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Catchwords: CIVIL PROCEDURE — Summary disposal — UCPR r 13.4 – Dismissal of proceedings — Contempt of court — Abuse of process — Collateral purpose —Statement of charges prolix — Evidence in support defective — No suggestion that problems will be remedied — Proceedings seeks to cavil with District Court sentencing judgment and Court of Criminal Appeal judgment on appeal — Proceedings summarily dismissed

Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)
Criminal Procedure Act 1986 (NSW)
Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW)
Road Transport Act 2013 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited: Application by Shelden Patrick Vaughan pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2022] NSWSC 920
Application by Shelden Vaughan pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (No 2) [2024] NSWSC 553
Cox v Journeaux (No 2) (1935) 52 CLR 713; [1935] HCA 48
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Liristis v Corrective Services NSW (No 4) [2020] NSWSC 147
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1980] HCA 41
Spiliotopolous v National Australia Bank Limited [2017] NSWSC 971
Stokes (by a tutor) v McCourt [2013] NSWSC 1014
Vaughan v R [2020] NSWCCA 3
Williams v Spautz (1992) 174 CLR 509; [1992] HCA 32

Category: Procedural rulings

Parties: Shelden Patrick Vaughan (Plaintiff) (Self-represented)
Attorney General of New South Wales (First defendant)
Jessica Rofe (Third defendant)

Representation: Counsel:
D Kell SC with M Dalla-Pozza (First and third defendants)
M Dalla-Pozza (First defendant)
Solicitors:
Crown Solicitors Office

File Number(s): 2024/00125041

Publication restriction: Nil

JUDGMENT

1. By notice of motion filed 12 December 2024 the first defendant, the Attorney General of New South Wales, seeks the following orders in relation to an application by the plaintiff, Mr Shelden Vaughan, for judicial review by amended summons dated 24 June 2024:

2. the proceedings be dismissed generally pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR);

3. the plaintiff pay the first defendant’s costs;

4. any further or other orders that the Court considers appropriate.

5. By notice of motion filed 28 March 2025 the first defendant and the third defendant, Ms Jessica Rofe, seek the following orders relating to the plaintiff’s contempt proceedings instituted by notice of motion dated 28 November 2024:

6. the proceedings relating to the plaintiff’s notice of motion dated and filed 28 November 2024 (contempt motion) be dismissed pursuant to r 13.4 of the UCPR and/or the inherent jurisdiction of the Court;

7. the plaintiff pay the first defendant’s and third defendant’s costs;

8. any further or other orders as the Court considers appropriate.

9. There was no appearance for the second or fourth defendants and no evidence to establish that either of them had been validly served in the contempt proceedings.

Background

Judicial review – the procedural history and factual background

4. By summons filed on 2 April 2024 the plaintiff commenced proceedings in this court seeking judicial review to impugn decisions relating to criminal proceedings in which he was convicted of two serious indictable offences and sentenced to a period of imprisonment.

5. The plaintiff waived his right to a committal hearing in the Local Court on 14 December 2016. Three charges were then committed for trial to the District Court at Parramatta.

6. Between 22 April 2016 and 9 August 2017 four plea offers were made by the plaintiff to the Office of the Director of Public Prosecutions (ODPP). Those offers were not accepted.

7. On 9 February 2017 an indictment containing three counts was presented to the District Court. That indictment contained Counts 1 and 3, as well as a charge of causing grievous bodily harm with intent to cause grievous bodily harm to a person contrary to s 33(1)(b) of the Crimes Act 1900 (NSW) (Count 2). The plaintiff entered not guilty pleas to the three counts on the indictment and the matter was listed for trial to commence 21 August 2017.

8. On 21 August 2017 the plaintiff signed a statement of agreed facts and entered guilty pleas to Counts 1 and 3 on an amended indictment, which were accepted by the Crown in full satisfaction of the indictment.

9. The offences to which the plaintiff pleaded guilty were:

10. one count of assault causing grievous bodily harm with intent to murder contrary to s 27 of the Crimes Act 1900 (NSW) (Count 1); and

11. one count of wounding with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act 1900 (NSW) (Count 3).

12. The agreed facts signed by the plaintiff on 21 August 2017 ultimately became the factual basis upon which the plaintiff was sentenced. Those facts can be summarised as follows.

13. In 2012 the plaintiff married his wife, MQN, who was originally from Colombia. During their marriage the plaintiff and MQN suffered some relationship issues, primarily relating to financial matters. The couple attended counselling but ultimately separated in June 2015. After the separation the plaintiff began sending text messages to MQN and she asked him not to text or telephone her.

14. On 18 June 2015 MQN’s sister received an email, in poorly translated Spanish, which alleged that MQN had fraudulently obtained her entry visa into Australia, that she had attempted to steal money “from myself and my family” and stated “I hope she were to die in a car accident and that she has to fly home the body”. MQN was made aware of the email.

15. MQN made complaints to police about the plaintiff on 19 and 20 June 2015 and expressed fears for her safety. Police contacted the plaintiff about these complaints on 25 June 2015, in response to which the plaintiff said that MQN had mental problems and denied using the words “I want her to die and the body sent back to Colombia”.

16. In August 2015 MQN was working for a not-for-profit organisation based in Carramar, a suburb in Sydney’s western suburbs. On 17 August 2015 the plaintiff conducted internet searches including searching MQN’s name, the name of the not-for-profit organisation, the suburb name Carramar and the phrase “carotid artery neck”.

17. Early in the morning of 18 August 2015 the plaintiff drove to MQN’s workplace in Carramar. He drove in behind her as she arrived into the carpark and parked his car behind hers. As MQN opened her car door the plaintiff approached her. One of MQN’s work colleagues, MKH, was in the vicinity and asked MQN if she was alright. The plaintiff then pulled a knife from his pocket, raised it and lunged at MQN’s head and neck area. MKH saw the plaintiff dragging MQN from her car and called for him to “get away from her”. The plaintiff then stabbed MQN to the forehead, her left chest area and her left arm. He then turned to MKH and stabbed her skull.

18. Whilst MQN was on the ground near the rear bumper of a parked car the plaintiff then got back into his car, reversed, and then accelerated directly at MQN, crashing into her and the parked car. As MQN tried to raise herself up the plaintiff again reversed and again drove his car towards her, crushing her between the bumper of his car and the parked car.

19. The facts relating to the plaintiff’s conduct directed towards his wife, MQN, formed the basis of the charge of assault causing grievous bodily harm with intent to murder (Count 1). The facts relating to the plaintiff’s conduct directed towards her work colleague, MKH, formed the basis of the charge of wounding with intent to cause grievous bodily harm (Count 3).

20. MQN sustained lacerations to the left side of her chest and left arm, bruising and abrasions to her face and neck, fractured ribs, a fracture to her left scapula (shoulder area), several fractured vertebrae and a broken pelvis. MKH sustained a laceration to the top of her head requiring sutures, and which caused a mildly displaced fracture of the outer cortex of the left frontal bone.

21. The plaintiff was arrested later that morning. He participated in an electronically recorded interview during which he made admissions in relation to pulling out a knife, cutting MQN’s face, neck and “maybe her torso”, and raising a knife towards MKH. He also admitted to “driving at” MQN twice but said that he only intended to scare her.

22. Expert reports by Dr Furst, Dr Westmore and Professor Greenberg tendered at the sentence hearing established that the plaintiff did not have a defence of mental illness available to him. The plaintiff gave evidence at the sentence hearing and provided a letter to the Court expressing remorse for his conduct and indicating his intention to take responsibility for the consequences of his actions.

23. The sentencing judge, Bennett SC DCJ, accepted that the plaintiff was remorseful, but found that his conduct was not a result of a sudden loss of control, but rather that he had formed an intention to commit the offences the previous night. His Honour found that the plaintiff suffered from major depressive illness at the time of the incident but did not find that it was such that he did not know that what he was doing was wrong.

24. The plaintiff was sentenced to an aggregate term of imprisonment of 21 years comprising a non-parole period of 14 years commencing on 19 August 2015 and expiring on 18 August 2029 with a balance of term of seven years commencing on 19 August 2029 and expiring on 18 August 2036. His Honour allowed a discount in the order of 12.5% for the utilitarian value of the guilty pleas, noting that they were entered on the day the trial was due to commence, 21 August 2017. Sentence indications were given in respect of Count 1 of 17 years and 6 months with a non-parole period of 12 years and in respect of Count 3 of 11 years and 3 months with a non-parole period of 8 years.

25. On 30 August 2019 the plaintiff filed a notice of application for leave to appeal the sentencing decision to the Court of Criminal Appeal. The plaintiff sought to appeal relying on a single ground of appeal that the sentencing judge erred in respect of the accumulation of the indicative sentences. Leave to appeal was refused on 6 February 2020: Vaughan v R [2020] NSWCCA 3.

26. The plaintiff then brought two applications for an inquiry pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act). The first of which was refused by N Adams J on 8 July 2022: Application by Shelden Patrick Vaughan pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2022] NSWSC 920. The second of which was refused by Harrison CJ at CL on 10 May 2024: Application by Shelden Vaughan pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (No 2) [2024] NSWSC 553.

27. By amended summons filed 24 June 2024 the plaintiff applies for judicial review pursuant to s 78 of the CAR Act or ss 23 or 69 of the Supreme Court Act 1970 (NSW) of the sentence imposed on him. The primary relief sought in the summons can be summarised as follows:

28. an order that the plaintiff’s case be referred to the Court of Criminal Appeal and that in those proceedings the report of Professor Greenberg and the evidence of MQN and MKH be disregarded. Following this, the plaintiff seeks an order varying his sentence to make it less severe and take into account his early guilty plea to Count 3;

29. a direction that an inquiry be conducted into his sentence under s 78 of the CAR Act and that following this his case be referred to the Court of Criminal Appeal to be dealt with as in paragraph (1) above;

30. an order that the Director of Public Prosecutions provide the District Court with a signed charge negotiation certificate from the criminal proceedings and following this that the plaintiff’s case is referred to the District Court for variation of sentence;

31. an order that his case be remitted to the Local Court for his guilty plea to be taken into account;

32. an order that the sentence of Bennett SC DCJ be set aside;

33. an order that the Crown is to conduct an inquiry into the plaintiff’s prosecution and the conduct of various individuals involved, including the victims of the offences and those employed by the ODPP and the Department of the Attorney General of New South Wales; and

34. an order quashing the suspension of the plaintiff’s driver’s licence.

35. In written submissions the plaintiff provides 177 grounds in support of his application for judicial review, the details of which need not be presently set out.

Contempt motion

27. On 28 November 2024 the plaintiff filed a notice of motion naming four respondents, being the Honourable Michael Daley MP, Attorney General of New South Wales, Ms Kristen Daglish Rose, Ms Jessica Rofe and MQN and seeking the following orders:

28. the respondents personally or through its delegate or agents, deliver up to the Court and the plaintiff, all materials referred to in the Contempt Charge as undertaken by the Court;

29. the respondents be found in contempt of the Court;

30. the respondents be called upon to answer the Contempt charge;

31. the matter be dealt with on an urgent basis;

32. any other orders this Honourable Court deems fit; and

33. the first defendant pay the plaintiff’s costs.

34. Attached to the notice of motion are two statements of charge, which collectively charge the four respondents, who are variously referred to individually, collectively as the respondents and apparently collectively as “the Crown”, that between 2011 and 2024:

35. they wilfully and without order of the court breached undertakings made to the Campbelltown Local Court, New South Wales District Court, New South Wales Supreme Court (the Court) to serve documents pertaining to the plaintiff’s judicial proceedings and judicial review and were repeatedly reminded of their obligations and undertakings to the Court [the Undertaking Charge];

36. they failed to provide a charge negotiation certificate to the Campbelltown Local Court and to the plaintiff [the Charge Negotiation Certificate Charge];

37. they failed to provide to the Campbelltown Local Court a plea letter signed by the plaintiff offering to plead guilty to Count 3 [the Plea Letter Charge];

38. they involved Professor Greenberg in charge negotiations intending that he produce a report which supported MQN’s fabricated evidence [the Greenberg Report Charge];

39. they conspired to conceal documents evidencing MQN’s migration fraud [the Migration Fraud Charge];

40. they failed to investigate or report public justice offences committed by Ms Daglish Rose, Ms Rofe, MQN or Ms Healy [the Public Justice Charge];

41. they filed a notice of motion to summarily dismiss these proceedings [the Summary Dismissal Charge];

42. the Crown Solicitor was in a conflict of interest because it is a party to the contempt and would investigate the contempt [the Conflict of Interest Charge];

43. MQN provided fabricated relationship and financial evidence which became the basis of his sentencing [the Fabricated Relationship Evidence Charge];

44. MQN made bank transfers to Colombia totalling $10,000 which she failed to disclose to immigration authorities [the Migration and Financial Fraud Charge];

45. MQN’s lawyers redacted the names of medical assessors in documents submitted in divorce proceedings in the Federal Family Court of Australia [the Divorce Documents Charge];

46. they used statements provided by MQN to the Police, which had been fabricated to defeat allegations of migration and financial fraud, to brief Professor Greenberg and aggravate the plaintiff’s sentence [the False MQN Police Statements Charge];

47. they failed to inform the sentencing judge of financial fraud perpetrated by MQN on the plaintiff [the Failure to Inform Charge];

48. the Crown, Ms Daglish Rose and MQN engaged in illegality against the courts [the Illegality Charge];

49. the plaintiff had a defence of provocation available to him as a result of MQN’s fraud [the Provocation Defence Charge];

50. Ms Rofe provided brief documents to Professor Greenberg which had been fabricated by MQN and should not have presented Greenberg’s report to the sentencing court [the Fabricated Brief Document Charge];

51. Ms Daglish Rose, who had a conflict of interest because she was employed by the Attorney General of New South Wales, joined the prosecution of the plaintiff by being present in court when the plaintiff was cross-examined in the sentence proceedings, spoke to the Crown prosecutor through an intermediary and influenced the questions put to the plaintiff [the Daglish Rose Conflict Charge];

52. they involved Professor Greenberg in charge negotiations by producing a report contrary to objective and forensic evidence about wounds to MQN’s throat [the Contrary to Forensic Evidence Charge];

53. they intended that the sentencing judge would accept fabricated evidence that the plaintiff drove directly at MQN twice intending to kill her [the Drove at Directly Charge];

54. the Crown misled the Court by submitting that Ms Daglish Rose was not employed by the ODPP, when it was required to disclose that she was employed by the Department of the Attorney General and that there was a conflict of interest between her and MQN [the Daglish Rose Employment Charge]; and

55. they engaged in patent and obvious fraud against the courts warranting a lesser sentence [the Patent and Obvious Fraud Charge].

The evidence

29. In support of his application to dismiss the judicial review proceedings the first defendant tendered 6 volumes of material entitled “Folder of Material of Respondent”, which were marked Exhibit A.

30. In support of their application to dismiss the contempt of court proceedings the first and third defendants tendered a folder entitled “Folder of Materials of First and Third Respondents’” which was marked Exhibit B. That exhibit contains four affidavits of Alicia D’Arcy sworn 28 March 2025, 9 May 2025, 30 June 2025 and 18 July 2025 which were read on the application. Two volumes comprising exhibit AD-1 to the affidavit of Alicia D’Arcy sworn 28 March 2025 were marked Exhibit C on the application. Two volumes comprising exhibit AD-2 to the affidavit of Alicia D’Arcy sworn 28 March 2025 were marked Exhibit D on the application. Exhibit AD-2 to the affidavit of Alicia D’Arcy sworn 30 June 2025 was marked Exhibit E on the application and exhibit AD-4 to the affidavit of Alicia D’Arcy sworn 18 July 2025 was marked Exhibit F on the application.

31. The plaintiff relied on an affidavit by his sister Jennifer Vaughan affirmed on 1 May 2025 which became Exhibit 1 and a folder of materials which contained a paginated indexed bundle (comprising 55 items and 73 pages), which became Exhibit 2 containing extracts from exhibits SV-1 and SV-2 to the plaintiff’s affidavits sworn on 23 April 2025 and 5 August 2025.

32. A 31 page proposed further amended summons for judicial review dated 31 July 2025 was marked MFI 1.

Material tendered on application to dismiss the judicial review proceedings

33. Exhibit A comprises the amended summons dated 25 June 2025, notice of motion dated 12 December 2024, written submissions dated 12 December 2024 in support of the application for summary dismissal of the plaintiff’s 25 June 2025 amended summons, an affidavit of Kendrea Fang affirmed 12 December 2025 and Exhibit KF-1 to that affidavit.

34. Exhibit KF-1 contains the summons dated 2 April 2024, the amended summons dated 25 June 2024, three amended summonses seeking judicial review each dated 8 October 2024, correspondence between the plaintiff and the Crown Solicitor’s Office between 25 July 2024 and 11 November 2024 relating to the plaintiff’s application for judicial review, documents relating to the grounds of the plaintiff’s application for judicial review, a summons seeking judicial review of a decision by the Legal Aid Review Commission dated 11 November 2024, orders made by Registrar Hedge and the plaintiff’s notice of motion and statements of charge dated 9 December 2024. Exhibit KF-1 also contains materials relating to the previous applications by the plaintiff under s 78 of the CAR Act, the material before the District Court in relation to his criminal proceedings and the material before the Court of Criminal Appeal in the plaintiff’s appeal proceedings.

Material tendered on the application to dismiss the contempt proceedings

35. Exhibit C contains an extract of JusticeLink entries for the plaintiff’s criminal proceedings, transcripts of mentions before the Local Court between 19 August 2015 and 14 December 2016, transcripts of proceedings before the District Court between February 2017 and April 2018, the transcript of the hearing in the Court of Criminal Appeal of 18 October 2019, correspondence between the Crown Solicitor’s Office and court registries regarding requests for transcripts between February and March 2025 and the contents of the appeal books before the Court of Criminal Appeal for the hearing of the plaintiff’s appeal against his sentence.

36. Exhibit D contains correspondence between Ms Jessica Rofe from the ODPP and the plaintiff’s legal representatives in his criminal proceedings between April 2016 and March 2018. The correspondence relates primarily to plea offers, service of evidence and court listings.

37. Exhibit E contains correspondence between the plaintiff and the ODPP relating to the ‘charge negotiation certificate’ dated 2 February 2023 to 21 November 2024, transcripts of proceedings before Registrar Hedge between December 2024 and June 2025 and email correspondence between the plaintiff and the Crown Solicitor’s Office relating to notices disputing facts.

38. Exhibit F contains transcripts of proceedings before Registrar Hedge between May 2024 and November 2024 and correspondence from the Crown Solicitor’s Office to the plaintiff enclosing a notice disputing facts.

39. Exhibit 1 is an affidavit affirmed by Jennifer Vaughan on 1 May 2025 which describes observations of Ms Daglish Rose and Dr Alan Rosen in court during the plaintiff’s sentence proceedings.

40. Exhibit 2 contains extracts from materials relating to the plaintiff’s sentence proceedings, a statutory declaration of Ms Daglish Rose, notices disputing facts, material relevant to the plaintiff’s divorce proceedings, affidavits from MQN, MQN’s police statement, affidavits of Tenille Gotting, Terry Fantakis and Jennifer Vaughan, an inmate escort log, and correspondence regarding the plaintiff’s plea offers.

Relevant legal principles – dismissal

41. Rule 13.4 of the UCPR provides:

42. If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

2. The court may receive evidence on the hearing of an application for an order under subrule (1).

3. In addition, the Supreme Court has inherent jurisdiction to summarily dismiss proceedings, which is no less extensive than the power contained in the rule: Stokes (by a tutor) v McCourt [2013] NSWSC 1014 at [13].

4. Where summary dismissal is sought on the basis that the proceedings disclose no reasonable cause of action, the applicant must overcome a high threshold. That test has been described variously as being “so obviously untenable that it cannot exceed”, “manifestly groundless” or “so clearly deficient that it would be inappropriate to allow the proceedings to continue”: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-129; [1965] HCA 69; Cox v Journeaux (No 2) (1935) 52 CLR 713 at 720; 9 ALJR 127; [1935] HCA 48.

5. In cases involving allegations of fraud summary relief has been granted in circumstances where the plaintiff made vague statements alleging fraud but was unable to was unable to substantiate the allegations: Cox v Journeaux (No 2)**; Spiliotopolous v National Australia Bank Limited [2017] NSWSC 971 at [38].

6. It is an abuse of process to litigate matters which could have and reasonably should have been litigated in earlier proceedings: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1980] HCA 41 (“Anshun”).

7. Proceedings commenced or maintained for any purpose other than a substantial legitimate purpose are liable to be struck out as an abuse of process. The court must determine, by reference to the intention attributed to the plaintiff, not merely whether the collateral purpose of the proceeding outweighs any legitimate purpose but whether the plaintiff entertained any substantial intention that the proceeding should achieve a legitimate purpose. An abuse of process occurs when the only substantial intention of a plaintiff is to obtain an advantage or other benefit, to impose a burden or to create a situation that is not reasonably related to a verdict that might be returned or an order that might be made in the proceeding: Williams v Spautz (1992) 174 CLR 509; [1992] HCA 32.

8. In Liristis v Corrective Services NSW (No 4) [2020] NSWSC 147 (“Liristis”) Rothman J considered an application for summary dismissal of contempt proceedings. In Liristis the plaintiff alleged that the Commissioner of Corrective Services and the State of New South Wales were involved in actions calculated to obstruct or interfere with the due administration of justice relating to criminal proceedings in the District Court of New South Wales. There his Honour referred to the requirement that procedural steps for the commencement of contempt proceedings must be adhered to strictly and the need for the nature of the contempt to be properly particularised and said at [31] and [32]:

“The initiating documents in these proceedings, which purport to be Statements of Charge are bad in form and do not, substantially or otherwise, amount to a document that is capable of fitting the description of a Statement of Charge. Further, even if it were to be a Statement of Charge, albeit in inappropriate form, it is insufficient to specify the contempt and the conduct which is said to be in contempt in such a manner that a person charged with such contempt could answer the charge.

A Statement of Charge must prescribe and particularise all matters relied upon that is said to amount to contempt. Even if an affidavit were to fill in details that are not otherwise provided in the Statement of Charge, that would not be sufficient to comply with the rule: King v Healthcare Complaints Commission [2011] NSWCA 353 at [82]- [83]. As earlier stated, the particular acts amounting to contempt must be precisely stated in such a form that would allow any alleged contemnor to be able to answer the contempt: Matthews v ASIC [2009] NSWCA 155 at [38]- [46].”

48. The proceedings in Liristis were summarily dismissed on the basis that they were manifestly groundless, hopeless and untenable. There the summons and statement of charge were manifestly defective for numerous reasons, including because they did not state, with precision or otherwise, the acts or omissions alleged, they did not specify the acts or omissions said to have been performed by each of the defendants making it impossible for them to answer the charges or defend the proceedings, they were statements of conclusions without proper particulars and they did not particularise the nature of the interference with the administration of justice in the District Court proceedings.

49. The courts should summarily dismiss contempt proceedings in only the clearest of cases. However, individuals should not have serious allegations of contempt hanging over their heads when the material upon which the plaintiff relies is “obviously flimsy and untenable”: Liristis at [70].

Submissions on the application to dismiss the proceedings for judicial review

The first defendant’s submissions

50. The first defendant, who is the applicant on the motion to dismiss the proceedings generally, submits that the grounds for the relief sought by the plaintiff consist of allegations of fraud which are implausible, unsupported by evidence and unsustainable and, if made out, would be incapable of giving rise to the relief sought as they are either irrelevant to judicial review or the relief sought exceeds that which may be provided in judicial review proceedings. The first defendant contends these features all lead to the conclusion that the plaintiff has disclosed no reasonable cause of action in his application for judicial review.

51. The first defendant submits that although the plaintiff has been given opportunities to reformulate his claim and has served a draft proposed further amended summons, the defects in the plaintiff’s summons are so fundamental that further opportunities to amend his pleadings or reformulate his claim would not remedy the difficulties in the proceedings.

52. The first defendant submits that there are five reasons that the plaintiff’s summons should be dismissed.

53. First, the judicial review proceedings constitute an abuse of process in circumstances where the grounds on which the proceedings are brought were not raised in the application for leave to appeal to the Court of Criminal Appeal. The first defendant submits that the proceedings offend the principles in Anshun because the plaintiff, who was legally represented at sentence and in the appeal proceedings, sought to appeal to the Court of Criminal Appeal based only on a very narrow issue relating to the accumulation of the aggregate sentence. He did not contend that the sentence was manifestly excessive, nor did he seek to challenge the agreed facts or any of the evidence tendered at the sentence, nor did he seek to traverse his pleas of guilty.

54. Secondly, the plaintiff has brought the proceedings well outside of applicable time limits. They were commenced on 2 April 2024 which was almost 6 years after the sentence decision on 27 April 2018 and more than 4 years after the Court of Criminal Appeal refused leave on 6 February 2020. The first defendant contends that, although limitation issues are not usually determinative on an application for summary dismissal, due to expiry of the time limits under r 59.10 of the UCPR, the Court would find that the plaintiff’s summons do not disclose a reasonable cause of action.

55. Thirdly, the relief sought by the plaintiff is not available in judicial review proceedings under ss 23 or 69 of the Supreme Court Act 1970 (NSW). The plaintiff seeks relief under the CAR Act, including referral of his proceedings to the Court of Criminal Appeal which is not available in judicial review proceedings under the Supreme Court Act as they are administrative, not judicial, in nature*.* The first defendant submits that in judicial review proceedings, the matter would be referred to the District Court if error was established in the original decision, but that in doing so this Court could not direct another court which evidence it may or may not consider on re-sentence or vary the sentence itself. The first defendant submits that the relief sought would also not be available in an inquiry into the plaintiff’s sentence under s 78 of the CAR Act. The first defendant further contends that this Court does not have jurisdiction to order the delivery of the charge negotiation certificate or institute the inquiries into conduct of the individuals nominated by the plaintiff.

56. Fourthly, the grounds in support of the summons are incapable of establishing grounds of judicial review and amount to abuse of process. The first defendant submits that none of the grounds pleaded by the plaintiff demonstrate any error of law in Bennett SC DCJ’s sentence. The first defendant points to the plaintiff’s allegations of fraud on the part of the victim and others, which are unsubstantiated and implausible, do not disclose any error of law and, the first defendant submits, were brought with the intention of harassing or punishing the victim, his former wife. The first defendant submits that in circumstances where the decision of Bennett SC DCJ was premised on agreed facts which had been signed by the plaintiff and tendered without objection, the plaintiff’s contention that fraud by others caused his Honour to sentence him based on fabricated information cannot be supported. In relation to whether the migration fraud or financial fraud which the plaintiff alleges were perpetrated by MQN should have been taken into account in the sentencing decision, the first defendant submits that these were not matters that would lead to a reduction in sentence or entitle the plaintiff to any discount.

57. In relation to the plaintiff’s ground of a failure to take into account his alleged early guilty plea to Count 3, the first defendant submits that there is no evidence of the plaintiff pleading guilty to that count at an early stage. The transcripts of the proceedings before the Local Court and the District Court indicate the contrary is true. The plaintiff entered not guilty pleas in the Local Court and upon arraignment in the District Court. His guilty pleas, including to Count 3, were entered on the day the trial was due to commence. The first defendant submits that the document referred to as the “signed charge negotiation certificate”, on which the plaintiff relies as evidence of an early guilty plea, likely does not exist. In any event even if it was established that the plaintiff entered an early plea of guilty to Count 3, he would not be entitled to a 25% discount on the total sentence due to his late guilty plea for Count 1, which the plaintiff accepts was entered on the first day the matter was listed for trial.

58. The first defendant submits that the plaintiff’s ground concerning an alleged mischaracterisation of domestic violence offences is not an error of law, and in any event, the offences were ones of significant violence committed against his then wife and intimate partner. As to the plaintiff’s allegations of the conduct of his legal representatives in the criminal proceedings, the first defendant submits that these are not supported by evidence and should have been raised in the Court of Criminal Appeal proceedings where he was represented by different counsel.

59. Additionally, the plaintiff’s contention that the sentencing judge did not take into account the plaintiff’s mental health or experiences of childhood sexual abuse are incompatible with both the evidence and his Honour’s findings. The first defendant submits that the plaintiff’s contention that he has been doubly punished by reason of the suspension of his driving licence is contrary to ss 204, 205, 206 and 207 of the Road Transport Act 2013 (NSW).

60. Fifthly, the plaintiff has no prospects of achieving the relief sought as the same issues were considered in both of the previous s 78 applications before this Court. Harrison CJ at CL and Adams J, operating under a greater latitude provided under s 78 of the CAR Act than in judicial review proceedings, both concluded that they had no doubt or question about the sentence the plaintiff received.

61. The first defendant in his submissions also addresses three summonses which the plaintiff has served but has not filed, referred to as the ‘October summonses’. The October summonses largely reproduce the grounds in the summons presently before the Court, however they confine the relief sought to that under the Supreme Court Act. The first defendant submits that the October summonses do not address the difficulties of the 24 June 2024 summons and present further defects. The first defendant submits that the plaintiff accordingly should not be afforded an opportunity to amend the summons and that the proceedings should be dismissed entirely, as the October summonses also represent an abuse of process and do not establish any grounds for judicial review.

The plaintiff’s submissions

62. The plaintiff relied on extensive written submissions which incorporate over 760 grounds in support of his application for judicial review. The plaintiff repeats the matters relied upon for his 24 June 2024 summons in response to the motion for the proceedings to be dismissed. The plaintiff submits that there is evidence which should have been before the sentencing judge that was not provided at sentence, that the evidence that was relied on was fabricated and that the sentencing judge’s decision is affected by a failure to take into account his early guilty plea to Count 3.

63. The plaintiff submits that there is “fresh evidence” which he asserts would materially affect the facts which formed the basis of his sentence. The plaintiff submits that these would affect the sentencing judge’s findings regarding his state of mind and the sequence of events that made up his driving his car towards MQN.

64. The plaintiff submits that he is the victim of frauds by his ex-wife, MQN. He alleges that she has participated in fraudulently obtaining an Australian visa and fraudulently obtaining financial benefits in the context of her marriage to the plaintiff. The plaintiff alleges that these frauds were carried out with the aid of the Crown and others associated with the plaintiff’s criminal prosecution. The plaintiff relies on these alleged frauds to establish that his prosecution was based on false evidence given by both victims, false evidence relied on by Professor Greenberg in his report tendered in the sentencing proceedings and a report by another psychologist. The plaintiff further submits that the signed agreed facts document which formed the factual basis upon which he was sentenced was a “false instrument”.

65. The plaintiff alleges further misconduct during the sentence proceedings, such as involvement by a Ms Daglish Rose who was employed by the Attorney General’s Department and who acted as a support person for the victim MQN. The plaintiff alleges that a note was passed from Ms Daglish Rose to the Crown Prosecutor during his cross-examination and that this is an example of the influence which she had over the proceedings in furtherance of MQN’s alleged frauds against the plaintiff.

66. The plaintiff submits that these frauds affected his criminal proceedings not only by infecting the evidence before the court on sentence, but also due to a failure to take them into account as mitigation of his sentence. The plaintiff contends that his ex-wife’s conduct represented extra-curial punishment as it caused him mental injury and that should have been taken into account on sentence. The plaintiff also submits that the fraud on the part of his ex-wife amounted to a defence of provocation, which was not a finding made by the sentencing judge. Further, the plaintiff submits that he would be entitled to a discount on sentence due to the assistance he says he has provided to authorities by exposing the alleged frauds of the defendants.

67. The plaintiff submits that the offending was a result of his suffering psychosis or a loss of control and that his intention was to commit suicide in front of his ex-wife. He submits that the sentencing judge should have made particular findings in relation to his mental health and its relation to the offending conduct, including that he was suffering from severe depression, PTSD, acute stress and panic disorder at the time and was experiencing side-effects of his anti-depressant medication.

68. He submits that his sentence is affected by an alleged failure of the sentencing judge to take into account his early plea of guilty to Count 3 and that the plea and documents relating to it were suppressed by the prosecution.

69. Further, the plaintiff submitted that his legal counsel at the sentence proceedings was “inept”, caused the plaintiff to plead guilty to Count 1, failed to follow his instructions and neglected to bring his early guilty plea to Count 3 to the attention of the sentencing judge.

70. The plaintiff submits that the sentence imposed by Bennett SC DCJ was crushing and manifestly excessive. He submits that the sentencing judge erred in his assessment of specific and general deterrence.

Submissions on the contempt motion

The First and Third Defendants’ submissions

71. The first and third defendants, who are the applicants on the motion to dismiss the contempt proceedings, submit that the plaintiff’s contempt motion discloses no reasonable cause of action, is frivolous or vexatious and amounts to an abuse of the Court’s processes.

72. They submit that the plaintiff’s statements of charge attached to the contempt motion on their face fall short of the requirements described by Rothman J in Liristis at [31] and [32] and are wholly inadequate for the purpose of commencing contempt proceedings.

73. The first statement of charge purports to charge four different people with breaching an undertaking alleged to have been given between 2011 and 2024 or between 2015 and 2024 to four named courts to provide two documents. The first and third defendants submit that the undertaking described by the plaintiff could not have been given by the defendants to the contempt motion, nor given at all in the context of the plaintiff’s criminal proceedings.

74. The plaintiff charges that the defendants to the contempt motion failed to adhere to an undertaking to the Court to provide a charge negotiation certificate and a plea letter from the plaintiff. The first and third defendants submit that the fourth and second defendants, being the principal victim of the offending and her support person respectively, are not persons who were involved in the prosecution or who would give such undertakings to the Court in the course of the plaintiff’s criminal proceedings. Additionally the first defendant, the current Attorney General of New South Wales, was not appointed to that office until 28 March 2023, well after the conclusion of the plaintiff’s criminal proceedings. The first and third defendants submit that given the contempt proceedings are brought against the defendants individually and seek criminal sanctions for the conduct alleged, proceedings against a person who was not in the role of Attorney General at the time, nor involved in the criminal proceedings in any capacity, presents a fundamental defect in the contempt proceedings against those defendants. The first and third defendants further submit that in any event the relevant holder of the office of the Attorney General could not have been in a position to give the undertakings alleged because the criminal proceedings against the plaintiff were prosecuted by the ODPP, not the Attorney General’s Department.

75. The third defendant, Ms Rofe, was employed by the ODPP. The first and third defendants submit however that there is no evidence that she gave such an undertaking in these proceedings and none of the transcripts of the proceedings in the Local Court, the District Court, the Court of Criminal Appeal or the Supreme Court contain any reference to such an undertaking being given by any person at any time. The first and third defendants further submit that a court is unlikely to require one of the defendants to undertake to provide a letter from the plaintiff where it more plausibly would have requested for the plaintiff or his legal representatives to provide that document, if it indeed existed, directly.

76. The first and third defendants referred to the inter partes correspondence regarding plea negotiations in the plaintiff’s criminal matter, contained in Exhibit D. Those documents are correspondence between representatives of the ODPP and the plaintiff’s legal representatives in the criminal proceedings. The first and third defendants submit that that correspondence does not establish that the handwritten plea offer letter from the plaintiff, which he says the respondents undertook to provide to the Court, was ever provided to the Crown by his lawyers nor was its existence ever revealed. The first and third defendants submit that although the plaintiff refers in his affidavit to the handwritten document being seen by another prisoner, this does not remedy the deficiency in the evidence about the existence of the document or it ever being in the possession of any of the defendants.

77. In relation to the “charge negotiation certificate”, the first and third defendants submit that such a document could not have been subject to the alleged undertakings because at the time of the plaintiff’s criminal proceedings the legislation requiring the provision of charge certificates and case conference certificates had not been introduced. The committal proceedings took place on 14 December 2016. The requirement for prosecutors in criminal proceedings under Pt 2 of the Criminal Procedure Act 1986 (NSW) to file such documents was introduced by the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW) which came into effect on 30 April 2018. The first and third defendants submit that it follows from this that such documents were not utilised in criminal proceedings at the relevant time, were not in existence and it is therefore highly improbable that any of the defendants would have undertaken to provide the court with a charge negotiation certificate in the course of the proceedings.

78. The first and third defendants submit that the second statement of charge lacks logic and coherence, is inadequate for the purposes of commencing contempt proceedings and is manifestly defective according to the principles in Liristis. In support of this, the first and third defendants refers to the time period for the statement of charge being one of 13 years and the charge purporting to relate to all defendants without differentiation as to who is alleged to have engaged in the relevant act or omission pleaded in the charge.

79. They submit that the second statement of charge contains what are effectively submissions about matters such as a Crown solicitor being conflicted, a failure to investigate Ms Rofe (which would amount to a failure to investigate herself), the availability of a defence of provocation in criminal proceedings which was not previously raised, complaints about Professor Greenberg’s report being based on false information, the second defendant purportedly influencing questions put by the Crown to the plaintiff in his evidence on sentence, references to the Federal and Family Court of Australia, immigration authorities and judicial officers. The first and third defendants submit that none of these matters contained within the second charge would be capable of forming a proper basis for charges of contempt.

80. The first and third defendants also point to the same defects as in the first charge relating to the timing of the first defendant taking office as the Attorney General of New South Wales. Additionally, the plaintiff makes allegations about “the Crown” in the second statement of charge without particularising which of the defendants he alleges was the Crown for the purposes of each charge. The second statement of charge pleads that the Crown is in contempt for filing a notice of motion for summary dismissal of the judicial review proceedings, which the first and third defendants submit could not amount to contempt.

81. The second statement of charge alleges that the Crown suppressed evidence of his early guilty pleas. The first and third defendants submit that the evidence indicates the chronology of the plaintiff’s plea negotiations at a time when he was legally represented in his criminal proceedings and relies on its submissions on this point in relation to the first statement of charge.

82. The first and third defendants submit that the second statement of charge discloses no tenable cause of action. It alleges migration fraud carried out by his former wife which he asserts the defendants failed to investigate or disclose. The first and third defendants submit that there is no evidence to support this allegation and that even if established, it would not amount to contempt of court. They further submit that if the plaintiff contends these were relevant to mitigation on sentence, it was for his legal representatives to call such evidence during the sentence proceedings.

83. The first and third defendants submit that the contempt motion as a whole is an abuse of the Court’s processes. First, they submit that the timing of the contempt motion, being shortly after the application for summary dismissal of the judicial review proceedings was filed and served, suggests that the contempt proceedings were instituted as a response to the summary dismissal application. Secondly, they submit that the contempt motion attempts to relitigate issues that have been considered and rejected by Harrison CJ at CL in the second application under s 78 of the CAR Act. Thirdly, they submit that the wholesale nature of the allegations made in the notice of motion and accompanying statements of charge relate to conduct that does not constitute contempt. Fourthly, they submit that the plaintiff brings the contempt motion for the collateral, improper purpose of vengeance against MQN. Fifthly, it is submitted that the contempt motion represents an attempt by the plaintiff to seek revenge against those involved in the prosecution of his criminal proceedings. Finally, the first and third defendants submit that the plaintiff has brought the contempt proceedings in an attempt to influence the Attorney General to settle the judicial review proceedings and to receive a reduction in his sentence.

The plaintiff’s submissions

84. The plaintiff filed extensive written submissions, extending to 114 pages plus annexures, in response to the application to dismiss the contempt proceedings. His oral submissions largely took the form of repeating the statements of charge and leading the court through the contents of Exhibit 2, which contains extracts from exhibits SV-1 and SV-2 to the plaintiff’s affidavits. Much of the plaintiff’s submissions in response to the application to dismiss the contempt proceedings were repetitive of his submissions relating to the application to dismiss the judicial review proceedings generally.

85. His oral submissions were at times opaque and at times incoherent. Accordingly, a comprehensive summary of those submissions is not possible.

86. The plaintiff submits that he is entitled to relief including orders that witnesses who provided evidence in his criminal trial are to be found in contempt of court and that barristers who appeared in the criminal proceedings be suspended from practice. He submits that each of the defendants committed civil and criminal contempt.

87. The plaintiff submits that the Crown ought to agree to his resentencing in order to save the Crown from embarrassment caused by evidence that the plaintiff alleges would expose wrongdoing in the criminal proceedings.

88. The plaintiff referred the Court to extracts from Department of Immigration and Citizenship documents in the name of Ms Daglish Rose in support of MQN’s partner visa application in which Ms Daglish Rose states that she is an employee of the New South Wales Department of the Attorney General and that she met MQN in Colombia in 2005. He submitted that a police statement by MQN contained an admission that she knew Ms Daglish Rose and the two had met in Colombia in South America. The plaintiff also referred to an affidavit and a statutory declaration by his sister, in which she states that she observed Ms Daglish Rose seated in the public gallery in the Parramatta District Court during the plaintiff’s sentence proceedings and that she recognised her because Ms Daglish Rose was a bridesmaid at the plaintiff and MQN’s wedding in 2012. The plaintiff submitted that Ms Daglish Rose was observed to speak to the prosecutor during the Crown’s cross examination of him during the proceedings. However, the plaintiff conceded that there was no evidence to establish what had been said during any conversation between Ms Daglish Rose and the prosecutor or what, if any, influence that conversation may have had on the cross-examination, the evidence or the sentence proceedings.

89. The plaintiff drew the Court’s attention to documents referring to financial arrangements between him and his wife during their marriage which he submitted established that he financially supported MQN and paid for the majority of their living expenses. The material relied on included an extract from a document said to be an affidavit filed by MQN in divorce proceedings which referred to her sending savings of approximately $5,000 per year to Colombia to support family there. The documents relating to their financial arrangements also established that until his arrest the plaintiff worked as a part-time lecturer at the University of Technology Sydney in its School of Design and that MQN was employed part-time in low-paying or volunteer positions. Material relied on by the plaintiff also included an extract from MQN’s affidavit in divorce proceedings that referred to her saving about $22,000 from working extra hours in mid-2014.

90. Reference was also made to an extract from an unsigned statement in the name of MQN which refers to a conversation between the plaintiff and MQN on 14 June 2015 where she raised the topic of the two of them travelling to Columbia to visit her family and the plaintiff responding that they could not go because she did not have a job or earn enough money. The plaintiff submitted, without any evidence to support the assertion, that he suspected that MQN’s family were criminals and terrorists and that the purpose of the trip to Colombia was for him to be murdered.

91. The plaintiff made a number of submissions in relation to what he asserted were fabricated references to evidence in the agreed statement of facts tendered in the sentence proceedings. He submitted that the reference in paragraph 14 of the agreed facts to him lunging with the knife at MQN’s head and neck was fabricated and, he submitted that what he described as objective forensic evidence established that there were no stab or cutting wounds to her neck. He also submitted that the agreed facts contained fabrications in relation to the driving of the car into MQN. He took issue particular with paragraph 18 of the agreed facts, which he submitted was false. He asserted, without any evidence in support, that he did not drive his car directly at MQN but rather he drove his car into another vehicle and that other vehicle ricocheted into MQN. He took issue with any description of his car driving directly at MQN, crashing into her or crushing her between the bumper bar of his car and the parked vehicle. He submitted that what he described as the objective forensic evidence did not support the assertions in paragraph 18 of the agreed facts.

92. However, the plaintiff conceded that the agreed facts accurately describe the injuries suffered by MQN the during the stabbing attack and by impact from a motor vehicle. The plaintiff accepted that the lacerations and stab wounds to MQN’s left chest, left arm and left forehead and abrasions and bruising to her face, neck and other areas were consistent with the stabbing attack. He also accepted that the multiple fractured ribs, fractured left scapula, several fractured vertebrae and fractures to her pelvis were consistent with impact from a motor vehicle. His submission, however, was that he did not drive his vehicle directly at her or crush her, but that she was unintentionally injured when the parked vehicle ricocheted into her. When questioned about the “objective forensic evidence” to which he referred the plaintiff was unable to point to any such evidence which contradicted the agreed facts.

93. The plaintiff’s attention was drawn to references in the agreed facts to admissions he made during electronically recorded interview with the police that he had cut MQN’s neck and face and maybe her torso with a knife and that he drove his car “at” MQN twice. He submitted that when interviewed by the police he was mentally unwell and claimed, without evidence, that he did not read the agreed facts or receive any legal advice about them before he signed them.

94. The plaintiff also took issue with references in the agreed facts to the work colleague, MKH, observing the plaintiff dragging MQN out of her car before the stabbing attack. The plaintiff submitted that that reference in the agreed facts had been fabricated and drew the Court’s attention to an extract from a WorkCover New South Wales Certificate of Capacity in the name of MQN. That document contains a summary of the incident that includes the words “she opened her car door and her ex-partner stabbed her multiple times. She was able to get out of the car and fell after walking three – four steps. Her ex-partner then got into his car and pushed her between his car and another car. Admitted to Liverpool Hospital.” The plaintiff submitted that the reference to her being able to get out of the car and then falling after walking a few steps was inconsistent with the reference in the agreed facts that he had dragged her from her car. However, the portion of the WorkCover document containing that summary appears to have been completed by a treating doctor, not by MQN, and appears to be a summary of the doctor’s understanding of the circumstances giving rise to MQN’s injuries.

95. The plaintiff referred the Court to a handwritten letter dated 8 September 2016 which he submitted was evidence of him entering a guilty plea at an early stage to Count 3. That letter is addressed from the plaintiff in the Metropolitan Remand and Reception Centre to “To whom it may concern”. The handwritten letter states that if sequence one was to be withdrawn he would plead guilty to an offence under s 33(1)(b) in relation to MQN and that he would plead guilty to the s 33(1)(a) charge in relation to MKH. The plaintiff submitted that the letter should have been provided by the defendants to the Local Court, the District Court and the Court of Criminal Appeal and that the letter establishes that he was entitled to a 25% discount on sentence to reflect his early guilty plea. However, in oral submissions the plaintiff stated that the handwritten letter was provided by him to his solicitor and that he had no knowledge as to whether the letter or its contents were ever communicated to the ODPP. Other documents which the plaintiff relied on appeared to establish that the handwritten letter was never communicated to the ODPP. Those documents include a plea offer letter dated 13 September 2016 from his solicitors to the ODPP. That letter, which is dated five days after the plaintiff’s handwritten letter provided to his solicitors, makes a plea offer in terms inconsistent with the handwritten letter. The solicitor’s letter of 13 September 2016 does not include an indication that the plaintiff intended to plead guilty to Count 3. Rather it indicated that the plaintiff offered to plead to alternative charges in relation to Count 1 and Count 3. Evidence tendered by the defendants established that the ODPP rejected the plea offer contained in the solicitor’s letter of 13 September 2016.

96. The plaintiff made extensive oral submissions in relation to the allegation that the defendants had given undertakings to the Court to provide the plea letter and to provide a charge negotiation certificate. In his submissions the plaintiff was unable to point to any evidence to establish the existence of a charge negotiation certificate or any evidence to establish that the Crown, or any of the defendants, were in possession of the handwritten letter of 8 September 2016.

97. In relation to Professor Greenberg’s report the plaintiff submitted that his report was based on fabricated evidence including the references in the agreed statement of facts which the plaintiff alleges were inconsistent with objective forensic evidence.

98. On the topic of MQN’s alleged migration fraud the plaintiff submitted, without reference to any supporting evidence, that MQN made false representations about the genuineness of her relationship with the plaintiff in order to obtain a visa to remain in Australia. The plaintiff was unable to refer to any documents in support of his submission that MQN had fabricated evidence about their relationship or their financial arrangements in order to obtain that visa.

99. He also submitted that he had a complete defence of provocation to both Counts 1 and 3 arising from what he described as the migration fraud and the financial fraud which he alleges MQN perpetrated on him.

Consideration

100. The plaintiff’s proceedings for contempt of court are governed by the UCPR and are subject to the Court’s inherent discretion: Stokes (by a tutor) v McCourt. The court should be reluctant to summarily dismissed contempt proceedings and should only do so in the clearest of cases.

101. The statements of charge in the present case raise numerous, related and very serious allegations of contempt by a number of individuals over considerable periods of time. As was decided by Rothman J in Liristis*,* statements of charge must contain particulars of acts amounting to contempt in precise terms sufficient to allow the alleged contemnor to be able to understand the charge made against him or her and be in a position to answer the contempt.

102. The UCPR and the Court’s inherent jurisdiction entitles the Court to summarily dismiss contempt proceedings if proceedings are frivolous or vexatious, if no reasonable cause of action is disclosed or if proceedings are an abuse of process. The threshold to summary dismissal will be satisfied when the proceeding or claim is so obviously untenable that it cannot possibly succeed, is manifestly groundless or is hopeless: General Steel Industries Inc v Commissioner for Railways (NSW).

103. I am satisfied that each of the charges contained in the statements of charge are manifestly defective because they do not state precisely the acts or omissions alleged, they do not identify with sufficient particularity the acts or omissions said to have been performed by each of the defendants, they do not provide each of the defendants with sufficient particulars to enable them to understand the charges or to defend the proceedings and they contain submissions or statements of conclusions without proper particulars. Fundamentally the statements of charge do not particularise the nature of the interference with the administration of justice said to have arisen in the multiple respects pleaded.

104. In relation to the Undertaking Charge there is no evidence to establish that any of the defendants gave any such undertaking. Moreover, I am satisfied that the documents that the plaintiff alleges were the subject of undertakings to the court did not exist or were not in the possession of any of the defendants. The document referred to by the plaintiff as a plea letter pleading guilty to Count 3 has not been established on the evidence to have existed. The handwritten document relied on by the plaintiff dated 8 September 2016 is, on its face, a letter of instruction from the plaintiff to his own solicitors which was superseded by a different and inconsistent plea offer made by his solicitors which was ultimately rejected. There is no evidence to indicate that the Crown, the ODPP or any of the defendants were informed that the plaintiff intended to plead guilty to Count 3. The earliest indication of his guilty plea to that count was on the day fixed the trial to commence. In addition, the “charge negotiation certificate” which was said to be the subject of the undertakings has not been established on the evidence to have existed. There was no statutory obligation at the time of the plaintiff’s criminal proceedings for such a certificate to be created. Furthermore, the correspondence tendered on this application did not establish that any such document was created. In addition, there is no evidence to indicate the terms of any suggested undertaking, the person who is said to have given that undertaking or the court to which the undertaking was provided. Accordingly, the Undertaking Charge and the related Charge Negotiation Certificate Charge and Plea Letter Charge are all manifestly groundless and entirely without substance.

105. In relation to the Greenberg Report Charge, there is no evidence to support the allegation that at the defendants’ behest Professor Greenberg became involved in charge negotiations with the intention that he produce a report which supported MQN’s fabricated evidence. To the contrary, the contents of Professor Greenberg’s report was largely based on documents tendered without objection during the sentence proceedings including an agreed statement of facts which the plaintiff signed. Despite submitting to the contrary, there is no evidence to support the plaintiff’s assertion that objective forensic evidence established that aspects of MQN’s account or aspects of the agreed statement of facts were fabricated. Accordingly I am satisfied that the Greenberg Report Charge is entirely without substance and manifestly groundless.

106. The False MQN Police Statements Charge, alleging that the defendants provided MQN’s police statements, which the plaintiff asserts contained fabrications, to brief Professor Greenberg and to aggravate the plaintiff’s sentence, and the Fabricated Brief Document Charge, alleging that Ms Rofe provided documents to Professor Greenberg which had been fabricated by MQN are both entirely without substance and manifestly groundless for the same reasons as I have expressed in relation to the Greenberg Report Charge.

107. There is no evidence to support the Contrary to Forensic Evidence Charge alleging that Professor Greenberg became involved in charge negotiations by producing a report contrary to objective and forensic evidence about wounds to MQN’s throat. That charge is contrary to the agreed facts describing the way in which the plaintiff attacked MQN with a knife and contrary to the plaintiff’s admissions summarised in the agreed facts document. For those reasons the Contrary to Forensic Evidence Charge is similarly without substance and manifestly groundless.

108. A number of the charges, the Migration Fraud Charge, the Fabricated Relationship Evidence Charge, the Migration and Financial Fraud Charge and the Divorce Documents Charge relate to alleged conduct or omissions by MQN. There is no evidence to support the plaintiff’s allegation that MQN engaged in migration fraud or misrepresented the genuineness of her relationship with the plaintiff at the time she applied for her visa. Similarly, there is no evidence to support the plaintiff’s assertion that MQN fabricated evidence about the relationship or about their financial affairs or that the manner in which she represented their relationship or financial affairs to the Department of Immigration and Citizenship had any relevance to the plaintiff’s sentence proceedings. There is no evidence that MQN engaged in any fraud by failing to inform the Department of Immigration and Citizenship of money transfers to her family in Colombia or about money which she was saving. The assertion that the defendants were in contempt of court because MQN’s lawyers redacted the names of medical assessors in documents tendered in the divorce proceedings was neither the subject of evidence or any coherent submissions. Accordingly, I am satisfied that each of those charges is entirely without substance and manifestly groundless.

109. For the same reasons the Failure to Inform Charge, alleging that each of the defendants failed to inform the sentencing judge of financial fraud perpetrated on the plaintiff by MQN is without substance and manifestly groundless. There is no evidence to establish a financial fraud or that any of the defendants were aware of any financial fraud at the relevant times.

110. In relation to the Public Justice Charge, alleging that each of the defendants failed to investigate or report public justice offences committed by Ms Daglish Rose, Ms Rofe, MQN or Ms Healy, there is no evidence to establish what public justice offences the plaintiff alleges were committed by them or how it is alleged that any of the defendants failed to investigate or report any such offences. No coherent submissions were made in support of that charge. Accordingly I am satisfied that the Public Justice Charge is entirely without substance and manifestly groundless.

111. Similarly, the Illegality Charge alleging that the Crown, whomever it is that the plaintiff intends to refer to by that title, Ms Daglish Rose and MQN engaged in illegality against the courts must also fail for being entirely without substance and manifestly groundless. There is no evidence to establish what the plaintiff alleges in relation to the illegality by the Crown or the named individuals against the courts.

112. In relation to the Daglish Rose Conflict Charge and the Daglish Rose Employment charge, which allege that Ms Daglish Rose had a conflict of interest and that the Crown misled the court by submitting that she was not employed by the ODPP, the plaintiff has failed to point to any evidence that establishes that Ms Daglish Rose was employed by the ODPP or that she had any conflict of interest. At its height, the evidence established that she was present as a support person for MQN and that she was seen to be speaking with the Crown prosecutor during the sentence proceedings. That evidence falls well short of establishing the plaintiff’s allegations that she joined the prosecution team or that she influenced the cross-examination. Accordingly those charges are entirely without substance and manifestly groundless.

113. The Drove at Directly Charge, alleging that the defendants intended that the sentencing judge would accept fabricated evidence that the plaintiff drove directly at that MQN twice, was not supported by evidence. To the contrary, the evidence established that the plaintiff agreed that he drove his vehicle directly at her twice and agreed that he admitted to doing so when interviewed by the police, by signing the agreed facts and by not objecting to its tender in the sentencing proceedings. The plaintiff was unable to point to any evidence in support of his submission that MQN’s multiple fractures were caused unintentionally by a motor vehicle other than his ricocheting into her. Accordingly, I find that the Drove at Directly Charge is entirely without substance and manifestly groundless.

114. In relation to the Provocation Defence Charge, in which the plaintiff alleges that he had a defence of provocation available to him arising from MQN’s alleged financial and migration frauds, the plaintiff was unable to point to any evidence to establish that he had such a defence or that any issues relating to migration or the financial dealings between them could have ever provided him with a defence to the charges. The charge does not allege that any of the defendants engaged in any act or omission relating to the asserted defence. There is nothing to establish that any of the defendants were aware of the alleged migration or financial frauds at the relevant times. The plaintiff pleaded guilty to the charges and was sentenced on the basis of the signed agreed facts. If he has any complaint about the failure to defend these charges, he ought to have raised that complaint with the lawyers who represented him during sentence proceedings, or his new lawyers who represented him in the Court of Criminal Appeal. Incompetence of representation by failure to act in accordance with instructions or failure to properly advise has never been previously raised and is not presently supported by evidence. In any event, incompetence of the plaintiff’s representation does not establish any contempt of court on the part of any of the defendants. Accordingly, I am satisfied that the Provocation Defence Charge is entirely without substance and manifestly groundless.

115. I accept the submission made on behalf of the first and third defendants that the Summary Dismissal Charge, alleging that the defendants are in contempt by filing a notice of motion to summarily dismiss the judicial review proceedings, could never amount to a contempt of court. The plaintiff made no submissions to identify how he alleged the filing of a notice of motion was in contempt of court. I am satisfied that the Summary Dismissal Charge is entirely without substance and manifestly groundless.

116. In relation to the Conflict of Interest Charge, in which the plaintiff alleged that the Crown Solicitor was in a conflict of interest because it was a party to the contempt and would investigate that contempt, I note that the plaintiff pointed to no evidence to establish that the Crown Solicitor was in contempt of court and was unable to explain the nature of the alleged conflict of interest. In the absence of any coherent submissions in relation to that charge or any evidence in support of it, I am satisfied that it is entirely without substance and manifestly groundless.

117. The Patent and Obvious Fraud Charge alleging that each of the defendants engaged in patent and obvious fraud against the courts warranting him receiving a lesser sentence was not the subject of any coherent submissions or the subject of any evidence. The plaintiff was unable to point to any evidence to establish fraud by the defendants against the courts or how he alleged that any such fraud would result in him receiving a lesser sentence. Accordingly, I am satisfied that the Patent and Obvious Fraud Charge is entirely without substance and manifestly groundless.

118. There is nothing in either of the statements of charge for contempt, the evidence before the court or the conduct of these proceedings which would allow the court to come to the conclusion that there is even the remotest chance that the plaintiff can establish that the conduct of any of the defendants was in any way in contempt of court. The contempt proceedings disclose no reasonable cause of action, are an abuse of process and are frivolous and vexatious. I am satisfied that the contempt proceedings are so obviously untenable that they cannot succeed, are manifestly groundless and so clearly deficient that it is inappropriate to allow the proceedings to continue. The evidence relied upon by the plaintiff in support of the contempt proceedings amounts to no more than submissions or vague statements of allegations which he was entirely unable to substantiate. For those reasons I am satisfied that the contempt proceedings relating to the plaintiff’s notice of motion filed 28 November 2024 should be dismissed pursuant to rule 13.4 of the CPR and the inherent jurisdiction of the court.

119. In addition, I am satisfied that the contempt proceedings against MQN were commenced or maintained for an ulterior purpose other than a substantial legitimate purpose, namely vengeance against his former wife MQN. The plaintiff has not been unable to establish any substantial legitimate purpose for the contempt proceedings against her. Accordingly, they are an abuse of process and are to be dismissed and struck out for that additional reason.

120. I am also satisfied that the contempt proceedings commenced against the first defendant were commenced for an ulterior purpose other than a substantial legitimate purpose. That is so because the present Attorney General was not in the office of Attorney General during any of the times relevant to the alleged acts or omissions said to amount to contempt of court. The first defendant was appointed to office on 28 March 2023, some years after the alleged contempts. Accordingly, I am satisfied that the commencement or maintaining of the contempt proceedings against him must be struck out as an abuse of process because I am satisfied that the bringing of contempt proceedings against him were for the collateral purpose of attempting to settle the judicial review proceedings. Accordingly, the contempt proceedings against the first defendant must be dismissed and struck out for that additional reason.

121. In addition I accept the submissions made on behalf of the first and third defendants that the statements of charge are bad in form because they fail to particularise acts or omissions attributable to one or other of the four named defendants, they alleged breaches that occurred over a 13 year period between 2011 and 2024 and they refer in various parts to the Crown without properly identifying which, if any, of the defendants are intended to be refer to by use of that term. A prime example of that issue can be seen in the plaintiff’s formulation of the Public Justice Charge in which he pleads “The Crown is in contempt of court because they have failed to investigate Daglish, (MQN), Healy or Rofe or report their crimes”. If the reference in that charge to “the Crown” is intended to refer to each of the defendants, then the allegation includes that the third defendant Ms Rofe is in contempt of court for failing to investigate herself or to report her own crimes. If the reference in that charge to the Crown is intended to refer to something other than each of the defendants then that meaning is not apparent. In either event, the meaning of the pleading in that example is opaque and the persons said to be in contempt are not properly particularised. In addition the statements of charge are prolix and cover a wide range of subject matter without proper particularisation or demarcation in relation to acts or omissions said to be attributed to the named defendants. For those additional reasons relating to form the contempt proceedings are to be struck out because they failed to prescribe and particularise matters relied on and fail to allow the alleged contemnors to understand or answer the charges made against them.

122. The courts should only summarily dismiss contempt proceedings in the clearest of cases. This is such a case. The defendants should not have such serious allegations of contempt made or maintained against them when the material upon which the plaintiff relies is untenable or non-existent.

123. Turning to the application to dismiss the proceedings for judicial review generally, the grounds for relief sought by the plaintiff consist of allegations of fraud which are unsupported by evidence, implausible and unsustainable. In addition, even if the allegations raised by the plaintiff were capable of being made out, they are in my view incapable of giving rise to the relief sought because they are irrelevant to the issue of judicial review of the sentence proceedings or the application for leave to appeal to the Court of Criminal Appeal. The relief sought exceeds relief which may be provided in judicial review proceedings.

124. The plaintiff seeks to raise grounds in the judicial review proceedings which were not raised in the District Court or in the Court of Criminal Appeal. The only ground of appeal raised in the application for leave to appeal to the Court of Criminal Appeal related to the accumulation of the aggregate sentence. No issue was taken in that court in relation to legal principles applied by the sentencing judge, errors of law or mistake of fact or issues associated with the indicative sentences. The plaintiff did not contend in the Court of Criminal Appeal that his sentence was manifestly excessive. He did not challenge the signed agreed statement of facts and he did not seek to traverse his guilty pleas. No issue was taken in relation to the timing of his pleas or the size of the discount for pleading guilty. Because those issues were not raised during the sentence or appeal proceedings he is prevented now from raising them in these judicial review proceedings: Anshun.

125. Amongst the relief sought by the plaintiff in the judicial review proceedings is an order for referral of the proceedings to the Court of Criminal Appeal. Such relief is unavailable in judicial review proceedings under ss 23 or 69 of the Supreme Court A**ct. Additionally the plaintiff seeks remedies that this Court direct the District Court what evidence it may take into account and what evidence it must not take into account in re-sentencing the plaintiff or in the alternative the plaintiff seeks a remedy that this court vary the District Court sentence. Neither of those forms relief are available to the plaintiff in judicial review proceedings. In addition this Court does not have jurisdiction in judicial review proceedings, as is sought by the plaintiff, to order a defendant to deliver documents, namely a charge negotiation certificate, or to institute enquiries into the conduct of individuals associated with the prosecution and sentence proceedings.

126. None of the grounds pleaded by the plaintiff in the judicial review proceedings amount to an error of law by the sentencing judge. The plaintiff’s attempt to rely on allegations of fraud on behalf of MQN others, which as I have already found are unsupported by the evidence, and do not disclose any error of law. In circumstances where the sentence proceedings was conducted on the basis of the plaintiff’s pleas of guilty, the signed agreed statement of facts and the evidence tendered by the Crown without objection, the plaintiff’s contention in the judicial review proceedings that he was sentenced on the basis of fraud and fabricated evidence is not supported.

127. There is no evidence to support the judicial review ground that sentencing judge failed to take into account his early guilty plea and failed to afford a 25% discount to reflect that early plea. As I have already found the evidence before this Court established that the plaintiff first entered guilty pleas to both counts at a very late stage in the criminal proceedings. Evidence did not establish that the ODPP was ever informed of any earlier intention by the plaintiff to plead guilty to Count 3.

128. The evidence does not support the plaintiff’s ground concerning what he alleges was a mischaracterisation of the offences as domestic violence offences. The Count 1 offence was committed against the plaintiff’s then wife from whom he had only very recently separated. The offences which he committed against her and against the colleague who came to her aid were extremely violent and of significant objective seriousness. The offence against his then wife was correctly characterised as a domestic violence offence. Complaints in the judicial review pleading about the conduct of his legal representatives in the criminal proceedings are not supported by any evidence and were not raised by him in the Court of Criminal Appeal.

129. The plaintiff’s contention that the sentencing judge did not adequately take into account his mental health or childhood trauma are not supported by the evidence. The detailed and considered remarks on sentence make abundantly clear that mental health and childhood trauma were both taking into account in the plaintiff’s favour. His complaint in the judicial review proceedings that his driver’s licence should not have been suspended because it amounts to double punishment is also without foundation. Sections 204 to 207 of the R**oad T**ransport A**ct 2013 allow for the licence disqualification for a person convicted of a major offence arising out of the use of a motor vehicle which gave rise to the death or harm another person.

130. The relief claimed in the judicial review proceedings have no prospects of success in light of the fact that the same issues were considered both of the previous s 78 applications with both of those applications resulting in there being no doubt expressed about the sentence proceedings or the sentence imposed on the plaintiff.

131. The evidence tendered by the first defendant has established that the Crown Solicitor, on behalf of the first defendant, wrote to the plaintiff on 25 July 2024 advising that the amended summons seeking judicial review did not disclose a cause of action and invited the plaintiff to reformulate his claim. Almost 3 months later, on 17 October 2024, the plaintiff served the first defendant with the October summonses which were unfiled. Following receipt of the October summonses the Crown Solicitor wrote to the plaintiff on 11 November 2024 setting out the difficulties which remained in the October summonses, inviting the plaintiff to withdraw the judicial review proceedings and advising that in the absence of withdrawal the first defendant would seek summary relief. The plaintiff has not accepted any of the opportunities provided by the Crown Solicitor to rectify the defects in the pleadings.

132. The October summonses reproduce, to a large extent, the grounds contained in the amended summons as filed and presently before the court. The October summonses do not rectify any of the defects of pleading or address the failure to disclose a cause of action. In the circumstances where the plaintiff has been provided with two opportunities to reformulate his claim and failed to do so I am satisfied that he should not be afforded a further opportunity to amend his pleadings. In so deciding I take into account that the plaintiff is representing himself. However, given his inability to draft a pleading that discloses a cause of action, his inability to accept the opportunity afforded to him through the correspondence from the Crown Solicitor, his inability to address the defects in the present summons or the defects in the draft October summonses and his ability to make coherent submissions on any amended pleadings I am satisfied that providing the plaintiff with additional time or opportunities to amend his pleadings will not rectify these fundamental problems.

133. For the above reasons I am satisfied that the first defendant has overcome the high threshold and established that the judicial review proceedings disclose no reasonable cause of action. They are so obviously untenable that they cannot succeed, manifestly groundless and clearly deficient. It would be entirely inappropriate to allow the proceedings to continue. For those reasons the judicial review proceedings will be summarily dismissed.

Orders

134. The Court makes the following orders:

135. the contempt of court proceedings initiated by the plaintiff’s notice of motion filed on 28 November 2024 are summarily dismissed;

136. the judicial review proceedings initiated by the amended summons filed on 24 June 2024 are summarily dismissed;

137. the plaintiff is to pay the first defendant’s costs of and incidental to the judicial review proceedings; and

138. the plaintiff is to pay the first and third defendant’s costs of and incidental to the contempt of court proceedings.

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