Citation: Zakaria v Local Court of New South Wales [2018] NSWSC 492
Court: Supreme Court of New South Wales
Date: 20 April 2018
Judge: Lonergan J
Background
The plaintiff faced a series of firearms charges in the Parramatta Local Court arising from events in October 2016. After a Magistrate refused a permanent stay of the proceedings in December 2017, the plaintiff indicated immediately that a Supreme Court appeal would follow. A committal hearing was then fixed for 16 March 2018.
Despite that indication, the plaintiff took no active steps to challenge the Magistrate's decision until the week of the committal hearing itself. An application to vacate the committal was filed in the Local Court on 12 March 2018 and refused on 15 March 2018. A Supreme Court summons seeking judicial review and a stay was filed on 13 March 2018 and given a return date of 22 March 2018, well after the committal was due to begin.
On the afternoon of 15 March 2018, the plaintiff's solicitor approached the Duty Registrar seeking an urgent notice of motion, asking the Supreme Court to restrain the Director of Public Prosecutions from proceeding with the committal the following morning. The papers were not provided to Lonergan J until approximately 3 pm, no written submissions or authorities were filed, the Local Court had not been served at all, and the DPP had received only a draft notice of motion after 5 pm the previous day.
Legal Issues
- Whether the Supreme Court should grant an interlocutory injunction under s 66 of the Supreme Court Act 1970 (NSW) restraining the DPP from proceeding with a committal hearing listed for the following morning.
- Whether there was a seriously arguable case that the Magistrate erred in refusing a permanent stay, including in her application of s 263 of the Criminal Procedure Act 1986 (NSW).
- Whether the balance of convenience favoured granting the injunction, having regard to the plaintiff's delay in bringing proceedings and the public interest in the conduct of criminal proceedings.
Decision
Lonergan J identified two threshold matters that weighed heavily against the plaintiff. First, the application was brought at the eleventh hour, filed only days before the committal and heard less than 18 hours before it was due to begin. Second, the procedural conduct of the application was deficient: no submissions or authorities were provided, the Local Court was not served, and the DPP had received only informal notice.
On the question of delay, her Honour found that the plaintiff had known since December 2017 that the committal was fixed and that a Supreme Court application was contemplated. Despite this, no steps were taken for approximately three months. Drawing on the principle stated in Capgemini US LLC v Case [2004] NSWSC 674, her Honour held that delay in seeking interlocutory relief is not merely a question of laches but goes directly to the balance of convenience, functioning as a practical measure of how seriously the plaintiff regards the alleged infringement of rights.
Her Honour also rejected the argument that refusing the injunction would deprive the plaintiff of the ability to pursue his Supreme Court summons. Counsel for the plaintiff conceded that proceeding with the committal might require the summons to be amended to seek further relief, but her Honour found this was a consequence of the plaintiff's own delay in filing, not a reason to interfere with the criminal process at that late stage. The balance of convenience did not favour restraining the committal.
Applying her discretion, Lonergan J declined to grant the interlocutory relief and dismissed the notice of motion.
Orders Made
- The plaintiff's application for interlocutory relief was dismissed.
Key Takeaways
- Delay in seeking interlocutory relief is treated as going to the balance of convenience, not simply as a technical laches point. A plaintiff's slow response to an alleged infringement is treated as conduct that reflects the seriousness with which they regard that infringement.
- The Supreme Court will scrutinise the procedural conduct of urgent applications: the absence of written submissions, failure to serve all parties, and late provision of materials to the duty judge were all factors counted against the plaintiff.
- Where a party indicates an intention to seek Supreme Court review immediately after a local court ruling, and a subsequent hearing date is then fixed, the party cannot rely on delay in obtaining transcripts as a full explanation for inaction over several months.
- Proceeding with a committal hearing does not, of itself, extinguish a plaintiff's right to pursue a judicial review summons already filed. The increased complexity that may result from an amended summons does not automatically tip the balance of convenience in the plaintiff's favour.
- The timing of coordinated applications to both the Local Court and Supreme Court in the same week as a committal hearing may be viewed by the Supreme Court as a deliberate forensic attempt to force a pre-emptive outcome, a consideration that informed the discretionary refusal of relief here.
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 35, 53, 55
- Criminal Procedure Act 1986 (NSW), s 263
- Firearms Act 1996 (NSW), ss 50B, 51
- Supreme Court Act 1970 (NSW), ss 66, 69
- Uniform Civil Procedure Rules 2005 (NSW), r 59.10
Cases
- Capgemini US LLC v Case [2004] NSWSC 674
- Hall v R [2015] NSWCCA 29
- Iqbal v R [2012] NSWCCA 72
- Osman v Director of Public Prosecutions [2016] NSWSC 1222
- Sergi v Director of Public Prosecutions (Court of Appeal (NSW), 10 September 1991, unrep)
- Woodhouse v DPP [2015] NSWCA 40
- Woods v DPP; Fantakis v DPP (No 2) [2016] NSWSC 448