Burton v Local Court of New South Wales

1. [1]

   HER HONOUR:

2. [2]

   By amended summons filed 27 August 2018, the plaintiff seeks, firstly, an order in the nature of certiorari reviewing the decision of his Honour Stone LCM to dismiss the plaintiff’s notice of motion; secondly, an order in the nature of mandamus returning the matter to his Honour to be dealt with according to law.

3. [3]

   The plaintiff is Paul Robert Burton. The first defendant is the Local Court of NSW, which has filed a submitting appearance. The second defendant is the Director of Public Prosecutions (NSW) (“the DPP”). The plaintiff relied upon his affidavit filed 11 February 2019 and his court book. The DPP relied upon the affidavit of Ryan James Thomas dated 7 February 2019.

4. [4]

   The plaintiff appeared in person without legal representation. He was articulate and well prepared. Mr Anderson of counsel appeared for the second defendant.

5. [5]

   The plaintiff seeks prerogative relief pursuant to s 69 of the Supreme Court Act 1970 (NSW). The plaintiff seeks to challenge the decision of a Local Court Magistrate who, on 6 July 2018, heard and dismissed a motion brought by the plaintiff concerning criminal proceedings taken against him.

6. [6]

   On 25 May 2017, the Children’s Court made an interim non-publication order pursuant to s 7(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW). On 31 May 2017, the Children’s Court made a second non-publication order pursuant to s 7(b) of the Court Suppression and Non-publication Orders Act.

7. [7]

   Between 4 and 11 July 2017, the plaintiff allegedly published a number of posts and videos on Facebook, which allegedly contravened the two non-publication orders by naming the child who was the subject of the Children’s Court proceedings.

8. [8]

   On 14 July 2017, the Crown Solicitor, acting on behalf of the Secretary of the Department of Family and Community Services, commenced injunction proceedings against the plaintiff in the Equity division of the Supreme Court (“the injunction proceedings”). On 18 July 2017, Rein J made orders in the injunction proceedings restraining the plaintiff from publishing certain information and requiring removal of that information from Facebook and other websites under the plaintiff’s control.

9. [9]

   On 21 December 2017, the NSW Police Force charged the plaintiff with four alleged offences under s 105(2) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) and six alleged offences under s 16(1) of the Court Suppression and Non-publication Orders Act (“the prosecution proceedings”).

10. [10]

    On 28 February 2018, the NSW Police Force served the plaintiff with a brief of evidence in relation to the prosecution proceedings. It outlined five documents that could be inspected, but were not produced in the brief.

11. [11]

    On 6 April 2018, the plaintiff filed an amended notice of motion in the Local Court seeking that the Court Attendance Notice be quashed and the prosecution proceedings be dismissed. The amended notice of motion raised six grounds. They are:

12. [12]

    On 5 July 2018, the DPP served the plaintiff with unredacted versions of the transcripts of the Children’s Court proceedings on 25 May 2017, 31 May 2017, 9 June 2017 and 22 June 2017. On 6 July 2018, his Honour Magistrate Stone (‘the Magistrate”) heard the plaintiff’s amended notice of motion. During the course of argument, the plaintiff graciously conceded that the first ground of his amended notice of motion was unlikely to be successful, and made a similar concession in respect of the second ground. The Magistrate did not agree with the plaintiff’s submissions in respect of the remaining four grounds. His Honour dismissed the motion.

13. [13]

    On 26 July 2018, the plaintiff commenced proceedings in this Court seeking judicial review of the decision of the Magistrate.

14. [14]

    On 3 August 2018, Robb J made further orders in Equity in the injunction proceedings restraining the plaintiff from publishing certain information.

15. [15]

    On 27 August 2018, the plaintiff filed an amended summons in relation to the judicial review proceedings.

16. [16]

    On 7 February 2019, the DPP served the plaintiff with five further documents in relation to the prosecution proceedings.

17. [17]

    The alleged offences under s 105(2) of the Children and Young Persons (Care and Protection) Act are indictable offences listed in Schedule 1, Table 1 of the Criminal Procedure Act 1986 (NSW). The alleged offences under s 16(1) of the Court Suppression and Non-publication Orders Act are summary offences.

Judicial review generally

1. [18]

   In Craig v State of South Australia (1995) 184 CLR 163 at 179, the High Court stated that an administrative tribunal falls into error if it makes an error of law:

2. [19]

   In Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190, McDougall J at [158] referred to Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; [2010] HCA 1:

3. [20]

   Pursuant to s 69(3) of the Supreme Court Act, the jurisdiction of this Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal, if this Court is satisfied that the determination has been made on the basis of an error of law that appears on the face of the record of the proceedings. Further, s 69(4) of the Supreme Court Act provides:

4. [21]

   Prerogative relief under section 69 of the Supreme Court Act is a discretionary remedy. The second defendant submitted that in this case, there is no error of law on the face of the record and no jurisdictional error. The second defendant further submitted that there would be no utility in granting the relief sought by the plaintiff.

5. [22]

   The plaintiff appeals from the whole of the decision of his Honour Magistrate Stone dated 6 July 2018 on the following grounds:

   1. (1)

      His Honour erred by finding that evidence that the DPP intends to use against the plaintiff in a criminal trial can be withheld by the DPP and that the plaintiff must subpoena it if he wants it, and for failing to dismiss or stay the charges on the grounds of denial of natural justice.

   2. (2)

      His honour erred by not dismissing the charges against the plaintiff or at the least staying them until the DPP provides a complete brief of evidence.

   3. (3)

      His Honour erred by failing to dismiss the charges on the grounds of abuse of process, as the plaintiff is facing criminal charges on the exact same matter for which he was summonsed to the Court of Equity and is being vexed twice for the same alleged behaviour.

   4. (4)

      His Honour erred by failing to dismiss the three charges relating to the 25 May 2017 suppression order which had expired, and which meant there was no possibility of a conviction on those charges.

6. [23]

   While the plaintiff (Aff 27/8/2018 [28]) has complained that the core issues he raised in the amended notice of motion of abuse of process, denial of natural justice, constitutionally protected freedom of political free speech and constitutionally protected exercise of religion were largely ignored, the latter two were raised in the plaintiff’s application for judicial review.

7. [24]

   The plaintiff requested that DPP provide the evidence, and was told that they would see if it was covered by public interest immunity. This was after provision was refused on the grounds it was sensitive evidence, even though it was not.

8. [25]

   The DPP actively argued in the Local Court that the plaintiff should not have the evidence and that they did not consider it relevant, even though the brief and fact sheet indicated that it was.

9. [26]

   Since the notice of motion was heard in the Local Court, the plaintiff has been supplied with the five documents, although only recently on 7 February 2019. At the hearing, the plaintiff stated that as he now has copies of these documents, “In a sense, I concede grounds 1 and 2” (T 13-18). The plaintiff submitted that even if his application for judicial review fails, as he has only recently been supplied with the five documents that he had requested over 10 months ago, he should not be obliged to pay the costs incurred by these two grounds of judicial review. I shall return to consider this submission at the end of this judgment when I deal with the issue of costs.

10. [27]

    The second defendant acknowledged that those five documents had not been served upon the plaintiff at the time of the hearing of the amended notice of motion in the Local Court on 6 July 2018. The solicitor with carriage of the prosecution on behalf of the DPP had, at that time, formed the view that those five documents were not relevant to any fact in issue in the prosecution, and accordingly had not seen fit to serve them.

11. [28]

    The evidence to be disclosed by the prosecution in committal proceedings for an indictable offence is prescribed by ss 61 and 62 of the Criminal Procedure Act 1986 (NSW). Section 61 provides that the accused person must be served with a brief of evidence, which under s 62 must contain:

12. [29]

    In respect of summary offences, s 183 of the Criminal Procedure Act provides that the brief of evidence “is…to consist of documents regarding the evidence that the prosecutor intends to adduce in order to prove the commission of the offence, and is to include: (a) written statements taken from the persons the prosecutor intends to call to give evidence in proceedings for the offence, and (b) copies of any document or any other thing, identified in such a written statement as a proposed exhibit.”

13. [30]

    The prosecution’s obligation to disclose is a continuing one.

14. [31]

    In Potier v R [2015] NSWCCA 130, Ward JA, with whom Simpson and Wilson JJ agreed, summarised the principles in respect of the prosecution’s duty of disclosure, as follows:

15. [32]

    While the prosecution’s duty of disclosure does not extend to material which the prosecution does not consider to be relevant or possibly relevant to any issue in the case (see Potier at [549]), its obligation is a continuing one. The solicitor with the carriage of the prosecution at the time had formed the view that those five documents were not relevant to any fact in issue in the prosecution, and therefore did not serve the documents upon the plaintiff. There then followed a change of approach. No reasons were given for that change. The prosecution has now disclosed those documents. The plaintiff now has them, and was correct to concede grounds 1 and 2, as there is no utility in making the orders sought pursuant to them.

16. [33]

    In Re Jayden [2007] NSWCA 35, Ipp JA (with whom Beazley and Hodgson JJA agreed), referred at [80] to the following part of McHugh J’s dissenting judgment in Rogers v R (1994) 181 CLR 251 (“Rogers”):

17. [34]

    In Walton v Gardiner (1993) 112 ALR 289 (“Gardiner”) at 298, Mason CJ, Deane and Dawson JJ gives as an example of an abuse of process a case where, even though the circumstances do not give rise to an estoppel, the proceedings seek to litigate an issue which has already been disposed of by earlier proceedings, and are therefore unjustifiably vexatious and oppressive: see also Reichel v Magrath (1889) 14 App Cas 665 at 668; Connelly v DPP (1964) AC 1254 at 1361-1362.

18. [35]

    The plaintiff contends that the injunction proceedings, together with the criminal prosecution being conducted by the DPP in the Local Court, have resulted in him being “vexed twice for the exact same alleged behaviour”. He submitted that the prosecution proceedings and the injunction proceedings make identical allegations. He says that as a result he is in a state of “legal Limbo”, and that this is an abuse of process.

19. [36]

    The second defendant submitted that the proceedings in the Equity division of the Supreme Court are distinct from the criminal proceedings against the plaintiff. Those two sets of proceedings do not together constitute an abuse of process.

20. [37]

    The defendant further submitted that the plaintiff’s submissions in this regard are, with respect, misconceived. As was observed by the Local Court Magistrate, these are two different sets of proceedings. The injunction proceedings are clearly civil in nature, unlike the prosecution proceedings, and the relief sought in the injunction proceedings is not relief of a kind which would “penalise” the plaintiff as he has asserted. Further, the prosecution proceedings relate to conduct allegedly committed in contravention of existing orders and an existing statutory prohibition, whereas the injunction proceedings relate to preventing future conduct on the part of the plaintiff.

21. [38]

    The second defendant has supplemented that material with further documents from the injunction proceedings, specifically, an amended summons dated 13 October 2017, a further amended summons dated 28 November 2017, and orders made on 3 August 2018. These documents illustrate that these proceedings are distinct from the criminal prosecution. The past conduct of the plaintiff is relevant to the injunction proceedings, but does not expose the plaintiff to double punishment for the same conduct in the Local Court.

22. [39]

    On 13 November 2018, Robb J stood the equity proceedings over to 26 February 2019 (Ex B) for reasons he explained as follows:

23. [40]

    The criminal proceedings are a legitimate process of the court. The Magistrate stated that the injunction proceedings and the criminal proceedings were two different sets of proceedings.

24. [41]

    Robb J made clear that the injunction proceedings will not proceed while the related criminal matters are being heard, and set out in his reasons the rationale for avoiding such a procedural overlap. The Equity civil proceedings, concerning the same subject matter as the criminal proceedings, have not and will not proceed to a final hearing while the criminal proceedings have not been concluded.

25. [42]

    In my view, there is no abuse of process. The Magistrate was correct in having both the criminal and civil proceedings on foot at the same time. The criminal proceedings deal with past events, while the civil proceedings concern future events. This ground of judicial review is dismissed.

26. [43]

    The plaintiff submitted that the non-publication order made on 25 May 2017 was not an interim order, and that its designation as ‘interim’ was “merely an error on the part of the Court officer when typing up the order”. He says that are only three possible scenarios in relation to that order, but that even with all three scenarios there can only be one conclusion, which is that the DPP can never prove the order was in force at the time he is alleged to have breached it, and that the charges in respect of that order are all doomed to fail: see Gardiner at 298.

27. [44]

    The plaintiff says that the order made on 25 May 2017 was an interim order, and expired on 31 May 2017 for the following reasons:

28. [45]

    The plaintiff says that the order made on 25 May was an interim order, and did not expire on 31 May 2017 for the follows reasons:

29. [46]

    The plaintiff says that the order made on 25 May 2017 was a final order because:

30. [47]

    The plaintiff submitted that if the order made on 25 May 2017 expired on 31 May 2017, then the charges in relation to the 25 May 2017 order must fail. If the order of 25 May 2017 is an interim order and did not expire on 31 May 2017 then it was made outside jurisdiction as no other order was made or was intended to be made contrary to the Act of Parliament. It is therefore invalid and the charges must fail. If the order of 25 May 2017 was a final order, which is what the evidence suggests, then it fails for want of a time duration and as such the DPP can never prove it was in force at the time of the alleged breach. It is clear that the Magistrate and barrister never mentioned the word "interim". It is clear she “determined” this issue, which invalidates the DPP’s argument and reliance on s 10(1) of the Court Suppression and Non-publication Orders Act.

31. [48]

    The plaintiff also submitted that it is clear that no other orders were made in relation to the same content of the 25 May 2017 orders. It is clear that the orders of 31 May 2017 were always referred to as “further” orders.

32. [49]

    The plaintiff further submitted that to hold him to account based on a copy of an order made by a Registrar, when the weight of all the evidence shows that the Registrar made an error in writing up the copy of the order, would amount to a denial of justice and oppression.

33. [50]

    The plaintiff says that it is crystal clear even to the most obtuse person that the suppression order of 25 May 2017 was a final order, and therefore the charges based upon them are doomed to fail and are, as a matter of law, an abuse of process.

34. [51]

    The second defendant submitted that as the interim non-publication order made by the Children’s Court of New South Wales on 25 May 2017 was in force on the dates of the plaintiff’s alleged offences, there is a prospect of conviction in respect of the three charges which allege that the plaintiff contravened that order.

35. [52]

    Three of the charges against the plaintiff involve alleged breaches of the first non-publication order made by the Children’s Court on 25 May 2017. The sealed copy of this order identifies it as an "interim order". It is also identified as being an order made under s 7(a) of the Court Suppression and Non-publication Orders Act, which is an order prohibiting the publication of information tending to identify certain persons connected with the proceedings.

36. [53]

    In light of s 10(1) of the Court Suppression and Non-publication Orders Act, the interim order made on 25 May 2017 had effect until the final determination of the relevant application. The interim order was not expressed to expire at any particular time. There was no revocation of that order by the Children’s Court identified by the plaintiff.

37. [54]

    The plaintiff contends that the three charges involving alleged breaches of the interim order are doomed to fail because the interim order had expired at the time his publications were allegedly made. The plaintiff's argument implicitly assumes that the interim order expired on 31 May 2017, on the date a second non-publication order was made by the Children’s Court.

38. [55]

    However, the interim order did not expire on 31 May 2017 because:

39. [56]

    The interim non-publication order made on 25 May 2017 did not expire and remained effective at the time of the plaintiff's alleged offences, despite the assumption of the plaintiff to the contrary.

40. [57]

    The plaintiff correctly identified that this interim non-publication order did not include a time duration, as may be specified under s 12(1) of the Court Suppression and Non-publication Orders Act:

41. [58]

    In oral submissions, the plaintiff referred to s 10(1) and (2) of that Act:

42. [59]

    The non-publication order dated 25 May 2017 states:

43. [60]

    On the face of the Court order, it is an interim order. By virtue of s 10(1) of the Court Suppression and Non-publication Orders Act, the interim order is to have effect subject to revocation of the Court, until the application is determined. Although s 10(2) states that if the order made is an interim order the Court must determine the application as a matter of urgency, the order cannot come into play until the plaintiff’s criminal charges are determined. The Magistrate’s reasons were correct. This ground of judicial review fails.

44. [61]

    The result is that the plaintiff’s application for judicial review fails. The summons filed 27 August 2018 is dismissed.

Costs

1. [62]

   Costs are discretionary.

2. [63]

   The starting point for an award of costs is s 98 of the Civil Procedure Act 2005 (NSW). It relevantly reads:

3. [64]

   Rule 42.1 of the Uniform Civil Procedure Rule 2005 (NSW) reads:

4. [65]

   So far as grounds 1 and 2 of the judicial review are concerned, the plaintiff should not be obliged to pay costs for these two grounds of judicial review, because no reason was given for the change of approach in providing the five documents. However, the plaintiff did not succeed in relation to judicial review grounds 3 and 4. In these circumstances and in the exercise of my discretion, the appropriate order for costs is that each party should pay their own.