Endemi v Ginman; Moore v Commonwealth Director of Public Prosecutions (No 3)

1. [1]

   HIS HONOUR:

Introduction

1. [2]

   On 28 April 2022, Ian Moore (the applicant) filed a notice of motion in this Court seeking a number of orders. On 26 October 2022, prayers 1, 3 and 4 of the motion were dismissed by Chen J: Moore v Commonwealth Director of Public Prosecutions [2022] NSWSC 1458. Prayer 2 of the motion was not determined by his Honour. That part of the motion remained on foot and came before me for hearing on 20 March 2023.

2. [3]

   The applicant appeared for himself on the application. The Commonwealth Director of Public Prosecutions was named as the respondent to the motion and, despite a limited interest in the proceedings for the reasons discussed below, appeared, represented by Mr Dutaillis. The plaintiffs in the substantive proceedings (Kyle Endemi, Matthew Pawsey, Michelle McAllister and Matthew Bolton) were not named as respondents to the motion. They were unaffected by the relief sought in prayers 1, 3 and 4. Consequently, Chen J was able to determine those parts of the motion in the absence of the plaintiffs. The position was different with respect to prayer 2, which was an order in relation to which the plaintiffs were interested. Mr Deards of Makinson d’Apice appeared on behalf of the plaintiffs before me and indicated that the plaintiffs did not object to being joined as a party to the motion. Mr Moore also indicated that he had no objection to this course and an order was made joining the plaintiffs: Endemi v Ginman; Moore v Commonwealth Director of Public Prosecutions [2023] NSWSC 284.

3. [4]

   For the reasons given below, the application seeking the order in prayer 2 of the motion (as subsequently amended) is dismissed.

Background

1. [5]

   In order to understand the application, it is helpful to set out some relevant background.

2. [6]

   In 2019, the applicant was charged with an offence of possession of a prohibited weapon (a State offence) and an offence of carrying a prohibited item through a screening point (a federal offence). He was convicted of both offences in the Local Court. On his appeal to the District Court, he was found not guilty with respect to the first offence and, with respect to the second offence, while proved, the charge was dismissed pursuant to s 19B of the Crimes Act 1914 (Cth). Following these events, the applicant brought private prosecutions against each of the plaintiffs, each of whom was a police officer who, as I understand it, was in some way involved in the criminal proceedings brought against the applicant. Court Attendance Notices (CANs) instituting the private prosecutions against the plaintiffs were issued at the applicant’s request on 11 August 2021, 28 September 2021, 11 October 2021 and 26 October 2021.

3. [7]

   In response to the institution of the above proceedings, the plaintiffs brought proceedings in this Court, by way of summons, seeking to quash the Local Court Registrars’ decisions to sign the various CANs. The Registrars who had signed the CANs were the first and second defendants, and the applicant was named as the third defendant.

4. [8]

   In the meantime, the State and Commonwealth Directors of Public Prosecutions, under the relevant provisions of their respective Acts, took over the Local Court prosecutions (which were for State and federal offences) and discontinued them. On 28 January 2022, a Local Court Magistrate purported to dismiss the federal offences, and on 25 March 2022 a Magistrate purported to dismiss the State offences. The word “purported” is used because, as Chen J pointed out in Moore v Commonwealth Director of Public Prosecutions (at [51]) given the proceedings were discontinued, there was no decision for the Magistrate to make and therefore nothing to dismiss.

5. [9]

   The applicant challenged the decision of the State Director, however, on 12 May 2021 Cavanagh J dismissed the applicant’s summons: Moore v Director of Public Prosecutions (NSW) (2021) 391 ALR 336; [2021] NSWSC 587.

6. [10]

   A cross-summons filed on 1 March 2022 by the applicant sought prerogative relief against the “decisions” of the Local Court with respect to the federal offences, and further sought orders which would require the Commonwealth Director to provide reasons for the decision to take over and discontinue the federal charges instituted by the applicant. In response to the cross-summons, the Commonwealth Director, on 31 March 2022, filed a notice of motion seeking that the applicant’s cross-summons be summarily dismissed, or alternatively struck out.

7. [11]

   In the meantime, on 1 April 2022, with the criminal proceedings instituted against them in the Local Court having been discontinued, the plaintiffs appeared before the Registrar of this Court and sought leave to withdraw the summons by which they had sought to challenge the decisions of the Local Court Registrars to sign the various CANs. Mr Deards appeared on behalf of the plaintiffs and informed the Registrar that as all the charges had been discontinued against the plaintiffs, “the summons is now effectively otiose”. The applicant (and third defendant to the summons) opposed the plaintiffs being given leave to withdraw the summons. On my reading of the transcript before the Registrar, it appears that the applicant was concerned that he had been ordered to pay the costs related to the charges in the Local court, in circumstances where in the proceedings in this Court had protracted the Local Court proceedings. It appears the applicant sought to maintain proceedings in this Court, in order to deal with his grievance with respect to those costs. Insofar as there were costs sought by the summons in this Court, Mr Deards made it clear that this was not pressed. The Registrar made an order dismissing the summons and ordered that each party pay their own costs.

8. [12]

   On 28 April 2022, the applicant, in response to the above events, filed his own motion by which he sought dismissal of the Commonwealth Director’s notice of motion seeking summary dismissal of the applicant’s cross-summons (prayer 1), dismissal of the evidence in support of it (prayer 3) and associated orders as to costs (prayer 4). In prayer 2, the applicant sought a review of a decision of the Registrar of this Court dated 1 April 2022 dismissing the plaintiffs claim. It will be necessary to return to prayer 2 in due course.

9. [13]

   On 26 October 2022, Chen J made orders with respect to the Commonwealth Director’s application for summary dismissal of the applicant’s cross-summons and prayers 1, 3 and 4 of the applicant’s motion of 22 April 2022: Moore v Commonwealth Director of Public Prosecutions. Prayer 2 was not dealt with as the Commonwealth Director (then the only respondent to the motion) was not the proper respondent in respect to the order sought. As noted above, this is the matter that came before me for hearing.

Evidence

1. [14]

   The applicant’s affidavit of 23 January 2023 was tendered at the hearing. That affidavit set out some of the history of the matter and exhibited a large volume of material relating to the proceedings. Reference to some of this material will be made in the context of my determination.

2. [15]

   Additionally, the applicant tendered a document setting out the orders of the Court of Appeal in relation to his application for leave to appeal against the decision of Chen J dismissing his cross-summons and prayers 1, 3 and 4 of his motion. That document was ultimately relevant only to the applicant’s application for an adjournment of this hearing, that application being refused by me: see Endemi v Ginman: Moore v Commonwealth Director of Public Prosecutions (No 2) [2023] NSWSC 285.

Determination

1. [16]

   The applicant seeks a review of the Registrar’s decision made on 1 April 2022 pursuant to r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) which provides:

2. [17]

   The principles guiding such an application were summarised by Hallen AsJ (as his Honour then was) in Noble Earth Technologies Pty Ltd v Hampic Pty Ltd trading as Cyndan Chemicals [2012] NSWSC 935. His Honour’s summary has been relied on many times since. His Honour said (at [39]):

The order sought and its relationship to the decision under review

1. [18]

   At the hearing of the application the applicant was given leave to amend his motion such that the order sought is in the following terms:

2. [19]

   The summons filed on 11 November 2021 referred to in the order sought is the plaintiffs’ summons challenging the issue of the CANs by the Local Court at the request of the applicant. As noted above, the Registrar dismissed the summons on the application of the plaintiffs. The Registrar did not, in terms, make a decision that “removed” the first and second defendants (the Local Court Registrars), “from continuing with [the applicant] in the first cross summons”.

3. [20]

   Prior to the appearance before the Registrar of this Court on 1 April 2022, by letter dated 23 March 2022, sent by email that day, the solicitor for the plaintiffs wrote to the applicant referring to correspondence from the respective Directors of Public Prosecutions. The letter indicated that, as a result of the decision of each of the Directors to take over and terminate the charges against each of the plaintiffs, “it [was the plaintiffs’] view that there [was] no longer any utility in pursuing the judicial review proceedings in the Supreme Court”. The letter enclosed a proposed consent order seeking orders that the summons be dismissed on the basis that there be no order as to costs. The applicant responded by email on the same day stating:

4. [21]

   When the matter came before the Registrar on 1 April 2022, Mr Dreads informed the Registrar as follows:

5. [22]

   The applicant, as noted above, objected to the summons being dismissed, raising before the Registrar his concern as to costs. Mr Deards informed the Registrar that the costs referred to by the applicant were costs related to the proceedings in the Local Court, and would not be impacted by the dismissal of the summons. The transcript records that the Registrar made the following two decisions:

6. [23]

   The first order referred to above is self-explanatory. The second order referred to above is a reference to the applicant’s cross-summons and the motion filed by the Commonwealth Director (as the defendant to the cross-summons) seeking summary dismissal of that cross-summons. As discussed above, those matters were subsequently dealt with by Chen J together with at least part of the applicant’s motion of 28 April 2022.

7. [24]

   I am inclined to accept the plaintiffs’ argument that there was no order by the Registrar of the kind described by the applicant, removing the first and second defendants. Accordingly, it would be inappropriate to make an order in the terms sought by the applicant. Despite this, it is tolerably clear that the applicant’s complaint lies with the order of the Registrar dismissing the respondent’s summons. Having regard to the fact that the applicant represented himself, it is appropriate to consider his arguments with respect to that decision.

The applicant’s real complaint - the Registrar’s decision to dismiss the summons

1. [25]

   By delegation dated 28 November 2022 and made pursuant to s 13 of the Civil Procedure Act 2005 (NSW), the Chief Justice has empowered a Registrar of the Supreme Court to exercise certain functions subject, if applicable, to any restriction specified in the instrument.

2. [26]

   By operation of that delegation, the Registrar had the power to exercise functions under, inter alia, r 12.1 of the UCPR. That power was conferred by the delegation without restriction.

3. [27]

   Rule 12.1 of the UCPR provides:

4. [28]

   As pointed out by the applicant, the plaintiffs did not file a notice of discontinuance. This was a procedural irregularity which does not, subject to the powers of the Court to make orders setting aside the dismissal, invalidate the decision of the Registrar: s 63 of the Civil Procedure Act. In deciding whether that power should be exercised, it is relevant to have regard to any prejudice to the applicant. As set out above, the applicant was given notice of the plaintiff’s intention to seek leave to withdraw the proceedings on 23 March 2022, which was more than a week prior to the appearance before the Registrar. There is no evidence before me that would establish any prejudice to the applicant as a result of the plaintiff’s failure to file a notice of discontinuance. The failure should be treated as an irregularity that does not impact the order of the Registrar.

5. [29]

   In addition to the above, the applicant raised four arguments in support of the orders sought.

6. [30]

   By the first argument, the applicant submitted that the proper mechanism for the review of the decision of the Local Court Registrars was an application to a Local Court Magistrate, pursuant to r 8.8 of the Local Court Rules 2007 (NSW). There are two obvious difficulties in this argument. Firstly, the existence of this mechanism does not exclude the availability of the application made to this Court. Secondly, even if it did, it would not provide a basis to refuse the plaintiff’s application to withdraw the summons or the consequent order dismissing the summons.

7. [31]

   The second argument relates to the failure to file a notice of discontinuance, and additionally to the rules in relation to the award of costs where proceedings are discontinued. The significance of the failure to file a notice of discontinuance has been dealt with above. With respect to costs, r 42.20 of the UCPR provides that “…unless the court orders otherwise, the defendant must pay the plaintiff’s costs of the proceedings”. This rule did not require an order for costs in the applicant’s favour. Rather, it gave rise to a discretion to make such an order. The rule does, however, provide a default position by which the plaintiff was liable for the defendants’ costs. There was no explicit recognition of this by the Registrar, or reasons given as to why no order for costs should be made. However, the applicant was self-represented. As such, he incurred no professional costs and there was no utility in an order for costs in his favour. Therefore, there is, in the circumstances, no basis for any complaint with respect to the Registrar’s order that each party pay their own costs.

8. [32]

   The third argument is that as committal proceedings had commenced “a registrar cannot remove the legislative authority of a court”. Reference was made to ss 37(1), 47(1), 49(1), 56(1) and 96(1) of the Criminal Procedure Act 1986 (NSW). It is not entirely clear what is meant by the submission, but to the extent that the jurisdiction of the Local Court had been invoked by the applicant, the decision by the Registrar of this Court did not interfere with that jurisdiction. Rather, events were overtaken by the decisions of the respective State and Commonwealth Directors bringing proceedings to an end: see R v Howard (1992) 29 NSWLR 242 (in the context of indictable procedure). There was no interference by the Registrar with the Local Court’s jurisdiction.

9. [33]

   The fourth argument is that the plaintiff’s summons was based on the contention that jurisdiction of the Local Court was not properly invoked due to the allegedly irregular decisions of the Local Court Registrars, and that the Local Court Magistrate fell into jurisdictional error by continuing to hear the cases. The applicant argues that the Registrar of this Court erred “as only the Supreme Court has authority to determine” the Local Court fell into jurisdictional error by continuing to hear the cases. The short answer to this is that the Registrar made no determination as to whether or not the Magistrate fell into jurisdictional error. The plaintiffs indicated that they did not wish to pursue their claim and it was dismissed.

10. [34]

    Finally, in oral submissions, the applicant submitted that both the Court Book prepared by the plaintiffs’ solicitor and the list of authorities provided to him were defective. In relation to the former, the applicant’s complaint was that the title of the proceedings, based on his cross-summons, referred to him as the plaintiff but to the defendant as “Sarah McNaughton SC – Commonwealth Director of Public Prosecutions”. The applicant pointed out, correctly, that the proper defendant to the cross-summons was the Office of the Commonwealth Director of Public Prosecutions and not the individual (then) occupying that office.

11. [35]

    The second complaint raised orally was that a folder containing the plaintiffs’ authorities provided to by the plaintiffs to the applicant had, on its cover, the wrong file number. The applicant submitted that he was entitled to ignore the folder of authorities and the Court Book as they did not relate to his matter.

12. [36]

    While the proper party to the proceedings is the Commonwealth Director of Public Prosecutions, and not the individual for the time being occupying that office, the cover sheet to the plaintiffs’ Court Book adopted this style from the cross-summons filed by the applicant. The applicant repeated this style in his notice of motion filed on 28 April 2022 again naming “Sarah McNaughton SC – Commonwealth Director of Public Prosecutions” as the “first cross defendant”. There is no significance in the plaintiffs replicating the error of the applicant in naming, the now, McNaughton J as a party in a cover sheet to the Court Book provided to assist the Court. The applicant’s submission that this person “did not exist” was an exaggeration, but more importantly in the present context, not to the point. Similarly, there is no significance in what appears to have been a typographical error with respect to the file number on the folder of authorities provided by the plaintiffs to the applicant. The applicant can have been under no misapprehension as to what proceeding it related to. It was, in any event, ultimately up to him to decide what authorities he would consider in preparation for the hearing, including any referred to in the plaintiffs’ submissions.

13. [37]

    There is no merit in the arguments raised by the applicant and the order of the Registrar should stand. The applicant should pay the plaintiffs’ costs on the motion.

Orders

1. [38]

   For the reasons above, I make the following orders:

   1. (1)

      In relation to the notice of motion filed by Mr Moore on 28 April 2022: