Citation: [2021] NSWSC 1225
Court: Supreme Court of New South Wales
Date: 29 September 2021
Judge: N Adams J
Background
The applicant had been convicted in the Local Court in August 2018 of one count of common assault and two counts of intimidation, arising from an incident on 29 September 2017. Following an appeal to the District Court, one intimidation conviction was set aside and the remaining two convictions were confirmed by Priestley SC DCJ in October 2020.
The applicant then filed an application under s 78(1) of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act), seeking a Supreme Court inquiry into her remaining convictions. Her core contention on the merits was that her own evidence should have been preferred over that of the complainant.
A significant preliminary issue arose because in 2010 Harrison J had declared the applicant a vexatious litigant, an order that was later deemed a vexatious proceedings order under the Vexatious Proceedings Act 2008 (NSW) (VP Act). That declaration raised the threshold question of whether she needed the Court's leave before filing her Part 7 application at all.
Legal Issues
- Whether making an application under Part 7 of the CAR Act constitutes "instituting proceedings" within the meaning of s 4 of the VP Act, such that the applicant's vexatious litigant status required her to obtain leave before filing.
- If such an application does constitute "proceedings," whether it falls within the definition of "criminal proceedings" under s 8(9) of the VP Act, which would exempt it from the leave requirement.
- Whether the application raised any doubt or question as to the applicant's guilt sufficient to warrant a referral or inquiry under s 79(2) of the CAR Act.
Decision
The leave question. Adams J held that a Part 7 CAR Act application does not constitute "proceedings" within the meaning of the VP Act, and therefore the applicant did not require leave to bring it. The Court followed the approach indicated by the Court of Appeal in the Potier litigation, where Leeming JA had expressed the view that a Part 7 application is not a "matter within the jurisdiction of any court or tribunal" under s 4(a) of the VP Act, because the decision-maker exercises an administrative rather than judicial function and no appeal lies from the determination (though judicial review remains available).
The Attorney General argued that the application might nonetheless fall within s 4(e) of the VP Act, which extends the definition of "proceedings" to include "any calling into question of a decision ... whether by appeal, challenge, review or in another way." Adams J found this argument unpersuasive. Applying the reasoning in Kirk Group Holdings, a Part 7 application seeks to invoke an administrative process that may or may not lead to an inquiry; it does not itself constitute a direct challenge to the conviction. The application was therefore not caught by s 4(e) and leave was not required.
The merits. Turning to the substance, Adams J found that no doubt or question arose as to the applicant's guilt. The Magistrate had the advantage of seeing both the applicant and the complainant give evidence and found the complainant to be an impressive witness, notwithstanding credibility issues raised about her. Those findings were carefully considered on appeal by Priestley SC DCJ, who respected the Magistrate's forensic advantage. Adams J noted that a Part 7 application is not an additional avenue of appeal through which the same arguments raised below can be rehearsed again. The applicant's contentions about self-defence and about the Magistrate's treatment of credibility evidence had already been addressed in careful, reasoned judgments at both the Local Court and District Court levels.
Accordingly, the Court refused the application.
Orders Made
No orders were made in this decision.
Key Takeaways
- An application under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) does not constitute "proceedings" within the meaning of s 4 of the Vexatious Proceedings Act 2008 (NSW), because the decision-maker exercises an administrative function rather than the judicial power of the Court, and no appeal lies from the determination.
- It follows that a person subject to a vexatious proceedings order does not require leave under the VP Act before making a Part 7 CAR Act application, resolving a question that had not previously been determined under the current VP Act.
- The definition of "proceedings" in s 4(e) of the VP Act, covering the "calling into question" of a court or tribunal decision, does not extend to a Part 7 application because that application initiates an administrative process rather than directly challenging the conviction.
- Under s 79(2) of the CAR Act, the Supreme Court may only direct an inquiry or refer a matter to the Court of Criminal Appeal where something new raises a doubt or question as to guilt; the provision does not provide a further avenue for rehearsing arguments already raised and considered on appeal.
- No doubt or question as to guilt arose where both the Local Court and the District Court had delivered careful, reasoned judgments addressing credibility, self-defence and evidentiary issues, and the applicant produced nothing new beyond arguments previously advanced.
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 78, 79
- Vexatious Proceedings Act 2008 (NSW), ss 4, 8, 14, Sch 1 cl 3(2)
- Crimes (Personal and Domestic Violence) Act 2007 (NSW), s 13(1)
- Crimes Act 1900 (NSW), s 61
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 8
- Supreme Court Act 1970 (NSW), ss 69, 84, Third Schedule
- Civil Procedure Act 2005 (NSW), s 3(1)
- Industrial Relations Act 1996 (NSW), s 179
- Felons (Civil Proceedings) Act 1981 (NSW)
- Supreme Court Rules 1970 (NSW), Part 55
Cases
- Klewer v Director of Public Prosecutions (NSW) (No 2) [2020] NSWCA 69
- Potier v Attorney General in and for the State of New South Wales [2015] NSWCA 129
- Attorney General in and for the State of New South Wales v Potier (No 2) [2015] NSWSC 238
- Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383
- Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28
- Kirk Group Holdings Pty Ltd v Workcover Authority of New South Wales (2006) 66 NSWLR 151; [2006] NSWCA 172
- Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
- Varley v Attorney-General in and for the State of New South Wales (1987) 8 NSWLR 30
- Kostov v Director of Public Prosecutions (NSW) (No 2) [2020] NSWCA 94
- Patsalis v State of New South Wales [2012] NSWCA 307
- Parker v Comptroller-General of Customs [2007] NSWCA 348
- Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683