Tabcorp Holdings Limited v Fitzsimons & Ors

Crimes (Appeal and Review) Act 2001 - ss 53(3), 65(1) Criminal Appeal Act 1912 - s 5F Criminal Procedure Act 1986 - s 14 LEGISLATION CITED : Judiciary Act 1903-1960 (Cth) - s 35(1)(a) Local Government Act 1919 - s 591 Supreme Court Act 1970 - s 69 Totalizator Act 1997 - ss 81, 102

ASIC v Farley (2001) 51 NSWLR 494 Coco v The Queen (1994) 179 CLR 427 De Mestre v A D Hunter Pty Ltd (1952) 77 WN (NSW) 143 Director of Public Prosecutions (NSW) v PM (2006) 67 NSWLR 46 Hall v Nominal Defendant (1966) 117 CLR 423 CASES CITED : Hill v King (1993) 31 NSWLR 654 Mantell v Molyneux [2006] NSWSC 955 Meagher v Stephenson (1993) 30 NSWLR 736 Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 R v Bozatsis (1997) 97 A Crim R 296 White v Phipps & Anor (1932) 32 SR (NSW) 448 Wilson v DPP [2002] NSWSC 935

Tabcorp Holdings Limited (ACN 063 780 709) (plaintiff) PARTIES : Christopher Ronald Fitzsimons (first defendant) The Magistrates, Registrars and Deputy Registrars of the Local Court (second defendants)

COUNSEL : P R Garling SC with P J Brereton (plaintiff) First defendant in person

SOLICITORS : Allens Arthur Robinson (plaintiff) First defendant in person

LOWER COURT FILE NUMBER(S) : 20008325/07/02 and 46 others

• 20 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROGRESSIVE LIST

12353 of 2007 Tabcorp Holdings Ltd (ACN 063 780 709) v Christopher Ronald Fitzsimons & Ors

1 On 3 January 2007 Christopher Ronald Fitzsimons ("the first defendant") filed 42 Court Attendance Notices ("the notices") commencing summary prosecutions in the Local Court against Tabcorp Holdings Limited ("the plaintiff"). Each notice alleged that the plaintiff had committed an offence under s 81(1)(c) of the Totalizator Act 1997 ("the Act"). Section 81(1) of the Act is in the following terms: -

(1) A person must not accept a bet on a totalizator unless the bet is paid for in any one of the following ways at or before the time the bet is made: (a) in cash, (b) by debit against an amount held in an account for the person who makes the bet by the person who accepts the bet, (c) by debit against a credit betting facility made available by the person who accepts the bet, being a facility under which the obligations of the debtor are secured or guaranteed in accordance with arrangements approved by the Minister or prescribed by the regulations." 2 In commencing the prosecutions the first defendant relied upon s 14 of the Criminal Procedure Act 1986. That section is in the following terms:-

" 14 A prosecution or proceeding in respect of any offence under an Act may be instituted by any person unless the right to institute the prosecution or proceeding is expressly conferred by that Act on a specified person or class of persons." 3 The proceedings came before her Honour Magistrate O'Shane on 13 April 2007. The plaintiff made an oral application to her Honour seeking an order that the prosecutions be dismissed or struck out or permanently stayed. The basis of the application was that the first defendant had no power to institute the prosecutions and accordingly that they were not properly before or within the jurisdiction of the Local Court. The plaintiff contended that the first defendant was not a person who may institute a prosecution. The plaintiff relied upon the terms of s 102 of the Act which is in the following terms: -

" 102 Proceedings for an offence under this Act or the regulations may be brought by: (a) an inspector, or (b) a police officer, or (c) any other person, or person of a class, prescribed by the regulations." 4 Her Honour held that s 102 of the Act did not expressly confer the right to institute a prosecution on a specified person or class of persons within the meaning of s 14 and held that the first defendant had the power to institute the prosecutions. Her Honour's decision is the subject matter of the present proceedings.

5 By its Summons filed 11 May 2007 plaintiff claims the following relief: -

"1. An order under section 69 of the Supreme Court Act 1970 prohibiting the Magistrates, Registrars and Deputy Registrars of the Local Courts from proceeding to deal with or hear the prosecutions commenced in the Local Court by the First Defendant as Prosecutor against the Plaintiff filed 3 January 2007 (the Prosecutions ).

2. In the alternative, leave to appeal under section 53(3) of the Crimes (Appeal and Review) Act 2001 against the order made by Magistrate O'Shane on 13 April 2007 by which Her Honour dismissed the Plaintiff's application for the Prosecutions to be dismissed or, alternatively, struck out or, alternatively, stayed; and orders from this Court that: (a) the appeal be allowed; (b) that in lieu of the order of Magistrate O'Shane the Prosecutions be dismissed, or alternatively struck out, or alternatively permanently stayed; and (c) the First Defendant pay the Plaintiffs [sic] costs of the proceedings before the Local Court.

4. Such other orders as the Court thinks fit." The Magistrate's decision 6 The combined effect of s 102 of the Act and s 14 and the Criminal Procedure Act 1986 would appear extensively to have been argued before her Honour. The transcript of part of her Honour's remarks is as follows: -

"And as I've heard again this afternoon the defence submits that there is no regulation prescribing any other person or person of a class who may bring proceedings under the Act and thus a common informer as per section 14 of the Criminal Proceedings Act 1986 (NSW) [sic], such as [the first defendant], is excluded from bringing these proceedings.

In other words the defence is basically saying that paragraph (c) shuts the door on someone like the present prosecutor which instructs us in fact to read section 14 of the Criminal Proceedings Act 1986 very carefully." 7 Her Honour then set out the terms of s 14, and continued: -

"Earlier today I commented after I heard the defence submission on section 14 which was put in the passive voice that in fact section 14 is expressed in the active voice and that is in fact important when we come to interpreting or trying to understand exactly what it means.

It seems to me that what it means is this. The first part of the section simply acknowledges the fundamental precept and now a long established principle of the English common law and Australian law as derived from the English common law. That is, that a prosecution or proceeding in respect of any offence under an act may be instituted by any person. The second part of the section then sets out an exception to that fundamental right of the citizen - it states that unless the right to institute a prosecution or proceeding is expressly conferred on a specified person or class of persons and it seems to me that that provision itself points to the difficulty or difficulties which presented to the defence in respect of these matters and on that very point just a short time ago the defence handed up the report of the case of White v Phipps and Anor (1932) 32 SR (NSW) 448 - which was a decision of the New South Wales [Full Court] . . ." 8 Her Honour then referred to that decision and to the terms of s 591 of the Local Government Act 1919 with the terms of which it was concerned. Her Honour then continued in the following terms: -

". . . the comment that can be made about that is section 591 of the Local Government Act of 1919 quite clearly nominates very specific classes or persons or prosecutors who can initiate proceedings under that Act and that is quite distinct from section 102 of the Totalizator Act of 1997 with which we are dealing here today.

Paragraph (a) of section 102 quite clearly nominates a status or class of person being "an inspector" and I take it - I actually meant to look it up but I didn't in fact do so - but I expect that an inspector is defined under the Act; or (b) "a police officer" - and I think we all have an understanding of who is a police officer - but in any event a police officer is specifically defined under the Police Act and then paragraph (c) "any other person" and by any stretch of the imagination nobody could interpret that to mean a specific class of persons who are empowered by the section to initiate proceedings for an event under this Act. Rather such person would - is to be prescribed by the regulations as stated in paragraph (c) of section 102.

The court accepts that no such regulation exists - after all, the court has been informed by both the defence and the prosecutor that there is no such regulation, or no such regulations.

[The first defendant] in his submissions in answer to the defence application addressed the fundamental principle and draws on numerous English and/or Australian authorities which have considered exactly this issue where those courts have ruled again and again that the fundamental principle remains as part of our legal system where those same courts have gone further to state unequivocally that the principle can only be displaced by a clear express terms that the prosecutorial power in respect of any particular circumstances resides in a select person or group of persons.

Those authorities clearly state then in view of this court that - far from shutting the door on a person such as [the first defendant] to preclude him from instituting proceedings such as the present - that door is still wide open because in all such matters we have to start from the fundamental principle that any person may institute such prosecutorial proceeding for an offence under an act as stated in the first part of section 14 of the Criminal Proceedings Act . Thank you, gentlemen. The application is dismissed." The plaintiff's case

9 The plaintiff's argument before her Honour and before me was that the first defendant would have the right to commence the prosecutions as a common informer under the Act unless the proviso in s 14 had been enlivened. The plaintiff argued that the effect of s 14 is that the first defendant would not have the right to institute a prosecution if the Act expressly conferred the right to institute a prosecution on a specified person or class of persons. 10 The first defendant is not an inspector or a police officer. No regulations to the Act have prescribed any other person, or person of a class, as persons who may institute proceedings. 11 The plaintiff argued that the right to institute a prosecution is expressly conferred by the Act "on a specified person or a class of persons" within the meaning of s 14 of the Criminal Procedure Act. That is because "an inspector" and "a police officer" are each a class of persons. Further, the conferral of power upon "any other person, or person of the class, prescribed by the regulations" also constitutes an express conferral on a specified person or class of persons. In the present case "class of persons" are those defined as "any other person, or person of a class, prescribed by the regulations". If the regulations prescribed that a person or person of a class may bring proceedings, then that would constitute an express conferral by the Act on a specified person or class of persons. The plaintiff argued that her Honour's conclusion that "by any stretch of the imagination nobody could interpret [s 102(c) of the Act] to mean a specific class of persons who are empowered by this section to initiate proceedings for an event under this Act" is wrong. According to the plaintiff, s 102(c) confers the right to institute proceedings on "a specified person or class of persons". 12 The plaintiff relied upon White v Phipps (supra). That case was concerned with s 4 off the Fines and Penalties Act 1901, which is the predecessor of s 14 of the Criminal Procedure Act. Section 4 provided: -

"Any fine penalty or forfeiture imposed or authorised to be imposed by any Act may be sued and proceeded for by any person whomsoever, unless by the Act imposing the same such right to sue or proceed is expressly given to any officer or person by name or designation." 13 The question for determination in that case was whether the right to sue for the penalty that had been imposed was expressly given to any person or persons by the Local Government Act 1919. The Court held that it was. Street CJ observed at 450: -

"Section 591, for instance, of the Act of 1919 as amended by the Act of 1927 provides that in any proceedings for the recovery of penalties (unless otherwise expressly provided), or in respect of any offence, the information or complaint may be laid or made - (a) in the name of the council where not required to be made on oath; or (b) in any case by the Town or Shire Clerk or by any other servant of the Council appointed generally or in respect of any special proceeding or by any member of the police force; or

(c) in any case by an officer of the Board of Health appointed by that Board in that behalf either generally or in respect of any special proceeding.

The right to sue is by that section expressly given to Councils, and to designated officers and persons, and, though the words are permissive only, the provisions of the section would have been nugatory if it had not been intended to take away the right of a common informer to sue. It is plain, in my opinion, that the intention of the Legislature was that, unless otherwise expressly provided by the Act, the right to take proceedings for the recovery of penalties should be restricted to the bodies and offices and persons designated in the section." 14 Her Honour concluded that s 591 "quite clearly nominates very specific classes or persons or prosecutors who can initiate proceedings . . . and that is quite distinct from s 102 of the Totalizator Act". The plaintiff submitted that this interpretation is incorrect. In particular, it is submitted that paragraph (c) of s 102 is no less specific than paragraph (c) of s 591 of the Local Government Act. The only relevant difference is that s 102 refers to a "person of a class". In the plaintiff's submission, this difference is readily explained by the differences between s 4 of the Fines and Penalties Act and s 14 of the Criminal Procedure Act. 15 In the plaintiff's submission, White v Phipps (supra) can properly be taken into account in construing s 14 of the Criminal Procedure Act and s 102 of the Totalizator Act: the scheme that was held to be effective in relation to s 4 of the Fines and Penalties Act and s 591 of the Local Government Act is replicated in s 14 of the Criminal Procedure Act and s 102 of the Totalizator Act. 16 Moreover, the plaintiff argues that the statutory policy behind s 102 is clear. Section 3 of the Act provides: -

"The objects of this Act are: (a) to make provision for the proper conduct of totalizator betting in the public interest and to minimise any harm associated with such betting, and

(b) to ensure that revenue derived from the conduct of totalizator betting is accounted for in a proper manner." 17 The explanatory note to the Totalizator Bill 1997 gives an overview of the Bill as follows:

"The object of this Bill is to provide for the regulation of the conduct of totalizators on events and contingencies involving thoroughbred, harness and greyhound racing and other approved sporting events.

The Bill entitles the Totalizator Agency Board ( the TAB ), including the new TAB Limited to be formed by the incorporation of the TAB, to an exclusive 15-year licence to conduct off-course totalizator betting. The Bill also entitles the TAB and each racing club to an exclusive 15-year licence to conduct on-course totalizator betting. In the case of racing clubs, their licence will apply only to racing events and will not apply to totalizator betting on approved sporting events." 18 The plaintiff submitted that off-course totalizator betting in New South Wales was highly regulated. It submitted that in these circumstances it is not surprising that the Parliament would wish to give the task of bringing prosecutions under the Act to a confined group of persons who can reasonably be expected to have the knowledge and expertise to bring prosecutions in a manner that is consistent with the proper regulation of the industry under the Act. This is especially so, it is argued, in circumstances where off-course totalizator betting is likely to involve large numbers of members of the public placing bets, including many who are unhappy when they lose. The orderly regulation of the industry has the potential to be disrupted if disaffected punters are personally able to launch criminal prosecutions in respect of alleged offences under the Act. 19 The specific intention of Parliament in relation to s 102 of the Act is identified by the explanatory note to the Totalizator Bill, which provides:

"Clause 102 imposes restrictions on who may bring proceedings for offences." 20 The plaintiff submitted that her Honour's ruling is directly inconsistent with that statement. Her Honour misconstrued s 102 of the Act and accordingly made an error of law, which led to an error as to jurisdiction. 21 Mr Garling of Senior Counsel who, with Mr Brereton of counsel, appeared for the plaintiff, put the jurisdictional issue as follows:-

"GARLING:. . . Therefore, how is it that we seek the protection of this Court? We advance, as we have said in our submissions, the alternative views, either section 69 of the Act for prohibition or, alternatively, leave to appeal.

We point to the fact that the substance of our complaint in the Local Court is, really, a jurisdictional question. If Mr Fitzsimons isn't an authorised prosecutor, the Court attendance notices are invalid and the jurisdiction of the Local Court isn't engaged. Therefore, this being a jurisdictional issue, this is the kind of case where a writ of prohibition would ordinarily lie." The first defendant's case

22 The first defendant appeared before me unrepresented. 23 The first defendant took issue with the plaintiff's interpretation of s 102 of the Act. He sought to uphold the decision arrived at by her Honour in the court below. The first defendant presented written submissions and oral argument before me. Part of the transcript of the proceedings included the following exchanges: -

On the s102(c) point, it is put bluntly against you that the section excludes you as a private citizen because . . . a combination of the empowering provision of section 14 and the disempowering provision, on the plaintiff's argument, of s.102, means that you are without authority, to use a neutral word, to sponsor the proceedings. How do you say you get around that?

DEFENDANT: S102(c) is meaningless. S102(c), when read literally, this is the plaintiff's position, "Oh, well, what [it] says is there is no regulation. Therefore, the prosecutor has no standing".

HIS HONOUR: I don't mean to interrupt you. I am probably doing it more than I should. If s102 is meaningless -

HIS HONOUR: If s102(c) is meaningless, what do you say about Mr Garling's contention that White v Phipps is on all fours, or that the legislation there under consideration is, effectively, on all fours with s102(c)? Was that legislation -

DEFENDANT: That legislation was good. This legislation is bad. That legislation was good because (c) said the Board of Health could nominate. This says, s102(c) says, that a person, or class of persons as prescribed by the regulations. Without any disrespect to your Honour, it is not your position in determining this matter to put your hat on as a member of the Legislative Council, or a member of the Legislative Assembly and make a decision. You are bound to read s102(c) as it stands …" 24 A little later, the following exchange took place: -

"HIS HONOUR: Let me ask you this, so I understand. You have indicated quite clearly that part of your argument derives from the fact that no regulation nominating any person or class of persons has been made.

HIS HONOUR: Let's assume for the moment that regulations have been prescribed nominating ambulance officers as in category (c). Clearly, the regulations anticipate, I assume, more than one person, or class of persons, but would you be better or worse off, on your argument, if somebody had, in fact, been nominated in (c).

DEFENDANT: I wouldn't be here. I would never, ever have had the right to prosecute, if it was an ambulance officer, bookmaker, or anybody. If that is defined, that is end of the argument...

So, your Honour, if s102 had (a) and (b) full stop, I would be out of court. We would not be here.

HIS HONOUR: You would be out of court if it was just (a) and (b)?

HIS HONOUR: Or if it were (a), (b) and (c) and somebody has been nominated in (c) -

DEFENDANT: Yes, somebody else. The distinction being on that, White and Phipps says "any other person nominated by the board" and the board did something, at least, I think they did. Here, it is the regulation and there is no regulation." 25 I did not always find the first defendant's submissions easy to follow. However, doing the best I can, his argument in relation to s 102 of the Act appears to proceed upon the basis that a failure or omission by the Legislature to prescribe any other person, or person of a class, for the purposes of s 102 (c) of the Act, somehow means that the proviso in s 14 (i.e. "unless the right to institute the prosecution or proceeding is expressly conferred" etc) does not operate, so that he continues to be "any person" who may institute a prosecution or proceeding in respect of an offence under the Act. In other words, even though s 102(a) and (b), without s 102(c) having been enacted, or alternatively, having been enacted, with a person, or person of a class, having been prescribed, would exclude the first defendant's right to institute a prosecution or proceeding pursuant to s 14, that right would not be excluded for as long as the regulations continued to prescribe no person or person of a class for the purposes of s 102(c). Accordingly, unless or until the regulations make a prescription pursuant to s 102(c) of the Act, the first defendant's right to commence a prosecution or proceeding in respect of any offence under the Act as a common informer remains unaffected. 26 Against the possibility that I may have misunderstood or misstated the first defendant's argument, I should include the following portion of the transcript in which the first defendant sought to make good his contentions in this regard: -

"DEFENDANT: ... The thing is that, in the light of my constitutional right in this democracy to bring the prosecutions, Coco says I can. It is a denial of my rights, given that we have got the plaintiff running a closed shop, so to speak, in terms of who can prosecute.

HIS HONOUR: That is a complaint about the result of the legislation, rather than a demonstration that you have the right you contend for, isn't it?

DEFENDANT: No, the legislation is defective. (c) ought not be there. (c) is there and it is useless, so the options for the Crown, not for the state are -

HIS HONOUR: If (c) weren't there, you concede you would have no right?

DEFENDANT: Absolutely, that was put to the magistrate. The options for the State of New South Wales are regulate and define an ambulance officer, or whomever, (b), or repeal (c). I wouldn't have a problem, but the way it is, the way it has been for a decade is there has been on the statute books and it is open to me as a common informer to make these complaints. " 27 The first defendant drew my attention to Coco v The Queen (1994) 179 CLR 427 and in particular to the following passage at 437: -

"The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights." 28 The first defendant submitted that s 102 of the Act effected an invalid interference with his fundamental rights if applied and interpreted in the way for which the plaintiff contended. He submitted that the section did not manifest an intention to do so by unmistakable and unambiguous language and should not be read in a way that interfered with the "fundamental right of the citizen" to which her Honour referred. 29 The first defendant then summarised his argument in the following way: -

"So, your Honour, if s102(c) was better framed, if there was a regulation, or if it had been repealed, or removed, or was never there, I wouldn't be here." 30 Mr Garling's response to this was as follows. The first defendant accepts that if s102(c) were not present, he would not be entitled to bring the prosecution. He also accepts that with s102(c) present, if a regulation had been made which nominated a person or class of persons, but no-one else, he would also, similarly, not be entitled to bring the prosecution. The first defendant seeks to argue, however, that because there is a possibility that a regulation might be made - in other words, because it is a provision to make a regulation, and a regulation has not been made - that there is thereby no restriction on who might prosecute. 31 Mr Garling submitted that that reasoning is flawed for two reasons. First, the use of the word "or" between (a), (b) and (c) in s 102 makes it plain that they are disjunctive, so that, unless there is a regulation made and a person, or class of persons, is nominated, s102(c) has no work to do. In other words, that is the equivalent of only (a) or (b) being present. Secondly, even if (c) is present, and no regulation is made, that doesn't mean that s 102 is open-ended. Rather, it is closed only to (a) and (b). 32 In fairness to the first defendant, it should be noted that his written submissions did not deal with the principal or threshold point upon which the plaintiff relied. Instead, they emphasised s 53(3)(b) of the Crimes (Appeal and Review) Act 2001, to the terms of which I shall shortly refer. Accordingly, I have also had regard to her Honour's analysis of the s 102 point, as set out earlier in these reasons, in order that the first defendant may have the benefit of that analysis on this issue. Consideration 33 Notwithstanding this assistance, in my opinion the first defendant's argument fails. Section 102 of the Act is clear. Proceedings for an offence under the Act or the regulations may be brought by an inspector or a police officer and none other unless they can claim to be a person, or a person of a class, prescribed by the regulations. The first defendant cannot make such a claim. To my mind, the fact that no person, or person of a class, has been prescribed by the regulations cannot be distinguished from a situation where s102(c) had not been enacted. The categories set forth in s102(a) and (b) would in such a case continue to cover the field. The first defendant quite properly concedes that he would be "out of court" in those circumstances. The fact that no regulations have been promulgated, which prescribe a person, or a person of a class, for the purposes of s 102, does not mean that some form of vacuum has been created which someone like the first defendant is entitled to fill as a common informer until they are. I agree, with respect, with the words of Street CJ in White v Phipps (supra) that "though the words are permissive only, the provisions of the section would have been nugatory if it had not been intended to take away the right of a common informer to sue". 34 As I have indicated, the first defendant's written submissions concentrated upon the procedural aspects of the plaintiff's claim in this Court, and in particular upon s 53(3)(b) of the Crimes (Appeal and Review) Act 2001. They did not direct attention to the plaintiff's claim to be entitled to relief pursuant to s 69 of the Supreme Court Act 1970. I raised this with the first defendant in the course of oral submissions. The possible reason for the absence of a reference to this in his written submissions then became apparent, as the following passage reveals: -

"DEFENDANT: Well, it is apparent that, to me, without being disrespectful, you have your hand right on this, your Honour. You know what it is all about. I need not address you any further. I am only going to rehash what I have already said.

Your Honour, the prohibition must flow from the right, the appeal being successful, or unsuccessful. We can't say, well, I get up and magistrate didn't make an error of law and by the same token, the proceedings, there is prohibition. You can't have one without the other. The section 69 prohibition stands or falls on the merits of the leave application and the error determination." 35 The plaintiff submitted that this Court has power to make an order under s 69 of the Supreme Court Act 1970 in the nature of prohibition which would prevent the Local Court from dealing further with the prosecutions. The plaintiff submitted that if the first defendant had no right to institute the prosecutions it would follow that the proceedings were not validly constituted before the Local Court and that the Local Court had no jurisdiction to hear them. On this analysis, any judgment or order would be void. The plaintiff submitted that that would give rise to the type of circumstances in which a writ of prohibition was formerly available: see Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 391-392 per Dixon J. 36 There is authority that where this Court has appellate jurisdiction, it may be more appropriate to bring an appeal rather than to seek an order in the nature of prerogative relief: see Meagher v Stephenson (1993) 30 NSWLR 736 at 738-739; Hill v King (1993) 31 NSWLR 654 at 656, 658-659; ASIC v Farley (2001) 51 NSWLR 494 at 500. These cases do not, however, stand for the proposition that it is more appropriate to proceed by way of an appeal where, as in the present case, the error goes to an absence of jurisdiction. 37 In the plaintiff's submission, no impediment exists to the making of an order of the type sought in paragraph 1 of the Summons. 38 Alternatively, the plaintiff submitted that, if this were a case in which it was appropriate to proceed by way of appeal only, this is a case where the application for leave and the substantive appeal should be determined at the same time. 39 Section 53(3) of the Crimes (Appeal and Review) Act provides relevantly as follows: -

"(3) Any person against whom . . . (b) an interlocutory order has been made by a Local Court in relation to the person in summary proceedings,

may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court." 40 The first defendant submitted that her Honour's ruling was not an interlocutory order, that no error of law had been identified and that the discretion to grant leave should be exercised against the plaintiff. 41 With respect to the first point the first defendant referred the Court to R v Bozatsis (1997) 97 A Crim R 296. That case was recently applied by the New South Wales Court Criminal Appeal in Director of Public Prosecutions (NSW) v PM (2006) 67 NSWLR 46. At par [55], Basten JA said the following: -

"[55] In R v Bozatsis . . . this Court (Gleeson CJ, Meagher J A and Bruce J) dealt with an appeal under s 5F against an order of a trial judge which had effectively brought an end to a prosecution by excluding "all prosecution evidence" as being illegally obtained. If the ruling had been merely a ruling on the admissibility of evidence, no appeal would have lain under s 5F: R v Steffan (1993) 30 NSWLR 633. However, the trial judge had also made an order permanently staying the proceedings, which is an order traditionally characterised as an interlocutory order. On the other hand, the permanent stay could be seen merely as consequential to a ruling on evidence and such a ruling was not to be treated as a judgment or order because it lacked the relevant degree of finality. Gleeson CJ concluded that this was not merely a decision with respect to the admissibility of a particular piece of evidence but a discretionary decision not to receive any evidence tending to prove the guilt of those charged. His Honour looked at the effect "in substance" of the order, rather than its form (at 304)." 42 In dealing with the question of what was an "interlocutory judgment or order" under s 5F of the Criminal Appeal Act 1912, Basten JA also referred at par [57] to authorities dealing with that section in which "it was held s 5F did not permit such an appeal, not by reference to a definition of the words "judgment" and "order", but by looking to the substance and effect of the decision made by the trial judge, as viewed in the context of the Criminal Appeal Act". 43 The plaintiff submitted before me that the application, which it brought before her Honour, was an application that the prosecutions be summarily dismissed, struck out or permanently stayed. That application was dismissed. The plaintiff submitted that that order did not finally dispose of all the rights of the parties in respect of the prosecutions and was therefore not a final order that disposed of the proceedings. In that sense, so the plaintiff submitted, the decision was interlocutory rather than final. 44 The plaintiff relied upon R v Bozatsis (supra) in support of the proposition that if her Honour had accepted the plaintiff's argument, and had stayed the proceedings, that would have been an interlocutory order. The plaintiff then argued, in a way that was said to be consistent with that approach, that her Honour's decision to reject the argument and dismiss the application was also an interlocutory order. This argument, it seems to me, places emphasis upon the nature of the application in response to which the judgment or order is pronounced or made, rather than upon the substance and effect of the judgment or order itself. 45 In the present case, however, the distinction is one without a difference. The substance and effect of her Honour's order was not one that finally concluded or disposed of the substantive rights of the parties to the proceedings. In Hall v Nominal Defendant (1966) 117 CLR 423 Taylor, Windeyer and Owen JJ, Barwick CJ dissenting, held that an order made under s 65A(3) of the Traffic Act 1925 (Tas) refusing an application for an extension of time within which to institute proceedings against the nominal defendant is not a final order within the meaning of s 35(1)(a) of the Judiciary Act 1903-1960 (Cth) so that no appeal lay from such an order as of right to the High Court. By way of contrast, Barwick CJ, Taylor and Owen JJ expressing no opinion, and Windeyer J contra, expressed the opinion that an order granting an extension of time under the same section was a final order for the purposes of s 35(1)(a). 46 Taylor J in that case at 439-440 expressed the opinion of the majority as follows: -

"'It seems to me that the real test for determining this question ought to be this: Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order': [per Lord Alverstone in] Bozson v Altrincham Urban District Council [1903] 1 KB 547, at pp. 548-549. Much the same test has been proposed on other occasions and, if I may say so with respect, it provides a broad test which is unexceptionable. So an order made in the course of an action or suit which does not conclude the rights of the parties inter se, although it may, of course, conclude the fate of the particular application in which it is made, is interlocutory only." 47 In the events which occurred, her Honour's decision did not conclude the rights of the plaintiff and the first defendant inter se. In my opinion, her Honour's decision that "[T]he application is dismissed" was an interlocutory order. See also Mantell v Molyneux [2006] NSWSC 955. 48 The plaintiff submitted that the question in dispute was a matter of law alone. In response to that submission the first defendant submitted that leave to appeal should not be granted to the plaintiff unless it established that it was not open to her Honour to conclude that s 102(c) of the Act precluded the first defendant from proceeding to prosecute the plaintiff under that Act. As set forth above, it is my opinion that it was open to her Honour to come to the conclusion that s 102(c) precluded the first defendant from proceeding to prosecute the plaintiff under the Act. Her Honour's decision to the contrary was an error of law. 49 On the question of whether or not I should grant leave to appeal, the first defendant referred me to Wilson v DPP [2002] NSWSC 935. In that case, Cripps AJ said at [20]:

"There are good reasons why this Court is reluctant to intervene in trials in progress and generally will not do so in the absence of exceptional circumstances." 50 As a general rule, appeal courts will not overturn interlocutory orders unless a clear case has been made out that the judge who made the interlocutory order has acted on some wrong principle or has made an order that works a substantial injustice to one of the parties: see De Mestre v A D Hunter Pty Ltd (1952) 77 WN (NSW) 143 at 146. 51 On the question of discretion the plaintiff submitted that a grant of leave should be exercised in its favour. The prosecutions are at an early stage and are presently the subject of a temporary stay. No pleas have been entered and no brief of evidence has been provided. No trial date has been fixed so that there will be no intervention in a trial in progress. If the plaintiff were correct, any prosecution would be invalid. There has been a clear error of law and the plaintiff should not be forced to defend proceedings that are so clearly flawed. 52 In my opinion, this is a proper case where leave to appeal should be granted.

Notice of contention 53 The first defendant filed a Notice of Contention on 30 May 2007. It does not in terms specify alternative grounds upon which her Honour's decision should be affirmed. The document refers to s 65(1) of the Crimes (Appeal and Review) Act 2001. It does not elaborate upon the way or ways in which it is suggested that that section is apposite to the present dispute. Decision 54 The plaintiff sought relief alternatively in the terms of paragraphs 1 and 2 of the Summons. For the reasons set forth above, in my opinion the plaintiff has made out an entitlement to relief in terms of either of these paragraphs. At the conclusion of the argument before me I asked the parties to provide me with a draft form of the orders for which they respectively contended. The orders that I propose to make are in accordance with the draft provided to me by the plaintiff. Orders

1. The plaintiff is granted leave to appeal under s 53(3) of the Crimes (Appeal and Review) Act 2001 against the order made by Magistrate O'Shane on 13 April 2007 dismissing the plaintiff's application to dismiss, strike out or stay prosecutions commenced in the Local Court on 3 January 2007 by the first defendant as prosecutor (the prosecutions).
2. The appeal is allowed.
3. The prosecutions are dismissed.
4. The first defendant to pay the plaintiff's costs (including the costs of the proceedings in the Local Court).

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