Keanu v Nicholls

Medium Neutral Citation: Keanu v Nicholls [2026] NSWSC 356

Hearing dates: 11 March 2026

Date of orders: 15 April 2026

Decision date: 15 April 2026

Jurisdiction: Common Law

Before: Price AJA

Decision: (1) Refuse the application for an extension of time pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW).
(2) Dismiss the summons filed on 24 October 2024.
(3) The plaintiff is to pay the first defendant’s costs.

Catchwords: ADMINISTRATIVE LAW – judicial review – decision of Registrar of Local Court to issue arrest warrant – where warrant executed and spent – where criminal proceedings concluded – whether warrant issued invalid and unlawful – whether substantial reasons or in the interests of justice to issue arrest warrant – no jurisdictional error or error of law on the face of the record
ADMINISTRATIVE LAW – remedies – where arrest warrant executed and spent – whether certiorari is available to quash warrant issued – whether declarations should be made that warrant invalid and unlawful – where plaintiff does not claim substantive remedies – whether lack of utility – where declaration would not result in the final determination of the issues between the parties – where declaration sought has no foreseeable consequences between the parties
CIVIL PROCEDURE – whether extension of time should be grant under r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) – whether plaintiff has a fairly arguable case – inutility

Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Competition and Consumer Act 2010 (Cth), Sch 2
Crimes (Sentencing Procedure) Act 1999 (NSW), s 10
Crimes Act 1900 (NSW), s 545C
Criminal Justice Act 1989 (Qld) (repealed)
Criminal Procedure Act 1921 (SA), s 58
Criminal Procedure Act 1986 (NSW), ss 54, 181, 236
Fair Trading Act 1987 (NSW)
Inclosed Lands Protection Act 1901 (NSW), ss 4, 4B
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 65
Local Court Act 2007 (NSW), s 72
Roads Act 1993 (NSW), s 144G
Summary Offences Act 1988 (NSW), s 6
Supreme Court Act 1970 (NSW), ss 63, 69, 75
Trade Practices Act 1974 (Cth) (repealed)
Local Court Rules 2009 (NSW), rr 7.3, 8.7
Road Rules 2014 (NSW), r 236
Uniform Civil Procedure Rules 2005 (NSW), r 59.10

Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10
Ample Skill Ltd v Reidy [2026] NSWCA 32
Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15
Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334; [1999] HCA 9
Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24
Buttrose v Attorney General of New South Wales [2015] NSWCA 221; (2015) 324 ALR 562
Coles v Wood [1981] 1 NSWLR 723
Dyason v Butterworth [2015] NSWCA 52
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; [1972] HCA 61
Frugtniet v Attorney-General (NSW) (1997) 41 NSWLR 588
Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76
Harland v Murphy [2022] NSWSC 1376; (2022) 303 A Crim R 83
Harris (pseudonym) v Secretary, Department of Communities & Justice [2021] NSWCA 261
Hill v Zuda Pty Ltd (2022) 275 CLR 24; [2022] HCA 21
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44
Ibeneweka v Egbuna [1964] 1 WLR 219
Kuksal v Victorian Legal Services Board [2024] VSC 732
Marriner v Smorgon (1989) 167 CLR 368; [1989] HCA 69
Marriner v Smorgon [1989] VR 485
McArthur v Williams (1936) 55 CLR 324; [1936] HCA 10
McGarrigle v Public Service Board [1979] 1 NSWLR 292
Murphy v The Queen (1989) 167 CLR 94; [1989] HCA 28
Nanschild v Pratt [2011] NSWCA 85
Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286; [1974] HCA 18
Nudd v Australian Federal Police [2008] QCA 60 Cosenza v Magistrates Court of South Australia [2016] SASC 181
Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49
Polley v Johnson [2015] NSWCA 256; (2015) 253 A Crim R 521
Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166
Public Service Board of NSW v Osmond (1986) 159 CLR 656; [1986] HCA 7
R v Tillett; Ex parte Newton (1969) 14 FLR 101
Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438
Spicer Thoroughbreds Pty Ltd v Stewart [2023] NSWCA 82
State of New South Wales v Dennis (2025) 117 NSWLR 404; [2025] NSWCA 118
Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369
Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133
Trans Realties Pty Ltd v Grbac [1975] 1 NSWLR 170
Truong v Director of Public Prosecutions (NSW) [2023] NSWCA 64
Unions NSW v New South Wales (2023) 277 CLR 627; [2023] HCA 4
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43
Zurich Australian Insurance Ltd v Cimic Group Ltd (2024) 115 NSWLR 297; [2024] NSWCA 229

Category: Principal judgment

Parties: Aiko Keanu (Plaintiff)
Detective Cameron William Nicholls (First Defendant)
Registrar Tim Henderson (Second Defendant) (submitting appearance)

Representation: Counsel:
P Skinner (Plaintiff)
D Kell SC / J Caldwell (First Defendant)
Solicitors:
O’Brien Criminal and Civil Solicitors (Plaintiff)
Crown Solicitor’s Office (First and Second Defendants)

File Number(s): 2024/403825

Publication restriction: Nil

JUDGMENT

1. PRICE AJA: By summons filed on 24 October 2024, the plaintiff, Aiko Keanu (formerly known as Akira Ellis), seeks by way of judicial review under s 69 of the Supreme Court Act 1970 (NSW) an order in the nature of certiorari quashing the decision made on 6 December 2022 by the second defendant, Tim Henderson a Registrar of the Local Court, to issue a warrant for the plaintiff’s arrest pursuant to s 181 of the Criminal Procedure Act 1986 (NSW). The plaintiff also seeks declarations under s 75 of the Supreme Court Act that the second defendant’s decision to issue the arrest warrant is invalid and unlawful. The plaintiff requires an extension of time in which to commence these proceedings: r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

2. Prayers 1 to 4 in the summons are as follows:

“1. An order extending the time to the [p]laintiff to commence proceedings pursuant to r 59.10(2) of [the UCPR].

…

2. A declaration that the order made by [the second defendant] at Downing Centre Local Court Sydney on 6 December 2022 in respect of the [p]laintiff pursuant to [s 181 of the Criminal Procedure Act] was made on the basis of an error of law that appears on the face of the record of the proceedings and is invalid.

…

3. A declaration that the order of [the second defendant] to issue a warrant for the [p]laintiff’s arrest pursuant to [s 181(2) of the Criminal Procedure Act] was unlawful.

4. An order in the nature of certiorari quashing the decision of [the second defendant] on 6 December 2022 to issue a warrant for the arrest of the [p]laintiff pursuant to [s 181(2) of the Criminal Procedure Act].

…”

3. It is relevant to note that prayers 2 and 3 of the summons, which alleged that the arrest warrant issued by the second defendant is invalid and unlawful are accompanied by detailed particulars. The following particulars are of significance, and have been repeated under both prayers 2 and 3:

4. Particulars (a)-(b), which allege that the second defendant should not have been satisfied that there were substantial reasons to issue a warrant to arrest the plaintiff or that it was in the interests of justice to do so under s 181(2) of the Criminal Procedure Act;

5. Particular (c), which alleges that the first defendant, Detective Cameron William Nicholls, did not apply for a warrant to arrest the plaintiff pursuant to s 181(1) of the Criminal Procedure Act;

6. Particular (e), which alleges that the first defendant did not have reasonable grounds to believe that the plaintiff had committed an offence, contrary to s 144G(1)(b) of the Roads Act 1993 (NSW) (“Roads Act”); and

7. Particulars (f)-(i), which allege that the first defendant did not advise the second defendant of various matters relating to the s 144G of the Roads Act offence, including the absence of evidence in support of the plaintiff committing the offence and that the offence had been withdrawn and dismissed.

8. The plaintiff asserts that no record exists on JusticeLink, which is the computerised record system used by courts in New South Wales to enter orders amongst other things, or otherwise in the court record that a proper application for an arrest warrant was made. The plaintiff argues that the second defendant taking into account all the evidence before him could not have been satisfied that there were substantial reasons and that it was in the interests of justice to issue the warrant for the plaintiff’s arrest pursuant to s 181(2) of the Criminal Procedure Act. As a consequence, the plaintiff contends that the failure to consider the preconditions for the issuing of an arrest warrant renders it invalid and unlawful.

9. In the response to summons filed on 20 January 2025, the first defendant resists the relief sought by the plaintiff on the basis that as the arrest warrant is no longer extant and the criminal proceedings to which it related have concluded, the present proceedings have no utility and the declarations would have no foreseeable consequences for the parties. The first defendant further argues that an order in the nature of certiorari does not lie to quash the second defendant’s decision as the decision to issue the arrest warrant has no present or continuing effect or consequences. The first defendant also opposes the grant of an extension of time pursuant to r 59.10 of the UCPR.

10. In support of the summons, the plaintiff relied on an affidavit they had sworn on 30 July 2025 (“Keanu affidavit”) and Exhibit “AK-1” to that affidavit. The plaintiff also sought to rely upon two affidavits of Patrick Latham, the plaintiff’s solicitor, respectively sworn on 4 December 2024 (“first Latham affidavit”) and Exhibit “PL-1” to that affidavit, and on 27 August 2025 (“second Latham affidavit”) and Exhibit “PL-2” to that affidavit.

Extension of time

10. The plaintiff requires an extension of time within which to bring these proceedings having filed the summons outside the three month period prescribed under r 59.10(2) of the UCPR. Rule 59.10 of the UCPR requires that proceedings for judicial review must have been commenced within three months of the date of the second defendant’s decision made on 6 December 2022 subject to the Court’s exercise of its discretion to extend that time. This rule applies equally to the declaratory relief sought by the plaintiff: Buttrose v Attorney General of New South Wales [2015] NSWCA 221; (2015) 324 ALR 562 at [13] (Beazley P and Leeming JA).

11. The principles applicable to the consideration of an application for an extension of time are well-known: Truong v Director of Public Prosecutions (NSW) [2023] NSWCA 64 at [56] (Ward P, Brereton JA and Griffiths AJA agreeing) and the authorities there cited. The relevant factors to be considered in determining whether to extend time include those provided under r 59.10(3) of the UCPR and in addition, the length of any delay, the reason for the delay and whether the plaintiff has a fairly arguable case: Dyason v Butterworth [2015] NSWCA 52 at [65] (McColl JA, Barrett and Gleeson JJA agreeing) citing Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [55] (Basten JA) (“Tomko”); Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133 at [9] (Basten JA, Barrett and Emmett JJA agreeing). The plaintiff bears the onus of persuading this Court that there are proper grounds to grant the extension of time: Tomko at [80] (Basten JA); Nanschild v Pratt [2011] NSWCA 85 at [44] (McColl JA, Campbell JA agreeing).

12. Rule 59.10(3) of the UCPR provides:

“(3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following—

(a) any particular interest of the plaintiff in challenging the decision,

(b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings,

(c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision,

(d) any relevant public interest.”

13. The consideration of the plaintiff’s application for an extension of time will be addressed after setting out the background to these proceedings.

Background

14. The police alleged that the plaintiff was a member of Blockade Australia and had participated in an erratic unlawful assembly conducted by that group on 27 June 2022, which caused serious disruption to motor vehicles and pedestrian traffic. It was alleged by police, inter alia, that the group “proceeded north towards the Cahill Expressway on-ramp”. In response, police had established an emergency roadblock on the Cahill Expressway to stop the group in their attempt to gain access to it. The police noted that the “on-ramp of the Cahill Expressway to Macquarie Street is a gazetted main road for the purpose of [s 144G of the Roads Act]”. The police stated that the closing of “such an arterial road” on 27 June 2022 at approximately 8:50am had “caused significant disruption to vehicles” and that during this incident the police “commenced to affect the arrest of offenders at this location”. Police asserted that the plaintiff had been identified on “CCTV, media coverage and live Facebook streams of the event”. Police also noted that “[the plaintiff] can clearly be seen walking on the ground in participation with the group” (Ex PL-2, pp 78-80).

15. In the Keanu affidavit, the plaintiff states that on 27 June 2022, they participated in a protest march organised by Blockade Australia in Sydney about climate change. The protest march commenced at Hyde Park and ended in Bridge Street. The plaintiff was not stopped or spoken to by police during the protest march and left once it had ended (Keanu affidavit, p 5).

16. On 30 June 2022, the defendant who was the Officer in Charge of the investigations in relation to the protest, created a Computerised Operational Policing System (“COPS”) event entry in respect of the plaintiff (“the COPS entry”). A short while later, the defendant created an update to the COPS entry by including a long narrative which described the details of the plaintiff’s offending (second Latham affidavit, pp 7-8; Ex PL-2, pp 49-50).

17. On 1 July 2022, the defendant filed three Court Attendance Notices (“the CANs”) at the Registry of the Downing Centre Local Court (“the Local Court Registry”), charging the plaintiff with the following three offences arising from involvement in the protest (Ex AS-1, p 18; Ex PL-2, p 40):

18. an offence contrary to s 144G(1)(b) of the Roads Act, which carries a maximum penalty of two years imprisonment or 200 penalty units, or both (“sequence 1”). The CAN provided the following details of the offence, “[e]nter etc Sydney Harbour Bridge/other major bridge etc disrupt etc vehicles etc between 8:00am and 9:30am on 27/06/2022 at Sydney … did cause disruption and obstruction of vehicles and pedestrians attempting to travel on the on-ramp of the Cahill Expressway to Macquarie Street”;

19. an offence of obstructing traffic, without reasonable excuse, contrary to s 6 of the Summary Offences Act 1988 (NSW), which carries a maximum penalty of four penalty units (“sequence 2”); and

“Any one or more of the following:

(a) The offence is serious enough to justify the issue of a warrant, having regard that the offence is punishable by imprisonment[;]

(b) Reasonable attempts have been made to serve [the CAN] as follows (state times, date(s), address and attempts of service);

During the week of 27/06 to 03/07 [i]nvestigators and police made attempts to locate [the plaintiff], visiting associate addresses and making enquiries into [the plaintiff’s] current whereabouts to serve [the CAN]. [The plaintiff] is currently living interstate in Victoria and investigators have been unable to serve [the CAN].

(c) An order for substituted service is not appropriate to be made rather than the issue of the warrant because;

[The plaintiff] is charged with an indictable offence.

(d) There is a risk to the safety of an alleged victim, witness or other person if the accused person is not arrested and brought before the court, the nature of risk being;

Possible risk of injury to people in the greater community if [the plaintiff] conducts an unlawful protest on a major road.

(e) The accused person is the subject of other warrant(s) to arrest in respect of other offence(s) being;

N/A

(f) Other reasonable circumstances[;]

[The plaintiff] is a part of a political activist group, that aims to disrupt members of the public and various organisations.”

21. On 4 August 2022, the defendant made a phone call to the Preston Police Station in Victoria and spoke to a member of Victoria Police (“VicPol”), Sergeant Allan Tickner. The defendant requested that Sergeant Tickner attempt to serve the CANs on the plaintiff. By email on that same day at 3:18pm, the defendant sent Sergeant Tickner a copy of the CANs and advised him that the plaintiff would be required to attend the Downing Centre Local Court on 15 September 2022. In that email, the defendant noted “[s]orry for the delay, we had to change [the CAN] from [w]arrant to [f]uture”. The defendant then provided Sergeant Tickner with the plaintiff’s address in Preston, Victoria and contact details. In an email exchange between 3:20pm and 3:25pm, Sergeant Tickner inquired about whether an affidavit of service was required, to which the defendant advised him that an email “confirming service” would suffice (Shrestha affidavit, p 5; Ex AS-1, pp 46-47; Ex PL-2, pp 100-114).

22. Shortly later at 4:05pm, Sergeant Tickner sent an email to the defendant advising that all attempts to serve and contact the plaintiff were unsuccessful. By email in response at 4:24pm, the defendant stated that “I’ll update our systems and go through with the [w]arrant application” (Shrestha affidavit, p 5; Ex AS-1, p 45; Ex PL-2, pp 115-117).

23. On 6 September 2022 at 3:02pm, Sergeant Ross Mitchell a Police Prosecutor in the Downing Centre Local Court unit of the Police Prosecutions Command sent an email to the defendant stating the following (Ex PL-2, pp 118-119):

“… The below matters are all outstanding unserved future [CANs] – they all currently sit in limbo and are not progressing. You need to make applications for arrest warrants – go into the intranet and complete a ‘[a]pplication for an arrest warrant’ which you will need to complete for each person and then lodge them at the [Local Court Registry] ASAP.

…

3. [The plaintiff] – Sydney City – unserved future CAN H91743384 – 1/7/22 offence.”

24. On 6 December 2022 at 8:26am, the defendant sent an email to the Local Court Registry stating, “[p]lease find attached [s 72 of the Local Court Act] application to grant leave to file a [CAN] that has not been served”. That email attached a PDF file which comprised of the following three documents: an application for leave to file an unserved CAN dated 6 December 2022 (“leave application”), along with a “Defendant Copy” form of the CAN and the Police Facts Sheet. The grounds for seeking that leave application included the matter would be statute barred on 27 December 2022; the plaintiff could not be located; and the CAN was not able to be served on the plaintiff despite attempts to do so. Further, the leave application provided details of VicPol’s unsuccessful attempts to serve the CAN on the plaintiff (Shrestha affidavit, p 5; Ex PL-2, pp 120-132).

25. On that same day at 8:39am, the second defendant replied to the defendant’s email and sought to obtain a “Court Copy” form of the CAN. An exchange of correspondence ensued between the second defendant and an NSW Police Force Court Process Officer in relation to obtaining a Court Copy form of the CAN. The second defendant forwarded this email chain to the defendant and stated, “I am unable to proceed with this application until a Court Copy of [the CAN] is provided”. In response, the defendant sent an email to the second defendant stating, “[p]lease find attached court copy of the CAN”. The second defendant then by email advised the defendant that “[t]his application has been granted” and if he could “confirm with the Warrant Index Unit that ‘arrest warrant’ is on system and executable”. The defendant replied by email and stated, “[t]hank you very much for being patient and getting this application granted … I can confirm the warrant is on our system and executable” (Shrestha affidavit, p 6; Ex AS-1, pp 45-47; Ex PL-2, pp 133-155).

26. The second defendant granted the leave application and issued the warrant. The leave application dated 6 December 2022, on page 3 contained under the heading “Application Determination”, the “granted box” marked with a tick, and included the second defendant’s signature and handwritten details which read as “IMP – 2YS” (Ex PL-2, pp 172-174; Ex AS-1, pp 83-85).

27. The JusticeLink printout, under the heading “Record of Process”, records in the first two entries on 6 December 2022 at 2:42pm that an arrest warrant for an unserved CAN was produced and published (Ex AS-1, p 15). A screenshot from the “COPS Enquire History Log Entry” shows that the arrest warrant was authorised on 6 December 2022 at 2:44pm (Ex AS-1, p 98).

28. On 21 December 2022, a further CAN was filed by which the plaintiff was charged with an offence of knowingly joining or continuing in an unlawful assembly, contrary to s 545C(1) of the Crimes Act 1900 (NSW), which carries a maximum penalty of six months imprisonment or five penalty units, or both (“sequence 4”) (second Latham affidavit, p 16).

Competing arguments of the parties on the extension of time and utility of the orders sought

A summary of the defendant’s submissions

32. The defendant submitted that the application for an extension of time should be refused and referred to the applicable principles concerning inutility. In support of this submission, the defendant relied upon a large number of authorities: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 (“Ainsworth”); Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334; [1999] HCA 9 (“Bass”); Trans Realties Pty Ltd v Grbac [1975] 1 NSWLR 170 (“Grbac”); Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286; [1974] HCA 18 (“Neeta”); McGarrigle v Public Service Board [1979] 1 NSWLR 292 (“McGarrigle”); Coles v Wood [1981] 1 NSWLR 723 (“Coles v Wood”); Nudd v Australian Federal Police [2008] QCA 60 (“Nudd”); Cosenza v Magistrates Court of South Australia [2016] SASC 181 (“Cosenza”); Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (“Wingfoot”).

33. The defendant submitted that in the present case the warrant was executed when the plaintiff was arrested on 25 June 2024. The criminal proceedings to which the warrant related were finalised on 1 November 2024, including by way of the plaintiff pleading guilty to sequence 3. The defendant argued that if this Court was minded to grant an extension of time, it would be adopting the language of Hutley JA in Coles v Wood at 728, where his Honour said that the Court would “therefore be solely concerned with quashing or declaring [invalid] a completely executed warrant”.

34. The defendant referred to the correspondence which ensued between the solicitors for the parties concerning the utility of the proceedings and to the plaintiff’s solicitors email dated 9 October 2025 (marked as Ex 1 in the hearing), and pointed out that it was the plaintiff’s position that the proceedings raised “important and significant issues in relation to the administration of the criminal justice system in this state” and that “we will detail these matter when we file our submissions”. The defendant submitted that the plaintiff’s written submissions filed on 12 February 2026 do not identify any basis upon which it could be concluded that the present proceedings have any utility or foreseeable consequences for the parties.

35. In arguing against the grant of an extension of time, the defendant relied on the observations of Moffitt P (with whom Reynolds JA agreed) in McGarrigle at 295, that where the proceedings are alleged to raise important issues in relation to the administration of the criminal justice system, if the plaintiff had a “real interest” in seeking that relief, it “would be unnecessary, and indeed irrelevant, to look at whether it is in the public interest” for the Court to determine the validity of the arrest warrant and further that if the declarations are sought to strengthen the plaintiff’s hand in possible future proceedings, this does “not provide a legitimate basis for the making of a declaration”. The defendant submitted that granting a declaration in such circumstances would fail to determine “completely and finally” the controversy between the parties, such that it would encourage, rather than avoid, the multiplicity of legal proceedings which s 63 of the seeks to avoid, by reference to the observations of Samuels JA (with whom Reynolds JA agreed) in at 303. A further argument advanced was that granting the declarations sought by the plaintiff could result in unfairness to the defendant relying on the reasoning of Gorton J in [2024] VSC 732 at [66] (“”).

A summary of the plaintiff’s submissions

37. In response to the defendant’s submissions as to an extension of time and inutility, the plaintiff placed reliance on Coles v Wood at 727 (Hutley JA, Moffitt P and Samuels JA agreeing) and R v Tillett; Ex parte Newton (1969) 14 FLR 101 at 107, 108, 118, 121-128 (Fox J) (“Tillett”). The plaintiff also referred to the judgment of N Adams J in Harland v Murphy [2022] NSWSC 1376; (2022) 303 A Crim R 83 (“Harland”), as a recent decision in this Court, where a plaintiff was seeking similar orders such as in these proceedings but in relation to a search warrant that had been executed which was declared to be invalid.

38. The plaintiff submitted that the facts in Neeta and McGarrigle were clearly distinguishable and not of assistance to the present proceedings. It was further argued that the facts of the authorities relied upon by the defendant where declaratory relief was refused, are not analogous to those in the present case and referred to r 59.10 of the UCPR which specifically directs a court that in “considering whether to extend time [it] should take account of such factors as are relevant in the circumstances of the particular case”. The plaintiff contended that Neeta involved a dispute relating to a contract for sale of land whereas McGarrigle was an employment case.

39. The plaintiff emphasised that the cases cited by the defendant are “quite aged” and outdated in the context of administrative law and also long pre-dated r 59.10 of the UCPR which in any event by subrule 59.10(3), essentially “codifies most of the principles that [the defendant] extracts from these judgments and the others cited”.

40. A further submission was that s 63 of the Supreme Court Act must be considered in the light of s 75. In oral submissions, Mr Skinner said that the plaintiff’s interest for the purposes of r 59.10(3)(a) of the UCPR as at 6 December 2022 was “to go about [the plaintiff’s] business without an order of the State providing for [the plaintiff’s] immediate arrest and being taken before a Court”: Tcpt, 11 March 2026, p 16(32-35). As to the plaintiff’s interest now, Mr Skinner said they “is to perhaps seek redress for the way [the plaintiff] was treated”: Tcpt, 11 March 2026, p 16(42-43). Mr Skinner candidly said that a civil suit was anticipated: Tcpt, 11 March 2026, p 16(45-49).

41. In the discussions concerning r 59.10(3)(a) of the UCPR, the relevant public interest was identified as being to ensure that arrest warrants are issued properly and that the process needs to be modified so as to ensure that arrest warrants are not issued inappropriately. Mr Skinner referred to Wingfoot at [25] and the case cited in the footnote of that paragraph of Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44 (“ ”) and said (Tcpt, 11 March 2026, p 21(26-32)):

“So the comment in [25] is a reference to [Hot Holdings], which should be looked at to fully understand it, because the High Court then went on in [26] and identified two bases for an order in the nature of certiorari to be issued.

The first is jurisdictional error. The second is error of law on the face of the record. In my submission our case can make out both those texts.”

42. Mr Skinner explained that Wingfoot was a case about medical tribunals. Mr Skinner submitted that there are “strong analogies” in the law about search warrants and on the facts, the order sought should be granted and the time extended for the plaintiff to commence these proceedings: Tcpt, 11 March 2026, p 22(5-10).

43. The plaintiff pointed out that the defendant had neither provided an explanation of the prejudice occasioned by reason of the delay nor was reference made to the delay caused by the passage of time prior to the filing of the summons. In oral submissions, Mr Skinner submitted that “it is hard to see any prejudice from delay to [the defendant]” and referred to the passage of Gorton J in Kuksal at [66] cited by the defendant for the proposition that the declarations sought “could also result in unfairness”, being “very broad” and based on circumstances where a defendant is oppressed as “they do not know what is really at stake in the proceeding and so on”: Tcpt, 11 March 2026, p 17(33-39). The plaintiff further submitted that whilst delay is a relevant factor to be considered under r 59.10(3)(b) of the UCPR, the defendant has not specified any prejudice resulting from the delay.

Consideration

44. The defendant strongly opposes an extension of time being granted. Under r 59.10(2) of the UCPR the Court may, at any time, extend the time for commencing proceedings, such a decision is discretionary. I have referred at [10]-[12] above to the applicable principles and factors to be considered in determining whether to grant an extension of time.

45. The length of the delay in commencing proceedings and the reasons for the delay were not in contest. Although the warrant for the plaintiff’s arrest was issued on 6 December 2022, the plaintiff was unaware that a warrant had been issued until they were arrested on 25 June 2024. These proceedings were commenced by summons on 24 October 2024, which is about four months after the plaintiff’s arrest in June 2024. In all the circumstances, I do not consider the delay to be significant.

46. The controversy in this litigation arises from the fact that the warrant has been executed and the related criminal proceedings have been concluded. The defendant’s contention is that the plaintiff does not have an arguable case as the proceedings have no utility. The defendant argues for that reason both declaratory relief and certiorari are unavailable, notwithstanding that both forms of relief are discretionary.

Certiorari

47. As to the availability of certiorari, the defendant placed emphasis on the following passage in Wingfoot where the High Court said at [25] (French CJ, Crennan, Bell, Gageler and Keane JJ):

“The function of an order in the nature of certiorari is to remove the legal consequences or purported legal consequences of an exercise or purported exercise of power. Thus, an order in the nature of certiorari is available only in respect of an exercise or purported exercise of power which has, at the date of order, an ‘apparent legal effect’. An order in the nature of certiorari is not available in respect of an exercise or purported exercise of power the legal effect or purported legal effect of which is moot or spent. An order in the nature of certiorari in those circumstances would be not simply inutile; it would be unavailable.” (footnote omitted)

48. In Wingfoot, the High Court determined that certiorari was not available in that case for two independent reasons and stated at [67]:

“Certiorari was not available in this case for two independent reasons. One was that the opinion of the Medical Panel had no continuing legal effect. That was because the matter or question, in respect of which the medical question was referred to the Medical Panel, had already been brought to a final resolution. The other was that the reasons given by the Medical Panel for its opinion met the required standard, as the primary judge found.”

49. In oral submissions, Mr Skinner referred to Hot Holdings which was quoted in Wingfoot at [25] footnote 28. I do not understand how Hot Holdings assists the plaintiff’s case. In Hot Holdings, the majority (Brennan CJ, Gaudron and Gummow JJ) discussed the scope of certiorari. Their Honours said at 159:

“Consideration of the requirement for certiorari that the impugned decision determines questions affecting rights, on occasion has been confused with a distinct body of principle. This concerns the existence of a requirement of procedural fairness. The conceptual distinction is neatly illustrated by the decision of this Court in [Ainsworth]. In that case it was held that there had been a failure to observe the requirements of procedural fairness but, nevertheless, certiorari did not lie because no legal effect or consequence attached to the report in question.

In Ainsworth the Court reiterated the function of certiorari. In the joint judgment of Mason CJ, Dawson, Toohey and Gaudron JJ it was said: ‘The function of certiorari is to quash the legal effect or the legal consequences of the decision or order under review.’ Brennan J spoke to similar effect as follows: ‘Quashing annihilates the legal effect of an act or decision that has been reached in breach of a condition of its validity but, if an act or decision has no legal effect, there is nothing to quash.’

Thus, for certiorari to issue, it must be possible to identify a decision which has a discernible or apparent legal effect upon rights. It is that legal effect which may be removed for quashing.” (footnotes omitted)

50. Mr Skinner’s attempt to distinguish Wingfoot on the basis that it was a decision in the context of a medical panel has no merit and should be rejected.

51. The plaintiff’s reliance on Coles v Wood at 727 is misplaced. The passage in Hutley JA’s judgment to which Mr Skinner directed attention at 727 is as follows:

“It was submitted that as the warrant was executed before the proceedings commenced, there was nothing to quash. I do not deal with this issue and I will assume for the purpose of this application an executed warrant can be the subject of the order in the nature of a writ of certiorari to have the warrant brought up and quashed: cf [Tillett]. Orders in the nature of the writ of certiorari are discretionary in the sense that a court is entitled according to proper principles to consider whether there is any utility in making the order. As an order can be refused on the grounds of utility and utility can easily change, any order simply dismissing an application for such a writ is necessarily interlocutory.”

52. The High Court in Wingfoot (see [47]-[48] above) has made clear that an order in the nature of certiorari is not available in respect of an exercise or purported exercise of power the legal effect or purported legal effect of which is spent.

53. A similar observation may be made about the plaintiff’s reliance on Tillett.

54. In the present case, the plaintiff did not contend that the warrant remained on foot. Although there is no statutory provision in New South Wales that provides a warrant remains on foot until executed, it is accepted that a warrant is spent once executed: Frugtniet v Attorney-General (NSW) (1997) 41 NSWLR 588 at 601 (Beazley JA, Meagher JA agreeing).

55. The warrant authorised the arrest of the plaintiff. When the plaintiff was arrested, the force of the warrant had been spent. The warrant’s relevance had been overtaken by the plea of guilty when sequences 1, 2 and 4 were withdrawn and dismissed and the plaintiff was convicted and fined for sequence 3. An order in the nature of certiorari quashing the decision of the second defendant to issue the warrant “would be not simply inutile; it would be unavailable”: Wingfoot at [25].

Declaratory relief

56. The plaintiff also seeks declarations that the order made by the second defendant to issue the warrant was invalid and unlawful. Section 75 of the Supreme Court Act provides:

“75 Declaratory relief

No proceedings shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby and the Court may make binding declarations of right whether any consequential relief is or could be claimed or not.”

57. The court’s power to grant declaratory relief is discretionary. In Ainsworth, the plurality (Mason CJ, Dawson, Toohey and Gaudron JJ) at 581-582 expressed the following list of relevant factors which described the scope of the court’s power to grant declaratory relief:

“It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which ‘[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise.’ However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have ‘a real interest’ and relief will not be granted if the question ‘is purely hypothetical’, if relief is ‘claimed in relation to circumstances that [have] not occurred and might never happen’ or if ‘the Court’s declaration will produce no foreseeable consequences for the parties’.” (footnotes omitted)

58. In Ainsworth, the Criminal Justice Commission (“the Commission”) prepared a report concerning the poker machine industry in Queensland. The report was tabled in Parliament without any notice given to the appellants, who were manufacturers and suppliers of poker machines. The report contained adverse recommendations and was highly defamatory of the appellants, who were denied natural justice by not having an opportunity to respond to the allegations put against them nor were they informed of the Commission’s investigations during the preparation of the report. However, the Commission’s report attracted Parliamentary privilege and immunities of a report tabled in Parliament under the Criminal Justice Act 1989 (Qld) (now repealed). The Commission’s report itself was of no legal effect and carried no legal consequences whether direct or indirect on anyone’s rights, obligations or powers. The plurality relevantly said at 581:

“There being no legal effect or consequence attaching to the report, certiorari does not lie to correct the failure of the Commission to comply with its duty to proceed in a way that was fair to the appellants.”

59. However, as to the issue of whether to grant declaratory relief, the plurality observed at 582:

“The present case involves no mere hypothetical question. At all stages there has been a controversy as to the Commission’s duty of fairness. A report has been made and delivered under s. 2.18 of [the Criminal Justice Act]. That report has already had practical consequences for the appellants’ reputations. For all that is known, those consequences may extend well into the future. It is appropriate that a declaration be made in terms indicating that the appellants were denied natural justice. That may redress some of the harm done.”

60. In Ainsworth, the High Court granted the appellants declaratory relief as it was considered appropriate to redress some of the harm done and for the purposes of remedying the practical effect of “blackening the appellants’ reputations”, although the High Court determined that an order in the nature of certiorari was inutile and not available.

61. The defendant referred to a number of authorities where declaratory relief had been refused which are relevant and of assistance to the issues in the present case.

62. In Neeta, there was a dispute involving a contract of sale for land between a purchaser and the vendor. Before settlement, the purchaser’s solicitors insisted on the vendor procuring registration of the surrender of the tenant’s lease, which the vendor failed to do. The vendor’s solicitors then served a notice to complete on the purchaser and subsequently rescinded the contract. The purchaser by summons sought a declaration that the contract had not been validly rescinded by the vendor and the notice to complete was invalid. The primary judge dismissed the summons. The High Court allowed the appeal, determining that the contract had not been validly rescinded and the notice to complete was invalid but declined to grant declaratory relief. Barwick CJ and Jacobs J (with whom Stephen J agreed) made the following observations at 307:

“When the power under s. 75 of [the Supreme Court Act], is exercised the duty under s. 63 must be borne in mind. …

Unless the parties are agreed on the consequences which flow from a declaration that such a contract has or has not been validly rescinded it is generally undesirable that a court should so declare without any orders for consequential relief. If a party to such a contract claims that a contract has not been validly rescinded such a judicial declaration is proper if that party continues ready and willing at the conclusion of the litigation to perform the contract. A consequence of the declaration should be that the party submit to the performance of the contract on his part and to an order for specific performance of the contract if that is appropriate. If such an order is not or cannot be made nor an inquiry into damages ordered then a declaration that on a certain day the contract has not been validly rescinded serves no purpose in the litigation. Before such a declaration is made the party seeking the declaration may already have elected to treat the other party’s purported rescission as a repudiation and may have himself rescinded the contract. All that has then been achieved is an issue estoppel if and when the claim for damages for breach of contract is pursued in other proceedings. This was not the intention of the legislation as appears from s. 63 [of the Supreme Court Act]. Conversely, if a declaration be made that a contract has been validly rescinded but no consequential orders for damages or for return or retention of the deposit are made in those proceedings the purpose of s. 63 is not achieved.

In these circumstances we are of the opinion that the matter should be remitted to the Supreme Court of New South Wales for further hearing in the light of these reasons so that as far as possible all matters in controversy between the parties may be completely and finally determined.”

63. In Bass, the proceedings essentially involved three appeals arising out of the NSW Government’s HomeFund scheme, the purpose of which was to enable persons, who might not otherwise be able to do so, to purchase their own homes. The appellants who purchased homes through the HomeFund scheme, alleged that the State had engaged in misleading and deceptive conduct and other contraventions of the Trade Practices Act 1974 (Cth) (now Sch 2 of the Competition and Consumer Act 2010 (Cth)), as well as the Fair Trading Act 1987 (NSW). The majority (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) concluded that the answers given by the Full Court of the Federal Court of Australia and the declaration it made had not been “based on facts, found or agreed” it was purely hypothetical and “does not finally resolve the dispute or quell the controversy”. The majority emphasised that a judicial determination includes “a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy”. Their Honours stated at [49]:

“Courts have traditionally declined to state — let alone answer — preliminary questions when the answers will neither determine the rights of the parties nor necessarily lead to the final determination of their rights. The efficient administration of the business of courts is incompatible with answering hypothetical questions which frequently require considerable time and cause considerable expense to the parties, expense which may eventually be seen to be unnecessarily incurred.”

64. It is also important to bear in mind their Honours earlier observations at [48], which described one crucial difference between the court’s jurisdiction to grant declaratory relief as distinct to that of an advisory opinion involving the hypotheticality as being “the fact that an advisory opinion is not based on a concrete situation and does not amount to a binding decision raising a res judicata between parties”.

65. Grbac was similar to Neeta as it involved a dispute between a purchaser and vendor over the sale and purchase of land. The parties had entered into a contract, but the vendor declined to complete and subsequently issued a notice of rescission asserting that the contract was induced by a fraudulent misrepresentation. The purchaser sought a declaration that the contract had not been validly rescinded. Hutley JA (Glass JA agreeing) at 173 described this as presenting a “false issue” in the pleading because the validity of the rescission did not depend only upon the grounds given in the notice of rescission, there were grounds other than in the notice that could justify recission if those grounds could be made out. His Honour observed at 173:

“Where a party wants specific relief, and the most that could be said in justification for seeking a declaration is that it is a stage in obtaining specific relief, it is an abuse of the process of the Court for the party concerned to avoid relevant issues by merely seeking a declaration without seeking the substantive remedies.”

66. Glass JA referring to Neeta and the utility of the practice developed of granting declaratory relief by the “Equity Court” expressed the following at 176:

“Be that as it may, the High Court has emphatically laid down that the practice of incomplete adjudication requires reconsideration: [Neeta]. The declaratory jurisdiction now derived from s. 75 of the [Supreme Court Act] is subject to the admonition in s. 63 that, in the interest of avoiding multiplicity of proceedings, all matters in controversy should be finally determined. Where equitable relief is concerned, in particular, the public interest in finality will generally override the private interest in selective litigation.” (footnotes omitted)

67. In oral submissions, the defendant placed emphasis on McGarrigle. In that case, the plaintiff, a nurse, had been granted a declaration by Rath J, the primary judge, that the Public Service Board should give effect to the Promotions Appeal Tribunal decision recommending her appointment to the vacant office of charge nurse. The nurse suffered an injury in the course of her employment and was subsequently terminated as she was unfit to discharge the duties of her office, and another person was appointed to that position. The Court of Appeal allowed an appeal by the Public Service Board and set aside the declaration and orders granted by the primary judge. Moffitt P whilst agreeing with Samuels JA made some additional observations (Reynolds JA agreeing with Samuels JA and the additional observations of Moffitt P), in relation to the grant of declaratory relief, and stated at 294-295:

“I refer to two matters which, in the present case, seem to have been regarded as providing ground for the grant of declaratory relief. The first was that the declaration would be of wide general significance in the administration of the Public Service. The second was that the declaration would arm the plaintiff who, on his Honour’s findings, had failed to establish the executive relief otherwise sought, in taking steps in some court to enforce some claim for damages, although, it would seem, no argument had been embarked upon, or consideration given, to determine whether such an enforceable right existed.”

68. Moffitt P after referring to the requirements that should be satisfied before the discretion is exercised to grant declaratory relief as summarised by Lord Dunedin in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448 and adopted by Gibbs J in Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437-438; [1972] HCA 61 (“Forster”), made the following observations at 295-296:

“The need to base the exercise of power on either of the considerations to which I have referred pre-supposes that the plaintiff does not have a ‘real interest’ to raise the question, as that expression must be understood to have been used by Lord Dunedin. If the plaintiff has such an interest, it would be unnecessary, and indeed irrelevant, to look to whether it is in the public interest to have some authoritative construction of a statute, which can only mean to make a declaration as to rights of others in a hypothetical future case, or to look to whether the declaration might arm the plaintiff with an argument in political or other negotiations to procure a right which, by assumption, he does not then possess. If its purpose is to arm him with some kind of an estoppel in respect of undefined proceedings to enforce a supposed right the existence of which has neither been debated nor determined to exist in the proceedings for the declaration, then no sound basis has been laid to make the declaration, and in any event the procedure is open to the criticism of Samuels J.A. in relation to the duty imposed by s. 63 of [the Supreme Court Act], and the comment thereon in [Neeta].

…

Cases where it will be appropriate to exercise the jurisdiction, in the absence of a cause of action, are likely to be exceptional. If there be no cause of action, or no argument or examination of whether there is, it is highly likely that the subject matter of any declaration will be hypothetical, or that the claimant, on examination, will be found to have no ‘real interest’ in that subject.” (footnote omitted)

69. His Honour continued at 296:

“The mere unexamined possibility that some other cause of action might lie, and that the declaration might help in some way, if such a cause of action were to exist, will leave the declaration hypothetical.”

70. His Honour went on to say at 297:

“The jurisdiction to grant declaratory relief is wide and important, but great care must be exercised to ensure that the occasion is appropriate for its exercise.”

71. Ultimately, Moffitt P concluded that the two matters referred to in the passage at [67] above did “not provide a legitimate basis for the making of a declaration”. His Honour had earlier referred to Neeta and the duty imposed by s 63 of the Supreme Court Act.

72. As I understood the defendant’s argument, the plaintiff’s submission that a declaration has public importance in ensuring that arrest warrants are appropriately issued and the plaintiff’s interest in seeking redress in an anticipated civil suit fell as discussed by Moffitt P into the “hypothetical”. This argument is relevant to the matters to be considered under rr 59.10(3)(a) and (d). The defendant directed attention to Coles v Wood, where the Court of Appeal refused leave to appeal out of time. In that case, the appellant sought a declaration that the search warrants which had been executed were invalid and relief in the nature of certiorari quashing the search warrants that had been issued. The Court of Appeal (Hutley JA, Moffitt P and Samuels JA agreeing) concluded that an order for certiorari can be refused on the grounds of utility and there was no utility in quashing or declaring invalid an executed warrant. Hutley JA (with whom Moffitt P and Samuels JA agreed) said at 727-728:

“The question as to whether leave should be granted involves a consideration of the utility of the proceedings. Counsel for the appellant in the course of his arguments submitted that the proceedings had nothing to do with the committal proceedings. Though I am forced to view these statements with some scepticism, as the proceedings appear to have been launched with a view to affecting the committal proceedings, I am prepared to accept this as a considered revision of the appellant’s position in the light of argument in this Court. The appeal, if leave is granted, will therefore be solely concerned with quashing or declaring void a completely executed warrant and the sole possible value of the proceedings will be that a warrant issued by the magistrate is quashed or to be ignored in other litigation. The utility of this is minimal or non-existent.”

73. Hutley JA explained at 728 that s 63 of the Supreme Court Act is “[a] provision fundamental to the efficient, economical and rational administration of the Supreme Court”. His Honour having regard to the High Court authority of Neeta and various authorities of the Court of Appeal such as Grbac, emphasised “the importance of adhering to the philosophy” of s 63 of the Supreme Court Act. His Honour concluded at 728-729:

“If validity or invalidity is irrelevant in the criminal proceedings and the appellant does not want to bring proceedings for compensation for trespass either to his premises or goods, the time of the courts should not be wasted in determining what is either a purely theoretical question or a propaganda exercise. It is the responsibility of the courts to see this does not occur.

…

The Supreme Court, in my opinion, should refuse to entertain proceedings for declarations in a case of this kind, unless the appropriate substantive remedies are sought in the proceedings. How and in what order remedies are granted is, of course, a matter for the judge seized of the case. I am, therefore, of the opinion that to grant leave to appeal in this instance would be to condone a course of proceedings which is contrary to the rationale of s 63 of [the Supreme Court Act]. Despite the fact that no objection was taken before him, the judge at first instance should of his own motion have refused to entertain the proceedings in limine, and dismissed the summons with costs. The applications for leave to appeal and for expedition should be dismissed.”

74. Section 63 of the Supreme Court Act which has not been subject to any legislative amendments since the decision of Coles v Wood is as follows:

“63 Final determination

The Court shall grant, either absolutely or on terms, all such remedies as any party may appear to be entitled to in respect of any legal or equitable claim brought forward in the proceedings so that, as far as possible, all matters in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of those matters avoided.”

75. In Nudd, a warrant was issued by a Justice of Peace in Queensland for the arrest of the appellant, Mr Nudd on 6 May 2001. Mr Nudd was living in the United States and was alleged to be involved in the importation of a commercial quantity of cocaine into Australia. Mr Nudd was arrested in the United States in May 2001 and extradited to Australia in February 2002. Before Mr Nudd’s extradition from the United States, he obtained advice from counsel which challenged the validity of the arrest warrant as the alleged offending occurred outside of Queensland, there was an argument that the warrant was invalid. Mr Nudd by application sought declarations that the arrest warrant and extradition process were invalid. He further contended that determinations in his favour would bolster his prospects of obtaining a pardon and a favourable outcome in civil proceedings that had not yet been commenced.

76. Byrne J, the primary judge, refused to grant the declarations on the basis that such relief could not serve a useful purpose; that there was no utility in the declarations sought; that the administration of justice and public confidence would not be advanced by facilitating a collateral challenge to the finality of Mr Nudd’s criminal proceedings; and that it would not be appropriate to regard declaratory relief of the kind sought as some step towards the completion of proceedings that were yet to be commenced. The issue before the Queensland Court of Appeal was confined to whether the primary judge had erred in exercising his discretion by refusing to grant the declarations sought by Mr Nudd that the arrest warrant and extradition from the United States were invalid. Mackenzie AJA (with whom McMurdo P and Mullins J agreed) was satisfied that the primary judge had not erred in the exercise of his discretion and dismissed Mr Nudd’s application.

77. In C**osenza, the plaintiff, Mr Cosenza sought to challenge by way of judicial review a decision of a magistrate to issue a warrant for his arrest following his failure to appear at the Port Adelaide Magistrates Court (“the PAMC”). Mr Cosenza also challenged the decision by South Australia Police (“SAPOL”) to issue a warrant for his arrest “with endorsement that [Mr Cosenza] be excluded from bail”. Mr Cosenza sought relief, inter alia, an order in the nature of certiorari certifying that the decision to issue the arrest warrant was made ultra vires and in breach of the statutory duty (under s 58 of the Criminal Procedure Act 1921 (SA), formerly the Summary Procedure Act 1921 (SA)); the decision by SAPOL to seek the arrest warrant was made for an ulterior purpose; a declaration that the process of issuing the arrest warrant was unlawful; and damages for trespass, wrongful arrest, false imprisonment, breach of statutory duty and misfeasance in public office. The defendants (collectively, the PAMC, the State of South Australia and SAPOL), by application sought summary judgment, or alternatively that the proceedings be struck out, on the grounds that Mr Cosenza’s action lacked utility and there was no reasonable prospect that the application would succeed. It was further argued that certain orders sought by Mr Cosenza were unrelated to the decisions challenged and are not available in judicial review proceedings.

“Applying the reasoning in Wingfoot an order in the nature of certiorari is not available in respect of the exercise of the power to order the issuing of the warrant, the legal effect of which is spent. An order regarding the lawfulness of issuing of the warrant or the conduct of the police in seeking the warrant ‘would be not simply inutile it would be unavailable’.” (footnote omitted)

79. His Honour recognised that declaratory relief is discretionary and found that as the arrest warrant was no longer extant, there was “no utility in making the declarations sought as they would not determine any existing issue between the parties”. His Honour then at [43]-[44] referred to the passage of the plurality in Ainsworth at 581-582 (Mason CJ, Dawson, Toohey and Gaudron JJ) (see [57] above), and contended that any declaration as to the lawfulness or validity of the decisions would not produce any foreseeable consequences for the parties. In those circumstances, his Honour concluded that declaratory relief was unavailable, that there was no reasonable prospect the relief sought by Mr Cosenza would be granted, and summary judgment was granted for the defendants.

80. There is Victorian Authority that supports the defendant’s argument that declaratory relief is not available when an arrest warrant has been executed and is spent: see, eg, Marriner v Smorgon [1989] VR 485; Marriner v Smorgon (1989) 167 CLR 368; [1989] HCA 69 (the application for special leave to appeal was rescinded).

81. The plaintiff contended that they’s case found support in Harland. That case concerned proceedings for judicial review of an executed search warrant, in which the plaintiff challenged the validity of the warrant on the basis that the issuing officer did not have reasonable grounds to issue the warrant. N Adams J referred at [272] to the observations of Simpson JA (Beazley P and McColl JA agreeing) in Polley v Johnson [2015] NSWCA 256; (2015) 253 A Crim R 521 at [40] (“Polley”), and reiterated that “the issuing officer’s satisfaction must be that of the applicant”. Her Honour had earlier found that when viewed objectively, the Registrar did not turn her mind to the elements of the searchable offence and “there were insufficient facts to induce the relevant state of belief in the mind of a reasonable person”. It followed that her Honour was satisfied the issuing officer did not have reasonable grounds to issue the warrant given that finding was made. N Adams J concluded that “there were not reasonable grounds to issue the warrant” and made a declaration that the search warrant was invalid and an order in the nature of certiorari quashing the decision of the Registrar to issue the warrant.

82. It is important to note that in Harland, it appears that the High Court’s decision in Wingfoot was neither brought to her Honour’s attention nor was an argument advanced that the prerogative relief sought should not be granted as the warrant had been spent and either certiorari or a declaration would be inutile.

83. More recently, in Unions NSW v New South Wales (2023) 277 CLR 627; [2023] HCA 4 at [26] (Kiefel CJ, Gageler, Gordon, Gleeson and Jagot JJ), the plurality reaffirmed the well established principle that declaratory relief will be refused in the circumstances where “the plaintiff cannot point to any other foreseeable consequences from the grant of a declaration” in which in that case (although in the context of the issue of standing) it was because the “only advantage that the plaintiffs would achieve from a declaration of invalidity would be the satisfaction of a statement by the Court validating their contentions of an historical wrong”.

The arrest warrant was not invalid

88. If I had granted an extension of time, for the reasons stated above certiorari would be unavailable (see [52] above), however recognising that declaratory relief may be granted even where certiorari may not be available, in relation to the declaratory relief claimed I would not have been satisfied that the plaintiff had established a basis to declare the arrest warrant invalid and unlawful. Having declined to extend time, the reasons that follow will be stated relatively briefly.

89. The plaintiff’s complaint that “there is no record in JusticeLink, or otherwise in the court record that a proper application for an arrest was ever made” fails as the defendant’s email on 4 August 2022, sending the warrant application to the Local Court Registry complied with r 8.7 of the Local Court Rules 2009 (NSW). It is plain that the warrant application was received by the Local Court Registry by reason of the defendant receiving an automated reply at 1:25pm on the same day from the Registry acknowledging receipt of the email.

90. The plaintiff’s contention that the defendant’s email to Sergeant Tickner on 4 August 2022 in which he apologised for the delay and stated, “we had to change [the CAN] from [w]arrant to [f]uture” and the email from Sergeant Mitchell on 6 September 2022 (see [21] and [23] above) implies a lapsing and abandonment of the warrant application is not a reasonable inference that can be drawn from all the circumstances. The email to Sergeant Tickner was sent on the same day that the application for the warrant was filed. When Sergeant Tickner later on that same day advised by email that all attempts to serve and contact the plaintiff were unsuccessful, the defendant responded stating “I’ll update our systems and go through with the [w]arrant application” (see [22] above). Furthermore, it is plain from the defendant’s response to the second defendant detailed at [25] above, that the defendant had not at any stage abandoned the application for the warrant. When all of the evidence is viewed in combination, including Sergeant Mitchell’s email and the application for leave to file a CAN that had not been served, I would reject the plaintiff’s contention.

91. The plaintiff further submitted that there were no reasonable grounds for the second defendant to issue the warrant. That submission embraced a contention that the second defendant did not have before him material upon which he could have rationally reached the mandatory conclusion required under s 181(2) of the Criminal Procedure Act (which is in the same terms as s 54(2)), before a warrant to arrest could be issued namely satisfaction that “there are substantial reasons to do so and that it is in the interests of justice to do so”.

92. In the context of administrative law, it is recognised that where a decision-maker is required to be satisfied of matters prescribed by statute the scope for review may be limited. As Gibbs J observed in Buck v Bavone (1976) 135 CLR 110 at 118-119; [1976] HCA 24 (“”):

“It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts.” (emphasis added)

See also, Ample Skill Ltd v Reidy [2026] NSWCA 32 at [162] (Ward P, Payne and Free JJA agreeing); State of New South Wales v Dennis (2025) 117 NSWLR 404; [2025] NSWCA 118 at [29]-[30] (Kirk JA, Mitchelmore JA and Basten AJA agreeing).

93. There is simply nothing in the present proceedings that suggests the second defendant acted “arbitrarily or capriciously”. It is clear that the second defendant acted in good faith: Buck at 118-119.

94. It may be reasonably inferred that the second defendant had before him the application for the warrant and the leave application. It may also be reasonably inferred that the handwritten details which read as “IMP — 2YS”, and appeared in the leave application under the heading “Application Determination”, above the second defendant’s name and signature were written by the second defendant after he had conscientiously checked the maximum penalty for the offence contrary to s 144G(1)(b) of the Roads Act, being sequence 1 in the CAN. Another reasonable inference which may be drawn from the handwritten details and the application for leave to extend the CAN as it would be statute barred is that the second defendant was not misled by the statement in the warrant application that the plaintiff was “charged with an indictable offence”.

95. Both the application for the warrant and the leave application provided details of the attempts made to serve the CAN on the plaintiff. The Police Facts Sheet included details of the plaintiff being a member of Blockade Australia and the serious disruption to pedestrians and vehicles allegedly caused on 27 June 2022 by the protest march with the plaintiff being identified on “CCTV, media courage and live Facebook Streams of the event”. Furthermore, the warrant application detailed a “[p]ossible risk of injury to people in the greater community” (see [20] above).

96. In accordance with s 181(3) of the Criminal Procedure Act, regard must be had to r 7.3(2) of the Local Court Rules which relevantly provides in respect of proceedings commenced by a CAN:

“7.3 Matters to be considered in determining whether to issue arrest warrant

…

(2) For the purposes of determining whether to issue a warrant to arrest an accused person before the date the person is first required to attend at court for the hearing of proceedings, an authorised officer may take into account the following matters—

(a) whether the offence the subject of the proceedings is serious enough to justify the issue of a warrant, having regard to whether the offence is punishable by imprisonment and, in the case of proceedings taken by a person other than a police officer or a public officer, the nature of the case against the accused person,

(b) whether there is, and the nature of, any risk to the safety of an alleged victim, witness or other person if the accused person is not arrested and brought before the court,

(c) whether the accused person is the subject of any other warrant to arrest in respect of any other offences,

(d) if the warrant is sought on the basis that a court attendance notice has not been served—

(i) whether reasonable attempts have been made to serve the court attendance notice, and

(ii) whether an order for substituted service should be made rather than the issue of the warrant.”

97. It may be reasonably inferred that the second defendant gave careful consideration to the requirements of s 181(2) of the Criminal Procedure Act and r 7.3(2) of the Local Court Rules before the warrant for the plaintiff’s arrest was issued.

98. In Polley, the validity of a search warrant was challenged. Simpson JA (with whom Beazley P and McColl JA agreed) said at [45]-[46] that it was not the role of the eligible issuing officer “to consider the sufficiency of the supporting material to found a conviction of the searchable offence identified in the application”: see also, Murphy v The Queen (1989) 167 CLR 94 at 106 (Mason CJ and Toohey J); [1989] HCA 28; McArthur v Williams (1936) 55 CLR 324 at 365-366 (Dixon, Evatt and McTiernan JJ); [1936] HCA 10.

99. Although a warrant for arrest involves the deprivation of freedom, when an application for an arrest warrant is made, the eligible issuing officer is in my opinion not obliged to consider whether the information provided to the eligible issuing officer is sufficient to found a conviction of the offence charged. It was not part of the second defendant’s task to determine whether the material provided to him was sufficient to establish a conviction of the offence contrary to s 144G(1)(b) of the Roads Act. Furthermore, contrary to the plaintiff’s submissions, the defendant and the second defendant were not required to search the statistics compiled by the Judicial Commission of New South Wales to ascertain the sentences imposed by the Local Court for the offence under s 144G(1)(b). The question for the second defendant was whether there were substantial reasons to issue the warrant and that it was in the interests of justice to do so.

100. I am not persuaded that the second defendant did not carefully consider that question before he issued the warrant.

101. Although referred to in Particular (e) of the summons (see [3(3)] above), the plaintiff neither raised in written nor oral submissions the complaint that the defendant did not have reasonable grounds to believe that the plaintiff had committed an offence contrary to s 144G(1)(b). Nevertheless, as the details in the CAN and the Police Facts Sheet make clear (see [14] and [17(1)] above), the disruption caused was not on the Harbour Bridge but to the on-ramp to the Cahill Expressway with the plaintiff being identified as participating in the protest march. I am not persuaded that the defendant did not have reasonable grounds to believe that the plaintiff had committed the offence.

102. As to the plaintiff’s submission that there was no record as to why the second defendant was satisfied that there were substantial reasons to issue the warrant and it was in the interests of justice to do so, there is no requirement under the Criminal Procedure Act or the Local Court Rules for the issuing officer to make a record of the reasons for issuing or refusing to issue a warrant. Further, there is nothing in the text of those Acts that requires the giving of reasons for issuing an arrest warrant. The omission of such a requirement is to be contrasted with s 65 of (NSW) which relevantly provides:

“65 Record of proceedings before eligible issuing officer (cf Search Warrants Act 1985, s 13)

(1) An eligible issuing officer who issues a warrant must cause a record to be made of all relevant particulars of the grounds the eligible issuing officer has relied on to justify the issue of the warrant.

(1A) An eligible issuing officer who refuses to issue a warrant must cause a record to be made of all relevant particulars of the grounds the eligible issuing officer has relied on to justify the refusal to issue the warrant.

(2) The regulations may make provision for or with respect to—

(a) the keeping of records in connection with the issue and execution of warrants, and

(b) the inspection of any such records, and

(c) any other matter in connection with any such records.”

103. Generally, there is no free-standing common law duty to give reasons for making a statutory decision: Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 662 (Gibbs CJ); [1986] HCA 7; Wingfoot at [43]. As the High Court observed in Wingfoot at [43], the content of a statutory duty to give reasons defines the statutory standard that a written statement must meet to fulfil it. There is no statutory duty that exists under the Criminal Procedure Act or the Local Court Rules to give reasons for issuing or refusing to issue an arrest warrant.

104. Furthermore, the matters to be included in an arrest warrant are set out in s 236 of the Criminal Procedure Act. There is no form of an arrest warrant prescribed by the rules required by s 236(1) of the Criminal Procedure Act. Nevertheless, the warrant that the second defendant issued complied with ss 236(2) and (3). I would agree with the defendant’s submission that ss 236(2) and (3) of the Criminal Procedure Act should be regarded as an exhaustive statement of the matters an arrest warrant must contain. In support of this submission, the defendant placed reliance on Ousley v The Queen (1997) 192 CLR 69 at 82-84 (Toohey J), 111 (McHugh J), 128 (Gummow J); [1997] HCA 49.

105. The plaintiff has not established that the second defendant’s decision suffers from any jurisdictional error or error of law on the face of the record.

106. The plaintiff contended that reasonable attempts had not been made to serve the CAN on they. In the Keanu affidavit, the plaintiff disclosed that they had sent an email to the Downing Centre Local Court on 17 January 2022 concerning a Field CAN listed at that Court on 19 January 2022. In that email the plaintiff advised that they were unable to attend the Local Court in person due to “the covid situation” and requested to attend the hearing online by audio-visual link (Keanu affidavit, p 3). By email the Local Court Registrar replied to the plaintiff on 24 January 2022 and advised the matter was listed on 23 February 2022. The plaintiff further referred to having a residential address in Carlton Victoria, which was used by a number of services including Centrelink, the Australian Electoral Commission and also that they’s residential address was known to the Victorian Department of Justice and Community Safety, the National Australia Bank, Belong (a subsidiary of Telstra) and Vic Roads office (Keanu affidavit, pp 3-4).

107. The plaintiff submitted that the plaintiff’s address “could have been easily discovered on more than a cursory search by police”. The material provided to the second defendant revealed that the attempts by police to serve the plaintiff were more than cursory. The warrant application detailed in the grounds for the application that “reasonable attempts” had been made to serve the CAN between “27/06 to 03/07” (see [20] above). Further efforts were made at the defendant’s request to Sergeant Tickner of VicPol (see [21]-[22] above). The leave application included the following (Ex PL-2, p 123; Ex AS-1, p 84):

“Police from NSW have sent the CAN to VICPOL in attempts to locate and serve the CAN on [the plaintiff]. Listed address … was visited, and it was identified that [the plaintiff] had moved out several months prior.

A further address … was identified by VICPOL, however again, [the plaintiff] had not resided at the address for some time.

VICPOL spoke with two females who lived at the … address, who stated [the plaintiff] was unknown to them, however believed [they] lived in the Carlton (VIC) area.

[The plaintiff] has been listed as wanted, however all attempts to locate and serve [the CAN] has been unsuccessful.”

108. Rule 7.3(2) of the Local Court Rules imposes an obligation on the eligible issuing officer to take into account whether “reasonable attempts” have been made. It does not require the eligible issuing officer to ascertain whether all possible attempts have been taken nor is there an obligation imposed upon police. I am not persuaded that the police did not make reasonable attempts to personally serve the CAN on the plaintiff. Furthermore, it was open to the second defendant to be satisfied that reasonable attempts had been made to serve the CAN and that an order for substituted service should not be made.

Orders

109. Neither party made submissions that there should be any order other than costs should follow the event.

110. Accordingly, I make the following orders:

111. Refuse the application for an extension of time pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW).

112. Dismiss the summons filed on 24 October 2024.

113. The plaintiff is to pay the first defendant’s costs.

**********