal and factual merits, and no logical connection between the cited events and that apprehension ([153]-[162]). It also said actual bias had not been pleaded and was not established ([141], [153]).
Finally, the stated-case ground failed because s 5B gives a discretion, rather than imposing a duty to refer questions. The 43 questions largely restated complaints about the hearing and decisions as alleged errors of law. The Court held the judge was not required to sift through that material to construct a suitable question ([167]-[173]). It was also open to deal with the request on the papers because it was sent by email after the motion had been disposed of and was not made by formal notice of motion ([175]-[176]).
The judgment did not announce a new general rule about judicial review or adjournments. It applied the existing distinction between jurisdictional error and error within jurisdiction to interlocutory District Court decisions made in the appellate criminal context. The Court’s starting point was that s 176 of the District Court Act 1973 (NSW) made jurisdictional error the necessary basis for supervisory intervention in this case ([2]-[3]).
Before this judgment, the cited authorities had already recognised that categories of jurisdictional error were not closed and could include failure to accord procedural fairness, constructive failure to exercise jurisdiction, and actual or apprehended bias ([3]). The Court applied those categories but made clear that they did not convert judicial review into a general appeal on the merits. In particular, disagreement with a judge’s assessment of evidence or exercise of discretion was not enough, without an identified jurisdictional defect ([110], [125]-[128], [138]-[140]).
The procedural-fairness analysis was fact-specific. The Court accepted that a refusal to adjourn can, depending on the circumstances, deny a reasonable opportunity to prepare and present a case. It then found that this refusal did not do so here, given the history of the listing, the filed material, and what was or was not put to the judge on the day ([119]-[124]). The decision therefore illustrates the application of existing fairness principles rather than creating a categorical rule about late adjournment requests.
The Court likewise applied the established apprehended-bias framework. It required both an identified matter capable of giving rise to the relevant apprehension and a logical connection between that matter and the possibility of decision other than on the merits ([153]). The judgment applies that framework to judicial exchanges and case-management conduct, but does not purport to change the test.
As to stated cases, the Court applied the discretionary character of s 5B and the distinction between questions of law and questions that merely label factual or mixed complaints as legal error ([167]-[173]). It endorsed the practical point that a court need not turn a prolix request into an appropriately framed question. The judgment’s effect is therefore explanatory and fact-specific: it demonstrates how the Court applied those principles to a request containing 43 proposed questions.
The decision also provides a limited example of extension-of-time reasoning. The applicants’ lack of representation during parts of the relevant period and the unresolved uncertainty about the appropriate forum supported an extension, even though the Court did not consider those matters a complete explanation for every part of the delay ([107]-[108]). It does not establish a general entitlement to extra time for self-represented litigants.
At [2], the Court said the case was “not a merits review”. In plain English, the Court of Appeal was not being asked to decide whether the District Court’s conclusions were correct in the ordinary appellate sense. The applicants needed to show a legal defect of the kind that amounts to jurisdictional error.
At [120], the Court held that the refusal to adjourn did not deny procedural fairness. It focused on the actual circumstances: the motion had been listed months earlier, the applicants had filed supporting material, and the solicitor who attended did not identify further evidence or a concrete application requiring more time. This is not a statement that a represented party can never receive an adjournment when counsel is unavailable.
At [123]-[128], the Court distinguished complaints about lawyers’ conduct, fairness, and the merits of the evidence ruling. It held that complaints about what the lawyers did were outside the judicial review application, while complaints that the judge assessed evidence incorrectly were merits complaints. The distinction matters because only the relevant jurisdictional defects could support this judicial review.
At [138]-[140], the Court explained constructive failure to exercise jurisdiction. It is not enough to allege that the judge made a mistake. The argument must show that the judge did not, in substance, perform the task, for example by failing to address an essential matter or misunderstanding the case. The Court found that the District Court judge had considered and determined both applications.
At [153], the Court applied the apprehended-bias test. In plain English, it was not enough for the applicants to point to events they regarded as unfair or one-sided. They had to identify why those events could lead a fair-minded observer reasonably to think the judge might not decide the matter on its merits, and explain the logical link. The Court found those requirements were not met.
At [173], the Court said it was not required to sort through 43 proposed questions and identify a possible question of law. The practical lesson in the judgment is that the discretion under s 5B does not oblige a judge to repair a lengthy or imprecise request by formulating a suitable question on a party’s behalf.
The judgment is most relevant to judicial review challenges to interlocutory decisions made by the District Court while hearing an appeal from a Local Court conviction, where the governing statutory setting requires the applicant to establish jurisdictional error rather than ordinary error. It is particularly relevant where the complaint is that the judge should have granted an adjournment, admitted further evidence, or stated a case to the Court of Criminal Appeal ([2], [4], [110]).
For adjournment disputes, the relevant fact pattern includes a hearing fixed in advance, an application made on the day, an absent or unavailable representative, and existing written material already before the court. The Court’s analysis also turned on whether the representative identified any further evidence or application that required an adjournment ([118]-[123]). Different circumstances may produce a different procedural-fairness question; the judgment does not decide every such case.
For fresh-evidence disputes, the decision is relevant where an applicant’s judicial review argument focuses on the judge’s assessment of the evidence, the weight given to competing material, or the adequacy of reasons. The Court treated those complaints as merits matters unless linked to an actual failure to perform the statutory task or another jurisdictional defect ([125]-[128], [138]-[140]).
For bias allegations, it is relevant where the asserted basis is judicial questioning, preliminary exchanges with counsel, reliance on filed submissions, or refusal to hear an intervention made during reasons. The judgment requires the alleged circumstances and the logical connection to a possible departure from decision on the merits to be identified ([153]-[162]).
For s 5B requests, it is relevant where a party submits many broadly framed questions that include factual or mixed complaints and asks the judge to refer them. The Court held that the judge has a discretion and need not extract a legally suitable question from a prolix request ([167]-[177]).
The judgment date is 10 December 2025. The judgment itself does not discuss any later treatment of its decision, and no subsequent cases are included in the material provided. It is therefore not possible, on this source alone, to say whether later courts have followed, distinguished, or otherwise treated Balsiene.
The cases the Court did discuss are authorities preceding this judgment, not later treatment of it. The Court relied on Craig v South Australia for the distinction between judicial review and merits review ([110]); Ming for the explanation of constructive failure to exercise jurisdiction ([138]); Ebner and Jamal for the bias analysis ([152]-[153]); and Mack Fleet and Orr in considering the character and framing of questions of law under s 5B ([168]-[171]). Those authorities explain the reasoning in Balsiene, but they do not show how later courts have treated Balsiene itself.
The judgment leaves open how the procedural-fairness analysis would apply if a party’s representative made a clear application for the litigant to speak, identified specific material not before the court, or explained why an adjournment was necessary to present a case. The Court decided only the circumstances before it, where the solicitor appeared, had filed material available, and did not foreshadow a further application ([118]-[123]).
It also does not determine when serious shortcomings in legal representation could intersect with a court’s own obligation to ensure procedural fairness. The Court expressly said that complaints about the applicants’ legal representatives were outside the scope of these judicial review proceedings and that it was not positioned to assess the representatives’ instructions or conduct ([20], [112]-[114]).
The judgment does not decide the merits of the applicants’ fresh-evidence case or the underlying conviction appeals. It repeatedly emphasised that the conviction appeals remained pending and that the 18 December 2024 hearing was about leave to adduce evidence, not guilt or innocence ([115], [181]). It therefore supplies no conclusion about whether the expert evidence would ultimately be admitted or what effect it might have on the appeals.
The Court also did not decide every possible boundary between a question of law and a question of fact for s 5B. It referred to the contextual nature of that distinction and concluded that the applicants’ proposed questions, viewed as a whole, were largely not questions of law and were prolix ([169]-[173]). Future cases may involve more precisely framed questions or different statutory and procedural settings.
Finally, the extension-of-time ruling does not settle how much weight should generally be given to self-representation, legal-aid difficulties, or uncertainty about forum in other cases. The Court considered those factors together with the timing of the CCA ruling and the period between that ruling and filing in the Court of Appeal ([107]-[108]).
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Balsiene, Balsyte v NSW Land and Housing Corporation [2025] NSWCA 264
Hearing dates: 8 October 2025
Date of orders: 10 December 2025
Decision date: 10 December 2025
Before: Ward P; Ball JA; Griffiths AJA
Decision: 1. Extend time for the filing of the applicants’ summons to 24 June 2025.
2. Dismiss the applicants’ summons seeking judicial review, with costs.
Catchwords: ADMINISTRATIVE LAW – judicial review – jurisdictional error – review of interlocutory decisions of District Court in its appellate criminal jurisdiction – effect of s 176 of District Court Act 1973 (NSW) on judicial review of decisions of District Court – decision not to grant an adjournment pursuant to s 40 of the Criminal Procedure Act 1986 (NSW) – decision not to allow fresh evidence on appeal pursuant to s 18(2) of the Crimes (Appeal and Review) Act 2001 (NSW) – subsequent decision not to state a case to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912 (NSW) – whether denial of procedural fairness or natural justice – whether constructive failure to exercise jurisdiction – whether reasonable apprehension of bias
APPEAL AND REVIEW – application for extension of time for filing of summons – where applicants self-represented – application to rely in judicial review proceedings on all of the evidence that was before Local Court and District Court
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), s 18(2)
Crimes Act 1900 (NSW), ss 192E, 254
Criminal Appeal Act 1912 (NSW), s 5B
Criminal Procedure Act 1986 (NSW), ss 40, 215
District Court Act 1973 (NSW), s 176
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), rr 51.45(1A), 59.10
Victims Rights and Support Act 2013 (NSW), s 97
Cases Cited: Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653; [2000] NSWCA 199
Balsiene v New South Wales Land and Housing Corporation; Balsyte v New South Wales Land and Housing Corporation [2025] NSWCCA 70
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36
Collector of Customs v Pozzolanic (1993) 43 FCR 280
Craig v South Australia (1994-1995) 184 CLR 163; [1995] HCA 58
Dacich v Director of Public Prosecutions (No 2) [2020] NSWCA 298
De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
Director of Public Prosecutions (NSW) v Yeo [2008] NSWSC 953; (2008) 188 A Crim R 82
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Franklin v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 198; [2022] NSWCA 58
Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115
Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708
Hicks v The King (1920) 28 CLR 36; [1920] HCA 26
Jamal v Director of Public Prosecutions [2019] NSWCA 121
Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Mack Fleet Pty Ltd v Transport for NSW [2020] NSWCA 149
Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68
Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd (2022) 109 NSWLR 468; [2022] NSWCA 150
McNab v Director of Public Prosecutions (NSW) (2021) 106 NSWLR 430; [2021] NSWCA 298
Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209
Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92; (2015) 250 A Crim R 154
Nitiva v Director of Public Prosecutions [1999] NSWCA 332
Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220
Quinn v Director of Public Prosecutions (Cth) (2021) 106 NSWLR 154; [2021] NSWCA 294
R v Alexandroaia (1995) 81 A Crim R 286
Rahman v Rahman [2024] NSWCA 198
Re Minister for Immigration & Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Re Refugee Review Tribunals; Ex parte HB [2001] HCA 34; (2001) 179 ALR 513
Salmon v Albarran [2025] NSWCA 42
Sasterawan v Morris [2010] NSWCCA 91; (2010) 201 A Crim R 302
Utick v Utick (1907) 5 CLR 400 at 403 (Griffith CJ), 404; [1907] HCA 59
Category: Principal judgment
Parties: Genute Balsiene (First Applicant)
Saule Balsyte (Second Applicant)
New South Wales Land and Housing Corporation (First Respondent)
District Court of New South Wales (Second Respondent)
Representation: Counsel:
G Balsiene and S Balsyte (Applicants, in person)
A Di Francesco (First Respondent)
Solicitors:
Department of Communities and Justice (First Respondent)
Submitting Appearance (Second Respondent)
File Number(s): 2025/00253603
Publication restriction: Nil
The applicants (Genute Balsiene and her daughter, Saule Balsyte) seek judicial review of three interlocutory decisions made in the District Court of NSW by the primary judge, Williams SC DCJ. The decisions were made in proceedings in which the applicants have appealed against their conviction in the Local Court on fraud charges relating to the sub-letting of an apartment in the Sirius Building in The Rocks, Sydney (the Apartment). Those conviction appeals have not yet been determined. The applicants maintain their innocence and claim that they have been wrongly convicted. The first respondent is a statutory corporation that provides public housing in New South Wales. The first respondent prosecuted the fraud charges against the applicants.
On 22 December 2021, each of the applicants was found guilty in the Local Court of three offences of fraud contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW). The remaining offences with which they were charged were not proved beyond reasonable doubt. The offences of which the applicants were convicted relate to the period from January 2011 to June 2011 in which, on the prosecution case, the applicants sub-let the Apartment (without the first respondent’s consent) and failed to disclose to the first respondent that they were not occupying the Apartment and were earning rental income from the Apartment.
On 28 April 2022, each of the applicants commenced proceedings in the District Court, appealing against their respective Local Court convictions. At this time the applicants were represented by a solicitor and counsel assigned to them by Legal Aid. While so represented, an application dated 24 November 2023 was filed on behalf of each of the applicants (the November 2023 Motion) seeking leave under s 18 of the Crimes (Appeal and Review) Act 2001 (NSW) to adduce fresh and/or new evidence. That fresh/new evidence comprised various expert reports which the applicants contend prove that evidence against them in the Local Court proceedings was falsified or manipulated by the first respondent or its witnesses.
The November 2023 Motion was listed for hearing on 18 December 2024. When the matter was called on, there was no appearance by the applicants’ legal representatives. After a short adjournment, a solicitor (Mr Bol) from the office of the solicitor on the record in the matter (Peter Agoth of Peter Agoth & Associates) attended the Court and appeared for the applicants. Mr Bol explained that the barrister who had been briefed for the hearing of the Motion on 18 December 2024 had returned the brief that week (he thought because of a conflict of instructions). Mr Bol sought an adjournment of the hearing of the Motion for the purpose of enabling the applicants to brief other counsel. Mr Bol informed the primary judge that he had no knowledge of the matter and that he had spoken to his clients and did not think they would be able to represent themselves.
The primary judge refused the application for an adjournment (the adjournment decision), referring to the fact that there were already submissions that had been filed for the applicants and that determination of the November 2023 Motion would not finally dispose of the appeals. After taking into account the submissions and evidence filed by the applicants’ previous legal representatives in November 2023 as well as the first respondent’s submissions, the primary judge dismissed the November 2023 Motion (the evidence decision). During the course of his Honour’s ex tempore reasons, his Honour referred to the lack of explanation for the lack of a challenge in the Local Court proceedings to the first respondent’s expert evidence as a fundamental difficulty. The applicants complain that, during the hearing, they requested that Mr Bol provide the judge with their “explanation” or “submissions” (as to why the fresh or new evidence the subject of the November 2023 Motion was not available to be put before the Local Court Magistrate) and that he ignored them. At one stage, the second applicant intervened directly seeking to provide an explanation. The applicants complain that the primary judge did not give her an opportunity to do so.
After the dismissal of the November 2023 Motion, the applicants, by email on 12 March 2025, requested the primary judge to state a case to the Court of Criminal Appeal under s 5B of the Criminal Appeal Act 1912 (NSW) (the Stated Case Application), posing some 43 questions framed as questions as to errors of law. On 14 March 2025, the primary judge’s associate advised the parties that his Honour did not propose to state a case (the stated case decision).
The applicants initially filed a summons seeking leave to appeal in the Court of Criminal Appeal from the three impugned decisions. After a ruling in May 2025 that the Court of Criminal Appeal did not have jurisdiction to determine an appeal from those decisions, the applicants filed (well out of time) a summons in this Court seeking judicial review of each of the adjournment and evidence decisions, as well as seeking judicial review of the stated case decision. They require an extension of time for the filing of the summons.
The applicants raise four grounds of review: first, that they were denied procedural fairness; second, that there was a constructive failure of the District Court to exercise its jurisdiction in relation to the adjournment and evidence decisions; third, that the conduct of the primary judge gave rise to a reasonable apprehension of bias; and, fourth, that the District Court failed to exercise the jurisdiction conferred on it by s 5B of the Criminal Appeal Act in refusing the Stated Case Application. The applicants sought leave to rely in their judicial review application on all evidence in the District Court proceedings and the Local Court proceedings.
(1) As to the extension of time, in circumstances where for at least part of the time during which the summons could have been filed without leave the applicants were not legally represented, and the first respondent accepted that until May 2025 there was doubt as to the appropriate forum for review of the impugned decisions (i.e., whether that be the Court of Criminal Appeal or this Court), the requisite extension of time was granted: [107]-[108].
(2) As to the application to rely in this proceeding on all the evidence before the Local Court and District Court, it is not necessary for the purposes of determining the summons for judicial review to review all of that material. That application was refused: [77]-[91].
Craig v South Australia (1994-1995) 184 CLR 163; [1995] HCA 58; Salmon v Albarran [2025] NSWCA 42; Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd (2022) 109 NSWLR 468; [2022] NSWCA 150 cited.
(3) As to ground 1, the primary judge had a discretion whether to grant or refuse the adjournment. In circumstances where a last minute adjournment application was effectively being forced on the Court (by reason of the absence of the applicants’ legal representatives and the attendance by a solicitor with no knowledge of the matter), the primary judge was not obliged to accede to the adjournment application, particularly in circumstances where he already had the benefit of submissions for the applicants and evidence that had previously been filed on the November 2023 Motion. As to the evidence decision, the applicants had had ample opportunity to prepare their case for hearing on 18 December 2024. Complaints as to the work performed by their lawyers in that regard are not within the scope of the determination of the judicial review application. The applicants were not denied procedural fairness or natural justice in relation to either decision, nor did the primary judge decide the matter without lawful process. Ground 1 should be dismissed: [119]-[128].
Nitiva v Director of Public Prosecutions [1999] NSWCA 332; Director of Public Prosecutions (NSW) v Yeo [2008] NSWSC 953; (2008) 188 A Crim R 82; Re Minister for Immigration & Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 cited.
(4) As to ground 2, there was not a constructive failure to exercise jurisdiction in relation to the adjournment and evidence decisions. The real complaint by the applicants is that they contend his Honour incorrectly decided their applications (which bespeaks a merits or appellate review) and denied them procedural fairness (which has been considered in ground 1). Ground 2 should be dismissed: [138]-[140].
Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209 cited.
(5) As to ground 3, the applicants have not identified a matter that a fair-minded lay observer might reasonably apprehend might lead the primary judge to decide a case other than on its legal and factual merits nor have they articulated a logical connection between the circumstances identified in that matter and the apprehension that the case might not be decided on its merits. The allegation of apprehended bias is not established. To the extent that the applicants’ submissions appear also to allege actual bias, such a contention was not raised by the grounds of review. In any event, the applicants have not established, on the balance of probabilities based on cogent evidence, that the primary judge: had an opinion on a relevant aspect of the matter in issue in the particular case; would, or did, apply that opinion to the matter in issue; and would, or did, do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case. Ground 3 is not established: [141]-[163].
Jamal v Director of Public Prosecutions [2019] NSWCA 121 cited.
(6) As to ground 4, there was no jurisdictional error in the primary judge refusing to state a case. The proposed questions are not confined to errors of law and are prolix. It was not incumbent on his Honour to sort through the questions in order to identify those which might properly have been the subject of a stated case. His Honour had a discretion whether or not to state a case. No error in that discretion was shown. It was open to his Honour to deal with the request effectively “on the papers” in circumstances where the request was made (by email to his associate) after the disposition by him of the November 2023 Motion and where it was not the subject of a formal application by notice of motion. For similar reasons, the complaint as to lack of reasons is not made good. Ground 4 should be dismissed: [173]-[175].
Mack Fleet Pty Ltd v Transport for NSW [2020] NSWCA 149; Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220; Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36; Collector of Customs v Pozzolanic (1993) 43 FCR 280; Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653; [2000] NSWCA 199 cited.
THE COURT: By summons filed 24 June 2025, since amended, the applicants (Genute Balsiene and her daughter, Saule Balsyte) seek judicial review of three interlocutory decisions made in the District Court of NSW by the primary judge, Williams SC DCJ. The decisions were made in proceedings in which the applicants have appealed against their conviction in the Local Court on fraud charges relating to the sub-letting of an apartment in the Sirius Building in The Rocks, Sydney. Those conviction appeals have not yet been determined. The applicants maintain their innocence and claim that they have been wrongly convicted. The first respondent, the NSW Land and Housing Corporation, is the only active respondent in the proceedings in this Court; the second respondent (the District Court) having filed a submitting appearance.
At the outset it should be noted that there is no right of appeal to this Court from a final or interlocutory decision of the District Court on an appeal against a conviction or sentence of the Local Court. Hence, no doubt, these proceedings seek judicial review, not leave to appeal the impugned decisions. However, while this Court does exercise supervisory jurisdiction by way of judicial review of such decisions, the effect of the privative clause in s 176 of the District Court Act 1973 (NSW) is such that the applicants must demonstrate jurisdictional error; this is not a merits review (Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92; (2015) 250 A Crim R 154 (Mulder) at [32]-[35] (Gleeson JA, Ward JA and Johnson J agreeing); Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 at [9]-[10] (Basten JA, Giles and McColl JJA agreeing)).
The first respondent accepts that the categories of jurisdictional error are not closed and that they include: a constructive failure to exercise jurisdiction and a failure to accord procedural fairness and natural justice, including where there is actual or apprehended bias by the decision maker (see Mulder at [32]-[35], [113]; Rahman v Rahman [2024] NSWCA 198 at [36]-[41] (Ward P; Adamson, Stern JJA); Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209 (Ming) at [7]-[46] (Kirk JA, White and Mitchelmore JJA agreeing) and Quinn v Director of Public Prosecutions (Cth) (2021) 106 NSWLR 154; [2021] NSWCA 294 at [4]-[24] (Leeming JA, Simpson AJA and Johnson J agreeing)). No doubt, this explains the fact that the grounds of review identified by the applicants in the present case are framed (as set out in due course) in terms of denial of procedural fairness, constructive failure to exercise jurisdiction and bias.
The three decisions that the applicants seek to challenge are: first, the decision on 18 December 2024 refusing an application for an adjournment of the hearing of the applicants’ joint notice of motion filed on 24 November 2023 (November 2023 Motion) seeking leave under s 18(2) of the (NSW) () to adduce fresh and/or new evidence (the adjournment decision); second, the decision on 18 December 2024 dismissing the November 2023 Motion (the evidence decision); and, third, the decision on 14 March 2025 not to state a case to the New South Wales Court of Criminal Appeal (CCA) pursuant to s 5B of the (NSW) () (the stated case decision).
The first respondent is a statutory corporation that provides public housing in New South Wales. The first defendant prosecuted the fraud charges against the applicants in the following circumstances.
From 21 May 2007 to mid-2017, the first applicant (Ms Balsiene) rented from the first respondent a top floor apartment in the Sirius Building in The Rocks, Sydney (the Apartment). The second applicant (Ms Balsyte) is Ms Balsiene’s daughter and was an additional occupant of the Apartment. They vacated the Apartment on 13 June 2017.
In the Local Court proceedings, the first respondent charged the applicants with various fraud offences, alleging that between January 2011 and mid-2017 the applicants sub-let the Apartment (without the first respondent’s consent) and failed to disclose to the first respondent that they were not occupying the Apartment and were earning rental income from the Apartment. The first respondent alleged that the purpose of the fraud was for Ms Balsiene to obtain rental rebates from the first respondent to which she would not have been entitled if the true position had been disclosed to the first respondent. The applicants complain that the allegations and dates in the Court Attendance Notices were continually changed in the Local Court proceedings. As adverted to above, they maintain that they were falsely accused and wrongly convicted.
The trial in the Local Court took place over some several hearing days (the first respondent says 32 hearing days plus interlocutory applications, commencing in August 2018 and continuing over the next three years; the applicants say that there were at least 46 days of hearing). Suffice it to note that the proceedings were lengthy. Oral and written closing submissions were made on 17 November 2021. The first respondent says that the applicants thus had considerable time over the course of the Local Court proceedings to seek documents from the first respondent and to adduce the reports the subject of their motion(s) to rely on fresh and/or new evidence, to which we refer below.
At the Local Court hearing in August 2018, Ms Balsiene was represented by a solicitor, Mr Saleh, and Ms Balsyte was represented by another solicitor, Mr Saba Rezae. The applicants say that on 20 September 2017, Legal Aid assigned Mr Saleh and Mr Razae to represent them. From late 2018 to around early 2019, the applicants were represented by privately retained lawyers, Ms Leonie Gittani, solicitor, from Archbold and Co and Ms Sheridan Goodwin, barrister, the applicants having borrowed money to do so. The applicants complain that Archbold and Co lost documents, unfairly charged them, did not fulfill their duties and did not do their work. Presumably, the retainer thus came to an end.
From around mid-2018 (according to the applicants) or mid-2019 (according to the first respondent) until 17 November 2021, the applicants were both represented by Mr Theo Voros, solicitor, pursuant to a grant of Legal Aid. Mr Voros withdrew from the matter at the commencement of closing submissions on 17 November 2021 and the applicants themselves made closing submissions in writing and orally.
On 18 December 2024, when the applicants’ November 2023 Motion was called on for hearing, there was no appearance in Court by Ms Keaney nor by Mr Agoth. Counsel for the first respondent (Mr Di Francesco), in response to a question from his Honour as to whether Mr Rowe (who had earlier appeared as Counsel for the applicants) would be attending, informed his Honour that Mr Rowe had been given leave to withdraw around the middle of 2024; that there were replacement lawyers allocated by Legal Aid; that the barrister who was appointed (Ms Keaney) had “returned the brief earlier this week” and that he was expecting to see a solicitor there (18/12/24; T 1.24). Mr Di Francesco subsequently indicated that he thought it was on the Tuesday (i.e., 17 December 2024) that Ms Keaney had informed him that she had a conflict (18/12/24; T 3.35).
The applicants took issue in this Court with the suggestion that the brief in the matter had been returned to Mr Di Francesco (apparently raising this as some kind of improper conduct on the part of Ms Keaney and/or Mr Di Francesco). However, Mr Di Francesco explained from the bar table that it was the Court Book which had been returned to his chambers to be returned to the applicants’ solicitors, not Ms Keaney’s brief as such (AT 19). In any event, this goes to the conduct of the respective legal representatives not to the decisions of the primary judge (who was not informed of this complaint).
The applicants were present in Court when the matter (the hearing of their November 2023 Motion) was called on. Ms Balsyte informed his Honour that she had spoken with Mr Agoth the previous day and that he had informed her that Ms Keaney would be appearing on 18 December 2024. Ms Balsyte said that she had texted Ms Keaney at 9:15am that morning and that Ms Keaney had responded “I no longer hold the brief to advise and appear as your barrister”. Ms Balsyte said that she asked who was their lawyer/barrister and Ms Keaney replied at 9:28am that, as far as she was aware, Peter Agoth & Associates remained the applicants’ solicitors (see 18/12/24; T 2.11-35). The applicants complain that they had not been notified in advance that their legal representatives would not be in attendance at the hearing of their November 2023 Motion. Ms Balsyte informed his Honour that she was unaware of what Mr Di Francesco had informed the Court.
The applicants contend that it was incorrect for Mr Di Francesco to suggest to the primary judge that there was a conflict on the part of Ms Keaney in continuing to act. The applicants say that, in their presence, the solicitor who did arrive that day (Mr Bol – see below) contacted Ms Keaney who said that Mr Agoth did not apply for an “extension payment”. However, the suggestion that there was some fee dispute or issue is contradicted by the account given to his Honour by Mr Bol, which gains some support from the communication to which the applicants point from Ms Keaney shortly prior to the hearing on 18 December 2024. Ms Keaney, responding to a text message from the applicants, informed them that it was not appropriate for them to send her text message instructions and said “As I advised in conference after all of the November emails, providing me information in large documentary slabs or bit by bit instructions is not useful for me or proper”, requesting that for any additions to her brief the information be provided to Mr Agoth or his assistant, Ms Jayne Roberts, “for their advice on your instructions and if appropriate inclusion in my brief”. In any event, his Honour was entitled to rely on what Mr Bol told him as to the reason he believed that Ms Keaney had withdrawn from the proceedings. It was not incumbent on his Honour to interrogate the applicants themselves as to that issue, nor would it have been appropriate when they were represented by a solicitor and the questioning could have trespassed on client legal privilege.
HIS HONOUR: Yes. Well, I was assuming Mr Rowe was going to turn up. And my first question to him was going to be, do you concede that if you fail in your application for fresh evidence the appeal must fail as well. In which case I’d be able to finalise the matter today. And I’d rather it than burden it upon some other poor judge. That would be your position wouldn’t it?
DI FRANCESCO: I couldn’t say that, your Honour, as tempting as it is. I am aware that there’s a document that was previously floating around that had more than 30 grounds of appeal, and I don’t know what that will fine [sic; refine] down to by the time the appeal is heard. And I apprehend that [not] all of those grounds require this evidence.
I can’t speak for the appellants, but--
HIS HONOUR: No, I know you can’t. In the light of the magistrate’s very firm findings. …
[18/12/24; T 5.7-38; and see reasons for judgment at [26]]
When he appeared before the primary judge, Mr Bol immediately made an application for an adjournment for “the defence” (seemingly, meaning the applicants), which was opposed by the first respondent (18/12/24; T 5.44). Mr Bol informed his Honour that Mr Agoth, who was absent, was his colleague and associate; that they worked together; and that he (Mr Bol) “got the brief yesterday” (by which he clarified that he was instructed the previous day to instruct Ms Keaney to appear in the matter). Mr Bol said that he was running late because he had another matter at Bankstown Court that morning; that he had called Ms Keaney and she said that she was not briefed in the matter, “that she would withdraw on Monday” and that she was “no longer on the file”. Mr Bol said that “therefore, we are not in a good position to proceed with the application today” (18/12/24; T 5-6).
Relevantly, Mr Bol also said (18/12/24; T 6.43-46):
I have spoken to my client if they are willing to proceed as self-represented litigants? I don’t think they will be able to do that. So we are seeking for an adjournment to allow the times [sic; clients] to find a different counsel for the defendant [sic] in this matter.
As is apparent from the above, Mr Bol appears to have been under the misapprehension at that stage that the applicants were the defendants to some application or proceeding in the District Court. Significantly, on Mr Bol’s account, he had spoken with the applicants as to the possibility of them proceeding without legal representation and he formed the view that they would not be able to do so. His Honour was entitled to proceed on the basis that the applicants were aware of the possibility of appearing without representation. No application was made that they do so. The first respondent also points out that the adjournment that was sought was in order to find alternative counsel, not to adduce further evidence or submissions.
His Honour referred to the expense and time in preparation of the Court Book and noted that there had been a day of court time set down to hear the case and that he had spent several hours the previous day preparing the case.
When questioned by his Honour, Mr Bol was unaware that this was an application to adduce fresh evidence under s 18(2) of the Crimes (Appeal and Review) Act. His Honour explained to Mr Bol that an appeal had been filed against the magistrate’s decision finding each of the applicants guilty of an offence and said that the default provision for an appeal was that it was a rehearing on the evidence given before the magistrate.
Mr Bol reiterated that he was not informed until the previous day in relation to the matter. Mr Bol said (18/12/24; T 8):
I have never looked into this matter before. I have no knowledge about the section that are in dispute. Your Honour I have no knowledge of the basis of the appeal, I was given instruction to instruct the counsel who is appearing today, little did I know that the counsel was not briefed on the matter or she withdrawn from the matter. So I was not aware, I haven’t read anything to do with this matter and therefore, it will be unjust for me to proceed with the applications-- the hearing when I don’t have any knowledge in relation to his [sic, this] matter.
During submissions regarding the adjournment application, Mr Bol said that Ms Keaney had forwarded him an email between Ms Keaney and Mr Agoth explaining the reason why the matter could not proceed. Mr Bol said “there are some conflicting interests between the counsel and that advice that she was getting from the client. ... They have different instructions in terms of how the matter should proceed. And I think she was conflicted in the matter and that’s the reason she withdrew” (18.12.24: T 7.32-46). As noted above, the applicants dispute that this was the reason for Ms Keaney’s withdrawal. The email to which Mr Bol referred was not in evidence (see AT 71).
The applicants here complain that the first respondent and its Counsel, Mr Di Francesco, knew before the matter came before the Court about the non-attendance “and non-preparation” by the applicants’ legal representatives and did not inform the applicants and his Honour of this before court started. There is nothing to support the conclusion that the first respondent or its Counsel knew that there would be no appearance on the day by Mr Agoth (as opposed to Ms Keaney); and nothing to sustain the complaint that they knew about the “non-preparation” by the applicants’ legal representatives, in the sense that they were aware of some further application, evidence or submissions that the applicants had instructed their legal representatives to prepare and file.
The applicants further complain that the primary judge did not ask if Mr Bol would like to withdraw and made no enquiry of them as to whether they would like to represent themselves or to explain their case. It was not incumbent on the primary judge to do so. His Honour quite properly dealt with the applicants’ legal representative, Mr Bol, on the application (and while this was in circumstances where Mr Bol had professed to having no knowledge of the matter, there were on the court file submissions and evidence already filed for the applicants and no suggestion of any further application to be made by the applicants in that regard).
The applicants say that they tried multiple times to give “important material” to Mr Bol and to explain the material to Mr Bol but that he did not want any material and that he ignored their requests to provide the primary judge with that material. They rely on text communications with Mr Bol in this regard and to what had been said to him out of court when he first arrived.
The applicants refer to a text message sent to Mr Bol, which we understand was said to be when he was sitting at the bar table at 13.43pm, stating “Please give our submissions about Notice of Motion fresh evidence, they answer judges questions”, to which Mr Bol replied “This is not the time for it” and then “They should have been filed a long time ago, not today”. The applicants continued to text Mr Bol who kept responding that “today was not the filing date”. Some of those messages might have been after the hearing had concluded as the applicants texted Mr Bol that if they had been filed the judge would have read them and made a different decision, complaining that they had asked Mr Bol to give their explanation and answers to the judge.
The primary judge outlined the history of the proceedings (at [1]-[27]), including an application made to the Supreme Court where a stay of the Local Court orders was initially ordered but then discharged on 20 February 2024, and directions made in the District Court as to the matter, including the filing of the November 2023 Motion.
His Honour noted at [9] that the applicants had indicated an objection to an expert report filed by the first respondent some few days outside the agreed timetable but said that that proposed objection appeared to have fallen away, given that the applicants had filed three further expert reports leading to the first respondent filing a supplementary report on 28 May 2024. The applicants cavil with the suggestion that their objection to the first respondent’s report had “fallen away”. They say that their objection was still standing.
The applicants further say that their three forensic expert reports (supporting their objection that the first respondent’s report was new and fresh) responded to the first respondent’s reports and examined additional photographs of the applicants. The applicants say that their forensic expert reports were responding to “unsuccessfully adjusted, altered” electronic files by the first respondent and assert that their forensic experts found that the first respondent’s witnesses’ evidence was fraudulent, false, and unreliable. The applicants also go so far as to contend that the first respondent and its witnesses have committed criminal offences constituting fraud under ss 192E or 254 of the Crimes Act. The propensity of the applicants to make serious allegations of this kind is troubling. There is no basis for this Court to reach any such conclusion as part of the applicants’ judicial review application and the allegation should not have been made in those circumstances.
The primary judge summarised the material filed by the applicants, comprising Mr Ozmen’s affidavit affirmed on 24 November 2024, as being evidence which purported to be expert evidence asserting that photographs taken of a man named Mr Deladriere during the time he was allegedly letting the Apartment in 2011 were in fact taken in 2017 (see at [12]). The primary judge noted that the first respondent’s expert report in response to the applicants’ expert evidence supported that the photographs were taken in 2011 and not fabricated or taken at a later stage. His Honour also noted that the date on which the photographs were taken was a very significant issue in the trial magistrate’s reasoning in accepting Mr Deladriere’s evidence ([13]).
The primary judge then summarised what had occurred when the matter was called at 10:00am that morning and what Mr Bol had acknowledged as to having no knowledge of the detail of the case and that Mr Bol had sought an adjournment for four weeks to enable retention of fresh counsel, given that Ms Keaney had apparently withdrawn from the proceedings on Monday due to a suggested conflict of interest ([19]-[20]). His Honour said that there was no further amplification of that situation or any evidence as to it.
The Magistrate clearly considered, both in his reasons on conviction and during the course of a 60-page transcript on sentence all of the relevant material. The fundamental difficulty in conducting the exercise of determining where the interests of justice lie is the complete absence of explanation for any challenge to the critical evidence during the hearing. In the absence of any explanation for the failure to make those challenges during the hearing and the compelling reasons summarised by the respondent in the submissions to which I have referred lead to the view that I have reached. There must be, ultimately, finality to litigation at some stage. The appellants will retain their right to pursue the appeal on whatever grounds they choose but that must be at a hearing which is properly prepared in accordance with the rules and practice notes so that the Court which comes to hear the appeal ultimately has an accurate set of submissions on both sides and the court can efficiently deal with the issues that may ultimately be raised on the proceedings…
On 12 March 2025, the applicants requested the primary judge to state a case under s 5B of the Criminal Appeal Act (the Stated Case Application). In the Stated Case Application, the applicants sought referral of numerous questions to the CCA. Those questions are reproduced in Annexure A to these reasons. The applicants say that the questions raised related solely to issues of law, including denial of procedural fairness and jurisdictional error, which were proper for referral under s 5B of the Criminal Appeal Act. The first respondent does not agree with that characterisation. Nor do we.
The primary judge determined the Stated Case Application on the papers. On 14 March 2025, the primary judge’s associate advised the parties by email that his Honour did not propose to state a case pursuant to s 5B of the Criminal Appeal Act. The applicants complain that his Honour did so without providing reasons or affording them procedural fairness.
In summary, the applicants contend that they were denied a fair hearing and the right to be heard; that the District Court failed to discharge its appellate function lawfully; and that fresh and new compelling and credible expert evidence responding to the first respondent’s wrongful allegations in the case, and showing their innocence, was excluded due to the primary judge’s refusal to adjourn the 18 December 2024 hearing or to allow any explanation by them and the giving by them of the material. The applicants seek orders under s 69 of the Supreme Court Act 1970 (NSW) (Supreme Court Act) to quash the two District Court decisions of 18 December 2024 and the determination on 14 March 2025 for jurisdictional error and denial of procedural fairness.
The applicants raise 4 grounds of review. In oral submissions those grounds were addressed in relation to each of the three impugned decisions at the same time (AT 14.21). The grounds are:
Ground 1- Denial of Procedural Fairness (Natural Justice) - Judge M L Williams SC DCJ denied the applicants procedural fairness (natural justice)
Ground 2 - Constructive Failure to Exercise Jurisdiction - Constructive failure to exercise jurisdiction under s 18 of the Crimes (Appeal and Review) Act 2001 (NSW) and an application for adjournment.
Ground 3 - Apprehended Bias - The conduct and remarks of the Judge M L Williams SC DCJ during the hearing gave rise to a reasonable apprehension of bias.
Ground 4 - Ground 4 [sic] - Judge M L Williams SC DCJ failed to exercise the jurisdiction conferred on him by s 5B of the Criminal Appeal Act 1912 (NSW)
The applicants say that the summons was filed out of time “due to obtaining legal advice, and funding issues”. They maintain that there is no prejudice to the first respondent from the delay, noting that prejudice must be shown, not simply assumed.
In essence, the applicants, who emphasise their lack of legal qualifications and language difficulties, say that they were not informed by the Legal Aid lawyers who represented them from 18 December 2024 to 7 March 2025 that the Court of Appeal was the proper forum for their application or about the applicable time limitations in this Court. They say that they were advised by their legal practitioners (Voros Lawyers) to file an appeal in the NSW Court of Criminal Appeal (CCA) (referring in this context to a letter obtained from Senior Counsel in relation to the proposed filing of a CCA appeal) and they point out that the Registry accepted the notice of appeal filed in the CCA on 20 December 2024. They say that Voros Lawyers did not provide them with the first respondent’s 21 January 2025 email (raising objection to the jurisdiction of the CCA) until 7 February 2025.
By way of a summary of the chronology provided by the applicants in their submissions as to what was done in the period from the filing of their appeal in the CCA, we note the applicants’ submissions record the following.
The applicants sought transcripts and sound audio recording of the District Court proceedings (the former being provided on 23 January 2025 and the latter on 6 February 2025). The applicants also requested the six folders (Court Book) that the primary judge had before him at the hearing on 18 December 2024.
At the 6 February 2025 CCA directions hearing, the applicants were represented by Voros Lawyers. The applicants say that the Acting Registrar was unsure whether the correct jurisdiction was this Court or the CCA but point to the fact that the Acting Registrar did not dismiss the CCA appeal or refuse to hear it; nor did the Acting Registrar refer it to a judge for decision as soon as possible. They say that this was the Acting Registrar’s decision.
From 7 February 2025 to 7 March 2025, the applicants were represented by Legal Aid assigned lawyers (George Sten & Co). On 10 February 2025, the applicants requested their lawyers to ask the primary judge to state a case but this was not done. They filed the Stated Case Application themselves on 12 March 2025.
Meanwhile, the applicants filed Legal Aid appeals on 7 March 2025 and were awaiting the Legal Aid funding decision from 7 March 2025 to 11 July 2025; the Legal Aid appeals not being determined until 11 July 2025.
On 13 March 2025, the matter was back in the CCA for directions. On that occasion the CCA Registrar explained (correctly) that he could not give legal advice.
The applicants say that between 18 December 2024 and 15 April 2025 they approached lawyers and the Court, enquiring about an appeal to this Court or the CCA and there was no response. As already noted, the applicants say they were not informed that they should file an appeal in this Court nor as to the relevant time limitation for proceedings in this Court.
The first respondent opposes the grant of an extension of time to commence this proceeding for the following reasons.
First, the first respondent points to the delay in commencing the proceeding in this Court on 24 June 2025, noting that the applicants filed appeals from the adjournment and evidence decisions in the CCA on 20 December 2024 and grounds of appeal on 5 February 2024, which included the current grounds for judicial review.
Second, that the applicants were made aware on a number of occasions that the first respondent disputed the jurisdiction of the CCA to determine their challenges to the adjournment and evidence decisions. The first respondent says that the applicants were also informed that there was no doubt that this Court (the Court of Appeal) was the appropriate forum in which to ventilate challenges to those decisions. The first respondent says that the applicants made forensic decisions not to apply to this Court and instead to pursue their challenges in the CCA.
In this regard, the first respondent points not only to the communication by its solicitor on 21 January 2025 to the then solicitor for the applicants (Voros Lawyers), a copy of which was forwarded to the applicants by their solicitor on or before 7 February 2025, and to what was said in the CCA directions hearing on 6 February 2025, when the applicants were present and legally represented (see 6/2/25; T 2.1-49), as to doubt as to the CCA’s jurisdiction, but also as to what occurred at subsequent directions hearings.
The first respondent notes that at the second directions hearing in the CCA on 13 March 2025 (five days before the time expired to commence judicial review proceedings in this Court in relation to the adjournment and evidence decisions) a solicitor from George Sten & Co appeared and informed the Court: that Voros Lawyers had ceased to act; that George Sten & Co had received a grant of Legal Aid to act but the grant had been revoked and the solicitor no longer acted; and that a merit advice for the applicants was close to having been obtained but had not yet been obtained. The applicants then appeared self-represented before the Acting Registrar (13/3/25; T 1.1-2.26). The first respondent points out that its Counsel again objected to the jurisdiction of the CCA and the Acting Registrar explained to the applicants that it was doubtful that the CCA had jurisdiction to hear their appeal but that the Court of Appeal did have jurisdiction to determine an application if the applicants were dissatisfied with a District Court judgment (13/3/25; T 2.36-3.31; T 4.3-6; T 10.35-11.11; T 15.47-20.35).
The first respondent notes that on that occasion the applicants raised the obiter dicta of Basten JA in Sasterawan v Morris [2010] NSWCCA 91; (2010) 201 A Crim R 302 (Sasterawan) at [19]-[22] (to the effect that the CCA might have jurisdiction to determine an appeal from an interlocutory decision of the District Court in an all grounds appeal from a Local Court conviction (as the applicants’ appeal is)) and that its Counsel disputed the jurisdiction of the CCA but accepted that the decision in was such that the question of jurisdiction of the CCA raised by the applicants needed to be resolved (13/3/25; T 4.40-13.34).
APPLICANT BALSIENE: Thank you, but, registrar, you can make a new sounding law because law need to grow. How I hear you soon is will be your Honour, and I think will be very interesting to make something new because this case where we’re sitting, it’s very short, and biggest Supreme Courts are very busy. I think this small thing’s not understanding.
One, another side, someone did not write, housing did not write, I think need to explain will be good in smaller court, not to put all things - weight on the bigger court. They’re very, I think, busy. I think will be good, we will be very thankful and for all people, there’ll be good because how I understand law need to grow in - in - in in bold, thank you.
The first respondent notes that at the fourth directions hearing in the CCA on 17 April 2025 the applicants again appeared self-represented. On that occasion, the Acting Registrar said that he had read the written submissions filed by the parties and expressed the view that the CCA did not have jurisdiction to hear the applicants’ appeals, the appeals should be in the Court of Appeal and the applicants were wasting their time in the CCA but said that a judge, and not the Acting Registrar, would ultimately decide the jurisdiction issue (17/4/25; T 1.28-45; T 3.41-4.39; T 6.49-7.22). The first respondent notes that the Acting Registrar asked the applicants “have you considered whether you should be lodging in the Court of Appeal at the same time as doing this matter?” and that Ms Balsyte responded “No” (17/4/25; T 1.28-45).
Third, that the applicants were aware from the time of the stated case decision on 14 March 2025 that the primary judge had declined to state a case to the CCA.
Fourth, that the applicants’ challenges to the respective decisions have insufficient prospects of success to warrant granting extensions of time to commence these proceedings.
Fifth, that in the 13 months between filing the November 2023 Motion and the hearing on 18 December 2024, the applicants, despite being legally represented, never adduced evidence in support of the Motion explaining why the New Reports were not sought to be adduced during the Local Court proceedings.
Insofar as the applicants now depose that the reasons are a function of their impecuniosity and documents not being provided by the first respondent in the prosecution brief of evidence, the first respondent says that there is no evidence of the applicants having asked Legal Aid between 2018 and 2021 to pay for, or procure, expert evidence or that Legal Aid refused to consider a grant for such evidence (or, if so, why); and no evidence adduced as to how the applicants procured or afforded the New Reports after the Local Court proceedings ended. (The applicants in reply submissions say that the applicants borrowed money to pay for the expert report and one expert report was paid for by Legal Aid but that this was not possible in the Local Court and that “it is not about how or who paid, it is about [the first respondent] manipulated evidence”.)
Further, the first respondent says that the applicants (themselves, and through their various legal representatives) never asked for meta data or electronic files prior to concluding the Local Court proceedings. The first respondent says that it is neither obvious nor realistic that the electronic files and meta data of text messages or photographs should have been produced as part of the prosecution brief of evidence. (The applicants contend that they made at least 70 requests over 15 months for the electronic file and submit that the need for electronic files was in order to enable forensic examination.)
When considering the application for an extension of time to file the summons, we take into account that for at least part of the time during which the summons could have been filed without leave the applicants were not legally represented. Further, although the applicants were on notice from an early stage that there was an objection to the jurisdiction of the CCA (through the imputed knowledge of their lawyers from January 2025 and then by the email forwarded to them on 7 February 2025) and the first respondent maintained that objection in directions hearings on 6 February 2025 and 13 March 2025, it was acknowledged both by the Acting Registrar and by the first respondent that there was some doubt about the issue and this was not finally clarified until the CCA judgment in May 2025. While that does not explain the delay in filing the summons until 24 June 2025, the delay between the judgment on jurisdiction and the filing of the summons was not extensive.
We accept that the applicants seem to have made a forensic decision to proceed with their appeal in the CCA notwithstanding the doubts as to jurisdiction (and, in that context, Ms Balsiene appears to have welcomed the opportunity to make new law). However, the fact that they have been representing themselves on and off over the period warrants some latitude in relation to time limitations. Further, while we accept the force of the first respondent’s assessment of the prospects of success, the matter has now been fully argued and the applicants have had ample opportunity to be heard. In those circumstances we would extend the time for filing of the summons to 24 June 2025.
The applicants in their Further Amended Summons filed 20 August 2025 seek leave to rely in this Court on all evidence in the District Court proceedings and the Local Court proceedings. They contend that this is necessary in the interests of justice. The first respondent opposes that order on the basis that the evidence is voluminous (over 32 days of transcript and 191 exhibits) and that it is largely irrelevant to the determination of the application for judicial review.
As noted earlier, this is not a merits review. As made clear in Craig v South Australia (1994-1995) 184 CLR 163; [1995] HCA 58, to which the applicants’ attention was drawn in this Court, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law as well as questions of fact but demonstrable error on the part of an inferior court (as the District Court is) in the identification of relevant issues, formulation of relevant questions and determination of relevant evidence will not ordinarily constitute jurisdictional error. The distinction is often drawn in this context between errors within jurisdiction (not subject to judicial review) and errors outside jurisdiction. Judicial review proceedings under s 69 of the Supreme Court Act involve challenge to judicial decisions based on an error of law on the face of the record or jurisdictional error. The applicants in this case must demonstrate jurisdictional error because of the privative clause. In this context, it is not necessary for the purposes of determining the summons for judicial review to review all of the evidence that was before the Local Court and District Court. Further, it has been noted that the Court should resist any temptation to be drawn into the unnecessary multiplication of arid issues in circumstances where determination of those issues could have no effect on the outcome of the proceedings (see Salmon v Albarran [2025] NSWCA 42 at [48]; Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd (2022) 109 NSWLR 468; [2022] NSWCA 150 at [278]). Leave to rely on all previous evidence in the Local Court and District Court proceedings is refused.
The summons contains extensive particulars of ground 1, addressing both of the decisions made on 18 December 2024 (the adjournment decision and the evidence decision).
A number of those particulars express the applicants’ grievances as to the conduct of their legal representatives, which as already noted, is beyond the scope of the judicial review application. Complaints as to the conduct of the applicants’ legal representatives do not go to the legality of the decisions made by the primary judge.
Insofar as the applicants complain about their legal representation, it would not be appropriate to consider allegations of incompetence or negligence without hearing from the representatives. Further, while the failure of a solicitor to appear on the morning of 18 December 2024 and then only a solicitor with no knowledge of the case to appear and solely to seek an adjournment, raises concern (and has apparently already been the subject of an adverse finding by Legal Aid), this Court is not in a position to assess what instructions were received by the legal representatives in relation to the Motion itself. The first respondent says that the applicants in this proceeding have adduced voluminous and irrelevant documents; and suggests that it would be open to infer that the submissions or material that the applicants wished to provide (by way of explanation or otherwise) were omitted for appropriate forensic reasons.
The first respondent says that there is no authority for the proposition that incompetence of an applicant’s lawyers (even if that here occurred) in respect of motions constitutes a failure to afford procedural fairness (citing Dacich v Director of Public Prosecutions (No 2) [2020] NSWCA 298 at [55]-[58] where Basten JA (Meagher JA and Simpson AJA agreeing) in obiter dicta, in the context of judicial review of a severity of sentence appeal, expressed the view that it is extremely doubtful that the District Court lacks jurisdiction to determine such an appeal in the absence of competent representation of the appellant).
The applicants say that if their legal representatives had performed their work or if they, the applicants, had been heard and allowed to make submissions, or if the primary judge had had the documents and explanation and “deeply looked into case”, the applicants’ innocence would have been proved. This misconceives the nature of the application before his Honour on 18 December 2024. This was not a hearing of their appeals against conviction. Had the primary judge acceded to the November 2023 Motion the materials there referred to (to the extent they were in evidence before his Honour) would have formed part of the evidence to be considered on the appeals. Those appeals have yet to be heard. Therefore, the applicants’ submissions that the primary judge did not discharge his appellate function cannot be accepted. His Honour was not determining their appeals (and made it clear that they remained able to prosecute their appeals).
The applicants contend that his Honour constructively failed to exercise jurisdiction in considering both the adjournment application and the application to adduce fresh evidence.
In this regard, the applicants raise much of the same arguments as raised in relation to ground 1. In summary, they complain that his Honour: declined to consider the applicants’ prepared material and submissions; ignored requests and attempts to provide that material on the day of hearing; decided the matter without affording them a chance to present their case; failed to consider mandatory matters when assessing the fresh evidence application (such as whether the evidence was credible, relevant and probative; whether it could not have been obtained earlier for valid reasons; whether it would likely have influenced the outcome); proceeded on incorrect factual assumptions about the availability of such evidence in earlier proceedings; did not read their forensic expert reports, did not give reasons for each report and did not mention each report; did not ask where Annexure 5 was or why it was missing before starting to give reasons; and misapplied the test under s 18(2) of the Crimes (Appeal and Review) Act by refusing leave without properly considering the “interests of justice”.
The applicants say that, as a result, the discretion conferred by s 18(2) was not exercised according to law. They contend that the Court did not undertake the required balancing of relevant considerations in determining whether it was in the interests of justice that the fresh evidence be admitted and that this failure constitutes a constructive failure to exercise jurisdiction and amounts to jurisdictional error reviewable under s 69 of the Supreme Court Act.
In response, the first respondent repeats its submissions in relation to ground 1 and submits that the primary judge performed the required function for, and discharged the judge’s duty to consider and determine, both the adjournment application and the evidence application, referring to the reasons for judgment in support of that submission.
In particular, the first respondent says that the primary judge: considered the submissions and evidence before the Court as to the adjournment application and made logical and rational findings as to where balancing the interests of justice rested regarding the adjournment decision (at [1]-[27]); set out and applied the correct legal tests in respect of the power to allow the applicants’ to adduce fresh evidence in the form of the New Reports (at [27]-[33]); gave reasons that engaged with, and logically and rationally followed from, the evidence (including the New Reports and Response Reports), written submissions and the law being considered; correctly observed that no evidence and submissions had been made explaining why the New Reports were not sought to be adduced during the Local Court proceedings (at [29], [33]-[36], [45]); and dealt with the central arguments for the adjournment and evidence decisions.
Ground 3 raises the issue of bias. Although the ground itself is formulated in terms of apprehended bias, the applicants’ submissions suggest that the complaint extends to a complaint of actual bias, insofar as the applicants argue that the primary judge approached the matter with a predetermined view. Insofar as any allegation of actual bias is concerned, since none was pleaded it is not open to the applicants now to raise such a serious complaint but in any event actual bias is not established.
The applicants rely on the following matters in support of this ground of review.
First, that his Honour stated an intention to finalise the matter without considering the fresh and new evidence submissions or hearing fresh and new evidence submissions (referring to his Honour’s query (in their absence) of Mr Di Francesco as to whether, if the evidence application were dismissed then the appeal must fail as well and suggesting that he would then be able to finalise the matter that day). The applicants say that his Honour’s remark reflects a predisposition to determine the matter quickly, rather than fairly, choosing speed not justice, before hearing the substance of the fresh evidence application (i.e., suggesting actual bias). The applicants also complain that the primary judge took into account the findings of the trial magistrate that the evidence of the applicants was “unacceptable” ([42]) and say that, even if they were disbelieved, and their evidence completely rejected, this would not necessarily mean that the prosecution had proved its case (citing De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48).
Second, that his Honour relied on the November 2023 material and gave them no opportunity to correct or clarify facts.
Third, that his Honour referred to the first respondent about matters which they say should have been referred to them for clarification (presumably referring to his Honour’s request of Mr Di Francesco as to the basis for their foreshadowed objection to the first respondent’s expert reports, although this is also listed as their seventh reason).
Fourth, that his Honour prevented them from being heard or giving an explanation. As already noted, the applicants complain that they attempted to provide oral and written explanations for their fresh evidence but the primary judge refused to receive or consider them, thereby shutting out relevant material and submissions.
Fifth, that his Honour predetermined the outcome without hearing their fresh and new evidence or what the applicants had to explain (again, this is tantamount to an allegation of actual bias).
Sixth, that his Honour failed to assess the evidence fairly and independently by not allowing their submissions and for them to be heard.
Seventh (which seems to be encompassed within the third reason), that his Honour did not ask them about their objection but instead asked the first respondent’s lawyers; and that his Honour did not allow them to respond to this by giving their submissions and explanation but “found time to talk about other irrelevant matters” with Mr Di Francesco, which they say shows a clearly biased and one-sided view (referring again to the transcript in which the primary judge indicated that the first question he had been going to ask Mr Rowe had he appeared was whether he conceded that if he failed in the fresh evidence application the appeals would fail).
The final ground of review relates to the primary judge’s refusal of the applicants’ request that he state a case under s 5B of the Criminal Appeal Act.
The applicants complain that his Honour did not provide reasons and did not afford procedural fairness (in that they were not heard in relation to that request). The applicants say that the questions raised related solely to issues of law, including denial of procedural fairness and jurisdictional error, which were proper for referral under s 5B of the Criminal Appeal Act.
The applicants say that his Honour fell into jurisdictional error on the basis that he denied them procedural fairness and in declining to exercise the function of a District Court judge under s 5B of the Criminal Appeal Act.
The first respondent points out that s 5B gives a discretion to the primary judge to state a case and does not prescribe an obligation to do so (citing Franklin at [4], [19]-[20], [36]-[40] (Basten and Macfarlan JJA; Brereton JA dissenting)). Further, the first respondent submits that the Stated Case Application was prolix and did not clearly identify any question of law to be stated and instead sought to assert equivocal or scandalous matters as if they were facts; and that it put forward questions of fact or questions of mixed fact and law.
In that regard, we note that the purported “questions of law” as framed by the applicants appear to canvass numerous issues relating to their complaint as to the conduct of the hearing and decisions made by, or conduct of, their legal representatives. We note that in Mack Fleet Pty Ltd v Transport for NSW [2020] NSWCA 149, Basten JA (Ward JA and Leeming JA agreeing) said, after a discussion of the proposed questions in that case (at [22] – [29]):
[30] It follows that in every case it will be possible to identify a question of law in the terms of “was the evidence accepted by the court capable of supporting the conviction.” A reading of s 5B which obliges the District Court judge hearing an appeal to refer every such question to the Court of Criminal Appeal for determination would turn a provision designed to be under the control of the court into a universal right of appeal on a question of law. That would subvert the purpose of the section by giving it an entirely different function. Such a construction should not be accepted.
- The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law.
- The ordinary meaning of a word or its non-legal technical meaning is a question of fact.
- The meaning of a technical legal term is a question of law.
- The effect or construction of a term whose meaning or interpretation is established is a question of law.
- The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law.
(Citations omitted)
The determination of whether a particular alleged error is a question of law, will “depend on the scope, nature and subject matter of the statute” (see Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653; [2000] NSWCA 199 at [28] (Spigelman CJ)).
In Orr (at [72]-[74]) the Court said:
In Sasterawan at [15], Basten JA said “[t]he questions in the present case seek to ask ‘Did I err in law’, which does not leave open the possibility of other forms of errors, but, at the same time, does not identify any specific question of law for determination by this Court”;
In Elias at [18], Basten JA observed that:
“What may be submitted to the Court of Criminal Appeal under s 5B is ‘any question of law arising on any appeal to the District Court’ from a judgment in the Local Court. That the exercise in formulating a question of law requires legal training may be accepted; however, the routine practice of ignoring guidance given by this Court and the Court of Criminal Appeal can not be justified. The preferred form of question proposed by applicants is along the lines, ‘Did I err in law in making finding x?’ The finding referred to is usually an ultimate conclusion which inevitably involves a composite of various legal and factual elements: see Robinson v Woolworths Ltd ... at [7]-[10]. Similar remarks were made in Sasterawan (2007) at [15]-[16].”
The character and form of the purported “questions of law” submitted by the primary judge to this Court form part of the larger question sought to be raised as to this Court’s jurisdiction under s 5AE of the Criminal Appeal Act. It will be necessary to return to the proper characterisation and form of those questions as part of the discussion of that issue, to which attention is now turned.
Even a cursory review of the “questions of law” sought to be stated (see Annexure A) reveals that the vast majority of the questions do not raise questions of law as such; rather, they seek to raise the complaints made in the judicial review proceeding and label them as errors of law. The Stated Case Application could properly have been refused on that basis alone.
Even if some of the questions could properly be described as raising a question of law, the Court has a residual discretion whether or not to state a case. Presented with no less than 43 purported questions of law (together with many additional prolix “particulars”), the Court is not required to sort through all that material with a view to identifying a possible question of law which is suitable to be stated. While acknowledging that the applicants were self-represented at the relevant time, they should have identified the relevant question of law succinctly and precisely and not simply adopted a scattergun approach. This is relevant to the residual discretion.
Insofar as the applicants submit that the primary judge failed to afford them procedural fairness in relation to their s 5B request, the first respondent notes that the Stated Case Application did not state that the applicants wished to supplement the written application with oral submissions. The applicants argue that they were unaware of a requirement to do so. Insofar as the applicants also complain about a lack of reasons being given by the primary judge for refusing the Stated Case Application, the first respondent says that whether a court is required to address a particular argument and, if so, to what extent depends on a number of factors, including the extent to which the argument was clearly articulated and had a proper evidentiary foundation (and it contends that neither of those existed in the Stated Case Application) (referring to Ming at [25]-[46]).
We do not accept that the primary judge fell into jurisdictional error in refusing to state a case. It was open to his Honour to deal with the request effectively “on the papers” in circumstances where the request was made (by email to his associate) after the disposition by him of the November 2023 Motion (such that he was no longer dealing with the substantive matter) and where it was not the subject of a formal application by notice of motion.
For similar reasons, the complaint as to lack of reasons is not made good. In addition, it is notable that the applicants did not request the primary judge to provide reasons.
Moreover, even if there were substance to the complaint as to the discretion exercised by his Honour not to state a case (whether that the applicants were not heard on the application or that it was determined without reasons), as already noted a review of the questions proposed to be the subject of the stated case indicates that they were, as the first respondent contends, prolix and not confined to questions of law. Had the discretion arisen to be re-exercised, we would have reached the same conclusion as his Honour did.
It is evident that the applicants have a real sense of grievance as to their convictions. In their reply submissions, the applicants emphasise the timelessness of justice. They invoke The Magna Carta in support of their application and have cited extracts from various decisions as to the interests of justice and the right of an accused to be heard (including statements in the High Court in Hicks v The King (1920) 28 CLR 36 at 45 (Isaacs and Rich JJ); [1920] HCA 26; Utick v Utick (1907) 5 CLR 400 at 403 (Griffith CJ), 404 (Barton and Isaacs JJ); [1907] HCA 59;).
However, their complaints have ranged far beyond the scope of the judicial review application in this Court (including complaint as to multiple changes to the dates of the allegations in the Court Attendance Notices; complaint as to the conduct of the first respondent in frequently conducting inspections of the property and in relying on Mr Deladriere, who they assert is a fraudulent witness, and in acting “unfairly and carelessly”; and complaint as to other matters (such as accusing the first respondent of providing the Apartment key to murderers). As already noted, they accuse the first respondent and its Counsel of serious misconduct. They also assert that the first respondent has incorrectly explained the case; that they never faced charges – rather “it was made up allegations by” the first respondent “with fraudulent witnesses who read publications after came with false photographs and documents”; and that court orders (apparently non-publication orders in relation to other criminal proceedings where Ms Balsiene was the complainant) were breached (by unidentified persons) after publications by the media about the housing case (this allegation having no apparent relevance at all to the present proceedings).
What the applicants do not appear to appreciate is that their conviction appeals have not yet been determined. The primary judge was not exercising an appellate function as such when determining the adjournment and evidence applications; nor when refusing to state a case to the CCA.
The summons seeking judicial review of the three impugned decisions should be dismissed. There is no reason why costs should not follow the event. The orders of the Court will be as follows:
Extend time for the filing of the applicants’ summons to 24 June 2025.
Dismiss the applicants’ summons seeking judicial review, with costs.
**********
Balsiene, Balsyte
NSW Land and Housing Corporation [2025] NSWCA 264
(2000) 49 NSWLR 653
(1996) 186 CLR 389
(1993) 43 FCR 280
(2019) 268 CLR 57
(2000) 205 CLR 337
(2022) 109 NSWLR 198
(2011) 80 NSWLR 620
(2001) 75 ALJR 1708
(1920) 28 CLR 36
(2010) 239 CLR 531
(2005) 224 CLR 125
(2022) 109 NSWLR 468
(2021) 106 NSWLR 430
(2022) 109 NSWLR 604
(2020) 103 NSWLR 36
(2021) 106 NSWLR 154
(2003) 214 CLR 1
(2001) 179 ALR 513
(1907) 5 CLR 400
Time to file the summons was extended to 24 June 2025; leave to rely on all evidence from the Local Court and District Court proceedings was refused; the judicial review summons was dismissed with costs.
The applicants require an extension of time for the filing of their summons. Pursuant to rr 51.45(1A) and 59.10 of the Uniform Civil Procedure Rules 2005 (NSW), the time for commencing the present proceeding in this Court was within three months of the date of each relevant decision. Accordingly, in respect of the adjournment and evidence decisions, the time to commence expired on 18 March 2025 (3 months and 6 days before the applicants’ original summons was filed in this Court). In respect of the stated case decision, while the first respondent submits that the time to commence expired on 14 June 2025 (10 days before the original summons was filed in this Court), the time limit in s 5B(2) for the submission of a question of law to the CCA after disposition of an appeal proceeding is 28 days after the end of the appeal proceedings. As noted, the applicants’ appeal proceedings are still on foot. Hence, reliance by the first respondent on this time limit in the context of the filing of the judicial review summons is inapt.
We address the question of an extension of time for the filing of the summons after setting out the background to the current proceedings.
On 22 December 2021, the trial magistrate (Covington LCM) gave judgment, finding that the first respondent had proven 3 charges against each of the applicants for contravention of s 192E(1)(b) of the Crimes Act 1900 (NSW) (Crimes Act), those charges relating to the period from January 2011 to June 2011. All other charges were dismissed on the basis that they were not proved beyond reasonable doubt.
On 31 January 2022, the trial magistrate sentenced the applicants to: Community Corrections Orders for a duration of 20 months each; compensation orders under s 97 of the Victims Rights and Support Act 2013 (NSW) that Ms Balsiene pay the first respondent $5,068.89 and that Ms Balsyte pay the first respondent another $5,068.89; and costs orders under s 215 of the Criminal Procedure Act 1986 (NSW) that Ms Balsiene pay the first respondent’s professional costs in the sum of $23,647.42 and Ms Balsyte pay the first respondent an additional $23,647.42 for professional costs. The Local Court orders were subsequently stayed by Johnson J (see 18/12/24; T 9.29) when the matter came to the Supreme Court but this order was subsequently discharged by Wright J on 20 February 2024.
On 28 April 2022, each of the applicants commenced proceedings in the District Court, appealing their respective Local Court convictions (together, the District Court proceedings) (18/12/24; T 8-9). In the District Court proceedings, the applicants were represented for a time by a solicitor, Mr Metin Ozmen, and barrister, Mr Bryan Rowe (assigned by Legal Aid from 31 May 2022). While so represented, an application dated 24 November 2023 was filed on behalf of each of the applicants (the November 2023 Motion) seeking leave to call the fresh evidence set out in an affidavit affirmed 24 November 2023 by Mr Ozmen and for a direction that the four experts identified in the November 2023 Motion to attend and give evidence in the appeal proceedings. For clarification, there appears to have been one (joint) Notice of Motion but filed in each of the separate appeal proceedings.
The expert evidence the subject of the November 2023 Motion comprised: five reports from Dr Todd Hutchison, a Digital Forensics Practitioner and Adjunct Associate Professor at Curtin University; three reports from Mr Dilip Samji, a Digital Forensic Examiner; a report from a professional photographer, Mr Matthew Kemp; and a report of a Forensic Document Examiner, Mr John Heath (the New Reports) (see Mr Ozmen’s affidavit at [3].) (The applicants in their submissions also refer to an expert by the name of Mr R Boddington who they rely on but he does not appear to be named in Mr Ozmen’s affidavit.)
In opposing the November 2023 Motion, the first respondent served three reports by forensic information technology experts, Jarret Le Roux and Bertram Lyons, responding to the New Reports (the Response Reports).
Mr Ozmen and Mr Rowe apparently ceased to act for the applicants in mid- 2024 (see [22] below). On 11 June 2024, Legal Aid NSW granted the applicants’ application for Legal Aid. Peter Agoth, solicitor (of Peter Agoth & Associates), was appointed as the applicants’ solicitor and Ms M Keaney was appointed as their Counsel to represent the applicants in the District Court proceedings.
On 22 July 2024, at a directions hearing at which the applicants’ legal representatives were present, the hearing of the applicants’ November 2023 Motion was fixed for 18 December 2024. The applicants say that Mr Agoth and Ms Keaney chose this hearing date in advance themselves.
The applicants have a raft of complaints as to the conduct (or, perhaps more precisely, alleged lack of conduct) of the matter by their legal representatives over the period from 11 June 2024 to 18 December 2024, including their failure to prepare or file any (further) evidence, submissions, affidavits, or a further notice of motion in relation to additional fresh and new evidence sought to be relied upon in the District Court proceedings (i.e., beyond that already subject of the November 2023 Motion that had been filed by their previous legal representatives); and as to the failure of Ms Keaney and Mr Agoth to attend Court on 18 December 2024 and to notify the applicants in advance that they would not be attending the hearing. The complaints against the legal practitioners are beyond the scope of these proceedings and, as will be noted shortly, the applicants have already made those complaints to Legal Aid and the Legal Services Commissioner. They do not arise for determination on this judicial review application, although they occupied much space in the applicants’ submissions.
The applicants also have a litany of complaints against the first respondent and its Counsel (including very serious accusations of the making of false allegations, fraud, misleading the court, and manipulation of evidence), the truth of which is by no means established on the material before this Court. Those complaints extend to allegations of criminal conduct that should not have been made. Again, those matters are not for determination in these proceedings. We emphasise that allegations of this kind should not lightly be made.
The primary judge indicated that his associate would attempt to contact Mr Agoth. The primary judge also sought further information from Mr Di Francesco as to his understanding of the position in relation to the applicants’ legal representation, in the course of which his Honour ascertained from Mr Di Francesco that the (six folder) Court Book had been prepared by the first respondent’s solicitors on the basis of a draft index to which Mr Agoth had not objected. Mr Di Francesco noted that his instructing solicitor had communicated with Mr Agoth as recently as Friday, 13 December 2024 and that additional reports had been served on his instructing solicitor the previous week (which he thought had been obtained directly by the applicants dealing with the experts, not through the solicitors) and he said that those reports had been added as an extra volume to the Court Book (18/12/24; T 2-4). The additional reports to which Mr Di Francesco there referred were presumably the reports the subject of the November 2023 Motion, since part of the applicants’ present complaint is that one of those reports was missing from the six folders of the Court Book prepared by the first respondent.
The primary judge confirmed that it was Mr Di Francesco’s understanding that the previous Legal Aid legal representatives (Mr Ozmen and Mr Rowe) had prepared the affidavits and written submissions on file (in relation to the November 2023 Motion) (18/12/24; T 4.32). The primary judge then stated (18/12/24; T 4.48-50) “Anyway the written submissions have been prepared and that’s the basis on which, at the moment, the Court is going to proceed and deal with the matter”. His Honour then adjourned the matter for a few minutes to see if contact could be made with Mr Agoth (18/12/24; T 5).
After that short adjournment, but at a time when the applicants were not present in court, Mr Di Francesco requested that the matter stand down for ten minutes, informing his Honour that the solicitor from Mr Agoth’s office had arrived and that he understood the solicitor was on the phone to, or attempting to contact, Ms Keaney, the barrister previously briefed in the matter (18/12/24; T 5).
This must have been shortly prior to 12.30pm (as the transcript records that when a solicitor from the office of Peter Agoth & Associates attended the District Court and appeared before his Honour that day, the time was noted as being around 12:30pm). The solicitor indicated to his Honour that his name was Mr Bol (though the applicants refer to him as Mr Bol Mathiang) (18/12/24; T 6). With no intended disrespect, we will refer to him, as the primary judge did, as Mr Bol.
The applicants say that, in their presence, (presumably in the discussion outside Court which Mr Di Francesco understood was occurring at that time) Mr Bol contacted Ms Keaney who said that she would speak via AVL to the primary judge. The applicants complain that the judge, Mr Bol and the first respondent did not connect the AVL. The transcript does not record that anyone requested that there be an appearance by Ms Keaney by AVL, nor that his Honour was advised of any offer that Ms Keaney appear via AVL. In any event, if she had returned the brief it seems likely that all she could have done was inform his Honour of her inability to continue to act and seek leave to withdraw. Again, this is a complaint that goes to the conduct of the legal representatives, not the decisions of the primary judge.
While the applicants were still outside the courtroom, the primary judge then had the following exchange with Mr Di Francesco (on which the applicants rely as demonstrating bias – see below):
The applicants also say that Ms Balsyte walked to Mr Bol at the bar table and brought documents (the “explanation” and submissions) and told him “Please give documents for the Judge they have all explanations, submissions Judge needs” but there was no response. They complain that both the primary judge and the first respondent’s Counsel saw this (presumably the approach by Ms Balsyte to Mr Bol) but did not ask if the applicants would like to make submissions; and they were just ignored.
There is no basis for any suggestion that the primary judge was aware of the text communications between the applicants and Mr Bol. While the primary judge may well have seen Ms Balsyte approaching Mr Bol either during the course of the hearing of the November 2023 Motion or when giving ex tempore reasons (although if this was during the latter then it is also conceivable that his Honour was looking at documents and not focusing on the parties at the time), it is not uncommon for litigants (or instructing solicitors) to approach the legal representative at the Bar table. A judge cannot know what communications are made on that occasion (such as whether this is to give documents or instructions to their legal representatives during a hearing). It is not incumbent on the judge in those circumstances to enquire directly of legally represented applicants whether they wish to give their own explanation or to speak directly to the Court and it would have been quite inappropriate for his Honour to have done so. It was well open to his Honour to infer that Mr Bol had made a decision as to whatever communication had been made to Mr Bol by the applicants and, in the absence of any application or submission from Mr Bol, to assume that nothing was required of him in that regard. As already noted, the transcript records that by the time the applicants sought to intervene directly in the proceeding this was during his Honour’s ex tempore reasons.
His Honour denied the application for an adjournment. The applicants complain that this was despite them having informed the Court that their legal representatives failed to prepare the case and did not come to court without giving any notice of this to the applicants. (While the applicants certainly informed his Honour that they were not aware of what had happened before they arrived at court, the transcript does not record that his Honour was informed by them or by Mr Bol that the applicants’ legal representative had failed to prepare the case.) The applicants complain that they were not given any notice and information or case documents by anyone and were not given any chance to explain or to give their material and to be heard.
The primary judge then proceeded to deal with the applicants’ November 2023 Motion. The applicants complain that he did so without explaining and without informing them as to whether he had their documents and that he did not inform them that he was going to give an oral judgment.
It is clear from the transcript that his Honour had reviewed the chronology and submissions prepared by the first respondent. His Honour noted an entry in the chronology to the effect that the applicants would be objecting to the first respondent’s report on the Motion and enquired of Mr Di Francesco whether any basis was given for that opposition. Mr Di Francesco said that the report was served late (he thought only a matter of days) and that the applicants wanted it noted on the record that they intended to object because it was late (18/12/24; T 10.32). The applicants say that this was incorrect and they rely on the fact that his Honour questioned Mr Di Francesco about this, and not them, as an indication of bias (see below).
The applicants also complain that the documents tendered by the first respondent (emails and a chronology) were not shown or disclosed to them before court and that they were not allowed to respond. The difficulty with this submission is that they were represented at the time and Mr Bol informed his Honour that he had a copy of the chronology (see 18/12/24; T 10) and could have raised an issue if he did not have any other documents then being tendered by the first respondent.
His Honour noted that the applicants had filed three further expert reports and that the first respondent filed a further report on 20 May 2024.
His Honour then said to Mr Bol “I presume you don’t have anything further that you’re in a position to put, is that right?”, to which Mr Bol answered “No, your Honour, I don’t have any further submissions” (18/12/24; T 11.1-4). Mr Bol shortly thereafter indicated that he had another matter in Bankstown Local Court at 2pm and the primary judge offered to sit through a bit into lunch to complete the Motion, which then occurred (18/12/24 T 45.3-24).
His Honour refused the fresh evidence application. The applicants complain that he did so by using “old material from 1 year and 1 month ago” from their previous legal representatives (i.e., the submissions and evidence filed in support of the November 2023 Motion), without asking anything and by using the first respondent’s submissions.
The applicants also complain that the first respondent did not tell the primary judge about their forensic expert reports and that the primary judge did not want to see and hear from them about what they wanted to explain. They complain that, instead of asking them, the primary judge asked Mr Di Francesco about the applicants’ objection regarding the first respondent’s material and say that the primary judge did not look at them and was only concentrating on Mr Di Francesco. They rely on this to say that the primary judge was biased (see Ground 3) and not impartial, referring to the transcript at 18/12/2024; T 10.30-35. We deal with the bias complaint in due course but suffice it to note that, in circumstances where Mr Bol had already indicated to the primary judge that he had no knowledge of the matter, it was not inappropriate for the primary judge to ask the first respondent’s Counsel for elucidation of the basis of the applicants’ objection. As an officer of the Court, the first respondent’s Counsel had a duty to assist his Honour and it could be expected that he would understand the procedural background to the matter.
The applicants, in their written submissions in this Court, say that if the primary judge had allowed them to provide material and oral submissions, they would have explained the circumstances relating to the material they sought to adduce and would have provided all of the material contained in the White Folder prepared in these proceedings as well as affidavits “and more” (the applicants here citing material in various volumes of the appeal books). The difficulty with that submission is that it is by no means clear that his Honour would have allowed (had such an application been made) the filing of a further notice of motion, evidence and submissions; nor that the applicants were in a position to do so at that stage as opposed to making oral submissions as to their explanation for not having filed material in the Local Court proceedings challenging the first respondent’s evidence (which is the explanation that his Honour said was absent).
Pausing here, we note that the applicants’ explanation in their submissions in this Court as to why the material the subject of their evidence application was not before the Local Court (and seemingly the explanation they say they would have given to the primary judge had they been permitted to do so) was that: the first respondent did not disclose the electronic files; the applicants’ legal representatives did not do their work; the first respondent’s exhibits were given in the hearing without them being shown beforehand; in the Local Court they were represented by Legal Aid assigned lawyers and could not organise funding for legal work; there was no interpreter for four years; they did not know anything about how the legal process works, their rights were not explained and they were not told; they had physical and financial difficulties (including reference to attempted murder, cancer and hospitalisation) and language problems; and they submitted photographs about four weeks before the close of the case on 18 June 2021 and, once electronic files were requested, they had no time to find the electronic files from different devices and organise funding and expert reports. They complain that the case was closed by the magistrate without notice to them and that more evidence was not allowed. They say that some photographs were located and Voros Lawyers were provided with expert reports but that they were told the case was closed and when they raised this (between 21 December 2021 and 31 January 2022) the magistrate did not take the evidence. Again, they accuse the first respondent of preventing access to exhibits and of presenting a false report. Those themes are raised multiple times in the submissions on the present judicial review application.
At [25], the primary judge said that the issues to be raised on the Motion were adequately summarised in the affidavit and written submissions prepared by both parties and was of the view that there was no basis for providing the applicants with yet more time and opportunity to prepare the application to adduce fresh evidence. It is apparent that his Honour did not understand Mr Bol to have suggested that there was an intention on the part of the applicants to file yet a further notice of motion in order to seek leave to adduce other expert evidence beyond that the subject of the extant November 2023 Motion. That is hardly surprising as Mr Bol neither made nor foreshadowed any such application.
At [26], his Honour noted his understanding from Mr Di Francesco that the outcome for leave to adduce fresh evidence would not necessarily finalise the appeal (given that there were grounds of appeal which did not depend on the introduction of any further evidence) and hence his Honour expressed the view that failure of the application for leave to adduce fresh evidence would not be fatal to them pursuing the appeal on the basis of the material before the trial magistrate (saying that this was the conventional course for such an appeal).
His Honour concluded at [27] that in his view the Court was in a position to determine the application for adjournment and the application for leave to adduce fresh evidence on the basis of the material that was provided by the parties in anticipation of such a hearing. His Honour said that in his view any further submissions by counsel on the material he had seen would not materially influence the outcome of the application. His Honour then refused the application for an adjournment.
The primary judge then turned to consider the application to adduce fresh evidence, referring to the submissions prepared by Mr Rowe of Counsel and the principles to be applied ([30]-[55]). At [29], his Honour said that no explanation was provided as to why the new evidence sought to be led was not sought or tendered during the lengthy hearing before the magistrate.
His Honour referred to the first respondent’s written submissions, which noted that the trial magistrate’s reasons included findings that various documents tendered by the applicants in the trial were initially forged by both of them (which was the subject of a forensic expert report from Mr Clifford Hobden in respect of which the applicants were given an opportunity to call expert evidence in response but did not do so) ([34]). The primary judge also noted that the first respondent’s submissions had pointed to the absence of explanation for the unavailability of the evidence, now the subject of the application, to be put before the magistrate.
At [35], the primary judge said that the applicants had tendered voluminous documents in their defence at trial and made a forensic decision not to challenge the expert evidence at trial (there seemingly recording submissions made by the first respondent) and went on to note the first respondent’s submissions as to the need for finality and to hold the applicants to the election they had made regarding the conduct of their defence.
At [36], his Honour said that no explanation had been given by the applicants as to why text messages that it was asserted by the applicants were falsified had not been challenged during the hearing.
At this point, the transcript of the reasons for judgment (at [37]-[40]) records that Ms Balsyte interjected, saying “Judge, this is explanation but it was not filed for my submissions” and, when his Honour told her not to interrupt him as he was delivering reasons, Ms Balsyte said “Lawyer please file submissions which I made”. In context, this appears to have been referring to an explanation for the fact that there had not been a challenge at the Local Court hearing to the first respondent’s evidence to the effect that text messages relied upon by the applicants were false. There was no reference to an application to rely on further evidence or to hand up additional expert reports. The applicants complain that they did not know that the primary judge was commencing to give his reasons (as he spoke quietly). Insofar as the applicants complain that the primary judge did not notify them that he was about to commence giving reasons, there was no duty on his Honour to do so – particularly where Mr Bol was their legal representative in court and had indicated he had no further submissions to make. Mr Bol can be taken to have understood that his Honour was in the course of delivering reasons (whether quietly or not), given the content of the reasons. Such an understanding is consistent with Mr Bol’s responses to the applicants’ text messages at that stage (as noted earlier).
The primary judge went on to note the submissions made for the first respondent to the effect that the proposed expert reports (those on which the applicants sought leave to rely) were not probative, were prone to lead to delay and were of no assistance in determining the matters in issue in the proceedings; and that similar submissions were made as to other documents that were challenged.
His Honour addressed the reasons of the trial magistrate (at [42]-[44]) and concluded that his brief review of those reasons fortified the view to which he had come that the application to adduce fresh evidence should be refused. His Honour said (at [45]):
The applicants refer to statements made at the directions hearing in the CCA on 13 March 2025 in which the Acting Registrar indicated that there was a need for a quick assessment of whether the CCA or Court of Appeal had jurisdiction in the matter, the Acting Registrar acknowledging that there was a judgment that might well support the applicants’ position as to jurisdiction; and that directions were made for submissions on the question of jurisdiction. The applicants say that they followed the CCA directions, filing submissions on 26 March 2025 and reply submissions on 2 April 2025.
The 6 folders that were before the primary judge for the 18 December 2024 hearing were provided to the applicants electronically on 18 March 2025 and in hard copy on 3 April 2025.
From 9 April 2025 to 15 April 2025, the applicants applied for pro bono legal assistance with The Law Society of NSW. On 15 April 2025, they were advised that The Law Society of NSW could not assist.
Further submissions were filed in the CCA during April 2025. On 27 May 2025, the CCA gave judgment on the question of jurisdiction determining that the appropriate forum for review of the impugned decisions was this Court (see Balsiene v New South Wales Land and Housing Corporation; Balsyte v New South Wales Land and Housing Corporation [2025] NSWCCA 70 (CCA Judgment) (Harrison CJ at CL)). (Insofar as the applicants take issue with the first respondent’s reference to this decision as being as to the incompetence of the appeal, because they say the word “incompetence” was not mentioned in the judgment, it is clear that the applicants have misapprehended the use of the word “incompetence” in this context. The point is that the CCA determined the issue of jurisdiction against the applicants; the CCA appeal therefore being incompetent. This was not a reference to the competence (i.e., professional ability) or otherwise of those who brought the appeal in the wrong jurisdiction.)
The applicants then go on to explain that on 28 May 2025 they asked the District Court to consider the excluded reports (i.e., those the subject of the November 2023 Motion) “due to the circumstances”. The first respondent opposed the applicants’ request. According to the applicants’ submissions, a similar request seems to have been made on 2 June 2025, again opposed by the first respondent.
In those circumstances, the applicants submit that there should be an extension of time for the filing of their summons in this Court.
The first respondent also notes that on that occasion Ms Balsiene submitted that the law needs to grow and it would be good and very interesting to make new law allowing the appeal to be heard by the CCA (13/3/25; T 19.3-24). The applicants in their submissions have included extracts of the exchanges made at that directions hearing, including the following:
Sixth, the first respondent says that it suffers prejudice from the continued delays in bringing the District Court proceedings to a conclusion, including the wasted time and cost of having defended the appeals to the CCA which were dismissed on 27 May 2025 as being incompetent for want of jurisdiction by Harrison CJ at CL (see CCA Judgment).
Finally, the first respondent says that the public interest is in achieving finality by having the prosecution and appeals brought to end without further unnecessary delay and cost; and that the applicants be held to the forensic decisions they themselves, or through their lawyers, have made in the Local Court, the District Court and the CCA.
The applicants’ complaints as to the conduct of their legal representatives (as discussed earlier) need not be further addressed.
The complaints which do raise the question of jurisdictional error are as to the refusal to grant an adjournment and refusal to hear the applicants themselves on the November 2023 Motion (since failure to give the unsuccessful party an opportunity to be heard may amount to a denial of procedural fairness and jurisdictional error), the allegation of bias and constructive failure to exercise jurisdiction (see Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [60]; Re Refugee Review Tribunals; Ex parte HB [2001] HCA 34; (2001) 179 ALR 513 at [10]; Franklin v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 198; [2022] NSWCA 58 (Franklin)).
What the primary judge faced on 18 December 2024 was a situation where the applicants were represented by a solicitor, Mr Bol. He arrived late but he did appear for the applicants. In those circumstances, it was not incumbent on the primary judge, nor would it ordinarily be the course, for the primary judge to ask questions directly of the applicants (as they assert he should have done). Their solicitor was there to speak for them and, if it was necessary for him to obtain instructions about the matter, he was able to request an adjournment to do so. Moreover, the primary judge had before him the November 2023 Motion and affidavit and submissions in support of that Motion, albeit filed some time previously by the previous lawyers. His Honour was not informed of any proposed application to file any further motion or affidavits and submissions. The first reference to submissions not having been filed was made by interjection during the giving of the ex tempore reasons after the adjournment had been refused and submissions on the Motion had been considered.
The primary judge had a discretion whether to grant or refuse the adjournment (see s 40 of the Criminal Procedure Act). While the first respondent accepts that a refusal to grant an adjournment in a criminal proceeding can constitute a denial of procedural fairness, noting the duty of the court to ensure that a party is given a reasonable opportunity to prepare and present its case (see Nitiva v Director of Public Prosecutions [1999] NSWCA 332 at [64] (Sheller and Beazley JJA and Cole AJA); and Director of Public Prosecutions (NSW) v Yeo [2008] NSWSC 953; (2008) 188 A Crim R 82 at [52]- [57] (Johnson J)), the first respondent also notes the public interest that, once fixed for hearing upon the basis that the parties were ready to proceed, a criminal trial should ordinarily proceed with expedition (R v Alexandroaia (1995) 81 A Crim R 286 at 291 (Hunt CJ at CL, Grove and Dunford JJ)).
There was in our opinion no denial of procedural fairness in his Honour’s decision not to adjourn the hearing of the November 2023 Motion. The matter had been listed for hearing months before. The applicants had had ample opportunity to prepare their case with the benefit of (such as it turned out to be) representation from their Legal Aid lawyers. His Honour took into account that the solicitor who had appeared that day had expressed no knowledge of the matter but his Honour also noted that he had the benefit of the earlier submissions and evidence filed in support of the Motion. As already noted, there was no suggestion by Mr Bol that a further application to adduce evidence was to be made.
What the primary judge could quite fairly have seen the position to be was a last minute adjournment application being forced on the Court almost as a fait accompli by dint of Ms Keaney apparently being conflicted out due to a disagreement over instructions and the unexplained absence of Mr Agoth (said by the applicants to be on holidays). His Honour was not obliged in those circumstances to accede to the adjournment application, particularly in circumstances where he already had the benefit of submissions for the applicants on the November 2023 Motion and there was no suggestion that they would not adequately address the application before him.
Moreover, the applicants appear to have had representation by various legal representatives over the course of the respective proceedings (and complaints against some or all of those representatives). Had they wished to withdraw instructions from Mr Bol (or, more technically, Peter Agoth and Associates) during the course of the 18 December 2024 hearing, it is difficult to believe they would not have done so. While they suggest that some formal requirement from Legal Aid would have precluded termination of Mr Bol’s instructions to appear for them on 18 December 2024 was necessary, there is nothing to suggest that they could not have done so on the spot (although that might perhaps have had consequences for their ongoing representation for the appeal proceedings). It is at least open to infer that the applicants did not insist on representing themselves at the 18 December 2024 hearing because a forensic decision was taken that the hearing would be adjourned due to the non-attendance of Mr Agoth.
As to the determination of the November 2023 Motion, the applicants had had ample opportunity to prepare their case for hearing on 18 December 2024. Complaints as to the work performed by their lawyers in that regard are not within the scope of the determination of the judicial review application. They also had the opportunity to give instructions to Mr Bol as to the matter (both when he arrived at court and during the hearing). Their complaint as to his response to those instructions or that he ignored them is beyond the scope of this judicial review application.
We have concluded that the applicants were not denied a fair hearing, nor did the primary judge decide the matter without lawful process, as the applicants assert.
Insofar as the applicants complain that, in dismissing the November 2023 Motion, the primary judge referred to the absence of any explanation for the failure to challenge critical evidence during the Local Court hearing but did not allow an explanation or submissions, any such criticism of his Honour’s reasons or reasoning process is not within the scope of judicial review for jurisdictional error.
As to the applicants’ argument that there was procedural unfairness to the applicants in that, at no stage during the proceedings on 18 December 2024, did the primary judge indicate that a difficulty faced by the applicants was an “absence of explanation” as to why the new evidence “was not sought or tendered” in the Local Court (which they say prevented any submission on the question whether it was correct to say that there was no such “challenge” or any submission as to the significance of such an absence; and prevented the applicants seeking to remedy such absence), the issue was squarely raised in the first respondent's submissions. There was no procedural unfairness in his Honour not raising this in oral argument before the determination of the November 2023 Motion.
As to their complaint that the primary judge referred in his reasons to a submission by the first respondent that the new evidence was “not probative” (at [41]), where the applicants maintain that the new evidence was plainly highly relevant, the applicants say that their evidence should have been taken at its highest in circumstances where no evidence had actually been given and there had not been any cross-examination or testing of the expert evidence, including the evidence relied upon by the first respondent. The applicants say that the primary judge ignored their expert’s findings (which findings they say proved that the first respondent’s reports were incorrect, unreliable and the first respondent’s evidence was fabricated). This, however, amounts to a challenge to the merits of the primary judge’s decision. It does not raise a procedural fairness issue. Again, we note that his Honour was not determining the question of guilt or innocence – this was not the hearing of the appeals themselves, simply an application to adduce new evidence. His Honour was entitled to take into account all of the submissions which were then before him, as he did.
As to the assertions that the primary judge failed to consider the interests of justice under s 18(2) of the Crimes (Appeal and Review) Act regarding fresh evidence and new evidence; failed properly to apply the test for fresh evidence by not fully assessing whether the fresh new evidence, if accepted, would have created a reasonable doubt about the applicants’ guilt and proved their innocence (misapplying the legal standard/test); failed to assess the fresh evidence’s probative value, credibility, weight and impact (failing to engage with relevant evidence); failed properly to consider the first respondent’s duty of disclosure (required in accordance with the principles set out in Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68; Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708) and therefore placed undue weight on the first respondent’s evidence; did not fairly consider their expert evidence and gave undue weight to the first respondent’s submissions and reports; assumed, without evidence, that the fresh and new evidence could have been raised earlier, without hearing proper argument or submissions from them; and made a wrongful assumption about the availability of fresh evidence in the Local Court without considering practical limitations (such as access, financial constraints, lack of legal assistance, and “real-world constraints”), again these raise issues going to the merits of the decision not jurisdictional error.
In support of ground 1, the applicants also raise issues as to apprehended bias, which we consider in ground 3.
The applicants were not denied procedural fairness or natural justice on 18 December 2024, in the circumstances as occurred on that day. We do not accept that there was practical injustice in the sense considered in Re Minister for Immigration & Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 (Lam) at [34] and [37] (Gleeson CJ) where a party has lost the opportunity to make submissions to the decision-maker in opposition to a proposed course or in support of a course which the party urges the decision-maker to take (see Lam at [36]).
Accordingly, ground 1 should be dismissed.
Insofar as the applicants contend that the primary judge declined to consider their material and submissions and decided both the adjournment and evidence decisions without affording the applicants a chance to present their case, the first respondent (correctly) notes: first, that the only reference to further submissions came during Ms Balsyte’s interjection during the ex tempore judgment (see above) (by then the time for submissions and evidence having already passed) and Mr Bol made no such application; and, second, the applicants had filed written submissions in November 2023 and that no application was actually made for the applicants to appear for themselves, make their own submissions, or file further evidence in support of the November 2023 Motion.
We do not accept that there was a constructive failure to exercise jurisdiction in relation to either decision. As the first respondent notes, there is a constructive failure where a judge purports to have exercised jurisdiction but in substance has not undertaken or completed the task of doing so because of failure by the primary judge to address some essential matter (such as failure to address a statutory precondition to the exercise of the power or failure to address a critical or substantial, clearly articulated, argument relying upon established facts or raised by a party) or where the primary judge has a basic misunderstanding of the case brought by a party (as articulated in Ming at [12]-[18] (Kirk JA, White and Mitchelmore JJA agreeing)). That is not the case here.
The real complaint by the applicants is that they contend his Honour incorrectly decided their applications (which bespeaks a merits or appellate review) and denied them procedural fairness (which has been considered above). Their reply submissions emphasise that focus in that they reiterate the complaint that the primary judge proceeded without hearing from them and by relying on the first respondent’s submissions without considering their case and materials (and referring to the earlier submissions without addressing the material and evidence on which they place significance).
Ground 2 should be dismissed.
Eighth, that his Honour did not place the same burden on the first respondent’s “fresh and new evidence” and ask why the first respondent did not file a notice of motion with an affidavit explaining why it was not given in the Local Court. (The first respondent says that insofar as this complaint relates to Mr Le Roux’ report, the first respondent says that this was served in response to the November 2023 Motion and pursuant to consent orders made on 4 December 2023 and 5 February 2024; and that the first respondent was not notified that this was the basis of the applicants’ objection to that report in any event).
Ninth, that his Honour gave undue weight to submissions of the first respondent while disregarding expert evidence tendered by the applicants.
The applicants say that the above conduct demonstrates a departure from the primary judge’s obligation to provide an impartial and fair hearing and constitutes a jurisdictional error. They argue that a fair-minded observer might reasonably apprehend that the Court did not approach the case impartially *(*citing Ebner v Official Trustee Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Ebner) at [6]).
In summary, we do not accept that the well-known Ebner “double might” test has been made out, let alone that actual bias (in the form of predetermination of the matter) has been established. The applicants have not identified a matter that a fair-minded lay observer might reasonably apprehend might lead the primary judge to decide a case other than on its legal and factual merits nor have they articulated a logical connection between the circumstances identified in that matter and the apprehension that the case might not be decided on its merits (Jamal v Director of Public Prosecutions [2019] NSWCA 121 (Jamal) at [55-58] (Gleeson JA, White JA and Emmett AJA agreeing)). Nor have they established, on the balance of probabilities based on cogent evidence, that the primary judge: had an opinion on a relevant aspect of the matter in issue in the particular case; would, or did, apply that opinion to the matter in issue; and would, or did, do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case (citing Jamal at [60] (Gleeson JA, White JA and Emmett AJA agreeing)).
First, we do not accept that the comment made by the primary judge at the outset reflected a predetermination of the outcome of the application nor did it reflect a pre-disposition to determine the matter quickly rather than fairly. It is by no means inappropriate for a judge to read in advance the parties’ submissions in a case and to test propositions with counsel as to that case or the outcome of issues in the case without this amounting to a fixed view of the case. Nor does the fact that the exchange took place in the absence of the applicants lead to such a conclusion. It is clear from what was said that the primary judge was simply considering what might follow if the evidence application were to be dismissed. There is nothing to suggest that his Honour did not approach the submissions that were in fact filed for the applicants with an open mind. Indeed, the fact that his Honour did not have a predetermined view of that outcome is demonstrated by the fact that his Honour did not ultimately treat the rejection of the evidence application as determinative of the appeal.
Second, the reliance by his Honour on the submissions and material filed in November 2023 does not give rise to an apprehension of bias (since that was the only material that his Honour could properly consider in relation to the applicants’ case in the absence of anything filed subsequently). As to the complaint that there was no opportunity for the applicants to correct or clarify facts, they were represented in court by a solicitor who did have the opportunity to make submissions and who clearly made a forensic decision not to accede to the applicants’ request that he provide the judge with their “explanation” or “submissions”.
As to the third and seventh reasons, insofar as these relate to the question raised of Counsel for the first respondent to explain the basis for the applicants’ objection to the first respondent’s evidence (which was noted in the chronology and the orders of 11 March 2024), this does not give rise to an apprehension of bias. Mr Bol had already indicated that he knew nothing about the matter. In those circumstances it was logical for his Honour to ask Mr Bol’s opponent for his understanding of the basis of the objection. The first respondent notes that Mr Bol did not suggest that the explanation of the objection was incorrect and no document was provided to the Court stating that the objection was something different.
As to the fourth and fifth reasons, we have already addressed the applicants’ complaint that they were not allowed to provide an explanation or be heard as to the explanation for the unavailability of that evidence at the time of the Local Court hearing. The direct attempt by the applicants to make submissions to the primary judge occurred only once when there was an interjection by Ms Balsyte during the giving of ex tempore reasons. His Honour’s refusal to allow submissions at that stage does not amount to bias. His Honour had already, through Mr Bol, afforded the applicants an opportunity to make submissions and his Honour took into account the submissions that had earlier been filed for them.
The sixth reason follows largely from the previous two reasons. Insofar as it is a complaint as to the reasoning process adopted by the primary judge, it appears to raise a merits review of the decisions his Honour made. We consider that his Honour fairly addressed the content of the reports by reference to the submissions made as to their content and that no bias was shown by reference to the findings made by the trial magistrate.
Seventh, the complaint that his Honour “found time to talk about other irrelevant matters” with the first respondent’s counsel but did not ask them about their objection to the first respondent’s expert reports again fails to take into account that the applicants were represented by Mr Bol and his Honour properly directed comments or questions to him (not to the applicants). In circumstances where Mr Bol was clearly not able to assist his Honour on matters of a procedural nature (such as evidentiary objections), there was no bias shown in his Honour addressing questions to Mr Di Francesco. Whether those discussions were as to relevant or irrelevant matters is not to the point.
As to the eighth reason (that the primary judge did not submit the same burden on the first respondent in relation to its Response Reports as he did to the applicants), as already noted, this complaint is misconceived as the Response Reports were the first respondent’s evidence in respect of the November 2023 Motion that was permitted by the orders made on 4 December 2023 and 5 February 2024.
As to the ninth reason, the question of weight to be given to the respective submissions was a matter for the primary judge. The complaint that undue weight was given to the applicants’ submissions falls into the scope of an impermissible merits review. Further, the complaint that the primary judge disregarded the expert evidence of the applicants (insofar as it relates to the evidence the subject of the evidence application) ignores the fact that the primary judge set out in his reasons his assessment of the evidence relied upon by both parties.
Insofar as the applicants submit the primary judge impermissibly took into account the reasons for judgment and sentencing of the trial magistrate, we accept the first respondent’s submission that [42]-[45] of the primary judgment, properly understood, indicate that his Honour had reference to the Local Court judgments to understand the issues on appeal to which the New Reports would respond and the reasonableness of an absence of explanations by the applicants as to why the New Reports and metadata were not sought or adduced during the Local Court proceedings. The primary judge was also entitled to take into account the reasons of the trial magistrate as to the credibility of witnesses (citing McNab v D**irector of P**ublic P**rosecutions (NSW) (2021) 106 NSWLR 430; [2021] NSWCA 298; at [71]-[73] (Basten and McCallum JJA); [31], [41] (Bell P)).
Ground 3 is not established.
Ground 4 should also be dismissed.