Hollingsworth v Bushby

BASTEN JA: On 8 April 2013 the applicant, Kim Michelle Hollingsworth, appeared before Magistrate Miszalski in response to 11 court attendance notices issued by the Royal Society for the Prevention of Cruelty to Animals (“the RSPCA”). Eight offences involved being in charge of an animal (in each case a horse) and failing to provide veterinary treatment; the other three involved failure to provide proper and sufficient food. After six days of hearing in the Local Court, the applicant entered pleas of guilty on 17 April 2013 to each charge. On 29 July 2013 the applicant appeared before the magistrate for sentence. She sought to withdraw her pleas, but the application was refused. She was then sentenced.

In relation to each matter, the magistrate recorded a conviction pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), without imposing any other penalty. She was, however, ordered to pay the prosecutor’s costs of the proceedings and ordered to pay the veterinary and care costs incurred by the RSPCA, pursuant to the Prevention of Cruelty to Animals Act 1979 (NSW), s 30A.

On 26 August 2013 the applicant filed a notice of appeal against sentence in respect of seven offences. Those matters were listed for hearing in the District Court on 2 October 2013. On 2 October 2013 the Court granted leave to amend the notice of appeal to include appeals against the severity of the penalties imposed on the other four charges and leave to “seek leave to appeal against a conviction entered against her following a plea of guilty.” The second order recorded that she was to file and serve all affidavits and material in support of her application for leave to appeal within 28 days. The short minutes also required that the transcript of the hearing before the Local Court be ordered and provided to the parties.

The application for leave to appeal against conviction was heard by Neilson DCJ on 14 and 15 May 2014. On 16 May 2014 judgment was delivered refusing the application. On 20 June 2014 Neilson DCJ dismissed the appeals against severity, but varied the ancillary orders so as to reduce the amount of professional costs payable in the Local Court, but to increase the veterinary and care costs to reflect additional costs incurred since the Local Court proceedings. The judge also ordered that the applicant pay the costs of the application to withdraw her pleas of guilty.

There is no right of appeal from the judgment of the District Court given in its criminal jurisdiction, on an appeal to it from the Local Court. Further, pursuant to s 176 of the District Court Act 1973 (NSW) the judgment of the District Court is protected from review in the supervisory jurisdiction of this Court. The effect of that provision is to prevent this Court exercising its supervisory jurisdiction for error of law on the face of the record, but not to prevent it conducting a review for jurisdictional error. [1]

The applicant has represented herself both in this Court and in the District Court and, subject to one point at which she obtained legal advice, in the Local Court. On 4 December 2014 she commenced proceedings by way of summons in this Court seeking to challenge the decision in the District Court to refuse her leave to withdraw her pleas of guilty. A form of summons dated 4 June 2015 identified the RSPCA inspector (Gillian Bushby) as the first respondent and the District Court as the second respondent. It sought no relief and contained no grounds. Nevertheless, the Court has proceeded on the basis that the grounds on which the applicant seeks to challenge the judgment below are to be found in an unsigned undated document, not in conformity with the rules, simply headed “Grounds of Appeal”. A document (undated and unsigned) headed “Submissions” was also provided.

The grounds of appeal are discursive and overlapping. They may be characterised as involving three elements, namely:

The first two grounds were interrelated in the submissions: the mental health issues were relevant primarily to difficulties she asserted in complying with court orders. It is therefore convenient to deal generically with the complaints about the refusal of the judge to allow her to give evidence in support of her District Court application.

On 16 April 2013, in the Local Court, the applicant gave evidence in relation to the offences with which she had been charged. On the following morning, 17 April 2013, counsel appearing for the RSPCA (Mr Porter) commenced his submissions on behalf of the prosecution. The magistrate then explained to the applicant the stage the proceedings had reached, her right to address and the purpose and function of such an address. [2] The magistrate emphasised, in careful language, the distinction between an address and giving evidence. On occasion, she was reminded by the magistrate of that distinction.

In the course of submissions, it became clear that the applicant was seeking to run a defence without expert evidence. The magistrate intervened in the following manner: [3]

A little later, following a short adjournment, the magistrate took her to her own evidence where she had said “suddenly last year everything went wrong.” [4] With that she agreed, whereupon the magistrate said:

When it appeared that the applicant had completed her submissions, the magistrate said: [6]

There was then a short adjournment after which Mr Porter stated that the applicant “has advised she’s seeing the duty barrister who is here at the Downing Centre.” [7]

There was some discussion as to the name of the barrister and the following exchange occurred:

After some further explanation and discussion, the matter was adjourned to 3 June 2013. The hearing on 3 June took little time: the main focus was to make arrangements for a pre-sentence report. The matter was then adjourned to 29 July 2013.

On 29 July, it became clear that the applicant had refused to co-operate with the Probation and Parole Service with respect to the preparation of a pre-sentence report. The applicant then made a number of somewhat confused statements, appearing to suggest that she had been the victim of a conspiracy, that food had been stolen, that the horses had been stolen and that the matter was in the hands of the police. She then said: [8]

There followed some discussion as to whether this was an application to withdraw her pleas and, if so, whether there was some basis for it. [9] After allowing an opportunity for the applicant to discuss the position with counsel then appearing for the RSPCA, following which both confirmed that she wished to change her plea, the magistrate said: [10]

In the District Court, Neilson DCJ outlined the circumstances in which the application to appeal from the magistrate’s refusal to let her withdraw her pleas came before him, including a brief history of the steps taken in the District Court. That commenced with the filing on 26 August 2013 of the application for leave to appeal, limited to severity only. On 2 October 2013 Berman DCJ granted leave to amend to include an application for leave to appeal against the convictions entered following the applicant’s pleas of guilty. Berman DCJ ordered her to file and serve affidavits and material in support of her application within 28 days, that is by 30 October 2013. The matter was stood over to 20 November 2013. She did not comply with the orders that she amend her notices of appeal, nor did she file and serve any evidence within the specified period. [11]

On 20 November 2013, a Registrar extended the time for the applicant to file further evidence to 22 January 2014 and listed the matter for call over on 29 January 2014. In a statement apparently intended to be the grounds of appeal, and provided to counsel for the RSPCA on 22 January, the applicant reiterated her somewhat confused statement in the Local Court, that the police had “now arrested and charged the ringleader of the Facebook Hate Group that terrorised me and my horses causing this chaos.” She also noted:

She also noted that there was evidence of a post mortem on one horse that had indicated a condition which would “account for fluctuating body condition.” [12]

When the transcript of the Local Court proceedings became available is not clear. The document of 22 January 2014 appears to be the last occasion on which the applicant claimed she had not obtained a copy of the transcript in the Local Court. However, when the Registrar, on 29 January 2014 ordered that she file and serve all submissions in support of her application for leave to appeal by 27 November [sic – February?] 2014, she agreed to the timetable. The application was listed for hearing on 3 April 2014.

On 3 April, the applicant had still not complied with the direction to file and serve her submissions. On that day, the Chief Judge, Blanch J, adjourned the matter for hearing to 14 May 2014 and directed that the matter must proceed on that day. Although there is no transcript of the hearing on 3 April before this Court, Neilson DCJ noted that the applicant had handed up to the Court (and given to the RSPCA) written submissions, a statutory declaration of Ms Melissa Plunkett of 28 March 2014 and “a very short report, indeed it might be described as a certificate, of Dr Parvesh Kapoor, bearing date 28 March 2014.” [13] As Judge Neilson noted, “significantly, the applicant did not prepare any affidavit or statutory declaration herself.” The judge continued at [23]:

With respect to the application to withdraw the pleas of guilty, the judge identified the relevant legal principles, referring to R v Rae (No 2). [14] The judge then dealt seriatim with six grounds of appeal which he had extracted from the document provided to the Court as specifying the grounds.

It is not necessary to refer to most of the grounds relied upon before the District Court, as they were not relied upon in this Court. It is sufficient to address the specific complaints raised by the applicant in her written submissions.

The first submission challenged the sole reason given by Judge Neilson for rejecting her application to give oral evidence, namely failure to comply with the orders made in the District Court. There are three responses to that complaint. The first is that it was not the sole reason: as set out above, the failure to provide advance notice of the evidence she would give in chief was said to arise in a particular context, being one where she had raised extraneous or tangential matters in the Local Court and might do so again, if not constrained by a written statement.

Secondly, even had that not been so, the essential purpose of requiring a statement of evidence in advance is to put the other party on notice of what may be raised, so as to allow that party an opportunity to respond, without incurring the expense and delay of an adjournment and further hearing. That is, the directions given by the Court reflected a proper and important purpose which the applicant was not, subject to one possible qualification, entitled to disregard. The qualification may arise where the opportunity to provide a statement is unreasonably abbreviated. No argument was presented to that effect in this Court.

Thirdly, and critically in the present circumstances, 18 months after entering her pleas, the applicant has even now given no statement of any relevant and admissible evidence which she would have given had she been allowed to do so. She has, therefore, failed to establish any practical prejudice eventuating from the ruling.

The second passage challenged by the applicant appeared in the judgment below at [52] in a careful consideration of what the judge considered to be “the principal ground of the application”, namely that the plea eventuated from a false inducement by counsel for the prosecutor. The representation was not made to her, but to a supporter, Melissa Plunkett. The judge said at [49]:

In her written submissions to the District Court, the applicant stated: [15]

No doubt this might have been a matter as to which her own evidence might have been relevant, had Ms Plunkett’s advice been relevant. However, Ms Plunkett’s version of events was not accepted by the judge, who had before him a conflicting version given by Mr Porter. Not only did Mr Porter not give the inducement which Ms Plunkett alleged, but Ms Plunkett did not tell the applicant that he had.

The judge noted that the applicant adopted an alternative approach in her submissions, namely that “she may have been misled by the advice given to her by Ms Plunkett on 17 April 2013, it not being then disclosed to her that the alleged source of the suggestion that her horses would be returned to her was Mr Porter.” As the judge further noted, there was no evidence from her to support that view and it faced “the final difficulty” that she had subsequently sought advice about pleading guilty from the duty barrister. There was no challenge to that advice. However, the alternative view (for what it was worth) was not espoused before this Court, the substance of the complaint being that the applicant had reasons to cast doubt on the credibility Mr Porter, although a document tendered in this Court in support of that submission was little more than a diatribe against the RSPCA.

The third argument relied upon in support of her claim to prejudice through not being allowed to give evidence related to the dismissal of her claims regarding her mental health. In this regard, some proposed evidence was disclosed: if allowed to testify, she said in her written submissions that the judge “would have heard how I wanted to throw myself under a train at Museum station on the way to my November, 2013 [hearing]”, being a case in which she says the charges were withdrawn.

This challenge is also misconceived: a judge is not a psychiatrist. The material she needed to place before the Court to establish some form of mental illness had to be in the form of psychiatric evidence, not her evidence in chief.

Paragraph 4 of the submissions was merely an assertion that a miscarriage had occurred because she was denied the chance to testify, without saying what she would have said or identifying any topic.

The fifth challenge involved an attack on the “Facebook Hate Group” and the RSPCA as colluding to destroy her. There was a restatement of the reason she changed her plea to guilty, being to get her horses back, and a complaint about the severity of the sentence. Once the allegation that she was induced to change her plea by a promise from the prosecution that she would get her horses back was rejected, her subjective motivation became largely irrelevant. Certainly it was given no context which might have demonstrated a lack of free choice in her own interest. As noted by Dawson J in Meissner v The Queen: [16]

For all these reasons, the applicant failed to demonstrate a failure on the part of the District Court judge to exercise properly the jurisdiction vested in him to determine the application for leave to appeal, by allegedly failing to accord the applicant procedural fairness. On the contrary, the refusal to allow the applicant to testify on the application for leave to withdraw her pleas of guilty was, in the circumstances set out above, squarely within the proper exercise of the judge’s discretion.

In other respects, I agree with the reasons given by Macfarlan JA for rejecting the additional challenges raised by the applicant in this Court.

Although the document entitled “submissions” asserted that both the judgment of 14 June and that of 20 June 2014 were “erroneous and a travesty of justice” there was no comprehensible basis advanced for intervening with respect to the judgment on severity of sentence. Indeed, no time was spent on this judgment in oral submissions. Nevertheless, as it appears to have been raised as part of the proposed review, it is proper that the order dismissing the summons should refer to both judgments.

The Court should make the following orders:

MACFARLAN JA: The applicant, Ms Kim Hollingsworth, applies by Amended Summons for relief by way of judicial review under s 69 of the Supreme Court Act 1970 (NSW) in relation to a judgment of Neilson DCJ of the District Court dated 16 May 2014 ([2014] NSWDC 101). By that judgment, his Honour refused to grant Ms Hollingsworth leave to appeal against her conviction in the Local Court in 2013 of various offences under the Prevention of Cruelty to Animals Act 1979 (NSW). Ms Hollingsworth required leave to appeal because she had pleaded guilty in response to the charges for the offences of which she was convicted.

For reasons given below, I accept Ms Hollingsworth’s submission that she was denied procedural fairness in the District Court. As a result, orders should be made quashing the District Court’s orders and remitting Ms Hollingsworth’s application for leave to appeal against her convictions to the District Court for determination according to law.

The first respondent, acting on behalf of the New South Wales RSPCA, charged Ms Hollingsworth with 11 separate offences relating to a total of 44 horses she held on three rural properties. Eight of these charges alleged that she failed to provide veterinary treatment where it was necessary, contrary to the provisions of s 5(3)(c) of the Prevention of Cruelty to Animals Act, and three of the charges alleged a failure to provide proper and sufficient food, contrary to the provisions of s 8(1) of that Act.

Following Ms Hollingsworth’s pleas of not guilty, a contested hearing commenced on 8 April 2013 in the Local Court before Magistrate Miszalski and continued for six days. Mr Porter of counsel represented the RSPCA and Ms Hollingsworth was self-represented, as she was throughout the subsequent District Court proceedings and in this Court. After the conclusion of the evidence, the Magistrate invited Ms Hollingsworth to consider whether she wished to change her pleas to ones of guilty. After a short adjournment, during which Ms Hollingsworth spoke to a duty barrister outside the Court, she reversed her pleas and pleaded guilty. The proceedings were accordingly adjourned to 3 June 2013 for sentence and on that day further adjourned to 29 July 2013. On the latter day Ms Hollingsworth sought to withdraw her guilty pleas but was refused leave to do so.

The Magistrate then proceeded under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) to record convictions of the offences without imposing any other penalty. His Honour also made orders for costs and witness expenses, and orders under s 31 of the Prevention of Cruelty to Animals Act limiting the number of horses that Ms Hollingsworth could possess, directing her to give the RSPCA ownership of the horses which it had seized.

Section 11 of the Crimes (Appeal and Review) Act 2001 (NSW) confers a right of appeal against conviction or sentence (or both) from the Local Court to the District Court. As noted above, s 12 however requires that leave to appeal be obtained where the conviction has followed a plea of guilty.

Section 18 of that Act provides that, subject to s 19, an appeal against conviction is to be by way of rehearing on the basis of the evidence given in the Local Court and that fresh evidence may only be given with leave of the District Court, to be granted if the Court is satisfied that it is in the interests of justice that such evidence be given. Section 19 relevantly provides that the District Court may give a direction that a person is to attend and give evidence on the appeal only if there are “substantial reasons” in the interests of justice that this should occur.

In the District Court, Ms Hollingsworth sought leave to appeal against her convictions and appealed against the severity of her sentences. As Neilson DCJ later recorded, Ms Hollingsworth made her leave application “essentially on the basis that she should be permitted to withdraw the pleas of guilty which she entered in the Local Court” (Judgment [3]).

On 2 October 2013 Berman DCJ directed Ms Hollingsworth to file and serve within 28 days all affidavits and other material to be relied upon in support of her application for leave to appeal. She did not file or serve any affidavits or other material in accordance with this direction. On 20 November 2013 the Court extended the time for Ms Hollingsworth to file evidence on which she wished to rely until 22 January 2014.

On 22 January 2014 Ms Hollingsworth provided counsel for the RSPCA with a handwritten document (the “written submissions”), which was later provided to the Court, asserting that she should be permitted to call “further evidence”. The document included a reference to evidence about horse feed that Ms Hollingsworth provided to her horses being stolen by members of a “Facebook Hate Group” that she said “terrorised” her. The document also referred to evidence of a post-mortem of one of the subject horses that suggested that its death was due to a medical condition rather than neglect.

On 29 January 2014 the Acting Deputy Registrar directed Ms Hollingsworth to file “all submissions in support of her application for leave to appeal” by 27 February 2014 and listed the application for hearing on 3 April 2014, with a three hour estimate of length. Ms Hollingsworth did not file or serve any further submissions pursuant to this direction.

When the proceedings came before the Chief Judge of the District Court, Blanch J, on 3 April 2014, Ms Hollingsworth provided written submissions to the Court, attaching a statutory declaration of Ms Melissa Plunkett and a medical certificate of Dr Parvesh Kapoor.

In her statutory declaration, Ms Plunkett, a friend of Ms Hollingsworth who attended the Local Court hearing, alleged that Mr Porter, counsel appearing for the RSPCA on that occasion, said to her in the precincts of the Court that she needed to advise Ms Hollingsworth that it was in her best interests to change her pleas to guilty, implying that doing so would result in Ms Hollingsworth’s horses being returned to her. Ms Plunkett’s statutory declaration said that she then spoke to Ms Hollingsworth but she did not say what she said to Ms Hollingsworth.

Dr Kapoor’s medical certificate stated that Ms Hollingsworth suffers from post-traumatic stress disorder and anxiety and depression “which has affected her ability to function and face court proceedings”.

Ms Hollingsworth’s written submissions asserted, first, that she did not understand the nature of the charges to which she pleaded guilty and, secondly, that her guilty pleas were not “a free and voluntary confession” because the prosecutor “went out of his way to influence and induce [her] to enter a guilty plea”. She referred to Ms Plunkett’s statutory declaration in this context. Ms Hollingsworth’s written submissions did not say that Ms Plunkett recounted to her the conversation she allegedly had with Mr Porter but they nevertheless impliedly asserted that Ms Plunkett had advised her to plead guilty. Ms Hollingsworth said that “but for Ms Plunkett’s advice I would never have entered a guilty plea. The inducement of having my seized horses returned influenced my decision to plead guilty”.

Thirdly, Ms Hollingsworth asserted that her medical condition, referred to in Dr Kapoor’s medical certificate, “influenced” her decision to plead guilty.

Fourthly, she submitted that at no time did she have a “genuine consciousness of guilt” but that she had instead acted in order to save her horses’ lives.

Finally, she submitted that she had been given “insufficient time … to fully consider all the horses and charges in respect of each horse”.

Her submissions also contained an elaboration, to a greater or lesser extent, of each of these matters.

The hearing of Ms Hollingsworth’s application for leave to appeal to the District Court commenced on 14 May 2014 before Neilson DCJ and substantially concluded towards the end of the following day. Ms Hollingsworth represented herself and Mr Sutherland SC represented the RSPCA. Ms Plunkett’s statutory declaration was admitted into evidence, as was an affidavit of the RSPCA’s counsel in the Local Court, Mr Porter. Both were cross-examined. Other evidence included a document written by Ms Plunkett and subpoenaed documents relating to Ms Hollingsworth’s medical condition. The Court also had the Local Court transcript and exhibits before it.

Ms Hollingsworth did not give evidence. The circumstances in which that came about appear from the following extracts from the District Court transcript. The recorded discussion occurred near the commencement of the hearing, prior to any evidence being given. It began with a reference to a note made on the court file as a result of the directions hearing of the matter held before the Chief Judge on 3 April 2014.

In his judgment of 16 May 2014 Neilson DCJ:

His Honour accepted Mr Porter’s evidence in relation to Ms Hollingsworth’s medical condition that “the presentation of the applicant before the magistrate was exactly the same as her presentation” when cross-examining in the District Court (Judgment [46]). His Honour noted that Ms Hollingsworth “said otherwise but from the Bar table not from the witness box. As I told her I cannot accept what she says from the Bar table as evidence of any fact” (ibid).

In dealing with Ms Hollingsworth’s oral submissions concerning Ms Plunkett’s allegations about Mr Porter, Neilson DCJ noted that Ms Hollingsworth might have been misled by advice from Ms Plunkett that her horses would be returned if she pleaded guilty even if Ms Plunkett had not asserted to her that the source of the suggestion was counsel for the RSPCA who made the suggestion. His Honour continued:

Ms Hollingsworth’s principal submission in support of her application to this Court was that she was denied procedural fairness by not being permitted to give evidence at the District Court hearing. I consider that this submission should be upheld and that it led to jurisdictional error occurring. I shall therefore deal with it first and deal only briefly with Ms Hollingsworth’s other submissions.

It is clear that if Ms Hollingsworth was unreasonably denied the opportunity to give evidence at the District Court hearing, procedural unfairness occurred. As Gaudron and Gummow JJ said in Minister for Immigration v Bhardwaj [2002] HCA 11; 209 CLR 597:

An unreasonable decision in this context is not simply one that “is in effect an irrational, if not bizarre, decision” (Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [68]). A decision may also be unreasonable if it “lacks an evident and intelligible justification” (ibid at [76] drawing a parallel in this respect between administrative decisions and the exercise of a judicial discretion).

So far as the facts of the present case are concerned, I start by making the following observations concerning the exchanges that occurred in the District Court near to the commencement of the hearing and that are quoted in [51] above.

First, counsel for the RSPCA, Mr Sutherland SC, said at the outset: “I don’t know what her intention is regarding giving evidence” (Transcript p 37). Ms Hollingsworth’s non-compliance with the pre-hearing directions concerning evidence had therefore not misled him into forming a settled view that Ms Hollingsworth did not wish to give evidence.

Secondly, Mr Sutherland’s expressed concern was that he have notice of the nature of the evidence that Ms Hollingsworth wanted to give, not that she might give evidence at all. When asked directly by his Honour whether he had any objection to Ms Hollingsworth giving evidence, Mr Sutherland said that he did not, although he said that he needed to have full notice of what she would say. However, he accepted, presumably through Ms Hollingsworth’s written submissions, that he already had “some notice of some of the material” that she was likely to lead in evidence (Transcript p 39).

Thirdly, his Honour expressed the understandable view that Ms Hollingsworth’s written submissions contained statements of an evidentiary nature that would have to be given on oath if they were to be relied upon (see [60] above). His Honour adhered to this approach in his subsequent final judgment (see [61] above). Ms Hollingsworth responded by saying that she was “happy to do that” which, bearing in mind that she was an unrepresented litigant who wanted to rely upon written submissions but had been told that she could not do so unless they were supported by her oath, amounted to an implicit application for leave for her to give evidence (Transcript p 38).

Fourthly, his Honour twice referred to the Chief Judge’s apparent directive, recorded on the court file, that the hearing must proceed on 14 May 2014 (see the comments above in relation to the transcript quoted in [60]).

Fifthly, the only reason that his Honour gave for refusing to allow Ms Hollingsworth to give evidence was that she had not complied with the pre-hearing directions for the provision of affidavits and other material. His Honour used the word “so” towards the commencement of his statement of his conclusion. As this immediately followed his Honour’s second reference to the Chief Judge’s apparent directive, it appears that he took that directive into account as an important, if not determinative, factor in considering whether to permit Ms Hollingsworth to give evidence. This was inappropriate because it was for Neilson DCJ to exercise an independent discretion concerning his conduct of the hearing. Whilst the Chief Judge’s statement was no doubt a proper and appropriate response to what the Chief Judge apparently perceived as the unsatisfactory progress of the matter up to 3 April 2014, it should not have assumed particular significance at the 14 May 2014 hearing before Neilson DCJ as his Honour was in as good a position as the Chief Judge had been to form a view about the progress of the proceedings and to make an independent decision as to what significance should be attached to that progress (or lack of progress).

With those observations in mind, I state as follows my reasons for concluding that procedural unfairness occurred.

First, it was clearly important to Ms Hollingsworth’s application for leave to appeal that she give evidence. As Neilson DCJ pointed out, there were aspects of her written submissions that were of an evidentiary nature and thus liable to be disregarded if they were not supported by her evidence. In his final judgment, his Honour placed importance on the absence of evidence from Ms Hollingsworth to support her submissions (see [62] and [63] above). Usually, although in my view not invariably, a person applying for leave to withdraw a plea of guilty should give evidence in support of the application, explaining the reasons why he or she pleaded guilty (see R v Wilkinson No 4 [2009] NSWSC 323; 195 A Crim R 20 at [47]).

Secondly, whilst counsel for the RSPCA was understandably concerned to have notice of what Ms Hollingsworth would say in the witness box, that concern could have been met by allowing her to give evidence in chief and ruling on any relevance or other objections to that evidence. Alternatively, Ms Hollingsworth could have been asked to identify her proposed evidence from the Bar table and admissibility rulings could have been foreshadowed. The RSPCA’s need to have time to prepare for cross-examination could have then been assessed with knowledge of the nature and extent of Ms Hollingsworth’s admissible evidence. As Mr Sutherland acknowledged that he already had some notice of what Ms Hollingsworth would be likely to say on oath, (see [69] above) it is possible that he may have required little, if any, time. In any event it is probable that any prejudice to the RSPCA could have been dealt with by not requiring Mr Sutherland to cross-examine until the second day of the hearing or, if necessary, by confining Ms Hollingsworth’s evidence to the subject matter of her written submissions which had been served on the RSPCA.

As a matter of procedural fairness, one of those courses, or some variant of them, should have been taken. Instead, the Court peremptorily took the step, seriously adverse to Ms Hollingsworth’s interests, of preventing her from giving evidence. In my view, this contravened the “dictates of justice” (see s 58 of the Civil Procedure Act 2005 (NSW)). It is conceivable that, after carefully weighing all the relevant factors, the Court might have concluded that Ms Hollingsworth should not be permitted to give evidence. However, that decision could not reasonably be made without considering at least the nature of her proposed evidence, its importance to her case, her explanation for non-compliance with the pre-hearing directions, any possible prejudice to the RSPCA and the extent of any delay that would be incurred in remedying any such prejudice.

These factors are similar to many of those that need to be taken into account when considering a late application for an adjournment or for amendment of a pleading (see Aon Risk Services Australia v Australian National University [2009] HCA 27; 239 CLR 175 at [102]-[103]).

If the Court was considering denying Ms Hollingsworth the opportunity to give evidence because she had failed to comply with pre-hearing directions, it should, having regard particularly to her status as an unrepresented litigant, have sought an explanation from her as to why that non-compliance had occurred. If the RSPCA contested her explanation, it could have required her to give it on oath and have cross-examined her on it. As it transpired, the Court apparently assumed that she had no explanation.

Ms Hollingsworth asserted to this Court that she had understood the District Court pre-hearing directions for lodgement of evidence to relate to evidence other than from herself and that she had assumed that she would give oral evidence at the District Court hearing. She said that this assumption was based on what she understood usually occurred and her own experience of involvement in court proceedings. It is conceivable that an unrepresented litigant might bona fide, but misguidedly, form such a view.

The RSPCA submitted to this Court that because Ms Hollingsworth subsequently asserted that she was not told until some time after the Local Court hearing that Mr Porter had made the statements that Ms Plunkett alleged he made, the District Court’s refusal to permit her to give evidence “ought to carry no weight” (Written Submissions [112]). However, this subsequently-acquired information is not relevant to an assessment of the fairness of what occurred in the circumstances prevailing at the District Court hearing. At most, it might be relevant to this Court’s discretion to decline to intervene notwithstanding a finding of procedural unfairness (as to which see Katter v Melhem [2015] NSWCA 213 at [40]). However, that does not appear to be how the RSPCA puts the point. The point it makes concerning that discretion is a different one, namely, that intervention by way of judicial review would be futile because, as a practical matter, the Court’s orders under the Prevention of Cruelty to Animals Act could not be reversed in light of changed circumstances. However, Ms Hollingsworth’s convictions of offences under that Act have been recorded. Even if orders made consequentially upon them are of no continuing significance, the subsistence of the convictions substantially damage Ms Hollingsworth’s reputation and she is entitled to take such steps as are available to her to have them quashed.

The RSPCA also submitted that Ms Hollingsworth did not in any event suffer “practical injustice” (see Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam [2003] HCA 6; 214 CLR 1 at [37]) because the matters in her written submissions, even if supported by her oral evidence, were not arguable, with the result that, even if she had given evidence, the outcome of her application for leave to appeal would inevitably have been the same (compare Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 145). Katter v Melhem indicates that in this respect it would have been necessary for the RSPCA to satisfy the demanding standard that “there was no realistic possibility that according natural justice would have altered the outcome” (at [94]).

His Honour did not conclude that it would have been futile for Ms Hollingsworth to give evidence. Instead, he simply relied on Ms Hollingsworth’s earlier non-compliance with directions to support his refusal to grant leave to her to do so. The issue for his Honour to determine involved an exercise of his discretion and because it is difficult to hypothesise as to how any particular judge might exercise a discretion and because it is not known, at least with any precision, what evidence Ms Hollingsworth would have given, I do not consider that the standard to which I have referred has been satisfied.

A denial of procedural fairness ordinarily constitutes jurisdictional error (Minster for Immigration v Li at [48]; Reznitsky v Director of Public Prosecutions (NSW) [2014] NSWCA 79 at [37]-[38]; Katter v Melhem at [87]). In my view, there was here a clear denial of procedural fairness and the District Court decision therefore involved jurisdictional error. Accordingly, its orders should be quashed.

The privative provision in s 176 of the District Court Act 1973 (NSW) does not preclude this Court from granting relief in this case under s 69 of the Supreme Court Act 1970 (NSW) on the ground of jurisdictional error (Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92 at [32]). As I have found that such an error occurred, it is unnecessary to consider whether, as a result of its operation being relevantly confined to an “adjudication on appeal” by the District Court, s 176 has any present application at all. There is in this regard a question as to whether a District Court decision to refuse leave to appeal is an “adjudication on an appeal”.

I reject Ms Hollingsworth’s other submissions.

First, contrary to Ms Hollingsworth’s submission, Neilson DCJ did not disregard her mental health problems. He considered them but decided that they did not affect her conduct of the Local Court proceedings. This was a finding of fact not amenable to challenge on the present application to this Court.

Secondly, I reject Ms Hollingsworth’s submission that his Honour’s hearing of the matter gave rise to an appearance of bias because he had “a past association” with Mr Porter, who gave evidence. The only association relied on in this respect was that Mr Porter recalled appearing as counsel before his Honour in two trials that occupied about a week each. However, his Honour said that he had no recollection of Mr Porter or the matters in which he apparently appeared. Such an “association” falls far short of one that might cause a “fair-minded lay observer” to “reasonably apprehend that the judge might not bring an impartial and unprejudiced mind” to the case (Michael Wilson & Partners v Nicholls [2011] HCA 48; 244 CLR 427 at [31]). In any event the “association” was expressly drawn to Ms Hollingsworth’s attention at the hearing before Neilson DCJ and she waived any reliance on it (compare ibid at [83]-[86]).

For the above reasons, I propose the orders set out below. The orders extend to the quashing of orders made by Neilson DCJ on 20 June 2014 in relation to Ms Hollingsworth’s sentence appeal, costs and the ancillary orders made in the Local Court because those orders were consequential upon his Honour’s dismissal of Ms Hollingsworth’s application for leave to appeal to the District Court against her convictions.

LEEMING JA: I have had the advantage of reading, in draft, the judgments of Basten JA and Macfarlan JA. I agree with Basten JA. I would add the following to what Basten JA has written about the asserted denial of procedural fairness.

Ms Hollingsworth’s most prominent complaint was that she was not permitted to give evidence orally in her appeal in the District Court. Ms Hollingsworth had failed to comply with directions to file and serve affidavits and material in support of her application made by the District Court on 2 October 2013, 20 November 2013, 29 January 2014 and 3 April 2014. On 9 May 2014, shortly before her appeal was heard, she did in fact swear an affidavit, in support of a notice of motion to adduce fresh evidence, although the affidavit merely identified documents (including the statement of Ms Plunkett) on which she wished to rely, rather than directly stating matters impugning her guilty plea.

By the time proceedings were commenced in this Court, and even taking the view most favourable to her as an unrepresented litigant, Ms Hollingsworth must be taken to have known that it was essential to provide in advance of the hearing evidence of the matters on which she sought to rely. This Court’s records show that her summons came before a judge twice (on 7 July and 8 December 2014) and before the Registrar on at least four occasions in the 11 months prior to its being heard. Yet, as Basten JA has observed, there remains no evidence from Ms Hollingsworth of the evidence which would have been given in her appeal had she been permitted to do so.

In order to set aside the District Court’s dismissal of her application to withdraw her guilty plea in the Local Court in the exercise of this Court’s supervisory jurisdiction, Ms Hollingsworth needs to demonstrate jurisdictional error. This she has failed to do.

While I would agree with Macfarlan JA that the primary judge took into account the statement recorded on the file that the hearing must proceed on 14 May 2014, I would not infer that the primary judge regarded it as determinative, so as to vitiate the exercise of his discretion not to permit a yet further adjournment by Ms Hollingsworth.

I agree with what Macfarlan JA has written about the other grounds advanced by Ms Hollingsworth, including the allegation of apprehended bias, to which I would add that the fact that Mr Porter was a witness was raised, very properly, by senior counsel for the respondent at the outset of the hearing. He said “for my part I don’t see that as a problem but I thought that I should at least raise it in open court lest Ms Hollingsworth sees a problem with the fact that Mr Porter is a barrister who has previously on other occasions in trials appeared before your Honour”. The primary judge asked whether Ms Hollingsworth had any problems and was told that she did not. When it became apparent that Ms Hollingsworth seemed to believe that Mr Porter had been criminally charged, his Honour took steps to clarify the position. The following exchange makes it clear that Ms Hollingsworth then understood exactly what was asked of her:

Orders should be made as proposed by Basten JA.