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Judgment

1. BASTEN JA: Listed before the Court for hearing on 28 August 2020 was a summons seeking judicial review of a judgment of the District Court disposing of a criminal appeal. On Monday 9 September 2019 Judge Colefax SC sitting at Campbelltown District Court had upheld an appeal brought by the applicant in relation sentences imposed on her in the Picton Local Court on 28 November 2018. The aggregate sentence was significantly reduced, but nevertheless she was subject to a custodial sentence of 2 years imprisonment with a non-parole period of 12 months. The sentence was fixed to commence on 17 August 2019 and, she having been released to bail on 23 October 2019, has served approximately 45 days of that sentence.
2. On 26 August 2020 the applicant filed (electronically) a notice of motion and an affidavit in support. The notice of motion sought the following orders: "1 Vacate hearing date listed 28 August 2020 2 Re list for further directions and allocation of new date of hearing 3 Leave to file amended Summons 4 Leave to submit application for concurrent hearing of application under s 78 Crimes appeal and review act 2001, presently listed for directions on 28.08.20 5 To be excused from attending Court in person on 28.08.2020 due to covid19 and the need of extensive travel on public transport, currently residing in Sydney known hotspot area 6 A referral under division 9 Part 7 of UCPR to provide court appointed legal assistance".
3. The first matter to address is the application to vacate the hearing date. The basis for the application was that she is impecunious and cannot afford to continue to retain lawyers who represented her until 12 August 2020, when her solicitor sought leave to cease to act on the basis that she had failed to provide legal fees to cover appearances at the hearing. The applicant stated in an unsworn affidavit that she had submitted an application for legal aid, on or shortly before 18 July 2020. That application was apparently refused, because she further stated that on 25 August she sought a review of the refusal of the grant of aid. The date of refusal of the grant of aid was not disclosed, nor was the basis of the refusal disclosed, although it may be inferred from a statement in her affidavit as to the reason for appealing that the refusal was because the application did not fall within the category of matters for which aid was available.
4. The adjournment application turns on the operation of s 57 of the Legal Aid Commission Act 1979 (NSW), which provides: 57 Adjournment of certain proceedings Where it appears to a court or tribunal, on any information before it - (a) that a party to any proceedings before the court or tribunal - (i) has appealed, in accordance with section 56, to a Legal Aid Review Committee and that the appeal has not been determined, or (ii) intends to appeal, in accordance with section 56, to a Legal Aid Review Committee and that such an appeal is competent, (b) that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and (c) that there are no special circumstances that prevent it from doing so, the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit.
5. In the circumstances, the unsworn affidavit (with annexures separately lodged, some being omitted, incomplete or illegible) provides a sufficient basis for the Court to accept that the applicant lodged an appeal in accordance with s 56 to a Legal Aid Review Committee and that the appeal has not been determined. The inference that the appeal has not been determined may be derived from the fact that it was only lodged on 25 August 2020.
6. The principles to be applied in determining the application of s 57 were thoroughly reviewed by McColl JA (Simpson JA agreeing) in Bobolas v Waverley Council, [1] concluding: "[186] In the first instance, it might be accepted that the purpose of s 57 is to ensure, so far as practicable, adequate legal representation for all persons involved in court proceedings. Such representation aids not only the parties, but the administration of justice. However, s 57 will also commonly operate in the procedural matrix governed by the overriding purpose expressed in [Civil Procedure Act 1986 (NSW)] s 56 and its complementary provisions. Considerations those provisions mandate courts to apply will also be relevant. [187] In my view, the hierarchy of s 57 is such that a court or tribunal must be satisfied as to the matters in s 57(a) - (c) before the adjournment mandated by the concluding words of the provision applies. It is apparent from the introductory words to s 57 that the court may have regard to 'any information before it' to determine whether to adjourn the proceedings. Thus, as in Cameron and Potier, I would be of the view that a court or tribunal considering a s 57 adjournment application may have regard objectively to all relevant material before it. It may also take into consideration the prospects of success of the proceedings the subject of the adjournment application when considering s 57(c). [188] Section 57 is silent as to who might place that information before the court or tribunal. However, prima facie, one would expect that the party referred to in s 57(a) being, implicitly, the unsuccessful applicant for legal aid, would be in the best position to place information concerning the matters in s 57(a) before a court or tribunal. Equally, it is the applicant for legal aid who is in the best position to establish the bona fides of any appeal, or intention to appeal, the assessment of which question must turn upon matters such as the reason legal aid was refused, and the likelihood that the appeal will be successful. The establishment of such matters would also, clearly, assist the court in determining whether or not the appeal, or intention to appeal, could be classified as frivolous or vexatious etc within the terms of the concluding words of s 57(b). That is particularly the case when one has regard to the cloak of privilege s 25 casts over information concerning an application for legal aid. It is only the applicant for legal aid who is in a position to waive any such privilege in order to assist the court in determining the bona fides of a legal aid appeal." [2]
7. According to the evidence of impecuniosity set out in the applicant's affidavit, by May 16 she had "used all my wages, sold my belongings and borrowed as much money as possible to be able to pay my legal fees". It must have been apparent at that stage that she would not be able to obtain legal representation for the hearing unless an application were made promptly for legal aid. An application was not made for another two months. When made it was by her personally and not her solicitor, who might have been expected to provide advice on the merits and would have advised the other parties and the court that such an application had been made. It is not known when or why the application was refused, nor on what basis the applicant might have had reason to expect that an appeal would succeed.
8. The history of proceedings in the District Court reveals that she had obtained legal assistance for a period but that assistance had been withdrawn and an appeal may have been lodged. Part of her complaint in this Court was that the District Court judge had refused to adjourn the hearing of her appeal to that Court in accordance with the requirements of s 57. (The judge had not been satisfied on the information before him that an appeal had been lodged.)
9. Although there may have been a bona fide attempt to obtain legal aid shortly prior to or on 16 July 2020, the Court is not satisfied on the material available that there was a bona fide attempt to pursue that application by way of an appeal in circumstances where the appeal was not frivolous or vexatious, nor otherwise intended to improperly delay the conduct of the proceedings. Absent information which would demonstrate the basis on which legal aid was refused, the court is not satisfied that the appeal had any real prospects of success.
10. Further, there are "special circumstances" that prevent the Court from vacating the hearing date, in the sense that such a step is not reasonably practicable in the present circumstances, having proper regard to the public interest in the expeditious disposal of challenges to judgments given in criminal proceedings and the management of lists in a collegiate appellate court. The importance of the early disposal of criminal proceedings militates against delay. Until the amended summons was filed on 15 July 2020, there was no process in this Court which provided a competent basis for engaging the jurisdiction of the Court. However, the details on file of the directions hearings indicate that it was anticipated by 14 October 2019 that an amended summons would be filed invoking the supervisory jurisdiction of the Court under s 69 of the Supreme Court Act 1970 (NSW).
11. The hearing on 28 August 2020 was fixed at a directions hearing on 25 May 2020. There was no indication then, or at any subsequent time until an email to the Registrar a matter of days before the hearing, that the applicant was not ready to proceed. The amended summons was prepared with legal assistance and was accompanied by extensive written submissions (exceeding the limit permitted on an appeal) and signed by counsel. The fact that matters in this Court require a fixed hearing before three judges of appeal necessitates court management which does not permit vacation of hearing dates unless there is a real risk of unfairness to a party not in default of directions or court rules. The failure of the applicant to keep the court (and the respondent) informed that she had applied for legal aid, which had been refused, and had then appealed, cast significant doubt on her bona fides in appealing and is also relevant to the circumstances to be considered under s 57(c).
12. There was clearly unease in the District Court that the appeal from the Local Court took some 10 months to be determined; now almost a year has passed since orders were made in the District Court. To vacate the hearing would involve a further considerable potential delay in having an issue resolved in circumstances where a sentence of imprisonment has been imposed but has not been served whilst the applicant is at large on bail. Proposed orders 1 and 2 in the notice of motion should not be made.
13. Proposed order 3 sought leave to file an amended summons. There was no indication in the affidavit as to what amendment might be required, and why it had not been addressed when the applicant was legally represented. That leave should be refused.
14. Proposed order 4 assumed that there is a current proceeding on foot under Pt 7 of the Crimes (Appeal and Review) Act 2001 (NSW). There is no such proceeding; the summons containing such an application was disposed of before the hearing of this matter. Such an application does not commence a judicial proceeding.
15. So far as proposed order 5 was concerned, steps were taken to accede to that request prior to the hearing.
16. So far as proposed order 6 was concerned, an application for referral for pro bono assistance pursuant to Pt 7, Div 9 of the Uniform Civil Procedure Rules 2005 (NSW) made two days before the hearing with the obvious consequence that, if the referral were made, the hearing date would be vacated, should be refused.
17. The orders sought in the notice of motion, other than order 5 which has been acceded to, should not be made. The notice of motion dated 26 August 2020 should be dismissed.
18. MEAGHER JA: I agree for the reasons given by Basten JA that the motion dated 26 August 2020 should be dismissed.
19. SIMPSON AJA: I agree with Basten JA.