El-Saeidy v Director of Public Prosecutions

Court of Appeal (NSW)|2017-08-18|Before: Basten JA

Solicitors: Applicant self-represented Solicitor for Public Prosecutions (First Respondent) File Number(s): 2017/250755 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 21 July 2017 Before: Colefax SC DCJ File Number(s): 2015/275429; 2014/263955; 2014/351220

Judgment

BASTEN JA: On 6 April 2016 the applicant, Mr El-Saeidy, was convicted in the Local Court of four offences of contravening apprehended domestic violence orders. The convictions followed a contested hearing which occupied six days. On the day he was convicted, the applicant filed a notice of appeal in the District Court. After numerous delays, the appeal has been fixed for hearing, commencing next Monday, 21 August 2017 (being the next working day after this application), for a four day hearing.
At a hearing on 14 July 2017 Judge Colefax SC expressed the understanding that the applicant had sought an adjournment of the hearing fixed for 21 August. Although the applicant denies that such an application was made, I am not persuaded that the judge was wrong in that understanding. It remains the applicant's intention to have the hearing date vacated. The interlocutory hearing in the District Court was not completed on 14 July. Judge Colefax later dismissed the application and confirmed the date fixed for the hearing.
The judge also directed that any further adjournment application should be dealt with at the commencement of the appeal on Monday, 21 August. To ensure that that direction was not subverted, either deliberately or inadvertently, he took steps to maintain custody in his Chambers of the District Court file.
On Thursday, 17 August 2017, with only one clear working day before the hearing of the appeal, the applicant filed a summons in the supervisory jurisdiction of this Court seeking to have the orders of the District Court made on 21 July 2017, and certain further directions given on 9 August 2017, set aside. Both in the summons and in a notice of motion filed with the summons, the applicant sought a stay of the District Court appeal until the proceedings brought in the supervisory jurisdiction of this Court were determined.
The summons cannot be disposed of by a single judge of this Court, although if the applicant does not obtain a stay today (and perhaps even if he does obtain a stay today) the proceedings will become (if they are not already) futile. That is because the orders made by Judge Colefax will cease to have any practical consequences after 5.00pm this evening, and probably have already so ceased.
If satisfied that the proceedings are already futile, or if not satisfied that the applicant has an arguable case, the motion for a stay must be refused.

Procedural background

Some brief background should be given of the key procedural steps taken in the District Court. Following the lodging of the appeal on 6 April 2016, the transcript of the Local Court proceeding was not available until 12 August 2016 when the matter came before the Deputy Registrar in the District Court. On that date, the matter was noted as "ready to proceed to a hearing". The hearing of the appeal was listed for 23 September 2016. On that date it was "not reached" and the hearing was relisted on 17 November 2016.
On 10 November 2016 (seven days before the new hearing date) the applicant advised the Court that he wished to rely upon "fresh evidence". A direction was made for a notice of motion to be served by 14 November 2016. The hearing on 17 November was devoted entirely to the notice of motion, with respect to which the applicant was partly successful. The matter was then adjourned to 10 April 2017 for hearing of the appeal, with an estimate of three days.
In December 2016 the District Court was advised that the applicant was involved in "related Supreme Court proceedings"; details were to be provided to the Deputy Registrar on 9 December 2016. There is no evidence before the Court that the applicant appeared on that date or that he supplied the required information to the Court. On 16 December, the applicant foreshadowed a second application to adduce fresh evidence. A further hearing date was fixed for 10 April 2017 and the motion was stood over to that date. On 3 April 2017, the applicant sought to have the hearing date vacated. That order was made, and a fourth (and current) hearing date, 21 August 2017, was fixed with the estimate of four days.
On 14 July 2017, the matter came before Judge Colefax on the applicant's motion which the judge understood to be to vacate the fourth hearing date. The applicant having advised the Court that he had a medical issue, as to which he had no medical report, the matter was stood over to 21 July. On 20 July the Court was advised by email that the applicant would not be present the following morning because he was "the plaintiff in proceedings which are listed before the duty judge in the Supreme Court". He applied to adjourn the matter before Judge Colefax until the following Friday. Not being satisfied that the applicant had any basis for failing to attend on 21 July, the judge dismissed the application and declined to vacate the hearing fixed for 21 to 24 August 2017. In addition, he made the following orders: "I order that no further application to adjourn the fourth hearing date be accepted by the registry of this Court. Any further application to adjourn can only be made on 21 August 2017 and only then before the judge assigned to hear the appeal. … In order to ensure that my direction that no further application for an adjournment be accepted by the registry is complied with, I direct that the files be retained in my Chambers until the evening of 20 August 2017 when they will then be delivered to the judge assigned to hearing the appeal".
On 9 August 2017 the applicant again emailed the District Court, requesting the judge to review various matters which were contained in his judgment of 21 July and which were said to be inaccurate. That afternoon, the judge made three further directions and two further orders, the substantives ones of which, relevantly for present purposes were: "Access to the Court file is not to be granted to Mr El Saeidy; confirm hearing date of 21 August 2017; any further communication from Mr El Saeidy to the Court must only be made in open Court and before the Judge assigned to conduct the hearing".
In the summons filed on 17 August 2017, the applicant also sought to have the appeal moved to the Downing Centre to avoid the unwanted, unfair influence of Judge Colefax on the appeal currently pending in the District Court at Parramatta.

Jurisdiction of this Court

It should be said that it is no function of this Court to carry on a running supervision of the administrative and interlocutory steps taken in an appeal from the Local Court to the District Court. There is no appeal from a judgment of the District Court exercising its appellate jurisdiction from the Local Court in a criminal matter. Further, s 176 of the District Court Act 1973 (NSW) states that no adjudication of an appeal to the District Court is to be removed by order into the Supreme Court. It is well-established that this provision excludes relief in the nature of certiorari based on error of law on the face of the record. It does not preclude relief which might otherwise be available for jurisdictional error. [1]
The circumstances in which a court would intervene in relation to an interlocutory refusal of an application for an adjournment will be extremely rare. However, a refusal of an adjournment was set aside in Minister for Immigration and Citizenship v Li. [2] Two circumstances which were critical to the determination in Li should be noted. First, the refusal of the adjournment of the hearing before the Migration Review Tribunal inevitably resulted in final relief being ordered against Ms Li, who had not then obtained a qualification which was a precondition to obtaining the visa she sought. Her application to review the refusal of her visa was duly dismissed. Secondly, the decision of the Tribunal was characterised as arbitrary and, therefore, manifestly unreasonable.

Application to vacate hearing in District Court

Although it appeared from the summons and the notice of motion that what the applicant sought was the vacation of the hearing date in the District Court, it appeared from the submissions made this morning that his application was primarily to allow for a subpoena or subpoenas to be issued in the District Court to enable him to obtain fresh evidence to present on the appeal. The result of a refusal of the adjournment application is that the applicant's appeal will proceed next Monday, but only if that Court refuses the relief sought here.
There was no material before Judge Colefax which provided any reason for vacation of the hearing date more than 12 months after the matter was first fixed for hearing. Further, it could not be said that the refusal of the motion to vacate the hearing will result in the dismissal of the appeal on the merits. The applicant has had ample opportunity to prepare his appeal and with one qualification, he does not assert otherwise.
On 17 August 2017, the applicant filed a lengthy affidavit of 25 pages encompassing 105 paragraphs in support of the summons and the application for interlocutory relief in this Court. Much of the contents related to other proceedings which he has commenced in the Common Law Division, apparently seeking to stop a hearing of further charges in the Local Court. Those proceedings were commenced on 21 July 2017 and, therefore, after the date for hearing of the District Court matter was fixed. The only passages which appear relevant to these proceedings are the following statements: [3] "Due to urgency of my supreme court application to stop hearing in the local court, I wrote an email to the district court registry on 20/7/2017 and emailed on 'Thu, July 20, 2017 at 4.30 PM' … In my email I stated that 'I have an application to be [made] before a duty judge to vacate hearing of my local court matter which is on 24/7/2017 and 25/7/2017 for hearing and I have no solicitor to appear on my behalf in both courts …."
In the course of the submissions, I invited the applicant to comment on the fact that the other Supreme Court proceedings were commenced by him on 21 July 2017 in full knowledge that he was due to appear in the District Court on that date. There was in fact no matter listed before the duty judge, although he said that he had appeared before the judge to obtain some relief. It appears that no material had been served on the Director of Public Prosecutions and no orders were made by the duty judge. There was no evidence before this Court as to the history of the fresh charges in the Local Court which had apparently commenced in 2016; nor as to when they were set down for hearing on 24 and 25 July; nor as to any application to the Local Court to adjourn them; nor whether there was any basis to adjourn them.
The applicant's decision to be unavailable in the District Court on 21 July was, in the circumstances, unjustified. No arguable case has been presented as to why the judge was acting without jurisdiction in declining to make orders which would have had the effect of vacating the hearing dates fixed for the appeal.
The remainder of the affidavit, insofar as it was relevant to the present application, noted that the applicant had attempted to obtain access to his District Court file, but that access had been refused. He stated: [4] "Now I am unable to prepare for my 4 (four) days hearing appeal that will start on 21/08/2017 and I am [a] self litigant because I was prohibited from accessing my … court file and I was prohibited from communicating with the court registry because of the orders and directions made by [the judge] on 9/8/2017."
This was the only basis on which he suggested he might not be ready to run his appeal. It has only arisen after the rejection of his application to the District Court, if there was one, to vacate the hearing date. Further, there was no indication in his affidavit as to why he needed access to the file in order to prepare for his appeal. He said in oral submissions that he needed it in order to access orders made by Judge Sides in April 2017 permitting him to call further evidence. There is no indication that he did not have access to any particular document which was likely to be tendered or relied upon in the course of the appeal. There was no indication as to why, if he had wished to issue a summons or subpoena, he would not have been able to do so. His lengthy submission via email to the judge on 9 August 2017 contained no application for leave to issue subpoenas. Except in the most unusual case, it is inherently implausible that any party needs access to the Court file in order to prepare for a trial. Absent an explanation as to why he needed access, I am not persuaded that any prejudice has been caused to him by the direction given by the primary judge. If that be wrong, he can seek to persuade the trial judge to a contrary view.
It is clear from the reasons of the primary judge that the direction to retain the file in Chambers was a result of what he perceived to be poor Court administration which appeared to have resulted in earlier hearing dates being vacated by judicial officers who did not have access to all of the relevant materials. The direction itself was a reasonable and sensible response to such problems, which are not unusual in courts and tribunals where multiple, related applications are heard by different judicial officers. Administrative steps to prevent uncoordinated responses will usually be reasonable and desirable.
Most of the rest of the affidavit contained an analysis of the allegations against him with respect to his violent conduct against his children and against his neighbours and the supporting evidence, all of which he dismissed as, "false allegations", "invented and fabricated allegations" relied upon by police who "charged me maliciously and intentionally without any investigations at all". These are matters which will no doubt be agitated at the appeal in the District Court. They are not material to the present application.
There was also a history given in the affidavit of attendances at Sydney Eye Hospital for treatment of the applicant's left eye. He stated that the treatment was not complete and that "hospital asked me to return on 23/08/2017 for the treatment because of the risk on my eye". [5] There is no medical evidence before the Court as to the condition in his eye. There is no evidence as to what further treatment is required. There is no evidence that any treatment that is required need be given on 23 August, being the third day of the appeal. Rather, the evidence suggests that he voluntarily accepted an appointment on that day at a time when the appeal had already been fixed for hearing. In any event, an application based on this ground can be dealt with by the judge hearing the appeal.
None of this material would warrant this Court intervening in the proceedings in the District Court. On the material before this Court, the claims in the supervisory jurisdiction are not reasonably arguable. There is no basis for granting any form of interlocutory relief.

Additional hurdles to relief

There are two other problems with the application before the Court. First, the orders sought to be challenged are, in effect, an order refusing to vacate a hearing date of proceedings in the District Court and an order restricting access to the applicant's file in that Court. Even if the orders were set aside, this Court would not vacate the hearing date, nor make an order granting access to the District Court file, but would remit the matter to the District Court for it to reconsider the applications. It is a fallacy to think that this Court, by an interlocutory order, will effectively grant the very relief that was not attained in the District Court and which this Court would not itself grant on a final hearing of the summons.
Secondly, the belated application in this Court has rendered it futile. There is nothing to stop the applicant making further applications for access to the file and to vacate the hearing and, if necessary, to issue subpoenas, next Monday if he has proper grounds and if he has given reasonable notice. Rather than taking that step, he attended the Supreme Court Registry on Wednesday 16 August in order to commence these proceedings. The applicant is articulate and has some understanding of how courts operate. It must have been apparent that the present proceedings would not be dealt with finally before such an application could be made in any event in the District Court: namely, next Monday morning. Therefore, even if these proceedings had been successful, relief would have been futile. The inference is that they were no more than a device to avoid the proper processes to be followed in the District Court.

Orders

For the purpose of putting the proceedings in order, I direct that the first respondent (Judge Colefax) be removed as a respondent; a proper respondent is the second respondent, namely, the District Court of New South Wales; the individual judge is not. [6] Further, the third respondent (Ms Wills) is a named officer in the Office of the Director of Public Prosecutions. That, too, is inappropriate. The proper active respondent, who should be named as the first respondent, is the Director of Public Prosecutions (NSW).
The Court is not asked to dismiss the summons, and there may be an issue as to the power of a single judge to do that. Nevertheless, the notice of motion must be dismissed.
In relation to the costs of the proceedings in this Court, the Director has sought costs. It would be appropriate in an ordinary case for costs to be awarded where a motion has been refused. However, in proceedings ancillary to the criminal jurisdiction, costs may not be ordered. I think it is appropriate for the Court to exercise its discretion not to order costs of the motion.
In addition to the changes in the identification of the parties to the proceedings, the Court makes the following order: Dismiss the notice of motion filed by the applicant on 17 August 2017.

Endnotes

Downey v Acting District Court Judge Boulton (No 5) (2010) 78 NSWLR 499; [2010] NSWCA 240; Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115.
(2013) 249 CLR 332; [2013] HCA 18.
Affidavit, 17 August 2017, pars 17 and 18.
Affidavit, par 32.
Affidavit, par 87.
Brown v Rezitis (1970) 127 CLR 157 at 169; [1970] HCA 56; Kerr v Commissioner of Police [1977] 2 NSWLR 721 at 724; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; [2005] HCA 24 at [43], [91]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 August 2017

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