JUDGMENT
1 Shaw J: By summons the applicant applies for judicial review of a decision of Magistrate O'Shane. There are two relevant decisions of the Local Court though the applicant only seeks review of the first. The first decision of the learned Magistrate was to dismiss 62 criminal charges for various offences on informations laid (with leave) by the applicant as a private prosecutor against the second through sixth respondents. The second decision of the Local Court was to refuse his application pursuant to s 100D of the Justices Act 1900 (NSW) (which is now repealed but was in force at the relevant times) to annul the previous decision of her Worship to dismiss the charges mentioned.
2 Though the summons seeks an order to quash the decision of Magistrate O'Shane to dismiss those charges for 'Abuse of Process' it is clear that during the course of his submissions before me, the applicant - who appears in person - means to challenge those decisions by seeking an order in the nature of certiorari for a breach of the rules of procedural fairness or a failure to afford the applicant natural justice amounting to jurisdictional error, or, at the very least, error of law on the fact of the record.
3 The applicant was unable to furnish the Court with a complete record of the Local Court proceedings. However Ms Watson, who appears for the third respondent, has helpfully provided most, if not all, of the relevant record.
4 From the transcripts of the proceedings before Magistrate O'Shane on 19 May 2003 it is clear that her Worship dismissed the charges as laid by the applicant for want of prosecution. The matter was called at 9.30 am and then later at about 10 am. Magistrate O'Shane stood the matter in the list until 11 am, but by that time the applicant had made no appearance before the Court. The charges were then dismissed and an order for costs made in relation to the third respondent.
5 In this Court the applicant asserts that he was, in fact, within the precincts of the Local Court on that day at about 11 am. He has produced some evidence to this effect. Much of this evidence corroborates the transcript record in which he appears to have entered the courtroom just after 11 am on that day. By this time, however, the orders had been made.
6 The transcript records what happened at this time:
BENCH: Where did you come from Mr Hanna? Have you been here all morning?
HANNA: No your Worship, I came and I am at the counter because I have to furnish other documents. You said 19 May and I am here 19 May.
BENCH: You were supposed to be here at 9.30 this morning.
HANNA: You said your Worship, you have to be here on the nineteenth, you didn't say 9.30 your Worship. I am sorry for that but I am here on 19 May. I have lots of things your Worship. I don't have all the facilities of the Department of Public Prosecutions [sic].
7 In somewhat perfunctory comments to the Bench, Mr Hanna attempted to convince the learned Magistrate that he had attended as required by the last order standing over the proceedings to 19 May, but which, as he asserted, did not tell him what time to appear. Magistrate O'Shane rightly noted that the applicant's own summons bringing the respondents before the Court indicated that they would appear at 10 am. Mr Hanna continued to assert that he need not have attended at the specified time and the Magistrate confirmed her earlier orders dismissing the charges.
8 From this brief background, two considerations arise that should be noted.
9 The first is that it will be difficult, in circumstances in which a litigant has contributed to or even caused an error or unfairness to arise in proceedings to complain that such error or unfairness should be corrected. Courts have responded to and made efforts to adjust their processes to take into account that many people (and some might think an inappropriate number) now appear before them unrepresented and unaware of the usual procedures. However, all litigants, represented and unrepresented, must respect the courts and the processes of those courts. The applicant contributed to and in many ways caused his own difficulties by arriving at the Local Court late on 19 May. He could have sought that the Magistrate review her dismissal of the charges given his late arrival but instead he sought to assert that he had done nothing wrong. His disrespect of the learned Magistrate compounded his lack of regard for the hours of the Local Court.
10 However, a second consideration that arises balances the first, and that is that it is a fundamental concept that procedural unfairness, in almost any form, taints a curial proceeding and renders it susceptible to supervisory relief.
11 The applicant had brought an action (with the authority of leave granted by the Local Court) to prosecute a matter he alleges involves criminal conduct. Though he is a private prosecutor, he has brought an action that he asserts is in the public interest. Accordingly, he should have been heard before losing an opportunity to bring that action. The applicant was not on notice that a failure to arrive promptly on the morning of 19 May could be met with the dismissal of his case, nor was he heard on whether that was the most appropriate response to his failure to arrive in a timely fashion in the courtroom on that day. Something to this effect would now be within Mr Hanna's notice, however in the circumstances, the applicant has an arguable right to the relief he seeks.
12 I acknowledge that different considerations would arise when a well-resourced public authority fails to maintain criminal proceedings in the Local Court. Indeed, there is an express statutory power that recognises that the Local Court may dismiss a charge for want of prosecution: see s 41(1A) of the Justices Act. However, that power was arguably made conditional upon the Justice or Justices consideration, at the very least, not to adjourn the hearing instead of dismissing the charge(s). There is some force in the applicant's contention that an adjournment should have been considered as appropriate and that, at least, the applicant should have had an opportunity to address the Court on the available options open to the learned Magistrate.
13 This raises an issue of an appropriate course for this Court to take in these circumstances.