Endemi v Ginman; Moore v Commonwealth Director of Public Prosecutions

HIS HONOUR: By notice of motion filed on 28 April 2022 in this Court, the applicant sought various orders. The notice of motion named the Commonwealth Director of Public Prosecutions as the respondent.

The motion was filed in the context of substantive proceedings which were brought by the four plaintiffs seeking judicial review of the decisions of two Local Court registrars to issue Court Attendance Notices charging them with criminal offences. Those Court Attendance Notices were issued at the request of the applicant as a private informant.

The Court Attendance Notices included both state and federal charges. Subsequent to the issue of the plaintiffs' summons in this Court, the Court Attendance Notices were brought to an end, as a result of the respective Directors of Public Prosecutions taking over and discontinuing the proceedings.

The applicant brought a cross-summons in this Court challenging the “decisions” of the Magistrate dismissing the charges. I use inverted commas here as there was, in fact, as found by Chen J, no decision of the Magistrate: see Moore v Commonwealth Director of Public Prosecutions [2022] NSWSC 1458 at [51].

The Commonwealth Director of Public Prosecutions was the defendant to that cross-summons. The Commonwealth Director of Public Prosecutions brought a notice of motion seeking summary dismissal of the applicant's cross-summons. The applicant then brought his notice of motion filed on 28 April 2022, to which the Commonwealth Director of Public Prosecutions was the respondent, by which he sought various orders.

Prayer 1 sought an order that the Commonwealth Director's notice of motion seeking summary dismissal be dismissed. Prayer 3 of the applicant's motion sought an order that the affidavit filed in support of the Commonwealth Director's motion for summary dismissal be dismissed, and prayer 4 sought various orders as to costs.

Prayer 2 of the motion was of a different nature. By prayer 2 of the motion, the applicant sought to appeal a decision made by the registrar of this Court on 1 April 2022. The order sought, in prayer 2 of the motion is as follows::

I understand that the applicant seeks to amend the orders sought by prayer 2 such that it will read:

The summons referred to in the orders sought is the summons brought by the plaintiffs originating the proceedings. The cross-summons referred to is the cross-summons brought by the applicant.

The Commonwealth Director's motion for summary dismissal of the cross-summons and this motion were before Chen J in September 2022. The cross-summons was summarily dismissed by Chen J on 26 October 2022: Moore v Commonwealth Director of Public Prosecutions.

Prayers 1, 3 and 4 of the motion, which related to the application for summary dismissal, were also dismissed. Prayer 2 of the notice of motion relates to the substantive proceedings between the plaintiffs and the applicant. The plaintiffs were not named as a party in the cross-summons (as it was only the Commonwealth Director named as a party) Nor were the plaintiffs named as a party to this notice of motion.

Consequently, the plaintiffs did not appear in the proceedings before Chen J, where the cross-summons was dismissed. In those circumstances, Chen J was not able to deal with prayer 2 of the motion.

The result is that prayer 2 of the applicant's notice of motion of 28 April 2022 remains unresolved. It is for hearing before me this morning.

The plaintiffs to the substantive proceedings have appeared and indicated that they do not oppose the making of an order that they be joined as a party. Mr Moore, that is the applicant, has also indicated that he has no objection to the plaintiffs being joined as a party to this motion.

Rule 6.24 (1) of the Uniform Civil Procedure Rules (2005) (NSW) provides:

Joinder will be appropriate where it is necessary to the determination of all matters in dispute. Joinder is clearly appropriate in this case, where the plaintiffs are the appropriate respondents to the notice of motion.

I make the following order: