HIS HONOUR: Before the Court is what the Court infers is an application for an adjournment from the Prosecutor.
This matter has a long history. On 26 April 2019, it came once more before the Court as presently constituted. At that point in time, Mr Liritsis, who was late and arrived at 2.30PM, 30 minutes after the listed time, addressed the Court on a need for an adjournment.
The Plaintiff's application for an adjournment was based, amongst other things, on a medical certificate. The application for an adjournment took approximately one and a half hours and at least, according to a comment of the Court's at the conclusion of the submissions, it went from half past 2 when Mr Liritsis arrived until 4.05PM. As a consequence, and as a matter of practicality, the matter could not be heard that day. The Court issued reasons for refusing the adjournment which were delivered ex tempore on 26 April 2019 after the parties had concluded their submissions and adduced whatever material they sought.
Following the refusal of the adjournment, it was necessary for the Court to re-list the matter for a day shortly in the future. The parties and the Court discussed an appropriate time. The Defendant's counsel had some availability in this week, as a consequence of which, the Court asked Mr Liritsis - the references is at page 34 of the transcript of 26 April 2019 at line 27. I asked of Mr Liritsis:
1. "What are you like on the 14th, Mr Liritsis? I thought you said you were all right for the whole of May?"
The Plaintiff answered, "I am fine on the 14th." I then listed the matter for 10:00AM today.
Prior to the hearing today, indeed, on 9 May 2019 last Thursday, a person purportedly on behalf of Mr Liritsis by the name of Melissa, whose name was mentioned in the course of the proceedings on the last occasion as a person who was providing some assistance to Mr Liritsis, emailed the Defendants through their solicitor and made clear that Mr Liritsis will not be attending the hearing next week, that is, today. In the course of that email, a number of assertions are made, amongst them include the fact that Mr Liritsis is unwell and is on, "Suicide watch after he tried to take his own life last week after Court". The last week after Court is, I assume, a reference to the proceedings on 26 April 2019.
The email to the Defendant ends with a request that the email, together with medical evidence to be provided, should be forwarded to the Court on his behalf by the Defendant. Ordinarily, the idea that a Prosecutor would ask the Defendant to forward matters to the Court is unusual, but given that the Defendant, in this case, is the State of New South Wales, not so unusual. The email in question was, as I earlier said, received by Mr Herzfeld's instructing solicitor on or about 9 May 2019 shortly after 9:25AM.
On the material before the Court, I am satisfied that the Defendant's solicitor, the Crown Solicitor's Office, waited for the provision of medical evidence, as suggested in the email. None was forthcoming, and on Monday 13 May 2019, the Defendant's solicitor forwarded to the Court the email as requested without any medical evidence. At 10.57PM, the aforesaid Melissa, sent an email in or to the same effect as that which was sent to the Defendant's solicitor to the Court, a copy of which went to the Crown's Solicitor Office. There is other material in this latter email.
At 6.33AM today, the same Melissa sent an email to the Court advising the Court that the Prosecutor, Mr Liritsis, could not see the doctor yesterday:
1. "due to their Ramada [sic] but is booked to see him today. As soon as I receive the doctor's certificate I will email it through."
It also advises that Mr Liritsis will be seeing his psychologist today. As Ramadan continues until at least 29 May 2019, if not beyond that, it is unclear why Mr Liritsis would be able to see his doctor today, but not yesterday. Further, my understanding of the requirements of Ramadan, which I assume is the reference to "Ramada", does not involve, for any devout Muslim, an inability to work; it requires that they not eat between sunrise and sunset.
Further, it seems, on the face of it, that the first known attempt to see a doctor to obtain a medical certificate was yesterday, that is, 13 May 2019, despite the fact that the issues seem to have arisen shortly after or on 26 April 2019.
Ordinarily, an email of this kind would be sufficient to give the Court cause to accept the bona fides of any adjournment application. However, this matter has a very long history. It is purportedly a proceeding for prosecution for what is alleged to be criminal contempt, although my understanding of the papers, with which I am not unfamiliar, is that the contempt, if it be contempt, seems largely technical. Further, there have been a number of applications for adjournment. The last of which, as I earlier indicated, was refused by the Court.
At the time that the Court refused the application, to which some note is made in the reasons for judgment, it was clear that Mr Liritsis, notwithstanding his alleged incapacity, was able to run the adjournment application at length, in which he cited judgments of the Court of Criminal Appeal, in particular, that of Basten J, relating to criminal contempt. He also showed that he was aware, and able to marshal, the principles in criminal contempt, and, as I said in the judgment, "could easily and competently address them before the Court". Mr Liristis also made clear, when the matter was sought to be re-listed, that he had a number of other proceedings in this and other courts, which tended to suggest that any medical issue is not incapacitating.
The effect of the emails from or on behalf of Mr Liritsis raises a number of issues. The first of them is the Court infers that there is an application for an adjournment or the vacation of the hearing of today's matter and treats the emails in that manner.
There seem to be five points raised in the adjournment application. The first point, and possibly the most important, is the health of the Prosecutor, including the health of his parents whom it is said he is assisting and/or for whom he is caring. On the last occasion, there was significant debate about the veracity, or genuineness, of a medical certificate that was provided in support of the application for an adjournment.
On this occasion, there is no medical support for the proposition. Indeed, on the basis of the material presented to me on the last occasion by Mr Liritsis, it seems that Mr Liritsis had matters before one or other courts or tribunals throughout last week and some parts of this week. He was, however, available today.
Secondly, another matter that is raised is that he has a competing listing at Manly Local Court. There is no doubt, on the material before the Court, that there is, in fact, a listing in relation to an Apprehended Violence Order, seemingly sought by the police in aid of a protected person against Mr Liritsis that was in for directions at 9.30AM today. That application may be one in which, as Mr Liritsis or persons on his behalf have said, he will not, or did not, attend.
It seems, on the face of the documentation that I have seen, that it is probably unnecessary for him to attend it as it is a directions hearing. I should add that it was a directions hearing that, on the face of the material that was presented to me on the last occasion, did not seem to have been listed, or was not referred to by Mr Liritsis, on 26 April 2019, and has been listed since that time.
The third matter is a number of complaints he makes against the Supreme Court and myself. Those complaints are essentially complaints that Mr Liritsis is incapable of obtaining justice from the Supreme Court and/or from myself. It is not clear how objectively that can be asserted.
During the course of the proceedings which were the basis for the contempt, of which Mr Liritsis complains, Mr Liritsis obtained orders from the Court and/or a process was faciliatated by the Court whereby he obtained the result desired.
Objectively, it is unclear how it is said either that there is, a reasonable apprehension of bias or a failure to exercise proper discretion and/or jurisdiction in accordance with the law. Mr Liritsis says that complaints will be made to the Judicial Commission. No complaint to my knowledge has been made.
The fourth matter is a matter relating to, what is said to be, a denial of natural justice if the proceedings are not adjourned. It is said by Mr Liritsis that a failure to adjourn it to hear him would involve a denial of natural justice.
In Director of Public Prosecutions v Ozakca [2006] NSWSC 1425, I dealt with the refusal of adjournment to a prosecutor, albeit at a time when I was dealing with it on appeal from the Local Court. At [11] of that judgment, I make clear that the general principle that applies to a decision to refuse or grant an adjournment application is that it is a matter wholly within the discretion of the Court or Tribunal and, as a consequence of the proceedings that were then before the Court, an appeal against such a decision is an appeal against a discretionary decision and interfered with only on the basis of the matters to which the High Court referred in House v The King 55 CLR 499; [1936] HCA 40.
Where, however, the application for an adjournment is said to be on the basis of a denial of natural justice, different issues arise. Those issues were dealt with by his Honour, Deane J, in Sullivan v Department of Transport (1978) 20 ALR 323 at 343. I should add, his Honour was there sitting as a member of a Full Court of the Federal Court of Australia. And his Honour, Fisher J, relevantly agreed with Deane J. His Honour said:
1. "A refusal to grant an adjournment can constitute the failure to give a party to the proceedings the opportunity of adequately presenting his case. If the Tribunal had, in the present matter, refused an application by the Appellant for an adjournment to enable him to procure Dr Evans' attendance as a witness, that refusal may well have constituted such a failure. No such application for an adjournment was however made.
2. ...The failure of a Tribunal which is under a duty to act judicially to adjourn a matter may conceivably constitute a failure to allow a party, the opportunity of properly presenting his case, even though the party in question has not expressly sought an adjournment."
His Honour, Deane J, then referred to Priddle v Fisher [1968] 1 WLR 1478 and continued:
1. "In this regard, however, it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled". (Emphasis in original).
In the circumstances before the Court, Mr Liritsis, who is self-represented, has had an extraordinary opportunity to prepare the case that he wishes to put and to present his case and to defend the case that is put by the Defendant on its Notice of Motion to strike out the proceedings. Mr Liritsis has not taken advantage of that opportunity or has not taken the best advantage of that opportunity. It is not a denial of natural justice to refuse an adjournment in the circumstances before the Court in these proceedings.
Lastly, Mr Liritsis raises an appeal as to a denial of Legal Aid and what is said to be an appeal against the refusal of Legal Aid. Ordinarily, the statement from the Bar Table or in writing that a party has sought to appeal or wishes to appeal a denial of Legal Aid would be accepted by the Court. I do not comment on the general attitude of the Court to such a statement from the Bar Table or such a statement made in writing. I do, however, need to make some comment given the history of this matter.
The first time that the Plaintiff raised the denial of Legal Aid was in the email of 13 May 2019 at 10.57PM (i.e. very late last night). In that email, at [2], the person advising the Court said, seemingly again on behalf of Mr Liritsis, that:
1. "I had completed and (read: 'an') application for Legal Aid for representation of this matter and I was advised on Friday that the application was declined and Mr Liritsis is awaiting that letter so I can make an appeal to the Legal Aid Review Committee as Mr Liritsis has excellent prospects of having Legal Aid refusal overturned."
There are a number of things that should be said. Firstly, the email of 9 May 2019, that is last Thursday, does not mention that there was an outstanding application for Legal Aid that had yet to be dealt with, even though such an application might inform a discretion to adjourn. Further, as far as the Court is aware, no notice under s 33(7A) of the Legal Aid Commission Act 1979 (NSW) has been given.
Secondly, if the application was refused and the notification of refusal was made on Friday 10 May 2019, it seems odd that it took till almost 11:00PM on 13 May 2019 for that to be mentioned.
The third aspect is that, due to the history of the statements that have been made by Mr Liritsis from the Bar Table that are seemingly inconsistent with the objective assessment of what Mr Liritsis was able to do and was doing, I am not convinced that a statement, even if made on instructions from Mr Liritsis, that he intends to appeal, is sufficient to satisfy me under s 57 that he bona fide seeks to appeal. I am not satisfied that the appeal, if it were made, is an appeal for a purpose other than the adjournment of this application.
I say that for a number of reasons. Firstly, I am aware of the policy of the Legal Aid Commission, whose funds are limited. The proposition of which the Court would need to be satisfied, is that the Legal Aid Commission would be prepared to fund a Prosecutor in the prosecution of proceedings for what is alleged to be criminal contempt. Frankly, I have never known the Legal Aid Commission to have funded a prosecution taken privately by an individual or, indeed, by the Crown.
Secondly, the policy of the Legal Aid Commission, in relation to its extended jurisdiction on the breach of civil liberties, does not, on its face, include authority to fund, or the likelihood of funding, of a private prosecution for criminal contempt. As a consequence, it seems to me that the appeal, if it were taken against the refusal of Legal Aid to fund this private prosecution, would be unmeritorious and most unlikely to succeed.
I make it clear that I am also satisfied, because of the history of this matter, that the Prosecutor is taking the appeal vexatiously, and not in a bona fide manner.
Lastly, dealing with the provisions of s 57 of the Legal Aid Commission Act, I refer to the special circumstances that would prevent an adjournment being granted. I take the view that the term "prevent" in the provision in question does not require incapacity or refer to that which is essential.
In dealing with the power of a Court, words such as "prevent" or "necessary" have to be given an understanding that is consistent with the exercise of the discretion of the Court in the interests of justice. In this case, it seems to me that the term "prevent" means prevent in accordance with the interests of justice and facilitating the interests of justice. By analogy, I refer to the analysis of the majority (Gaudron, Gummow and Callinan JJ) of the High Court in Pelechowski v The Registrar of the Court of Appeal 198 CLR 435 at 451-452; [1999] HCA 19. Over and above the other reasons provided, I consider that these defendants are entitled to have determined in an appropriate period, the allegation of criminal conduct against them. The interests of justice reasonably require an expeditious hearing and the circumstances prevent a further adjournment on this ground.
For all of the foregoing reasons, I refuse the implicit application for adjournment and/or vacation of the hearing date of Mr Liritsis and will proceed with the hearing.
[3]
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Decision last updated: 15 May 2019