Marium v Registrar Local Court Blacktown

Response 1

1. The first response contends that the Registrar was correct to reject Ms Marium's notice of motion. Pursuant to r 8.3 of the Local Court Rules 2009, an application in proceedings is to be made by filing it in the approved form. The term "approved form" with respect to documents means, in relation to criminal proceedings, the form approved for that document under r 8.6: Local Court Rules, r 1.3(1).
2. Pursuant to r 8.6, the Chief Magistrate may approve forms for documents to be used in connection with, among other things, summary proceedings in the Court. Copies of the approved forms are to be made available for public inspection at each registry of the Court and on the Court's website: r 8.6(2).
3. In the present case, Ms Marium sought to make an application by way of a "notice of motion" (Form 2). That is not a form approved for use by the Chief Magistrate in connection with summary (criminal) proceedings in the Local Court. As the Registrar explained to Ms Marium in his reasons on 28 October 2021, the proceedings before the Local Court are criminal proceedings.
4. The Attorney General's perception was that Ms Marium appeared to rely upon s 72 of the Local Court Act 2007. That section provides as follows: 72 Forms (1) The Chief Magistrate: (a) may approve forms for documents to be used in connection with application proceedings, and (b) in the case of documents filed with the Court, or issued by the Court, by means of an ECM system within the meaning of the Electronic Transactions Act 2000, may approve the format in which such documents are to be filed or issued. (2) Copies of the approved forms are to be made available for public inspection at each registry of the Court and on the Court's internet website. (3) If a form is approved in relation to a document to be used in connection with proceedings in the Court, a document that is filed with or issued by the Court is to be in that form. (4) An application notice must do the following: (a) describe the grounds for the proceedings and the remedy sought, (b) contain the name of the applicant, (c) require the respondent to appear before the Court or a Magistrate at a specified date, time and place. (5) The rules may prescribe additional matters to be included in application notices.
5. Section 72 is to be found in Division 4 of Part 4 of the Local Court Act. Section 44 provides that Part 4 applies to "any proceedings with respect to matters for which jurisdiction is conferred on the Court by or under any Act or law, other than: (a) criminal proceedings…". The proceeding in the Local Court is a criminal proceeding. Section 72 is therefore irrelevant to the question of whether the notice of motion could be filed in the criminal proceeding before the Local Court.
6. The Attorney General's primary submission, therefore, was that Ms Marium's first prayer for relief should be refused: the Registrar did not fall into jurisdictional error in declining to list her notice of motion. This response, however, needs to be understood in light of the Attorney General's third response which is referred to later in these reasons.

Response 2

1. The Attorney General's next response was that the application should be refused on discretionary grounds because Ms Marium could have exercised her right of appeal from the decision of the Registrar pursuant to r 8.8 of the Local Court Rules. That rule is as follows: 8.8 Review of powers exercised by registrars If a registrar of the Court gives a direction, makes an order or does any other thing in committal proceedings, summary proceedings or application proceedings, the Court may, on application by a party to the proceedings - (a) review the direction, order or action, and (b) by order confirm, vary or discharge the order or direction or take such other action as it thinks fit.
2. Prerogative relief may be refused by a Court where it is, or would arguably have been, preferable for an applicant to pursue such avenues of appeal as may be available: Tooth & Co Ltd v Council of City of Parramatta (1955) 97 CLR 492 at 498; Re Refugee Tribunal; Ex Parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [56]; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26 at [33]; Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [87]; Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308 at [121]-[122]. Rule 8.8 provided Ms Marium with just such an opportunity.
3. The Attorney General submitted that the case for discretionary refusal is particularly strong in criminal cases where the courts typically avoid allowing judicial review to fragment the course of criminal proceedings: R v Iorlano (M & G), Re Mullally; Ex parte Attorney-General (Cth) (1983) 151 CLR 678; [1983] HCA 43; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33.
4. The Attorney General also raised the question of what discernible benefit the judicial review proceedings have for the conduct of Ms Marium's criminal proceedings. The substance of the relief sought in the notice of motion was expressly considered by Magistrate Van Zuylen on 29 October 2021, when the matter was adjourned for four weeks to enable Ms Marium to consider whether she wished to continue to maintain her contention that the proceedings were out of time. If the matter were to be remitted to the Registrar, with the later listing of Ms Marium's notice of motion, it would have the practical consequence of putting matters before a magistrate that appear to have been considered by Magistrate Van Zuylen on 29 October 2021.

Response 3

1. The Attorney General's third response was provided in supplementary submissions as a possible alternative to his first response. He submitted that in circumstances where there is no approved form to make an interlocutory application in summary proceedings, a person may make that application in writing in any form. It would follow from this argument that the first defendant fell into error in refusing to accept for filing and list the 27 October 2021 notice of motion. This argument was expanded as follows.
2. Pursuant to r 8.2(f) of the Local Court Rules, the Registrar may exercise the function of the Court to determine matters preliminary to the commencement of the hearing of criminal proceedings. The Registrar's determination with respect to the non-listing of the October notice of motion was such a matter.
3. Rule 8.3(2) provides that an application in (summary) proceedings is to be made by filing an application "in the approved form". An "approved form" is defined in r 1.3 to (relevantly) mean "in relation to criminal proceedings, the form approved for that document under r 8.6". Rule 8.6 is in the following terms: 8.6 Forms (1) The Chief Magistrate, for the purposes of these rules - (a) may approve forms for documents to be used in connection with committal proceedings or summary proceedings in the Court, and (b) in the case of documents filed with the Court, or issued by the Court, by means of an ECM system within the meaning of the Electronic Transactions Act 2000, may approve the format in which such documents are to be filed or issued. (2) Copies of the approved forms are to be made available for public inspection at each registry of the Court and on the Court's internet website. (3) Subject to these rules, if a form is approved in relation to a document to be used in connection with proceedings in the Court, a document that is filed with or issued by the Court is to be in that form.
4. Rule 8.6 provides that the Chief Magistrate may approve forms and that if a form is approved, a document filed is to be in that form. This leaves a gap if a form is not approved, which is the case in respect of the orders that Ms Marium sought in her October notice of motion. However, this gap can be filled by reference to r 8.3(5), which states that "an application may be made for orders relating to (but not limited to) any of the following matters … (e) any form of interlocutory application for which no other form is approved".
5. In those circumstances, reading r 8.3(5)(e) harmoniously with r 8.3(2) and 8.6(3), the rules arguably admit of the possibility that an application can be made for orders for which no form is approved. It would therefore follow that the plaintiff could make an interlocutory application by way of filing an application in writing. The Attorney General conceded that this argument is an available alternative to the first response and that it would be open to me to accept it: the 27 October 2021 notice of motion was an application that could be made and listed in the criminal proceedings. If an application can be made in the absence of an approved form, then it is of no consequence that Ms Marium applied by way of a notice of motion.
6. Acceptance of this argument would mean that the Registrar made an error of law in refusing to receive the notice of motion because the Local Court Rules permit the filing and therefore listing of such an interlocutory application in a criminal proceeding and the Registrar's reasons were in error in concluding there was "no jurisdiction" to list it.
7. In such circumstances, the Attorney General accepted that this was a (non-jurisdictional) error of law on the face of the record, for which certiorari can issue, by reason of s 69(3)-(4) of the Supreme Court Act 1970.

What should now happen?

1. Despite the fact that the Attorney General identified and helpfully adumbrated this third response, he maintained the submission that relief should be refused in the exercise of discretion, for the reasons to which earlier reference has been made: Ms Marium had a right of appeal from the decision of the Registrar pursuant to r 8.8 of the Local Court Rules, which could have been pursued so that prerogative relief should therefore be refused. Secondly, the grant of relief lacks utility because the matters which Ms Marium wished to have heard before a Magistrate have been heard or are listed to be heard.
2. In my opinion, the Attorney General's third response is correct. It leads to an inevitable conclusion that Ms Marium has made out her case for the relief that she seeks. I hasten to add that that result is in no small measure also the result of Ms Marium's considerable assistance to the Court in the form of her helpful written and oral submissions which belied her lack of formal legal qualifications. Her perseverance has succeeded in identifying, or at least emphasising, the existence of an available route for a litigant in criminal proceedings to approach the court for appropriate relief.
3. Having achieved that level of success, however, there does not appear to me to be any practical utility in making the orders or granting the relief that Ms Marium seeks. In the events that have occurred, she is now in practical terms, even without prerogative orders, in the same position as that which she sought to attain before the Registrar's error became apparent. As the Attorney General has noted, a grant of prerogative relief may in fact even have the effect of putting Ms Marium in a worse position than she currently occupies in terms of delay. It is in these circumstances futile to make orders that do not have any obvious practical effect. As a matter of discretion, I would decline to make orders of the type sought by Ms Marium, even though she has satisfied me that she is otherwise entitled to relief as a matter of law. For abundant caution I note that in exercising my discretion in that way, I do not rely upon the Attorney General's second response, suggesting that Ms Marium should not be considered to be entitled to relief in this Court for having failed to utilise her right of appeal from the Registrar's decision in the Local Court.

Orders

1. It will be apparent that I am operating upon what seems to me to be the reasonable expectation that Ms Marium will in due course be heard, and will ventilate her concerns about the criminal process, in the Local Court. Depending upon the outcome of the criminal proceedings, it may be necessary to revisit her claim for prerogative relief. Against that remote possibility, it seems to me that the preferable course is that I do not make orders finally disposing of the present proceedings until the outcome in the criminal prosecution is known.
2. It is in these circumstances appropriate that I simply make no order. I will grant liberty to the parties to restore the matter before me if so required on short notice by arrangement with my Associate and the opposing party.

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: 17 October 2022