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Supreme Court 3 May 2022

Marium v Registrar Local Court Blacktown & Ors

[2022] NSWSC 528

Public order & justice offences
JUDICIAL REVIEW APPLICATION BY ATTORNEY GENERAL GRANTED

Citation: Marium v Registrar Local Court Blacktown & Ors [2022] NSWSC 528
Court: Supreme Court of NSW
Date: 3 May 2022
Judge(s): Walton J

Background

The plaintiff commenced proceedings by summons filed in October 2021, seeking judicial review of a decision by the Registrar of Blacktown Local Court not to list a notice of motion the plaintiff had filed in related criminal proceedings. The plaintiff challenged the decision on grounds including impermissible delegation of power, denial of natural justice, excess of jurisdiction, and failure to consider relevant matters.

The first, third, and fourth respondents each filed submitting appearances, meaning they indicated they would submit to whatever orders the court made rather than actively contest the proceedings. The second respondent foreshadowed a similar submitting appearance depending on the outcome of the Attorney General's application.

The Attorney General for NSW applied by notice of motion filed in March 2022 for leave to intervene in the proceedings as a party. That application was the sole matter dealt with in this judgment.

Legal Issues

  • Whether the Attorney General had a proper legal basis to seek leave to intervene in the proceedings
  • Whether the Court's power to grant leave to intervene arose under the Judiciary Act 1903 (Cth) or alternatively under the Supreme Court Act 1970 (NSW) and the Court's inherent jurisdiction
  • Whether the Attorney General should be granted intervener status as a full party, rather than as amicus curiae (a friend of the court who assists without being a party)
  • Whether the Crown Solicitor had a conflict of interest in acting for the Attorney General while also having filed submitting appearances for other respondents

Decision

Issue 1: Legal basis for intervention

The plaintiff argued the only applicable power was s 78A of the Judiciary Act 1903 (Cth) and that its conditions had not been met. Walton J rejected this submission, finding that the Attorney General had not sought to intervene as of right under that provision. The Court's power to grant leave to intervene instead arose from s 23 of the Supreme Court Act 1970 (NSW) and the Court's inherent jurisdiction to regulate its own procedures (at [8]-[10]).

Issue 2: Whether leave to intervene should be granted

The court accepted the Attorney General's submissions in broad terms (at [12]). The court noted the principle from R v Australian Broadcasting Tribunal; Ex parte Hardiman that it is generally inappropriate for a judicial officer, court, or tribunal to take an active role in proceedings challenging its own decision, with the usual course being for the respondent to submit to orders (at [16]). Because all active respondents had filed submitting appearances, there was no contradictor in the proceedings. The court accepted that the Attorney General, in the role of first law officer of the State, may step in as a substantial contradictor to ensure compliance with those principles (at [17]).

Issue 3: Party status versus amicus curiae

Given the nature of the primary issues joined on the summons and the factual allegations made by the plaintiff in her February 2022 affidavit, Walton J found it appropriate to grant the Attorney General the status of a full party rather than merely amicus curiae. This would enable the Attorney General to adduce evidence if the plaintiff pressed those factual allegations (at [21]).

Issue 4: Conflict of interest

The court found no conflict of interest in the Crown Solicitor acting for the Attorney General, because it was precisely the respondents' submitting appearances that created the need for the Attorney General's intervention in the first place (at [19]).

Orders Made

  • The Attorney General was granted leave to intervene in the proceedings as a party.
  • Costs were ordered to be in the cause.
  • The Attorney General was directed to bring in Short Minutes of Order reflecting the judgment by 4:00 pm on Wednesday 4 May 2022.

Key Takeaways

  • The Supreme Court's power to grant leave to intervene flows from s 23 of the Supreme Court Act 1970 (NSW) and the Court's inherent jurisdiction; a party seeking such leave need not rely on s 78A of the Judiciary Act 1903 (Cth), which concerns intervention as of right (at [8]-[10]).

  • Where respondent courts and tribunals have filed submitting appearances in judicial review proceedings, consistent with the Hardiman principle, the Attorney General may be granted leave to intervene as a substantial contradictor to ensure those proceedings are properly tested (at [16]-[17]).

  • A direct effect on the Attorney General's own legal interests is not a prerequisite for the grant of leave to intervene; the Court may exercise its discretion having regard to the administration of justice more broadly (at [11]-[12]).

  • No conflict of interest arises for the Crown Solicitor in acting for the Attorney General as intervener simply because the Crown Solicitor's office filed submitting appearances for other respondents; the two roles serve distinct purposes (at [19]).

  • Where factual allegations are pressed by a plaintiff in judicial review proceedings, the court may extend intervener status to full party status so the Attorney General can adduce evidence, rather than limiting participation to that of amicus curiae (at [21]).

Legislation and Cases Referenced

Legislation
- Judiciary Act 1903 (Cth)
- Supreme Court Act 1970 (NSW )
- Uniform Civil Procedure Rules 2005

Cases
- Attorney General v The Times Newspapers Ltd [1974] AC 273
- Levy v State of Victoria (1997) 189 CLR 579; [1997] HCA 31
- Markisic v Magistrate David Heilpern [2011] NSWSC 410
- R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13
- Wentworth v Wentworth (Unreported, NSWSC, Santow J, 4 October 1996)