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Supreme Court 2 June 1999

Rapson v Wright

[1999] NSWSC 534

Public order & justice offences
CRIMINAL LAW [702] JURISDICTION, PRACTICE AND PROCEDURE STAY OF PROCEEDINGS GENERALLY POWER OF COURT

Citation: Rapson v Wright [1999] NSWSC 534
Court: Supreme Court of New South Wales (Common Law Division)
Date: 2 June 1999
Judge(s): Hamilton J

Background

In December 1997, Hamilton J granted a permanent stay of proceedings on two informations (criminal charges) in the Local Court at Sutherland. The stay was granted on the basis that those proceedings had been brought for an improper purpose, amounting to an abuse of process, rather than for genuine enforcement of the criminal law.

Following the stay, the plaintiffs commenced proceedings in the District Court for malicious prosecution arising from the laying of those same informations. In defending that claim, the defendants argued that malicious prosecution requires a prior determination of the underlying criminal proceedings in favour of the plaintiff. They contended that a permanent stay did not satisfy that requirement.

The plaintiffs returned to the Supreme Court seeking to vary the stay orders so that the Local Court Magistrate could formally dismiss the informations. The Magistrate had declined to do anything with the proceedings, including dismissing them or ordering costs, on the basis that the Supreme Court's permanent stay precluded any further action.

  • Whether the Supreme Court has power to lift or vary a permanent stay after the orders have been formally entered
  • Whether, if that power exists, the Court should exercise its discretion to partially lift the stay in the circumstances
  • Whether the partial lifting should extend to permitting the Local Court to hear and determine an application for costs

Decision

Hamilton J accepted that the Supreme Court does have power to lift or vary a permanent stay, even after those orders have been formally entered. That power was conceded by the first and second defendants, and Hamilton J considered the concession correct and inevitable, consistent with the approach accepted in Nicholas v The Queen.

On the question of discretion, Hamilton J held that the discretion to lift a stay is at large and requires only that it be exercised judicially. The judge identified two separate bases for exercising the discretion in favour of the plaintiffs. First, the bringing of malicious prosecution proceedings in the District Court, and the defendants' subsequent reliance on a defence that the criminal proceedings had not been determined in the plaintiffs' favour, was a development not contemplated when the original stay was granted. Second, and independently, the supervisory jurisdiction to grant permanent stays exists to prevent injustice. Leaving the stay in place in a manner that prevented formal dismissal of informations that could not and would not succeed would itself produce injustice, particularly given that an issue estoppel already operated between the parties regarding the abuse of process.

On costs in the Local Court, Hamilton J distinguished the situation from cases where costs of the Supreme Court proceedings had been overlooked and later refused. Costs in the Local Court could not have arisen until a dismissal order was made, so the occasion for them had not existed when the original orders were entered. Accordingly, the partial lifting of the stay was extended to permit the Local Court to hear and determine a costs application following dismissal.

Orders Made

  • The permanent stay on each of the informations in the Local Court was lifted to the extent necessary to permit the Local Court to dismiss those informations
  • The stay was also lifted to the extent necessary to permit the Local Court to hear and determine an application by the defendant named in each information for costs of the Local Court proceedings
  • The first and second defendants were ordered to pay the plaintiffs' costs of the motion

Key Takeaways

  • The Supreme Court of New South Wales has power to lift or vary a permanent stay of proceedings, including after the relevant orders have been formally entered.
  • A change in circumstances since the original stay was granted is not necessarily a precondition to exercising the discretion to lift it, though the emergence of new consequences (such as a malicious prosecution defence) may separately justify doing so.
  • The supervisory jurisdiction to grant permanent stays is grounded in the prevention of injustice. That same purpose can support partial lifting of a stay where leaving it intact would itself produce an unjust outcome.
  • A permanent stay of criminal proceedings does not, without more, constitute a determination of those proceedings in favour of the accused, which carries significance in the context of malicious prosecution claims.
  • Where costs in an inferior court could not have been agitated at the time a permanent stay was originally granted, the court may permit those costs to be pursued once the stay is partially lifted for dismissal purposes.

Legislation and Cases Referenced

Legislation:
- Justices Act 1902 (NSW), s 80

Cases:
- Nicholas v The Queen (1998) 72 ALJR 456; 151 ALR 312
- Ridgeway v The Queen (1995) 184 CLR 19
- Kable v DPP [1999] NSWSC 95