Murray v Bayssari

1. [1]

   This is an urgent application for leave to appeal from a decision by the Local Court setting aside certain paragraphs of two subpoenas.

2. [2]

   The plaintiff is facing a prosecution in the Local Court for domestic violence-related offences. The prosecution is listed for final hearing on 9 April 2026 (that is, tomorrow). The plaintiff had caused subpoenas to be served on the two complainants, being the first and second defendants before me (“the subpoena recipients”). When the subpoenas were returnable on 2 April 2026, the Local Court Judge set aside a paragraph in each subpoena even though no notice of motion or other application had been filed or served by the subpoena recipients.

3. [3]

   The plaintiff seeks leave under s 53 of the Crimes (Appeal and Review) Act 2001 (NSW) to appeal from that decision of the Local Court setting aside a paragraph in each of the two subpoenas.

4. [4]

   The matter came before me as Duty Judge urgently on the afternoon of 2 April 2026 (ie, the last business day before the four day Easter weekend). I made directions for the urgent preparation of the application for leave to appeal, and any appeal, with a view to it being heard today.

Position of the defendants

1. [5]

   By the next business day, 7 April 2026, my chambers had received email correspondence from each of the first and second defendants confirming that they did not oppose the substantive relief sought, provided no costs orders were sought against them. [1]

2. [6]

   As at that date, that is yesterday, it was not clear to me that the prosecutor had notice of the application to this Court. On the same day, I caused correspondence to be sent to the solicitors for the parties asking whether the prosecutor had notice of the application and whether the prosecutor had indicated a position.

3. [7]

   The prosecutor should have been joined, having regard to rule 10(1) of Part 51B of the Supreme Court Rules 1970 (NSW):

4. [8]

   “Informant” is defined to include “the Director of Public Prosecutions and any other person responsible for the conduct of a prosecution”. In saying the prosecutor should have been joined, I make no specific criticism, recognising the urgency with which these matters are to be brought before the Court.

5. [9]

   I have received into evidence email correspondence sent to the police prosecutor email address at the relevant police station, a police officer being responsible for this prosecution, both on the afternoon of 2 April 2026 and on the afternoon of 7 April 2026. The email on 7 April 2026 foreshadowed the prospect that the prosecutor may be joined as a defendant.

6. [10]

   Given the urgency, I propose to make orders joining the prosecutor as the fourth defendant this morning, the Local Court of New South Wales being named as the third defendant. I propose to order the joinder of the named prosecutor as she appears on the Court Attendance Notice.

7. [11]

   I note further that the prosecutor has not been heard, although on the evidence before me, the prosecutor has had notice of this application. While the prosecutor has not had a lengthy period of notice, I am satisfied in the context of this urgent matter that appropriate steps have been taken to ensure that the prosecutor knows about this application and the hearing. I am also satisfied that the prosecutor has had sufficient notice, if the prosecutor wished to be heard, to inform the Court of that matter – even if that had been accompanied by an indication that more time had been sought. I am bolstered in this view by the fact that the prosecutor did not contend below that the relevant paragraphs of the subpoenas should be set aside.

8. [12]

   Accordingly, I have proceeded to deal with the application for leave to appeal this morning.

Ground of appeal and denial of procedural fairness

1. [13]

   The point of law which the plaintiff says arises is, “can a subpoena issued in summary criminal proceedings be properly set aside if s 227(2) of the Criminal Procedure Act 1986 (NSW) has not been complied with?” The plaintiff says further that dealing with the substantive issue about the subpoenas on the morning of 2 April 2026 was a denial of procedural fairness.

2. [14]

   Section 227 of the Criminal Procedure Act 1986 (NSW) is as follows:

3. [15]

   I do not accept the plaintiff’s contention that a subpoena cannot be properly set aside unless s 227(2) of the Criminal Procedure Act has been complied with. The better view, it seems to me, is that a court must accord procedural fairness, but that if the court accords procedural fairness then the court has power to set aside a subpoena even if s 227(2) has not been complied with.

4. [16]

   Nevertheless, I accept the plaintiff’s contention that there was a denial of procedural fairness in the circumstances of this case, and the question whether there was a denial of procedural fairness is a question of law.

5. [17]

   The subpoenas were returnable on 2 April 2026 (after being adjourned on a prior occasion). As at the morning of 2 April 2026, no notice of motion or other application had been filed seeking to set aside the subpoenas, although the two subpoena recipients (who were both represented by solicitors) had indicated that they objected to producing some or all documents under the subpoenas.

6. [18]

   The plaintiff’s solicitor – that is, the solicitor with carriage of the matter – instructed a colleague to attend on the morning of 2 April 2026 to seek directions in relation to the subpoenas. That colleague, another solicitor, did not have a close familiarity with the matter.

7. [19]

   In advance of the hearing, the colleague who had agreed to appear on the return of the subpoenas spoke with the solicitors for each of the two subpoena recipients. Those solicitors agreed to directions for the dispute about the subpoenas to be heard by the Local Court on 9 April 2026, although they said they were also ready to argue the matter immediately, on 2 April 2026.

8. [20]

   When the matter came before the Local Court Judge, his Honour at first appeared inclined to stand the matter over in accordance with the agreed directions. However, the solicitor for one of the subpoena recipients raised their substantive argument for why the subpoena should be set aside. This led to debate about the substance of the issue, over the objection of the solicitor – who was appearing for the plaintiff but who did not have carriage of the matter and who stressed to his Honour that he (that is, the plaintiff’s solicitor) could only offer limited assistance.

9. [21]

   Following some argument, but with only limited assistance from the solicitor appearing for the plaintiff, his Honour set aside particular paragraphs in the subpoenas.

10. [22]

    I am satisfied that this involved a denial of procedural fairness. In reaching this view, I should not be understood to be saying that there is always (or even usually) a denial of procedural fairness if the Local Court proceeds to deal with an application to set aside a subpoena even though no notice of motion or other formal process has been filed or served. As a general rule, the Local Court may expect that legal representatives who appear will be in a position to deal with issues about which parties have notice, even if that notice is informal. If a party, knowing that there is a dispute about a subpoena, chooses to send to Court a lawyer who has limited familiarity with the matter, that does not give them a right to an adjournment. In such a situation, the conclusion may be reached that there is no practical injustice in the Local Court proceeding to deal with the dispute.

11. [23]

    His Honour’s desire to deal with the dispute about subpoenas immediately in this matter was understandable. In many situations that would be entirely appropriate, and there are many ways in which procedural fairness can be accorded consistent with such a course. Parties should not assume that there will be a denial of procedural fairness merely because their solicitor was not adequately familiar with the issues or was expecting that the matter would be dealt with on a later occasion.

12. [24]

    The plaintiff also submits that part of the denial of procedural fairness involved his Honour locating further information, potentially adverse to the plaintiff, on the Court file. I make no criticism of his Honour about this – his Honour was clearly endeavouring to deal expeditiously with the matter in circumstances where the solicitor appearing for the plaintiff was not in a position to assist the Local Court and where the trial was seven days away and the person seeking to be heard were not parties but prospective witnesses.

13. [25]

    Nevertheless, the circumstances of this case include that the solicitor for the plaintiff and the solicitors for the subpoena recipients had previously agreed to the proposed directions, which would see the substantive dispute about the subpoenas dealt with on 9 April 2026. Had this not been agreed, the plaintiff’s solicitor may have had an opportunity to consider his position further. The matter might have been stood down to another time during the day, or the solicitor may have had an opportunity to familiarise himself with the issues better.

14. [26]

    Accordingly, the particular circumstances of this case mean I accept there was a denial of procedural fairness involving practical injustice. The question whether the plaintiff was denied procedural fairness is a question of law. It is also a circumstance that can enliven this Court’s judicial review powers under s 69 of the Supreme Court Act 1970 (NSW).

15. [27]

    The effect of my decision is that the Local Court will receive argument on the question whether the relevant paragraphs of the subpoenas should be set aside, in all likelihood, tomorrow morning. In those circumstances, I do not propose to offer any view about the strength of the plaintiff's case for defending those paragraphs of the subpoenas, save to observe that I accept that the plaintiff’s position is arguable. There is a realistic possibility that the Local Court might be persuaded to take a different view about the impugned paragraphs upon receiving full argument, although I stress I am neither endorsing nor casting doubt on the plaintiff’s arguments. The existence of a realistic possibility is sufficient for me to be satisfied that the denial of procedural fairness is material and warrants the intervention of this Court.

16. [28]

    Accordingly, leave should be granted and the appeal allowed.

Terms of remitter

1. [29]

   The plaintiff asked for an order from this Court that the question about the subpoenas be dealt with by a different Judge from the Judge who dealt with the matter on 2 April 2026.

2. [30]

   The submission was made, which I accept, that this Court has power to order that a matter be dealt with on remitter by a different judicial officer. However, generally speaking, I am not persuaded that a conclusion as to a denial of procedural fairness necessarily means that the remitter should be to a different judge. That is especially so in this case, where the denial of procedural fairness hinges on an anterior agreement between the lawyers, and where I make no substantive criticism of the Local Court Judge.

3. [31]

   It will of course be a matter for the plaintiff whether to seek that a particular Local Court Judge not deal with the subpoenas on remitter. That may be influenced by questions of practicability and necessity. I offer no view about that.

Costs

1. [32]

   On the question of costs, the plaintiff does not seek his costs against any of the defendants and the plaintiff accepts that the Suitors’ Fund Act 1951 (NSW) does not apply in terms.

2. [33]

   I was invited to express a view as to whether there is merit in the Director General exercising their function under s 6C of the Suitors’ Fund Act, with reference being made to R v Dennison [2011] NSWCCA 114 at [101] to [102]. My attention was also drawn to the decision of the Court of Criminal Appeal in Director of Public Prosecutions (NSW) v RDT (No 2) [2019] NSWCCA 66, where the Court observed at [18] that the Suitors’ Fund Act is “the State’s scheme for funding errors in the administration of justice” and at [13] that “the scope of the Act is neither comprehensive nor entirely coherent in its attempt to compensate for failings in the administration of justice, for which a party is not responsible”.

3. [34]

   Notwithstanding those authorities, I am not minded to express a view in these reasons about the merits of such an application. I decline to express a view about it because, in my view, the plaintiff at least contributed to the situation in which he finds himself by sending a solicitor without familiarity even though the solicitor with carriage of the matter had informal notice of the dispute about the subpoenas. I stress that I am making no criticism of the plaintiff’s solicitors and I recognise that decisions may need to be made, including by reference to the costs to the parties of particular decisions. Nevertheless, I am satisfied that a decision by the plaintiff's principal solicitor that contributed to the situation in which the Local Court Judge found himself, and accordingly I make no observation one way or the other about a possible application under s 6C.

4. [35]

   Accordingly, I make the following orders:

   1. (1)

      Pursuant to r 10 of the Part 51B of the Supreme Court Rules, join as the fourth defendant Constable Jessica Cooper.

   2. (2)

      Pursuant to s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW), grant leave to plaintiff to appeal against the order of Local Court Judge Van Zuylen on 2 April 2026 in proceeding no 2026/11728 in the Local Court of New South Wales at Penrith setting aside certain paragraphs of the subpoenas served on the first and second defendant in those proceedings.

   3. (3)

      Pursuant to s 55(3)(a) of the Crimes (Appeal and Review) Act 2001 (NSW), set aside the orders made on 2 April 2026 and remit the matter to the Local Court.

   4. (4)

      No order as to costs.