Kamm v State of New South Wales (No 3)

1. [1]

   PAYNE JA: Mr Kamm seeks leave to appeal from a decision of Harrison J on 8 January 2016 made under the Crimes (High Risk Offenders) Act 2006 (NSW). As I have earlier remarked, the history of this matter is an unhappy one. It has twice come before me to deal with procedural issues regarding the delays in the prosecution of this application: see [2016] NSWCA 339 and [2017] NSWCA 14. These reasons presume familiarity with my earlier judgments.

2. [2]

   On the last occasion before me, I made orders in the nature of “guillotine” orders to endure that this matter was ready for hearing by early May 2017 in the following terms:

3. [3]

   Order 1 of my order of 3 February 2017 has not been complied with as regards the applicant’s written submissions. Mr Robinson SC submits, and I accept, that he did not understand the existing order 1(a) to require him to file written submissions today.

4. [4]

   On 29 May 2017, a notice of motion was filed by Mr Kamm, who seeks leave to amend his Summons Seeking Leave to Appeal. The notice of motion was supported by an affidavit sworn by the applicant’s solicitor, John Omar Juweinat, on 29 March 2017.

5. [5]

   I accept that the applicant has made some effort towards complying with the orders made, although regrettably Mr Robinson SC was only briefed very recently.

6. [6]

   Submissions made on behalf of the applicant today made clear that the applicant seeks to challenge the constitutional validity of the Crimes (High Risk Offenders) Act 2006. Mr Robinson SC also indicated to me that he would likely be applying to have the constitutional issue removed under s 40 of the Judiciary Act 1903 (Cth) to the High Court for determination. The following submissions were made:

7. [7]

   Mr Thomson, who appeared on behalf of the State of New South Wales, did not oppose the making of the orders giving effect to the amendments sought by the applicant, subject to existing orders bringing the matter on for hearing being confirmed.

8. [8]

   For reasons I have already expressed (see [2017] NSWCA 14 at [18]), there has been serious and sustained non-compliance by Mr Kamm and his representatives with the Court’s procedural directions. Nonetheless, I am persuaded by Mr Robinson SC that this is a case where Mr Kamm should be permitted to amend the application to this Court for the purpose of determining what he submits are the real questions raised by or otherwise to be determined in the proceedings. In particular, I am persuaded by the submission that the amendments require no further or additional evidence to be called by the parties.

9. [9]

   While I am persuaded to vary order 1 of the orders made on 3 February 2017 and vacate order 2 of the orders made on 3 February 2017, no application is made to vacate the hearing on 8 May 2017. Mr Robinson SC has undertaken to file the White Book by 5pm today. He can file his written submissions by 5pm on 10 April 2017. It is common ground now (which was not the position before me earlier) that no further evidence will sought to be adduced by Mr Kamm at the hearing in this Court. On that basis Mr Thomson believes that the State can meet its obligation under the existing timetable for its submissions, the matter having been significantly refined by the amendments.

10. [10]

    I will not make any order for the service of s78B notices. Mr Robinson SC informed me that he will personally draft those notices and I accept his assurance that he is well aware of his obligations to ensure prompt service of such notices.

11. [11]

    I propose to make the orders sought in the applicant’s notice of motion and to vary the orders earlier made to permit the matter to be readied for hearing on 8 May. I will vacate the guillotine order earlier made.

12. [12]

    Mr Thomson submitted that I should reserve the costs of the motion and today and I propose to make that order.

Orders

1. [13]

   Accordingly, I make the following orders:

   1. (1)

      Applicant granted leave to file motion dated 29 March 2017 in court and to move on it instanter.

   2. (2)

      Leave granted to amend the existing filed Summons Seeking Leave to appeal

   3. (3)

      Leave granted to file Draft notice of appeal

   4. (4)

      Vary Order 1 made on 3 February 2017 to provide that:

   5. (5)

      Vacate Order 2 made on 3 February 2017.

   6. (6)

      Vacate Order 7 made on 3 February 2017.

   7. (7)

      Otherwise confirm the orders made on 3 and 6 February 2017.

   8. (8)

      Reserve costs of the motion and today.

   9. (9)

      List matter for directions on 12 April 2017 at 9.30am, such to be vacated if notified by the parties that it is no longer required.