Endemi v Ginman; Moore v Commonwealth Director of Public Prosecutions

Supreme Court of NSW|2023-03-20|Before: Dhanji J, Chen J

Introduction

On 28 April 2022, Ian Moore (the applicant) filed a notice of motion in this Court seeking a number of orders. On 26 October 2022, prayers 1, 3 and 4 of the motion were dismissed by Chen J: Moore v Commonwealth Director of Public Prosecutions [2022] NSWSC 1458. Prayer 2 of the motion was not determined by his Honour. That part of the motion remained on foot and came before me for hearing on 20 March 2023.
The applicant appeared for himself on the application. The Commonwealth Director of Public Prosecutions was named as the respondent to the motion and, despite a limited interest in the proceedings for the reasons discussed below, appeared, represented by Mr Dutaillis. The plaintiffs in the substantive proceedings (Kyle Endemi, Matthew Pawsey, Michelle McAllister and Matthew Bolton) were not named as respondents to the motion. They were unaffected by the relief sought in prayers 1, 3 and 4. Consequently, Chen J was able to determine those parts of the motion in the absence of the plaintiffs. The position was different with respect to prayer 2, which was an order in relation to which the plaintiffs were interested. Mr Deards of Makinson d'Apice appeared on behalf of the plaintiffs before me and indicated that the plaintiffs did not object to being joined as a party to the motion. Mr Moore also indicated that he had no objection to this course and an order was made joining the plaintiffs: Endemi v Ginman; Moore v Commonwealth Director of Public Prosecutions [2023] NSWSC 284.
For the reasons given below, the application seeking the order in prayer 2 of the motion (as subsequently amended) is dismissed.

Evidence

The applicant's affidavit of 23 January 2023 was tendered at the hearing. That affidavit set out some of the history of the matter and exhibited a large volume of material relating to the proceedings. Reference to some of this material will be made in the context of my determination.
Additionally, the applicant tendered a document setting out the orders of the Court of Appeal in relation to his application for leave to appeal against the decision of Chen J dismissing his cross-summons and prayers 1, 3 and 4 of his motion. That document was ultimately relevant only to the applicant's application for an adjournment of this hearing, that application being refused by me: see Endemi v Ginman: Moore v Commonwealth Director of Public Prosecutions (No 2) [2023] NSWSC 285.

Principles

The applicant seeks a review of the Registrar's decision made on 1 April 2022 pursuant to r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) which provides: 49.19 Review of registrar's directions, certificates, orders, decisions and other acts (1) Subject to subrule (2), if in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit. (2) An application may not be made in relation to the following - (a) Decision to waive, postpone or remit fees a decision to make, or not to make, an order under clause 11(1) of the Civil Procedure Regulation 2017, except as provided by clauses 14 and 19 of the Guidelines for the Waiver, Remission and Postponement of Fees, published by the Attorney General, (b) Particular winding up order an order to which Part 80A rule 21(1) of the Supreme Court Rules 1970 applies, (c) Winding up order made under Corporations Act an order to which rule 16.1 of the Supreme Court (Corporations) Rules 1999 applies, (d) Mutual recognition a direction, certificate, order, decision or other act of a registrar in relation to the functions of the Court under the Mutual Recognition Act 1992 of the Commonwealth or the Trans-Tasman Mutual Recognition Act 1997 of the Commonwealth.
The principles guiding such an application were summarised by Hallen AsJ (as his Honour then was) in Noble Earth Technologies Pty Ltd v Hampic Pty Ltd trading as Cyndan Chemicals [2012] NSWSC 935. His Honour's summary has been relied on many times since. His Honour said (at [39]): "[39] Relevant principles drawn from authorities relating to the nature of a review are: (a) The review power conferred is not an appeal and, accordingly, is not subject to the limitations that apply to proceedings by way of appeal: Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [6], [10], [50], [52]; Al-Shennag v Statewide Roads Pty Limited [2009] NSWSC 210 per Hall J at [44]-[46]; it is "not restricted" to a reconsideration of the primary material before the Registrar: Lollback v Brakepower Pty Ltd [2010] NSWSC 1457 at [10]. (b) It is unnecessary for the applicant for review to demonstrate any material error of fact, or principle, in the order under review. On the review, the court may exercise its powers regardless of error. However, review, in the relevant sense, involves discretionary intervention: Tomko v Palasty (No 2) at [52]; Lollback v Brakepower Pty Ltd at [13]; the discretion extends to a discretion whether, and if so, how, to intervene. (c) The conduct of the review is at large and in the discretion of the Court. Notwithstanding the foregoing, the review is not accurately described as a hearing de novo: Perpetual Ltd v Barghachoun [2010] NSWSC 108 at [3], although it involves many of the features of a hearing de novo. (d) There is an onus on a person seeking to have a court set aside, or vary, a registrar's decision to make out a case that the court conducting the review, in the interests of justice, should exercise its discretion to do so: Tomko v Palasty (No 2) per Hodgson JA at [7]. In other words, there must be a basis shown for setting aside, or varying, the decision or orders of the registrar. (e) Although on review, the Court should consider the matter afresh, it does not follow that the reasoning of the registrar should be ignored, or that variations in the material presented to her, or him, and the evidence that was adduced are irrelevant. The starting point is, therefore, the decision that is to be reviewed. The court does not merely cast that decision to one side and proceed as if it had never been made. The court will have regard to the basis on which the decision was made and the material placed before the court itself on the application for review: Wily re LED (South Coast) Pty Ltd [2009] NSWSC 946 at [24] - [26]. The real question is whether there are any grounds, or any reasons, which would warrant a review of the orders that have been made by the registrar: Al-Shennag v Statewide Roads Pty Limited at [47]. (f) What will be required to make out a case for intervention will vary depending upon the nature of the registrar's decision under review: Groeneveld v Wollongong City Council [2009] NSWLEC 149; (2009) 168 LGERA 260, per Preston CJ at [12]. However, the court should inform itself of the material before the registrar at the time when he, or she, made the decision, should consider the reasons for the decision, and then should make its own decision based on the material before it after having the benefit of the submissions of each party. (g) It is proper for the Court to exhibit a natural inhibition against the unrestrained substitution of the reviewing Court's views for those of the registrar: Westpac Banking Corp v Abemond Pty Ltd; Westpac Banking Corp v Cameron (NSWSC, 3 November 1994, unreported). (h) When it comes to matters of practice and procedure, there should be a natural inhibition against overturning a registrar's decision: Wentworth v Graham [2002] NSWSC 397; (2002) 55 NSWLR 638 at 640-641. However, where substantive error is established, then the Court would consider reviewing the registrar's decision and would make such other order as it is authorised to make: Al-Shennag v Statewide Roads Pty Limited at [46]. (i) In the case of a decision which finally determines a party's rights, or which (albeit one of practice or procedure) has a decisive impact on those rights, a Court may be more willing to intervene. It may permit further evidence to be led that does not satisfy the strict requirements for fresh evidence, if it is satisfied that the interests of justice require this. It may decide to substitute its own discretionary decision for that of the registrar, even though no House v R (1936) 55 CLR 499 error is shown, again if it is satisfied that the interests of justice require this: Tomko v Palasty (No 2) at [5]-[9], [50], and [52]. (j) If fresh, or additional, evidence, is produced, it may be received by the court and taken into account (Fenwick v Wambo Coal Pty Limited [2011] NSWSC 176, per White J, at [46]), or the court may refer the matter back to the Registrar for consideration as a fresh application: Portal Software v Bodsworth [2005] NSWSC 1115 at [17]. The court may be more inclined to intervene on a review based on fresh evidence, changed circumstances, or where error is demonstrated in the decision under review: Tomko v Palasty (No 2) at [52]. (k) The decision of the registrar stands until it is set aside: Lawteal Pty Limited v Ofo [2005] NSWSC 984, per Malpass AsJ at [19]. (l) The registrar must give sufficient reasons for his, or her, decision: Thompson v New South Wales Land and Housing Corporation [2008] NSWSC 74 per Malpass AsJ at [9] - [16]."

The order sought and its relationship to the decision under review

At the hearing of the application the applicant was given leave to amend his motion such that the order sought is in the following terms: "Pursuant to the Unform Civil Procedure Rules 2005 (NSW), r 49.20(1), 49(19(1) overturn K Jones decision on the 1 April 2022 that removed the defendants Colette Ginman (first defendant) and Christine Sanderson (second defendant) in the Summons filed on 11 November 2021 by Nicholas Regener for Mr Andrew Deards of Makinson d'Apice Lawyers from continuing with Mr Moore (third defendant) in the first Cross-Summons filed on the 1 March 2022."
The summons filed on 11 November 2021 referred to in the order sought is the plaintiffs' summons challenging the issue of the CANs by the Local Court at the request of the applicant. As noted above, the Registrar dismissed the summons on the application of the plaintiffs. The Registrar did not, in terms, make a decision that "removed" the first and second defendants (the Local Court Registrars), "from continuing with [the applicant] in the first cross summons".
Prior to the appearance before the Registrar of this Court on 1 April 2022, by letter dated 23 March 2022, sent by email that day, the solicitor for the plaintiffs wrote to the applicant referring to correspondence from the respective Directors of Public Prosecutions. The letter indicated that, as a result of the decision of each of the Directors to take over and terminate the charges against each of the plaintiffs, "it [was the plaintiffs'] view that there [was] no longer any utility in pursuing the judicial review proceedings in the Supreme Court". The letter enclosed a proposed consent order seeking orders that the summons be dismissed on the basis that there be no order as to costs. The applicant responded by email on the same day stating: "Mr Deards, I do not give or consent to the 'discontinuance of the proceedings'. Cheers Ian Moore"
When the matter came before the Registrar on 1 April 2022, Mr Dreads informed the Registrar as follows: "DEARDS: Yes, Registrar. The matter has been stood over on a number of occasions because we've been waiting for the Director of Public Prosecutions to make a decision about the remaining charges. That has now been done. So on last Friday the three remaining charges were taken over and withdrawn by the State DPP, as a result there are no outstanding charges against any of the plaintiffs and the summons is now effectively otiose. Some correspondence has been sent to Mr Moore seeking his consent to orders dismissing the summons and Mr Moore has withheld his consent…"
The applicant, as noted above, objected to the summons being dismissed, raising before the Registrar his concern as to costs. Mr Deards informed the Registrar that the costs referred to by the applicant were costs related to the proceedings in the Local Court, and would not be impacted by the dismissal of the summons. The transcript records that the Registrar made the following two decisions: "[Tcpt, 1 April 2022, p6(13)]: REGISTRAR: "Okay, I'm going to make an order that the summons is dismissed with each party to pay its own costs" [Tcpt, 1 April 2022, p8(26)]: REGISTRAR: All right. I'll stand the matter over to 13 April 2022 for further directions in respect of the cross-summons and the motion that's been filed"
The first order referred to above is self-explanatory. The second order referred to above is a reference to the applicant's cross-summons and the motion filed by the Commonwealth Director (as the defendant to the cross-summons) seeking summary dismissal of that cross-summons. As discussed above, those matters were subsequently dealt with by Chen J together with at least part of the applicant's motion of 28 April 2022.
I am inclined to accept the plaintiffs' argument that there was no order by the Registrar of the kind described by the applicant, removing the first and second defendants. Accordingly, it would be inappropriate to make an order in the terms sought by the applicant. Despite this, it is tolerably clear that the applicant's complaint lies with the order of the Registrar dismissing the respondent's summons. Having regard to the fact that the applicant represented himself, it is appropriate to consider his arguments with respect to that decision.

The applicant's real complaint - the Registrar's decision to dismiss the summons

By delegation dated 28 November 2022 and made pursuant to s 13 of the Civil Procedure Act 2005 (NSW), the Chief Justice has empowered a Registrar of the Supreme Court to exercise certain functions subject, if applicable, to any restriction specified in the instrument.
By operation of that delegation, the Registrar had the power to exercise functions under, inter alia, r 12.1 of the UCPR. That power was conferred by the delegation without restriction.
Rule 12.1 of the UCPR provides: 12.1 Discontinuance of proceedings (cf SCR Part 21, rules 2 and 5; DCR Part 18, rule 1; LCR Part 17, rule 1) (1) The plaintiff in any proceedings may, by filing a notice of discontinuance, discontinue the proceedings, either as to all claims for relief or as to all claims for relief so far as they concern a particular defendant - (a) with the consent of each other active party in the proceedings, or (b) with the leave of the court. (2) A notice of discontinuance - (a) must bear a certificate by the plaintiff, or by his or her solicitor, to the effect that the plaintiff does not represent any other person, and (b) except where it is filed with the leave of the court, must be accompanied by a notice from each party whose consent is required by subrule (1) to the effect that the party consents to the proceedings being discontinued in accordance with the notice of discontinuance. (3) If any such consent is given on terms, those terms are to be incorporated in the notice of consent. (4) If any party has not been served with the originating process, the plaintiff must file an affidavit to that effect. (5) For the purposes of this rule, proceedings on a cross-claim are taken to be different proceedings to the proceedings on the originating process and to proceedings on any other cross-claim.
As pointed out by the applicant, the plaintiffs did not file a notice of discontinuance. This was a procedural irregularity which does not, subject to the powers of the Court to make orders setting aside the dismissal, invalidate the decision of the Registrar: s 63 of the Civil Procedure Act. In deciding whether that power should be exercised, it is relevant to have regard to any prejudice to the applicant. As set out above, the applicant was given notice of the plaintiff's intention to seek leave to withdraw the proceedings on 23 March 2022, which was more than a week prior to the appearance before the Registrar. There is no evidence before me that would establish any prejudice to the applicant as a result of the plaintiff's failure to file a notice of discontinuance. The failure should be treated as an irregularity that does not impact the order of the Registrar.
In addition to the above, the applicant raised four arguments in support of the orders sought.
By the first argument, the applicant submitted that the proper mechanism for the review of the decision of the Local Court Registrars was an application to a Local Court Magistrate, pursuant to r 8.8 of the Local Court Rules 2007 (NSW). There are two obvious difficulties in this argument. Firstly, the existence of this mechanism does not exclude the availability of the application made to this Court. Secondly, even if it did, it would not provide a basis to refuse the plaintiff's application to withdraw the summons or the consequent order dismissing the summons.
The second argument relates to the failure to file a notice of discontinuance, and additionally to the rules in relation to the award of costs where proceedings are discontinued. The significance of the failure to file a notice of discontinuance has been dealt with above. With respect to costs, r 42.20 of the UCPR provides that "…unless the court orders otherwise, the defendant must pay the plaintiff's costs of the proceedings". This rule did not require an order for costs in the applicant's favour. Rather, it gave rise to a discretion to make such an order. The rule does, however, provide a default position by which the plaintiff was liable for the defendants' costs. There was no explicit recognition of this by the Registrar, or reasons given as to why no order for costs should be made. However, the applicant was self-represented. As such, he incurred no professional costs and there was no utility in an order for costs in his favour. Therefore, there is, in the circumstances, no basis for any complaint with respect to the Registrar's order that each party pay their own costs.
The third argument is that as committal proceedings had commenced "a registrar cannot remove the legislative authority of a court". Reference was made to ss 37(1), 47(1), 49(1), 56(1) and 96(1) of the Criminal Procedure Act 1986 (NSW). It is not entirely clear what is meant by the submission, but to the extent that the jurisdiction of the Local Court had been invoked by the applicant, the decision by the Registrar of this Court did not interfere with that jurisdiction. Rather, events were overtaken by the decisions of the respective State and Commonwealth Directors bringing proceedings to an end: see R v Howard (1992) 29 NSWLR 242 (in the context of indictable procedure). There was no interference by the Registrar with the Local Court's jurisdiction.
The fourth argument is that the plaintiff's summons was based on the contention that jurisdiction of the Local Court was not properly invoked due to the allegedly irregular decisions of the Local Court Registrars, and that the Local Court Magistrate fell into jurisdictional error by continuing to hear the cases. The applicant argues that the Registrar of this Court erred "as only the Supreme Court has authority to determine" the Local Court fell into jurisdictional error by continuing to hear the cases. The short answer to this is that the Registrar made no determination as to whether or not the Magistrate fell into jurisdictional error. The plaintiffs indicated that they did not wish to pursue their claim and it was dismissed.
Finally, in oral submissions, the applicant submitted that both the Court Book prepared by the plaintiffs' solicitor and the list of authorities provided to him were defective. In relation to the former, the applicant's complaint was that the title of the proceedings, based on his cross-summons, referred to him as the plaintiff but to the defendant as "Sarah McNaughton SC - Commonwealth Director of Public Prosecutions". The applicant pointed out, correctly, that the proper defendant to the cross-summons was the Office of the Commonwealth Director of Public Prosecutions and not the individual (then) occupying that office.
The second complaint raised orally was that a folder containing the plaintiffs' authorities provided to by the plaintiffs to the applicant had, on its cover, the wrong file number. The applicant submitted that he was entitled to ignore the folder of authorities and the Court Book as they did not relate to his matter.
While the proper party to the proceedings is the Commonwealth Director of Public Prosecutions, and not the individual for the time being occupying that office, the cover sheet to the plaintiffs' Court Book adopted this style from the cross-summons filed by the applicant. The applicant repeated this style in his notice of motion filed on 28 April 2022 again naming "Sarah McNaughton SC - Commonwealth Director of Public Prosecutions" as the "first cross defendant". There is no significance in the plaintiffs replicating the error of the applicant in naming, the now, McNaughton J as a party in a cover sheet to the Court Book provided to assist the Court. The applicant's submission that this person "did not exist" was an exaggeration, but more importantly in the present context, not to the point. Similarly, there is no significance in what appears to have been a typographical error with respect to the file number on the folder of authorities provided by the plaintiffs to the applicant. The applicant can have been under no misapprehension as to what proceeding it related to. It was, in any event, ultimately up to him to decide what authorities he would consider in preparation for the hearing, including any referred to in the plaintiffs' submissions.
There is no merit in the arguments raised by the applicant and the order of the Registrar should stand. The applicant should pay the plaintiffs' costs on the motion.

Orders

For the reasons above, I make the following orders: 1. In relation to the notice of motion filed by Mr Moore on 28 April 2022: 1. Prayer 2 of that notice of motion is dismissed; and 2. Order that Mr Moore as the applicant on the motion pay the plaintiffs' costs of and incidental to, that notice of motion.

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: 19 April 2023

Local Court Rules 2007(NSW)

Unform Civil Procedure Rules 2005(NSW)

(2009) 168 LGERA 260

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