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[2026] NSWSC 809
Supreme Court of NSW
2026-07-01
Emmett J
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Campbell v Winch [2026] NSWSC 809
Hearing dates: 01 July 2026
Date of orders: 01 July 2026
Decision date: 01 July 2026
Jurisdiction: Common Law
Before: Emmett J
Decision: (1) Grant leave to the plaintiff to amend his summons only by making the amendments proposed to prayers 4, 5, 9, 10 and 11;
(2) Refuse leave to the plaintiff to amend his summons in other respects;
(3) Otherwise dismiss the plaintiff’s notice of motion;
(4) Order the plaintiff to pay the defendants’ costs of the motion.
Catchwords: CIVIL PROCEDURE — Commencement of proceedings — Summons — leave to amend summons — where plaintiff brought private prosecution against multiple defendants at the Local Court — where plaintiff withdrew prosecutions against defendants sought to be joined to appeal proceedings — whether prosecutor’s decision to withdraw a private prosecution constitutes an ‘order … dismissing a matter’ sufficient to enliven a right to appeal under ss 56 or 59 of the Crime (Appeal and Review) Act 2001 (NSW) CIVIL PROCEDURE — Commencement of proceedings — appeals brought under ss 56 and 59 of the Crime (Appeal and Review) Act 2001 (NSW) — where plaintiff seeks to join six defendants to bring related appeals — whether discretionary factors operate against granting of leave to amend summons — where joinder of six defendants would create significant likelihood of increased cost, delay and use or waste of Court resources
Original judgment source is linked above.
Legislation Cited: Crime (Appeal and Review) Act 2001 (NSW), ss 56, 59
Criminal Procedure Act 1986 (NSW), ss 179, 205, 206, 208
Inclosed Lands Protection Act 1901 (NSW), ss 3, 4
Cases Cited: AB v DPP (NSW) (2008) 184 A Crim R 183; [2008] NSWCA 91
CEO of Customs v Au (2005) 153 A Crim R 21; [2005] NSWCA 119
Gedeon v Commissioner of the NSW Crime Commission (2008) 236 CLR 120; [2008] HCA 43
Lacey v Attorney General (Qld) (2011) 242 CLR 573; [2011] HCA 10
McNamara v Fenner [2017] NSWSC 1746
Ritson v Myers (2012) 83 NSWLR 217; [2012] NSWSC 1504
Ritson v Myers [2013] NSWCA 176
Zaravinos v Houvardas [2004] NSWCA 421
Category: Procedural rulings
Parties: Robert Campbell (Plaintiff) (Self-represented)
Ronald Winch (First Defendant)
Matthew Bauer (Second Defendant)
Representation: Counsel:
D McMahon/J Morgan (Defendants)
Solicitors:
Murphy’s Lawyers Inc. (Defendants)
File Number(s): 2026/00029309
Publication restriction: Nil
The Court has before it a notice of motion filed by the plaintiff seeking leave to amend his summons to join six defendants. The summons in its current form brings appeals under ss 56 and 59 of the Crime (Appeal and Review) Act 2001 (NSW) (‘CAR Act’) (subject to obtaining an extension of time if required) from two related decisions of the Local Court – one in respect of the first defendant, and one in respect of the second defendant.
In order to consider the application it is necessary to understand the procedural history.
In 2024, the plaintiff commenced private prosecutions in the Sutherland Local Court against eight individuals including the two defendants before me, alleging unlawful conduct in respect of their use of a road at 188 Ellesmere Road, Gymea Bay. The eight persons prosecuted in the Local Court were all neighbours. They were Robert Winch (the first defendant before me), Matthew Bauer (the second defendant before me), Elizabeth Herbert, Nina Bauer, Darcy Hind, Brett Williams, Penney Hamilton and Colin Hamilton.
The prosecutions alleged contraventions by all eight neighbours of s 4 of the Inclosed Lands Protection Act 1901 (NSW) (‘Inclosed Lands Act*’*). Section 4(1) of the Inclosed Lands Act provides as follows:
4 Unlawful entry on inclosed lands
(1) Any person who, without lawful excuse (proof of which lies on the person), enters into inclosed lands without the consent of the owner, occupier or person apparently in charge of those lands, or who remains on those lands after being requested by the owner, occupier or person apparently in charge of those lands to leave those lands, is liable to a penalty not exceeding—
(a) 10 penalty units in the case of prescribed premises, or
(b) 5 penalty units in any other case.
any land, either public or private, inclosed or surrounded by any fence, wall or other erection, or partly by a fence, wall or other erection and partly by a canal or by some natural feature such as a river or cliff by which its boundaries may be known or recognised, including the whole or part of any building or structure and any land occupied or used in connection with the whole or part of any building or structure.
The eight matters were listed for hearing on 23, 25, 26 and 29 September 2025 before the same judicial officer, Magistrate Lambino (now Judge Lambino), but were listed sequentially, not in a joint hearing.
The first prosecution was of the first defendant in this Court, Mr Winch. The plaintiff was represented by a solicitor, Mr Hackett. Mr Winch was represented by senior counsel. On 25 September 2025, her Honour delivered a judgment finding Mr Winch not guilty. Her Honour found Mr Winch not guilty because her Honour was satisfied beyond reasonable doubt that the land was not “inclosed lands” as defined in s 3 of the Inclosed Lands Act.
Following a short adjournment to allow the plaintiff’s solicitor an opportunity to obtain instructions, there appears to have been an application that the Magistrate recuse herself from the remaining seven matters, and then an application that the remaining seven matters be adjourned. Her Honour declined to recuse herself (a decision which is not impugned on appeal) and refused the adjournment. In the course of declining to recuse herself, her Honour said that “all the prosecution indicate is that I have made an adverse decision [which] they intend to appeal.” Her Honour went on to say:
These matters have been set down since January this year to be heard by the one magistrate to make the most efficient use of not only the Court's time but the time of all the parties that are involved in these matters. Four days were set aside to do this.
The three defendants in today's matters have attended court this morning with the intent that they would proceed to hearing. There are another two defendants with hearings proceeding tomorrow and Monday. The Court has set aside these days for hearing of these matters. The matters have been listed before this Court since April 2024.
…
I decline the application to recuse myself for the remainder of the matters and the application for adjournment is also declined. These matters should be heard in the time that has been set aside for them, noting that the prosecution and the defence have a right to appeal any decision I make to a higher court.
No, I agree with everything my friend said, except I don’t think we need to go to those lengths. I’m instructed to withdraw the matters of Herbert, Hind and Williams and Nina Bauer and the Hamiltons.
Mr Hackett said that the prosecution of Matthew Bauer (the second defendant before me) would not be withdrawn.
It is relevant to note that Mr McMahon put forward a procedure, with which at least some of the Local Court defendants agreed, that would lead to the other prosecutions being determined on their merits. It was the plaintiff’s lawyer who said that, instead of this course, his instructions were to withdraw six of the remining prosecutions.
Her Honour made the following statement in respect of the six defendants against whom the prosecutions were withdrawn:
The orders are, in regards to the [court attendance notices] that have been issued against Elizabeth Herbert, Darcy Hind, Brett Williams, Penney Hamilton, Colin Hamilton and Nina Bauer, they are all formally withdrawn by the prosecutor.
Her Honour then listed the matter for a costs hearing on 8 December 2025. (I observe parenthetically that neither party has placed evidence before the Court of what happened on 8 December 2025 and the plaintiff does not seek leave to appeal from any costs decision of the Local Court.)
On 29 September 2025, Magistrate Lambino heard the remaining prosecution, which was against Matthew Bauer, the second defendant in this Court. Her Honour found Mr Bauer not guilty, again finding that the relevant land was not inclosed lands under the Inclosed Lands Act.
On 23 October 2025, the Local Court granted the plaintiff an extension of time of 3 months for filing any appeal in respect of Mr Winch and Mr Bauer. The plaintiff did not seek or obtain an extension of time in respect of the other six Local Court defendants.
The plaintiff filed his summons in this Court on 22 January 2026, bringing appeals (subject to being granted an extension of time if required) against the Local Court’s decisions dismissing the proceedings against the first and second defendants. In addition to a prayer for an order setting aside the Local Court orders dismissing the proceedings, the summons seeks:
an extension of time for instituting the appeal if required;
a suite of nine declarations relating to whether or not the driveway that was the subject of the prosecution is inclosed land, the relevance of a right of way, and the question whether the defendants proved a lawful excuse;
an order remitting the proceedings to the Sutherland Local Court; and
costs.
The summons includes five grounds of appeal and a conclusory ground 6 that the Magistrate erred in law by dismissing the charges.
By notice of motion dated 31 March 2026 but filed 10 April 2026, the applicant seeks to amend his summons to join the other six neighbours and to appeal from the Local Court “orders” in respect of those defendants. The amendments to the prayers for relief are relatively minor (and are not opposed by the two current defendants). Most of the prayers for relief would be sought against all eight defendants if the amendments were allowed. The proposed amended summons would add a seventh paragraph in the grounds of appeal:
The order, made at Sutherland Local Court on 25 September 2025, dismissing the proceedings against the Third to Eighth Defendants was made as a consequence of the learned Magistrate having erred in law, misinterpreting the definition of inclosed lands within the meaning of the Inclosed Lands Protection Act 1901 section 3(1).
The plaintiff brings this appeal against the two current defendants under s 56(1)(c), which grants a right to appeal on a question of law alone in respect of “an order made by the Local Court dismissing a matter the subject of any summary proceedings”. I offer no view about whether the plaintiff’s grounds raise questions of law alone, because it is not necessary to do so to resolve the application before me.
The plaintiff seeks to join the other six Local Court defendants on the basis that, although the prosecutions against those six individuals were withdrawn, there was also a dismissal which engages s 56(1)(c).
I reject that argument. It overlooks the distinction drawn in the text and in the decided cases between, on the one hand, an order of the Local Court dismissing a matter, and, on the other hand, a prosecutor’s decision to withdraw, the consequence of which is that the matter is “taken to be dismissed”.
Sections 205, 206 and 208 of the Criminal Procedure Act 1986 (NSW) provide as follows:
205 Order dismissing matter to be made
(1) A court may make an order of dismissal and give the accused person a certificate certifying that a matter has been dismissed if it decides to dismiss the matter.
(2) A court must make an order of dismissal and give the accused person a certificate certifying that a matter has been dismissed if requested to do so by an accused person against whom a matter has been dismissed or by the prosecutor.
(3) This section does not apply to a matter that is taken to be dismissed because of section 208.
206 Effect of certificate that matter has been dismissed
A certificate certifying that a matter has been dismissed, if produced and without any further proofs being required, prevents any later proceedings in any court for the same matter against the same person.
…
208 Dismissal of matter if matter withdrawn
(1) If a matter is withdrawn by the prosecutor, the matter is taken to be dismissed and the accused person is taken to be discharged in relation to the offences concerned.
(2) The dismissal of a matter because of its withdrawal by the prosecutor does not prevent any later proceedings in any court for the same matter against the same person.
As is clear from s 205(3) and s 206, the distinction is one of real substance. If the Local Court decides to dismiss a matter and make an order for dismissal, the accused person has the benefit of finality that comes with a certificate being issued. By contrast, when a prosecution is withdrawn that does not prevent any later proceedings in any court for the same matter.
In AB v DPP (NSW) (2008) 184 A Crim R 183; [2008] NSWCA 91, Handley AJA held (Giles and Campbell JJA agreeing) that where a matter is withdrawn and taken to be dismissed under s 208, that does not engage s 205, and an accused cannot cause s 205 to be engaged by seeking an order for dismissal in addition to the withdrawal. The central reasoning of the Court is as follows:
[9] Section 202(1) and (2) deal with the functions of the court in summary proceedings as follows:
(1) The court must determine summary proceedings after hearing the accused person, prosecutor, witnesses and evidence in accordance with this Act.
(2) The court may determine the matter by convicting the accused person or making an order as to the accused person, or by dismissing the matter.
[10] This indicates the nature of the order of dismissal referred to in s 205(1). In the present case the Children’s Court did not make “an order of dismissal” and did not “decide to dismiss the matter”. There was no trial, no evidence and no adjudication.
[11] A dismissal under s 208 does not flow from any order or decision of the court. It takes effect automatically on the withdrawal of the case by the prosecutor. This was ultimately accepted by Mr Walsh who appeared for the appellant. His submission, relevantly, was that after a dismissal under s 208, the accused could ask the court for an order of dismissal. Section 205(2) required the court to make that order which would create a right to a certificate.
[12] This submission does not reflect the true construction and operation of these sections. Section 205(2) refers to an order of dismissal of the kind provided for in s 202(2) and 205(1), that is an order of dismissal consequent upon an adjudication by the court. In my judgment an accused person who has been the beneficiary of a dismissal under s 208 has no right to a certificate under s 205(2).
[13] An automatic dismissal following withdrawal by the prosecutor was not an actual or deemed decision which attracts an entitlement to a certificate under s 205.
As is clear from [12], an order of dismissal to which s 205(1) applies is an order of dismissal consequent upon an adjudication by the Court.
In Moore v DPP (Cth) [2023] NSWCA 15, Griffiths AJA (White JA agreeing) held at [91]-[94] that a Magistrate’s decision dismissing charges following withdrawal by the prosecution was not a decision amenable to judicial review. His Honour cited AB at [10]-[13] and concluded that no formal order of the Court is required when the prosecutor declines to offer any evidence or withdraws the charges because the legislation operates to deem a dismissal decision to have been made. There was therefore no decision of the Magistrate which was amenable to judicial review.
The plaintiffs says that in this case, contrary to the position in Moore, there was an order made. I will return to that submission shortly.
The two defendants in this Court also draw the Court’s attention to dicta in two other decisions of the Court of Appeal, Zaravinos v Houvardas [2004] NSWCA 421 at [65] per Sheller JA (Handley and Ipp JJA agreeing) and CEO of Customs v Au (2005) 153 A Crim R 21; [2005] NSWCA 119 at [42] per Tobias JA (Sheller JA and Brownie AJA agreeing). Those matters both involved different statutory contexts and so are of limited assistance. On one view, they reinforce what I would draw from the text of ss 205 and 208, which is that a withdrawal is materially different from a judicial determination or dismissal on the merits. Nevertheless, there is force in the plaintiff’s submission that the concepts of “withdrawal” and “dismissal” should not be controlled by what the practice was prior to the enactment of the CAR Act or under different legislation. The focus must be on the text of ss 205 and 208 of the Criminal Procedure Act and of s 56 of the CAR Act. The decisions of the Court of Appeal in AB and in Moore deal specifically with ss 205 and 208.
I do not accept plaintiff’s argument that the position is different because the Magistrate went on to say that her Honour’s “orders” were that the matters were formally withdrawn by the prosecutor, or because the Local Court “Advice of Court Result” describes the matters as “dismissed – withdrawn”. Her Honour correctly characterised the action of withdrawal as something that is done “by the prosecutor”, not by the Court. As Harrison J held in McNamara v Fenner [2017] NSWSC 1746 at [21] and [26], when charges are withdrawn the prosecution is at an end. [1] It is not necessary to decide whether the Local Court has power to refuse to permit a prosecutor to withdraw (cf McNamara at [21]). The Magistrate in the proceedings below plainly did not exercise any such power, rather her Honour took steps to ensure that the Local Court record clearly reflected that the matters were “formally withdrawn by the prosecutor”. I do not accept that the Magistrate stating what she describes as an order takes the matter outside of the scope of s 208.
There is every reason to read s 56(1)(c) as informed by the substantive distinction between an adjudication by the Local Court dismissing a matter on its merits and a prosecutor’s withdrawal. The distinction is reflected in the text, which clearly refers to “an order made by the Local Court dismissing a matter” (emphasis added). By contrast, where a matter is withdrawn, that occurs by action of the prosecutor, with the dismissal then following by operation of the statute. Just as there is no order of the Local Court amenable to judicial review (per Moore at [91]), there is no order of the Local Court that can sensibly be the subject of an appeal.
This is a matter of substance, not mere form. The appeal is from orders, and s 56 provides that the appeal must be on a question of law alone. If the prosecutor withdraws the prosecution, the Local Court will not have adjudicated on any matter. It will not be possible to say that there is a question of law in respect of which the Local Court erred. Were it necessary, this reasoning would be supported by the reasoning in Lacey v Attorney General (Qld) (2011) 242 CLR 573; [2011] HCA 10, where the majority recognised that the Court would be slow to construe a statute providing for a Crown appeal as not requiring the discernment of error before an appeal might be allowed: see at [20] and [61]. While the Court’s reasoning in that case was referable to a statute providing for a Crown appeal against sentence, I see no reason why equivalent reasoning ought not apply to a statute providing for a prosecutor’s appeal against a decision of the Local Court dismissing a prosecution. There is no reason to adopt an expansive interpretation of the provision conferring a right of appeal on a prosecutor. Where a prosecutor withdraws a prosecution, there is no scope for discerning error in the Local Court giving effect to that withdrawal based on inferences said to be available about the reason why the prosecutor withdrew the prosecution.
I am not persuaded by the plaintiff’s submission that this interpretation means that fresh proceedings for summary offences could almost never be commenced following withdrawal. The argument appears to be that a withdrawal will almost always come more than six months after the alleged offence, and that therefore the ability to commence fresh proceedings will be of limited value due to the six month limitation period for summary prosecutions in s 179 of the Criminal Procedure Act. There is no reason to assume that a prosecutor will always or even generally withdraw a prosecution only after, rather than before, the expiry of the six month limitation period. And the fundamental point about the six month limitation period is that Parliament does not consider that private persons should be vexed with certain kinds of summary prosecutions more than six months after the alleged offence, except in particular circumstances provided for in the legislation.
The absence of any “stop-clock” when an appeal is brought (as the plaintiff put it) of the kind that appears in the Criminal Appeal Act only reinforces a conclusion that parliament intended a different regime for summary prosecutions to which s 179 applies.
In any event, the transcript on 25 September 2025 makes it clear that there was a course available below which would have led to the Local Court dealing with each prosecution on its merits. That was the course outlined by Mr McMahon. If the plaintiff had adopted that course, and if the Local Court had then dismissed each matter, there would have been a decision to dismiss which engaged s 205 and s 56(1)(c).
I conclude that the plaintiff does not have a right of appeal under s 56(1)(c) in respect of the six proposed defendants. In light of that conclusion, the proposed amendment would be futile. That is a sufficient reason to refuse the application.
Even if the plaintiff had a right of appeal from an order giving effect to a withdrawal, I would not be minded to grant leave to amend the summons. Doing so would add six defendants to these proceedings, which creates a significant likelihood of increased cost, delay, and use or waste of Court resources. I do not accept that, as the plaintiff contends, I should proceed on the basis that all six prospective defendants will be represented at all times by the same legal team as are representing the two current defendants in this Court, although that appears currently to be the case. Each defendant will be entitled to take their own course.
The plaintiff says he expressed an intention to “appeal” at the hearing on 25 September 2025. However, at no point did he or his representative indicate that he intended to appeal the matters that were being withdrawn. The Magistrate noted that the prosecutor said he intended to appeal the decision her Honour had just made – that is, the decision about Mr Winch. The Magistrate went on to say that the plaintiff would have his appeal rights in respect of the other matters, but that was at a time when the Magistrate thought she would be dealing with each of the other matters on the merits. It was after the Magistrate delivered this part of her Honour’s reasons that Mr McMahon indicated his understanding of the agreed way forward (which would have involved the seven remaining prosecutions being determined on their merits). And it was only after that occurred that Mr Hackett said that was not necessary because six of the remaining matters were to be withdrawn.
The plaintiff says that he wanted the first matter to be heard well before the others, with the other seven matters being stayed in the meantime, to give him time to appeal. The plaintiff says it was the defendants who asked for the matters to be set down in the same hearing block. I can readily see why there may be sound reasons for the Local Court adopting the course apparently proposed by the defendants.
Despite apparently being aware that steps might be necessary to preserve a right of appeal, the plaintiff’s solicitor did not adopt the course proposed by Mr McMahon, the result of which would have been a final outcome – presumably an acquittal – in respect of all of the proposed defendants. The plaintiff, with the benefit of legal representation, chose instead to withdraw six of the prosecutions. That had the consequence of depriving those defendants of the finality which ss 205 and 206 confer on defendants if the Court dismisses a prosecution on its merits. The plaintiff plainly appreciated the difference between withdrawing and pressing for a determination on the merits, because he made one decision in respect of the six prospective defendants and a different decision in respect of the last (ie, the second defendant in this Court).
While the six defendants already had the benefit of the limitation period in s 179(1) having passed, the finality in ss 205-206 is in different terms. The certificate if issued prevents “any later proceedings in any court for the same matter against the same person” (emphasis added). One is left with the concern that the plaintiff wished to avoid the six defendants having the protection of s 206, which might also apply to a different offence or perhaps other litigation if it can be characterised as the same “matter”. In addition to this concern, as submitted by the defendant’s counsel before me, there are good reasons for the Court to be reluctant to examine the exercise of prosecutorial discretion.
The plaintiff now wishes to have it both ways. Having taken a course which deprived the defendants of the benefit of ss 205 and 206, the plaintiff now seeks to subject them also to an appeal. I do not accept that the legislation permits this. Even if the legislation permitted it, I would regard this as a powerful discretionary consideration against permitting an amendment to bring an appeal out of time, and it would be a powerful discretionary consideration in favour of dismissing an appeal under s 59 regardless of whether error is shown: Ritson v Myers (2012) 83 NSWLR 217; [2012] NSWSC 1504 at 223 (decision affirmed on appeal, Ritson v Myers [2013] NSWCA 176).
The plaintiff says further that he did not willingly withdraw the charges but was compelled to do so by the Magistrate’s decision and the Magistrate’s refusal to adjourn the remaining seven cases. I reject that submission. The plaintiff was not “compelled” to withdraw. Mr McMahon clearly indicated an alternative course which was not opposed at least by Mr McMahon’s clients. Indeed, the plaintiff adopted that alternative course in relation to Mr Bauer, the second defendant in this Court.
The six prospective defendants had their prosecutions withdrawn more than nine months ago. As the plaintiff acknowledges, the Local Court proceedings have been on foot since April 2024. The plaintiff obtained an order from the Local Court extending time to appeal against the two current defendants but obtained no similar order in respect of the six prospective defendants.
As for the delay, the plaintiff says that he is self-represented and it took considerable time to examine all the relevant legislation and determine the grounds that support the inclusion of the proposed six defendants. While I accept that that is a relevant matter, I do not accept that there is something so complex in the plaintiff’s contentions as to require months of consideration.
The plaintiff says further in submission (but unsupported by sworn evidence) that he is “considerably put upon by trespass and nuisance” and that the time demands of dealing with that caused delay in preparing an amended summons. I am not prepared to place significant weight on these explanations for delay. Litigants deal with such matters all the time. Even if the plaintiff is not to be criticised for his delay, it remains relevant to take into account the burden on prospective defendants, who were subjected to Local Court proceedings from April 2024 to September 2025 and have now been entitled to proceed on the basis that the prosecutions against them were withdrawn for more than nine months.
Taking all of these considerations into account, even if I were wrong in my interpretation of s 56(1)(c), I would not as a discretionary matter be minded to grant the leave to amend to join the other six Local Court defendants. The notice of motion, so far as it seeks that should be dismissed.
The defendants seek their costs of the motion before me. The usual position is that costs follow the event and the event was substantially in the defendant's favour. In that situation a costs order is compensatory, not punitive. An adverse costs order on the ordinary basis does not indicate criticism of the conduct of the proceedings, which I accept was efficiently conducted before me on both sides. Nevertheless, I am satisfied that the appropriate outcome in this case is for costs to follow the event.
Accordingly, I make the following orders:
Grant leave to the plaintiff to amend his summons only by making the amendments proposed to prayers 4, 5, 9, 10 and 11;
Refuse leave to the plaintiff to amend his summons in other respects;
Otherwise dismiss the plaintiff’s notice of motion;
Order the plaintiff to pay the defendants’ costs of the motion.
Note that while the prosecution is at an end, the proceedings might remain on foot for the purpose of the Court considering an exercise of its costs power, which is specifically preserved in s 213(3)(b) of the Criminal Procedure Act.
Campbell
Winch
[2008] HCA 43
(2008) 236 CLR 120
(2011) 242 CLR 573
(2012) 83 NSWLR 217