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Ms Khamiss had been convicted in the Kiama Local Court of intimidation under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). She appealed to the District Court, but that appeal was dismissed for want of prosecution. She then brought proceedings under s 69 of the Supreme Court Act 1970 (NSW), asserting that decisions of both the Local Court and District Court were affected by jurisdictional error ([2]).

The Director formally conceded that apprehended-bias jurisdictional error, identified in ground 2 of the further amended summons, was made out in relation to the Local Court. However, the Director disputed that this concession meant relief was available under s 69. The stated basis was that the Local Court's decision had been superseded by the District Court's dismissal of the appeal ([3]). That was the Director's contention recorded by Leeming JA, not a conclusion reached by the Court.

The judgment identified two further matters requiring attention. First, the Director's submissions noted a possible difference between the District Court's reasons, which referred to dismissal of the appeal for want of prosecution, and the order recorded in JusticeLink, which used the traditional language of confirming the conviction ([4]). Second, the judgment noted an issue about the effect of changed language in the Crimes (Appeal and Review) Act 2001 (NSW), compared with the former Justices Act 1902 (NSW). The judgment linked that issue to South Eastern Local Health District v Lazarus [2020] NSWCA 183 and Wishart v Fraser (1941) 64 CLR 470 ([4]).

The Court referred the further amended summons filed on 26 May 2025 and the parties' submissions filed on 24 March and 20 June 2025 to the Registrar, for referral to the NSW Bar Association for the purpose of appointing counsel as amicus curiae ([9]). The matter was then listed for hearing on 22 July 2025. Leeming JA's present view was that the amicus should file written submissions in time for responses from both parties, and that the hearing date could be vacated if necessary ([9]).

Why the court decided this way

The central reason was the potential general importance of the questions raised. Leeming JA considered that the summons raised issues applicable to the review of decisions made by the District Court in its appellate criminal jurisdiction, concerning Local Court convictions and sentences ([5]). That prospective reach made the matter suitable for assistance beyond the submissions of the two parties.

The judgment says that Ms Khamiss did not oppose the referral, and that the parties' written submissions made the issues reasonably clear ([1], [5]). The Director's submissions, filed on 20 June 2025, were 51 pages. Ms Khamiss's submissions had been filed on 24 March 2025. The judge considered that a prospective amicus could initially assess whether to accept the referral by considering those submissions, without needing a more extensive preliminary exercise ([5]).

Leeming JA referred to the principles collected in David Resler Walton by his tutor John Mann v Terence Hartman as executor of the estate of Wanda Resler [2019] NSWSC 1749 at [23]-[26] ([5]). The judgment does not reproduce or explain those principles in detail. It would therefore go beyond the source to treat this decision as setting out a comprehensive test for appointing an amicus. The reasoning actually stated is fact-specific: the issues appeared to raise questions of principle; those questions were identified in the parties' submissions; and the Court considered that written, and potentially oral, assistance would be useful.

Timing was considered, but did not outweigh the perceived value of that assistance. The hearing was listed for 22 July 2025, a date allocated before the Director's submissions revealed the full extent of the general questions ([6]). The application was also substantially out of time. The Director had formally acknowledged in part that it did not oppose an extension of time in some circumstances, depending on the correct legal position ([7]). The judgment does not decide whether an extension should be granted.

The sentence had been fully served: an 18-month community correction order and a $1,000 fine ([7]). Leeming JA recorded Ms Khamiss's acknowledgement that a further delay of a few weeks would be a relatively small price in the circumstances. He also stated that the sentence's completion did not detract from her ability to seek and obtain orders if she were entitled to have the conviction quashed ([7]). That passage preserves the possibility of relief without deciding whether she qualified for it.

The judge considered the proposed course consistent with the overriding purpose of facilitating the just, quick and cheap resolution of the proceeding ([7]). The Court's orders were therefore practical directions for arranging the assistance and managing the timetable, rather than findings on the merits ([9]).

Before and after state of the law

The judgment does not purport to alter the law on judicial review, criminal appeals, or amicus appointments. It records an interlocutory decision in one proceeding. Its immediate effect was to initiate a process for obtaining independent submissions on issues that could matter beyond the parties.

Before this decision, the substantive questions in Ms Khamiss's case were contested. One was whether the conceded Local Court apprehended-bias error could support relief under s 69 after the District Court had dismissed the appeal. Another concerned the legal significance of the difference between the District Court's reasons and the JusticeLink record of its order. A further question concerned the statutory-language change between the Crimes (Appeal and Review) Act 2001 and the Justices Act 1902 ([3]-[4]). The decision did not resolve any of them.

After the decision, the matter was referred for the possible appointment of an amicus, with contemplated written submissions and responses before the substantive hearing. The orders left the existing hearing date in place for the time being, but expressly contemplated vacating and reallocating it if counsel's availability required that ([9]).

The judgment's references to Lazarus and Wishart show that those authorities were relevant to the statutory-language question. The source does not set out their holdings in detail, nor does it explain how they should determine the issue in Ms Khamiss's case. Likewise, Walton is identified as collecting principles relevant to amicus appointments, but those principles are not restated. Accordingly, the judgment should not be read as resolving the statutory interpretation issue or as announcing a new general test for appointment of an amicus.

Key passages with plain-English translation

At [5], Leeming JA said the summons raised “questions of principle which are generally applicable” to review of District Court decisions in its appellate criminal jurisdiction. In plain English, the Court saw potential significance beyond this applicant's individual dispute. That was a reason why an independent legal perspective might assist.

At [3], the judgment records that the Director “formally” conceded jurisdictional error on the ground of apprehended bias, but maintained that the concession did not produce an entitlement to relief because the District Court decision superseded the Local Court decision. In plain English, the parties agreed on an error at the Local Court stage but disagreed about whether that error could still matter after the appeal was dismissed. The Court did not settle that disagreement.

At [4], the judge noted the difference between the District Court's reasons and the recorded order. In plain English, the documents appeared to describe the outcome differently: one as dismissal for want of prosecution, the other as confirmation of the conviction. The judgment flags the discrepancy without deciding what legal consequence, if any, follows from it.

At [7], Leeming JA stated that the completed sentence did not detract from Ms Khamiss's ability to seek orders “if she is entitled to quash the conviction”. The conditional wording is important. The Court did not find that she was entitled to have the conviction quashed; it recognised that completion of the sentence did not itself dispose of that question.

At [7], the judge described the proposed process as consistent with the “just, quick and cheap resolution” of the proceeding. In context, the judge considered that a short additional delay to obtain assistance could be justified by the general questions raised. This was a case-management assessment, not a ruling on the underlying grounds.

What fact patterns trigger this precedent

The decision is most directly relevant where a court is considering an amicus appointment in a proceeding that raises questions of principle extending beyond the immediate parties, particularly where the issues are already identified in written submissions. Here, both parties' submissions gave the Court a basis to identify the questions, and the applicant did not oppose the referral ([1], [5]).

The case also illustrates that the prospect of delay does not necessarily prevent an amicus referral. Leeming JA considered the scheduled hearing date, the substantial time already elapsed, and the fact that the sentence had been served. He nevertheless proposed the referral, while allowing for the possibility that the hearing would need to be relisted ([6]-[7], [9]).

The particular substantive setting was judicial review of decisions following a Local Court conviction and a District Court appeal dismissed for want of prosecution. The judgment may therefore be useful where a case raises questions about how the District Court's appellate disposition affects alleged error in the Local Court decision. But it does not supply an answer to that substantive question.

Nor does the judgment establish that an amicus must be appointed whenever a party is self-represented, whenever jurisdictional error is alleged, or whenever an issue is described as important. Its stated rationale was the combination of general questions of principle and the Court's view that it would be assisted by submissions. The source does not set out a complete threshold test.

How later courts have treated it

The judgment was delivered on 23 June 2025, and the supplied text contains no later treatment of it. It would therefore be unsupported to describe it as followed, applied, distinguished, or otherwise treated by subsequent courts.

The authorities discussed within this judgment must also be kept distinct from later treatment of Khamiss. Walton is referred to for collected principles concerning the appointment of an amicus ([5]). Lazarus is mentioned in connection with a question about changed statutory language, and Wishart is identified as an authority considered in that context ([4]). Those are authorities considered in the reasoning of this decision, not examples of later courts treating Khamiss.

The practical procedural outcome is clear: the Registrar was asked to refer the matter to the NSW Bar Association for the purpose of appointing counsel, and further directions were contemplated if counsel accepted ([9]). The source does not state whether an appointment was made, what submissions followed, whether the hearing date changed, or how the substantive summons was ultimately decided.

Still-open questions

The principal unresolved question was whether the Local Court's conceded apprehended-bias error could support relief under s 69 after the District Court dismissed the appeal. The Director's position was that the Local Court judgment or order had been superseded by the District Court decision ([3]). The judgment does not endorse or reject that submission.

The discrepancy between the District Court's reasons and the JusticeLink order also remained unexplained. The reasons reportedly referred to dismissal for want of prosecution, while the recorded order used language associated with confirming the conviction ([4]). The judgment does not determine which record governs, or whether the difference affects the judicial review analysis.

The statutory issue was also left open. The judgment identifies a question about the effect of the change in language between the Crimes (Appeal and Review) Act 2001 and the Justices Act 1902, and notes that Lazarus discussed aspects of it by reference to Wishart ([4]). It does not quote the relevant provisions or decide how they apply.

Finally, the extension-of-time question remained pending. The application was substantially out of time, while the Director's position on opposing an extension depended, at least in part, on the correct legal position ([7]). The appointment of an amicus was intended to assist with issues relevant to the eventual hearing, but this judgment does not state what outcome followed.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have it checked by a qualified Australian lawyer.