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[2025] NSWCA 216
procedural. The notice of motion filed 9 September 2025 was dismissed. The costs of the motion were to be costs in the cause, with no separate order required under r 42.7 of the Uniform Civil Procedure Rules...
Free JA dismissed Ms Bezzina's interlocutory motion. The court held that TfNSW was not barred from engaging private lawyers, that the requested audio and oath records were not shown to be relevant to the judicial review issues, and that a general exemption from future costs orders was not justified. The ruling did not decide the underlying challenge to the District Court decisions or the speeding conviction.
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2,573 words · generated 06/10/2026
Bezzina v Transport for NSW [2025] NSWCA 216 is a procedural ruling by Free JA on an interlocutory notice of motion. It did not decide the underlying judicial review application. The judgment concerned a set of requests made by Leslee-Ann Bezzina while she was pursuing judicial review relating to decisions made in proceedings about a speeding offence.
12 cited instruments linked from this judgment.
The background was a camera detection at Mount Victoria. The camera allegedly recorded Ms Bezzina's vehicle travelling at 68 km/h in a 60 km/h zone, and a penalty notice for $123 was issued [1]. The Local Court convicted her on 8 August 2022. She then sought to appeal, with later District Court listings before different judges. The judgment records her dissatisfaction with the process, including a conviction entered apparently in her absence and a later refusal to reconsider the matter [1].
Her judicial review case alleged, in broad terms, that she had been denied procedural fairness and had not received a fair hearing on the merits of her contention that she did not commit the offence [2]. One issue she raised concerned s 38(b) of the Interpretation Act 1987 (NSW) and whether distance used in calculating speed on an incline had to be measured on a horizontal plane. Free JA expressly left the correctness of that argument for another day [2].
The motion filed on 9 September 2025 sought orders relating to the representation of TfNSW, an audio recording of a District Court appearance on 29 September 2023, protection from costs, and certified copies of oaths taken by judicial officers [3]. The first request, for an appearance before a judge with jurisdiction, became redundant once the motion was heard by a judge [5]. The remaining requests were considered on their merits. The motion was dismissed, with the costs of the motion to be costs in the cause [29].
The limits of the decision matter. It did not determine whether Ms Bezzina's conviction was valid, whether procedural fairness had been denied in the District Court, or whether her interpretation of the measurement legislation was correct. The court decided only whether the interlocutory relief she sought in this motion was justified.
The court treated the four substantive requests separately, but a recurring theme was whether the request had a proper legal or forensic foundation in the proceedings then before it.
On the representation issue, Ms Bezzina argued that TfNSW, as an agency governed by the Transport Administration Act 1988 (NSW), could not use a private law firm and had to use the Crown Solicitor's Office or the Director of Public Prosecutions [6]. The court accepted the general proposition that public agencies must act according to law, but did not accept the claimed statutory restriction [7].
The proposed restriction relied on cl 1(e) of Sch 1. That provision identifies a function of TfNSW as contracting with public transport agencies or the private sector for delivery of transport services [8]. Free JA rejected the inference that authorising private contracting for that particular function prohibited private contracting for all other services. The provision dealt with a particular area, and a broad prohibition would be a “large and unjustified logical leap” [9]. The court also relied on cl 9(1), which permits TfNSW to make or enter contracts or arrangements with any person in connection with its functions. TfNSW had authority under s 200(4) of the Road Transport Act 2013 (NSW) to commence proceedings for relevant offences. The engagement of Hunt & Hunt for legal services connected with those proceedings therefore fell within the contractual authority described by cl 9(1) [10].
Ms Bezzina also relied on a passage from Parisienne Basket Shoes Pty Ltd v Whyte. The court treated the principle that public bodies must act within legal limits as uncontroversial, but said that it did not conflict with a State law conferring power on an authority. A statutory power provides content to, rather than contradicts, the general principle that executive activity has enforceable legal limits [11]. Since there was no substantive basis for requiring TfNSW to change lawyers, the court did not decide whether it had jurisdiction to make such an order [12].
The audio request concerned a District Court mention on 29 September 2023. Ms Bezzina disputed the transcript's record of an exchange about subpoenas and recalled a further comment that did not appear in the transcript [13]-[14]. She considered the comment evidence of collusion or the judge taking directions from TfNSW's solicitor. Free JA said that, even if the comment was made as recalled, it did not indicate the alleged impropriety. Read fairly, the exchange concerned the parties' responsibility to obtain documents through subpoenas, rather than the court obtaining them for a party [15].
More fundamentally, the mention was procedural and did not determine the District Court appeal. Other judges made the decisions that were the subject of the judicial review. The court therefore saw no connection between ordering the recording and the issues to be determined in the judicial review proceedings. It would serve no legitimate forensic purpose [16].
The costs request sought to prevent any adverse costs order in the Court of Appeal [17]. The court rejected the argument that the Free Access to Courts Act 1400 removed the power to order costs. It held that s 98 of the Civil Procedure Act 2005 (NSW) conferred the relevant costs power and that the historic Act no longer applied in New South Wales because of s 8(1) of the Imperial Acts Application Act 1969 (NSW) [20]. The court also declined to make a blanket protective order. The ordinary approach is to consider costs at each relevant phase, including interlocutory applications and the substantive hearing [21]. Oshlack v Richmond River Council did not establish automatic immunity for public-interest litigants. Rather, the public-interest character of litigation may be considered when the court exercises its costs discretion. The court described Ms Bezzina's proceeding as, in substance, litigation about her conviction and penalties, while leaving open a later argument about public interest [21]. The risk of adverse costs was described as a consequence of litigating in a court where costs orders are available and routinely made against unsuccessful litigants [22].
Finally, the oath-record request was treated as lacking a sufficient foundation. Ms Bezzina said she wanted the records to check that the judicial officers had jurisdiction, but identified no particular reason to suspect any officer had failed to take the relevant oath. Her misgivings about how the proceedings were handled did not, in the court's view, provide a particular basis for questioning the oaths [25]. The summons also did not raise an oath-related challenge to the validity of the judicial offices [26]. The request therefore lacked a legitimate forensic purpose in the judicial review [27].
The court additionally rejected the premise that an oath defect would automatically invalidate judicial decisions. Relying on Makucha v Sydney Water Corporation, it explained that s 11(1) of the Oaths Act 1900 (NSW) requires an officer who declines or neglects to take an oath to vacate office, or disqualifies a person from taking office if they have not entered it. The provision does not itself automatically vacate the office or invalidate judicial acts already performed. The de facto officers doctrine protects those acts [28].
This judgment is a procedural ruling applying existing statutory provisions and authorities to the requests before Free JA. It does not announce a new general rule about TfNSW's legal representation, costs protection, or judicial oaths. The central statutory provisions cited were already in place: cl 9(1) of Sch 1 to the Transport Administration Act, s 200(4) of the Road Transport Act, s 98 of the Civil Procedure Act, and s 11(1) of the Oaths Act [10], [20], [28].
As to government contracting, the decision clarifies the application of those provisions to the particular argument advanced. A specific statutory authorisation for contracting with private providers for transport services did not, in the court's view, imply a prohibition on private contracting for other services. The general contracting power in cl 9(1), read with TfNSW's relevant functions, supported the use of private lawyers in these proceedings [8]-[10]. The judgment does not purport to decide the lawfulness of every private contract entered into by TfNSW, or contracts unrelated to its functions.
On costs, the judgment applied s 98 and the approach described in Oshlack. It confirms in this context that public-interest character can be considered as part of a costs discretion, but does not automatically prevent an adverse costs order. It also favours deciding costs at the relevant litigation phase rather than granting a general advance exemption [20]-[22]. The court did not determine the costs of the substantive judicial review application.
On judicial oaths, the judgment applied the reasoning in Makucha concerning s 11(1) and the de facto officers doctrine. It treated a possible oath defect as not automatically invalidating judicial acts [28]. The judgment did not investigate whether any particular officer had an oath defect, and did not decide any pleaded challenge of that kind.
The judgment itself gives no account of subsequent appellate treatment or later decisions applying it. It would therefore be unsupported to describe how later courts have treated this decision. Its stated precedential connections in the reasons are to Makucha, Oshlack and Parisienne Basket Shoes [11], [21], [28].
At [9], Free JA described the suggested inference from cl 1(e) as “a large and unjustified logical leap”. In plain English, permission for TfNSW to contract privately for one identified function did not mean that Parliament had forbidden private contracts for every other function. The court considered that a restriction of that scale would require clear statutory words.
At [10], the court relied on cl 9(1), which permits contracts or arrangements with any person in connection with TfNSW's functions. Put simply, the agency's general contracting power was relevant because the legal services related to proceedings connected with its statutory role.
At [16], the court said the requested recording would not serve “any legitimate forensic purpose” in the judicial review. This was not a general ruling that recordings can never be produced. The reason was case-specific: the mention was procedural, different judges made the decisions under review, and the recording was not shown to bear on the issues the court had to determine.
At [21], Free JA said costs should ordinarily be considered at each relevant phase. In everyday terms, a court need not decide in advance that one party will never face costs, when the outcome and conduct of later steps remain unknown. The judgment also explains that public-interest features can matter, but do not create automatic protection.
At [28], the court stated that judicial acts of purported judicial officers are made secure by the de facto officers doctrine. In plain English, the judgment treats an alleged flaw in taking an oath as not automatically undoing decisions made while the person acted as a judicial officer. The reasoning is tied to the statutory provision and authority discussed in that paragraph.
The decision is most directly relevant where a party argues that a public agency's authority to contract for one specified purpose creates an implied prohibition on contracting privately for other purposes. The court's answer turns on the statutory text, including whether a separate general contracting power applies and whether the contract is connected with the agency's functions [8]-[10]. The judgment does not establish that all public agencies have identical powers; the particular legislation must be examined.
It may also be relevant where a litigant seeks an advance order preventing any future adverse costs order. The court's approach was to consider costs at each phase, and to treat public-interest character as one discretionary factor rather than a blanket exemption [20]-[22]. The decision does not resolve how the costs discretion would apply on different facts or at the substantive hearing.
For requests for court recordings or other material, the judgment illustrates the importance of connecting the requested material to issues actually arising for decision. Here, the recording related to a procedural mention, while the substantive decisions under review were made on other occasions [13]-[16]. A request founded only on dissatisfaction with an earlier exchange was not enough, on these facts, to establish a legitimate forensic purpose.
For requests concerning judicial oaths, the decision addresses a request where there was no particular factual basis for suspecting an oath defect and no such issue in the judicial review summons [25]-[27]. It also explains that an oath-related defect does not necessarily have the consequence of invalidating judicial acts because of the statutory provision and de facto officers doctrine [28]. The judgment does not determine how a properly pleaded, evidence-based challenge to a judicial appointment would be resolved.
The supplied judgment contains no information about later judicial treatment of Bezzina v Transport for NSW. It cannot establish whether later courts have followed, distinguished, applied, or questioned the decision. No later cases should be inferred from the fact that the judgment cites earlier authorities.
The relationships the judgment itself identifies are narrower. Free JA relied on Makucha v Sydney Water Corporation for the effect of s 11(1) of the Oaths Act and the de facto officers doctrine [28]. The judgment explained Oshlack as recognising that public-interest character may be considered in the discretionary decision whether to make a costs order [21]. It considered Parisienne Basket Shoes in response to the submission that a general principle about acting within jurisdiction made cl 9(1) inoperative [11]. Those are the precedential relationships stated in the judgment, not evidence of subsequent treatment of Bezzina.
The most important unresolved matter is the underlying judicial review application. Free JA did not decide whether the District Court denied procedural fairness, whether the decisions under review were affected by legal error, or whether the conviction and penalties should stand. The judgment records those matters as the subject of separate proceedings [1]-[2].
The measurement argument under s 38(b) of the Interpretation Act also remains expressly undecided. Free JA said the argument concerned whether distance used to calculate vehicle speed on a hill must be measured on a horizontal plane, but noted that the submission might not have been accurately summarised and left its correctness for another day [2]. The judgment therefore supplies no ruling on how that provision applies to speed-camera measurements.
The court also did not decide whether it had power to make each of the requested orders. It found no substantive justification for the requests and therefore did not need to resolve the court's power concerning the lawyers, recording, costs order, or oath records [12], [16], [19], [24], [27]. Those jurisdictional questions should not be described as decided.
Finally, the eventual costs outcome in the substantive judicial review remains open. The court identified the possibility of a later public-interest argument but observed that the proceeding was, in substance, about Ms Bezzina's conviction and penalties. It also noted that the parties' conduct could affect the costs discretion as the litigation developed [21]. The judgment decided only that no general protective costs order was justified at that point, and that the costs of the notice of motion should be costs in the cause [29].
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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: Bezzina v Transport for NSW [2025] NSWCA 216
Hearing dates: 22 September 2025
Date of orders: 23 September 2025
Decision date: 23 September 2025
Before: Free JA
Decision: The notice of motion filed 9 September 2025 is dismissed.
Catchwords: PROCEDURAL RULINGS – Use of private solicitors by government agency – Request for order prohibiting use of private solicitors – Request for sound recording – Request for protective costs order – Oaths of office of judicial officers – De facto officers doctrine
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98
Free Access to Courts Act 1400 2 Hen 4 c 1
Imperial Acts Application Act 1969 (NSW), s 8(1)
Interpretation Act 1987 (NSW), s 38(b)
Oaths Act 1900 (NSW), s 11(1)
Road Transport Act 2013 (NSW), s 200(4)
Transport Administration Act 1988 (NSW), cll 1(e), 9(1), Sch 1
Uniform Civil Procedure Rules 2005 (NSW), r 42.7
Cases Cited: Makucha v Sydney Water Corporation [2013] NSWCA 177
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; [1938] HCA 7
Category: Procedural rulings
Parties: Leslee-Ann Bezzina (Applicant)
Transport for NSW (Respondent)
Representation: Counsel:
Applicant (self-represented)
G Lewer (Respondent)
Solicitors:
Hunt & Hunt Lawyers (Respondent)
File Number(s): 2025/53366
FREE JA: The applicant, Ms Leslee-ann Bezzina, is aggrieved about a conviction and resulting penalties that were imposed on her in respect of an alleged incident of speeding at Mount Victoria. A speed camera allegedly detected Ms Bezzina’s vehicle travelling at 68km/hr in a zone limited to 60 km/hr. A penalty notice with a fine of $123 was issued to her. Ms Bezzina was convicted of the speeding offence in the Local Court by Magistrate Gibson on 8 August 2022. She sought to appeal that conviction to the District Court. That led to a number of listings before different judges in the District Court which in turn became a source of further grievance for Ms Bezzina. The matter was first mentioned before Judge Payne on 29 September 2023. It was subsequently listed before Judge David, when a conviction was entered, apparently in the absence of Ms Bezzina. The matter was subsequently before Judge Everson SC on 8 November 2024, when his Honour declined requests by Ms Bezzina to reconsider the matter.
Ms Bessina commenced proceedings in the original jurisdiction of the Supreme Court seeking judicial review of the decision or decisions of the District Court. The most recent version of the relevant originating process is a second amended summons filed 6 May 2025. In broad terms, Ms Bezzina contends that she was denied procedural fairness in the District Court and has not yet had the benefit of a fair hearing on the merits of her claim that she did not commit the speeding offence. This includes her contention that, pursuant to s 38(b) of the Interpretation Act 1987 (NSW) there is a relevant requirement that where measurements of distance are required such measurements must be carried out by reference to distances on a horizontal plane. I infer that Ms Bezzina seeks to contend that when calculations are performed to ascertain the speed of a vehicle travelling up a hill, like the steep incline of Mount Victoria, distance (as an input going to the calculation of speed) must be measured on a horizontal plane, whereas this did not occur in her case. The correctness or otherwise of Ms Bezzina’s submission, which I may not have accurately summarised, is a matter for another day.
By notice of motion filed on 9 September 2025 Ms Bezzina seeks the following orders:
1 Obtain an appearance for Leslee-ann Bezzina before a judge with jurisdiction to:
2 Order TRANSPORT FOR NSW to replace privately contracted lawyers Hunt & Hunt with the DPP or Crown Solicitor.
3 Order DISTRICT COURT NSW to supply the recording of Leslee-ann Bezzina's appearance before Judge D Payne at Penrith District Court on 29th September 2023.
4 Order all parties to bear their own costs, or no cost orders to be made at all.
5 Order the DISTRICT COURT NSW, or the individual judges: Judge P David, Judge C Mendes and Judge C Everson, to produce to Leslee-ann Bezzina a certified copy of the oath they swore to become a judge.
6 Order the LOCAL COURT NSW or Magistrate J Gibson to produce a certified copy of the oath he swore to become a magistrate.
The notice of motion was heard on 22 September 2025. Ms Bezzina appeared and presented argument in support of her notice of motion, having also filed written submissions in advance of the hearing. Ms Lewer of counsel appeared for the respondent, Transport for NSW (TfNSW).
In circumstances where the notice of motion was heard by a judge of the Court, the first order became redundant. The submissions of the parties were directed to the balance of the orders sought by Ms Bezzina.
The solicitors on the record for TfNSW in these proceedings are Hunt & Hunt Lawyers, a private law firm. Ms Bezzina objects to this arrangement, on the basis that as an agency subject to the Transport Administration Act 1988 (NSW) (Transport Administration Act) TfNSW is acting unlawfully. According to Ms Bezzina, TfNSW cannot lawfully retain Hunt & Hunt to provide legal services. It is instead obliged to use the services of the Crown Solicitor’s Office or the Director of Public Prosecutions (NSW).
Ms Bezzina advanced a number of submissions, supported by various authorities, to the effect that public sector agencies like TfNSW are obliged to act in accordance with the law. So much may be accepted. The problematic step in Ms Bezzina’s argument is that which asserts that the Transport Administration Act imposes a relevant constraint on TfNSW which precludes it from engaging a private law firm to provide legal services.
Ms Bezzina relies on cl 1(e) of Sch 1 to the Transport Administration Act. That subclause identifies one of the general functions of TfNSW as being “[c]ontracting, on behalf of the State, with public transport agencies or the private sector, for the delivery of transport services, including the setting of performance targets and service standards.” Ms Bezzina seeks to draw from that specific function a more general negative implication, namely that TfNSW cannot contract with entities in the private sector for the delivery of other kinds of services.
That is not an implication that can properly be drawn from cl 1(e). That subclause deals with a particular area of activity, namely “the delivery of transport services”. In that specific context TfNSW is authorised to contract with the private sector. It is a large and unjustified logical leap to then say that by conferring a specific authority to contract with the private sector for this particular purpose the legislature must have intended that the agency cannot enter contracts with the private sector in any other area of its operations. For a large organisation like TfNSW with a wide range of functions and areas of operation, that would be a severe and improbable constraint. Clear words would be required in the statute before a negative implication of this kind could be drawn.
In any event, the argument overlooks cl 9(1) of Sch 1 to the Transport Administration Act, which provides that TfNSW may make or enter into contracts or arrangements with any person in connection with the exercise of TfNSW's functions. Ms Bezzina did not suggest that TfNSW was acting beyond its functions to the extent that it acted as the informant in the criminal proceedings in the Local Court and the District Court, which has led to it being named as the respondent in the Supreme Court. TfNSW is expressly authorised by s 200(4) of the (NSW) to commence proceedings for an offence against the road transport legislation. Engaging Hunt & Hunt as a law firm to provide legal services in connection with these matters falls squarely within the kind of activity authorised by cl 9(1).
On 29 September 2023 Ms Bezzina appeared before Judge Payne in the Distrct Court at Penrith. It is apparent from the transcript, which was in evidence before me, that this was a mention of the matter in the District Court, with a view to procedural orders being made.
Ms Bezzina has concerns about the accuracy of the transcript. The transcript records Judge Payne as stating – “And I’m not even sure it’s the judge’s role to determine whether to issue a subpoena”. The transcript records the response of Ms Bezzina which was – “You have authority over that private company, that corporation, you’re a judge. Sorry your Honour, but who’s calling the shots?”. Ms Bezzina’s recollection is that Judge Payne responded by saying – “That’s not how it works, but I’ve probably said too much”. The transcript does not record that response. Ms Bezzina regards this comment as being an indication that there was an inappropriate element of collusion between the Court and TfNSW. Ms Bezzina says that the comment is evidence that the judge was "taking directions from the solicitor that Transport for NSW was using" and aiding the prosecution.
Even if the presiding judge made a comment in the terms asserted by Ms Bezzina, it would not signify any impropriety or bias of the kind that Ms Bezzina appears to allege. A fair reading of the transcript demonstrates that Judge Payne was seeking to understand the issues that Ms Bezzina wished to agitate and her desire to obtain documents from various entities, in circumstances where she had not issued subpoenas. The point being emphasised was that it was the responsibility of the parties, and not the Court, to obtain relevant documents by issuing subpoenas. By the time of the relevant exchange Judge Payne had already observed that the matter was taking up considerable time in a busy list.
In any event, there is a more immediate answer to Ms Bezzina’s request for an order going to production of the audio recording of the mention on 29 September 2023. The District Court did not on that date determine Ms Bezzina’s appeal from the Local Court. As Ms Bezzina appeared to accept in argument before me, the decisions that were made on her appeal were made by other judges of the District Court on other occasions. There is no basis to say that an irregularity in the conduct of the mention on 29 September 2023 would affect the validity of the substantive decisions under review. In the circumstances, an order requiring production of an audio recording of 29 September 2023 would serve no legitimate forensic purpose going to the issues to be determined in the Court of Appeal on Ms Bezzina’s application for judicial review. Assuming for these purposes that it would be within the power of the Court to make an order directed to the District Court requiring production of an audio recording of the mention on 29 September 2023, there is no justification for making such an order.
In paragraph 4 of her notice of motion Ms Bezzina seeks an order that "all parties [are] to bear their own costs and no cost orders to be made at all". As she confirmed in response to questions from the bench, the outcome that Ms Bezzina seeks is that she be protected from any adverse costs order in the conduct of her proceedings in the Court of Appeal.
Ms Bezzina’s submissions covered two related but different points. One was an assertion, invoking the Free Access to Courts Act 1400 2 Hen 4 c 1, that as a subject of the Crown Ms Bezzina is entitled to access the courts without being subject to the threat of an adverse costs order. The second point was that, even if there is no such absolute protection, the Court should in the exercise of its discretion make an order insulating Ms Bezzina generally from exposure to any adverse costs orders. Ms Bezzina sought to draw support from the approach to costs in litigation with a public interest character, as considered in Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11. In that connection Ms Bezzina sought to emphasise that she is bringing her proceedings to vindicate a broader public interest in testing the validity of speeding fines and challenging improper exercises of judicial power.
As with the previous orders, the request for this order raises questions about the power of the Court of Appeal (or single Judge of Appeal) to make the order sought. But once again it is unnecessary to resolve such questions because there is not a sound justification for making such an order, even assuming it could be made.
Contrary to the first submission, there is no doubt that there is power to make orders as to costs in respect of the proceedings in this Court, including orders requiring Ms Bezzina to pay the costs of TfNSW. Section 98 of the Civil Procedure Act 2005 (NSW) confers power on the Court to make such orders. Subject to rules of Court and any relevant legislation, costs are in the discretion of the Court and the Court has full power to determine by whom, to whom and to what extent costs are to be paid. Nothing in the Free Access to Courts Act 1400 2 Hen 4 c 1 has the effect of depriving the Court of the power to order costs. Indeed that Act no longer has application in New South Wales, by virtue of s 8(1) of the Imperial Acts Application Act 1969 (NSW).
As to the second submission, there is no justification at this time for the Court to make a general order that would insulate Ms Bezzina for all purposes from the prospect of an adverse costs order in this Court. The orthodox approach is that the appropriate costs order falls to be considered at each relevant phase of proceedings, including interlocutory applications (like the present one) and the substantive hearing. There would need to be a compelling reason to seek to pre-empt the outcome in each such case by making a general order of the kind now sought by Ms Bezzina. Nor does Ms Bezzina gain any support from the decision in . is authority for the proposition that in the exercise of its discretion a court may have regard to the public interest nature of litigation when determining that there should be no order as to costs, rather than the usual order that costs follow the event. While Ms Bezzina may perceive there to be a public interest element to her litigation, she is in substance litigating about the validity of her conviction and associated penalties. This is a matter of private interest to Ms Bezzina. While it is open to Ms Bezzina to argue in due course that there is a sufficient public interest aspect to proceedings to warrant a conclusion that there should be no order as to costs, it is far from self-evident that she will succeed in such an argument. The exercise of the Court’s discretion as to costs may well also be informed by other important considerations as matters develop, such as the reasonableness of the parties in their conduct of the litigation. The appropriate costs order to be made in respect of the substantive application made by Ms Bezzina is best resolved after that application is heard.
By pars 5 and 6 of her notice of motion, Ms Bezzina seeks orders for certified copies of the oaths of office sworn by various judicial officers involved in relation to proceedings in the Local Court and the District Court.
Again, this request raises a question about the power of the Court of Appeal (or single Judge of Appeal) to make an order of this kind. Again, it is unnecessary to resolve that question because there is no justification to make such an order.
There is a significant element of fishing in Ms Bezzina’s arguments on this topic. Ms Bezzina says she seeks the production of evidence about the oaths of office having been taken "to ensure that these judicial officers had jurisdiction to make the rulings concerning me". When asked to explain if she has any particular reason to apprehend that any of the judicial officers in question failed to take the applicable oath of office, Ms Bezzina merely indicated that she has misgivings about how her matters have been dealt with. That does not provide any particular justification to question the taking of judicial oaths.
An additional problem is that nothing in the summons seeking judicial review raises an issue about the validity of the judicial offices held by the relevant judges, having regard to a failure to take the oath of office either at all or in the proper form.
I accept the submission of TfNSW that there is no legitimate forensic purpose for making an order of the kind sought, assuming that I would have power to make one. There is no demonstrated legitimate forensic purpose having regard to the issues arising on the judicial review application.
In any event, the underlying proposition that the proceedings in the District Court (and/or the Local Court) would be invalidated if there was shown to be some defect in the process of the judicial officers taking the oath of office is wrong. The significance of any defect in the process of a judicial officer swearing an oath of office was considered by Barrett JA in Makucha v Sydney Water Corporation [2013] NSWCA 177 (Makucha). As his Honour explained at [16]-[22], the Oaths Act 1900 (NSW) does not have the consequence of invalidating the actions of purported judicial officers in circumstances where there is such a defect. Pursuant to s 11(1) of that Act, a judicial officer who declines or neglects to take the oath of office is obliged to vacate their office, or is disqualified from taking office if they have not entered their office. Section 11 does not have the consequence of automatically vacating the office of such judicial officers. Nor does it have the effect of invalidating the judicial acts they have performed when in office. The judicial acts performed by such purported judicial officers are made secure by reason of the de facto officers doctrine: at [16].
**********
Bezzina
Transport for NSW [2025] NSWCA 216
(1998) 193 CLR 72
(1938) 59 CLR 369
The notice of motion filed 9 September 2025 was dismissed. The costs of the motion were to be costs in the cause, with no separate order required under r 42.7 of the Uniform Civil Procedure Rules 2005 (NSW) ([29]).
When cl 9(1) of Sch 1 to the Transport Administration Act was drawn to her attention, Ms Bezzina argued that it was inoperative to the extent it was inconsistent with Commonwealth law, in the form of the statement of principle in Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; [1938] HCA 7. The passage in question at 389 in the judgment of Dixon J, to which Ms Bezzina referred in her written submissions, concerns the uncontroversial proposition that courts must act within the limits of their jurisdiction. As noted above, the broader proposition that a public sector agency must act within the limits of its powers is also uncontroversial. But recognising that principle does not reveal any inconsistency with a State law like cl 9(1) of Sch 1 to the Transport Administration Act which confers power on an authority. Laws of that kind serve to give content to the general proposition that the law creates enforceable limits on executive activity.
It follows that there is no basis to issue an order that TfNSW replace its existing lawyers. In the circumstances there is no need to consider whether the Court, or a single Judge of Appeal, would have power to make such an order if it were otherwise considered appropriate.
It is a necessary consequence of this approach that Ms Bezzina is at risk of facing adverse costs orders in this Court. That is no doubt an alarming prospect for Ms Bezzina, as she emphasised in submissions. But it is a consequence of choosing to litigate in this Court where costs orders can be made and are routinely made against unsuccessful litigants.