[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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EX TEMPORE JUDGMENT
LEEMING JA: Mr Vladimir Alexandrovich Shapkin has filed a summons pursuant to s 69 of the Supreme Court Act 1970 (NSW) seeking judicial review of the refusal of the District Court to state a case pursuant to s 5B of the Criminal Appeal Act 1912 (NSW) following that Court's confirmation of his conviction and sentence for certain offences with which he was charged and found guilty in the Local Court. By notice of motion filed on 26 July 2024, Mr Shapkin sought an order that the District Court's judgment of 13 December 2022, confirming his convictions, be stayed until further order. There has been debate today between Mr Shapkin and me concerning various aspects of that motion, including its utility, the evidence upon which he relied and, as is clear from the written submissions from both sides, certain legally novel aspects of his application. The position with the underlying summons is that it was filed on 5 June 2024, was originally allocated a hearing date on 12 September 2024 (that occurred on 22 July 2024), but more recently it has been set down for hearing on 27 September 2024.
There continues to be a level of uncertainty as to whether Mr Shapkin's summons will be ready for hearing on that adjourned date, and he has explained concerns that he has as to the submissions that he has been directed to file in support of his contention that the District Court's refusal to state a case amounted to jurisdictional error. It may assist him to note, as was observed during argument, that insofar as he is concerned about his submissions affecting his rights against self-incrimination there is, so far as I can see, no basis on which that immunity will be affected by submissions advanced in support of his summons. But even if I be wrong about that, the fact of the matter is that he has filed and served a summons invoking this Court's original jurisdiction and that summons, in this Court's civil jurisdiction, attracts the obligations under s 56 of the Civil Procedure Act 2005 (NSW) upon the Court and Mr Shapkin personally for it to be determined in accordance with the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings.
The real issues in the proceedings are whether or not the District Court committed jurisdictional error in declining to state a case, contrary to Mr Shapkin's request. What is to be avoided, and I say this because the decision to refuse to state a case, as I understand the chronology, took place some 14 months after the original application was made - that chronology being contributed to by delay in Mr Shapkin's submissions - is for the same delay or anything like it to recur in the civil jurisdiction of this Court. In short, the summons filed by Mr Shapkin should be heard and determined sooner rather than later and it is not to be anticipated that merely through the failure to supply either submissions or the materials in support that it will continue pending in this Court.
With those matters in mind, I raised with Mr Shapkin whether anything turned on the granting or refusal of his stay in the next three or four weeks, noting the summons is presently listed for final hearing on 27 September. I also observed that the Court of Appeal constituted by three Judges of Appeal would be well placed to hear and determine his motion seeking a stay, because it would no longer be necessary to assess the strength of his submissions that the District Court's decision was affected by jurisdictional error. Insofar as the Court of Appeal on 27 September is satisfied that the District Court's decision is attended by jurisdictional error, then that, as it appears to me, would favour the granting of interlocutory relief pending the statement of a case. Alternatively, if the Court of Appeal constituted by three Judges of Appeal is unpersuaded that the District Court decision is attended by jurisdictional error, then it will be quite clear that the notice of motion will have to be dismissed.
After those points were made, Mr Shapkin announced his preference for his notice of motion to be stood over to the same time at which his summons was heard. Ms Davidson, who appeared for the Director, then said that she would not oppose that course.
I interpolate that that course strikes me as an efficient use of the Court's resources. For one thing, were I to determine the motion today, the party disappointed by it would have a right to have my decision reviewed pursuant to s 46(4) of the Supreme Court Act, and in the ordinary event that application for review would be heard by the same court at the same time as was hearing Mr Shapkin's summons. In any event, even if no application for review was made, it at least might be open, if I were to dismiss the motion, for Mr Shapkin to file another notice of motion, particularly if he were able to point to some material change in circumstances.
For all of those reasons it seems to me appropriate to accede to Mr Shapkin's preferred course, which is not opposed by the Director of Public Prosecutions, which is to stand over the notice of motion dated 26 July 2024 until the hearing of Mr Shapkin's summons filed 5 June 2024. At present, the summons is listed for final hearing on 27 September 2024 and I will now speak to the parties about getting the matter ready for that hearing.
[Discussion concerning directions]
I make the following directions:
1. Stand over the notice of motion dated 26 July 2024 until the hearing of Mr Shapkin's summons filed 5 June 2024. At present, the summons is listed for final hearing on 27 Sept 2024.
2. Vary the procedural timetable governing preparation for the summons as follows:
(a) direct the applicant to file and serve his white folder by 6 September 2024,
(b) direct the first respondent to supply any further evidence, if any, by 18 September 2024,
(c) direct the applicant to file and serve his written submissions in support of the summons by 6 September 2024,
(d) direct the first respondent to file and serve her submissions by 18 September 2024,
(e) direct the applicant to file and serve any submissions in reply by 25 September 2024.
3. Appoint 9:30am on 11 September 2024, for directions before Leeming JA but note that that directions hearing will be vacated if the applicant files his white folders and submissions by 6 September 2024.
4. Confirm the hearing date of the summons of 27 September 2024.
4. Both sides' costs of today will be reserved.
5. Note that, assuming the white folders supplied by the applicant are suitable to conduct the hearing, dispense with the direction to file a combined court book (made by the Registrar on 22 July 2024) with the intention that the hearing on 27 September 2024 will proceed on the basis of the white folders supplied by the applicant.
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Decision last updated: 03 September 2024