[2011] NSWCA 115
Wishart v Fraser (1941) 64 CLR 470
Source
Original judgment source is linked above.
Catchwords
[2011] NSWCA 115
Wishart v Fraser (1941) 64 CLR 470
Judgment (3 paragraphs)
[1]
Solicitors:
C Hyland, Solicitor for Public Prosecutions (NSW) (First Respondent)
File Number(s): 2021/00318239
Decision under review Court or tribunal: District Court of New South Wales
Jurisdiction: Criminal
Date of Decision: 8 October 2021
Before: McLennan SC DCJ
File Number(s): 2019/00395395
[2]
JUDGMENT
BASTEN AJ: These proceedings for judicial review should have been commenced in the Court of Appeal. Because Mr Young, the plaintiff in this matter, is not applying to have the matter removed to the Court of Appeal, a step which I propose to take and which I am therefore taking of my own motion, I propose to give brief reasons as to the course being taken. Further, Mr Young has applied to have the matter formally adjourned until a special leave application in the High Court has been determined. As I am not formally adjourning the matter I should give some reasons why I do not propose to take that step, although it may have no practical effect.
On 19 October 2020, Mr Young was convicted in the Local Court at Casino of four offences of assault under s 61 of the Crimes Act 1900 (NSW) and one offence of destroy or damage property under s 195(1)(a) of the Crimes Act. For each offence, he was placed under a conditional release order to be of good behaviour for a period of 18 months. On the same day, he appealed to the District Court, so that those sentences or the operation of those sentences, were stayed: Crimes (Appeal and Review) Act 2001 (NSW), ("Appeal and Review Act"), s 63.
The appeal to the District Court was determined on 8 October 2021. The appeal against the convictions was dismissed and the orders of the magistrate were confirmed. On 9 November 2021, Mr Young filed a summons in the Common Law Division seeking certain orders which I need not specify. The summons also sought declarations but it did not specify the content of the proposed declarations except by reference to a discursive notice of motion which was attached to the summons and which had originally been filed in the District Court. In a letter sent to the Court on Saturday 8 October, the declarations were set out in a more carefully formulated form and that letter will be marked for identification "A" in this proceeding so that that is on the file.
That there is no appeal to the Supreme Court under Pt 5 of the Appeal and Review Act where an appeal has been taken to the District Court on the merits was decided by the High Court many years ago under earlier legislation in Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8. That decision has been applied under the current legislation in a number of cases of which a reported authority is Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 at [11].
Mr Young says that the reason why he challenges what happened in the Local Court is that the appeal in the District Court proceeded on the basis of the transcript in the Local Court. That may be so and it may be that an application for judicial review of the proceedings in the District Court can address any claim of procedural unfairness which occurred in the Local Court and thus infected the transcript which became the basis of the evidence in the District Court.
The Supreme Court has jurisdiction in its supervisory jurisdiction under s 69 of the Supreme Court Act 1970 (NSW). However, having regard to the status of the District Court, that review jurisdiction with respect to a judgment of the District Court is assigned to the Court of Appeal: Supreme Court Act 1970 (NSW), s 48. Section 51 of the Supreme Court Act empowers this Court to remove a matter which has been filed in the Common Law Division, and which should have been filed in the Court of Appeal, to the Court of Appeal. That power can be exercised on the basis of an application by either of the parties or on the motion of the Court. The Director has not sought removal. Mr Young does not wish to apply for that removal but rather than have the proceedings dismissed is content to accept "under protest", he says, that a removal order should be made by the Court of its own motion pursuant to s 51(1)(b). That can be done by a judge sitting in the Division or a judge of the Court of Appeal.
Given that that step should be taken, it is not necessary for me to comment on what appears to be an application for an inquiry under Pt 7 of the Appeal and Review Act. I may, however, say this by way of explanation for not adopting that course. An application can be made under Pt 7 to the Registrar in the Common Law Division, who will ensure that all the relevant material relied upon by an applicant who seeks an inquiry into his conviction or sentence has been filed. The Registrar will then request the Chief Justice to nominate a judge to consider the application. The Director has drawn attention in written submissions to the power of deferral of such an application under s 79(3)(a) of the Appeal and Review Act. That course would usually be adopted where there are available review processes on foot which have not been completed. It is not necessary to say any more about any proposed application under Pt 7, except that that application is not done by way of summons. A summons commences a legal process; the inquiry is not a judicial proceeding: Appeal and Review Act, s 79(4). I do not take the summons to be a wrong form of document applying for an inquiry, but rather an indication that that is a step which might be taken if all other attempts to overturn the convictions will prove to be unsuccessful.
I should also make one or two observations about the declarations sought which invoke the Disability Discrimination Act 1992 (Cth). The Disability Discrimination Act does not create a cause of action in any party, as is clear from s 125 of the Act. It prohibits discrimination on grounds of disability in specified areas of public life; however, it is at least doubtful that the operation of a State court is such an area. If it were, and there was alleged to be a contravention of the Disability Discrimination Act in the actions taken in a State court, then the available procedure is by way of complaint to the Australian Human Rights Commission, the statutory agency which receives complaints of breaches of the federal human rights statutes. The Commission lacks the power to make enforceable orders, or even to make recommendations which would overturn a judgment of the Local Court or the District Court.
Finally, I note that Mr Young has sought to have the matter adjourned while his application for special leave is determined in the High Court. I do not propose to make a formal step adjourning the matter. Whether this matter will, in the ordinary course, come on for further directions and perhaps a hearing in the Court of Appeal, before the special leave application is disposed of, is unclear. However, partly in response to Mr Young's concerns, and also by reference to observations made by counsel for the Director, there seem to be problems in Mr Young obtaining any practical relief in the High Court.
First, as Ms Gleeson for the Director noted, Justice Leeming's judgment was an interlocutory decision dealing with an application by Mr Young for a referral to the Registrar for pro bono assistance: Young v Director of Public Prosecutions [2022] NSWCA 133. As such, it did not finally determine any issue of law or fact. Secondly, although Leeming JA thought that the matter had been removed to the Court of Appeal, and had the supervisory jurisdiction in mind when he dealt with the referral application, he said it only "appeared" to have been transferred and the parties accept that that is not the case. Thirdly, at [10], Leeming JA said:
"It is not for me to make any final determination of the submissions Mr Young will make in support of his summons. It is sufficient to say that they do not appear to be strong."
He relied, appropriately, upon the absence of apparent strength in declining to refer Mr Young to the Registrar to obtain pro bono assistance.
An assessment of the likely merits of a case is an essential element of any application for referral for pro bono assistance and is made in every such application. There was no finding of fact. The court hearing the summons by way of final hearing would be uninfluenced by those views and would form its own view on the basis of the material before it. The tentative view that the case appeared to lack strength is not a matter which should trouble Mr Young in his submissions to the court hearing the summons.
Accordingly, I do not propose to grant a stay. I make the following orders:
1. Pursuant to s 51(1)(b) of the Supreme Court Act 1970, direct that the summons filed by Mr Young in the Common Law Division on 9 November 2021 be removed into the Court of Appeal.
2. Direct that the matter be placed in the directions list before the Registrar at a date convenient to the parties.
3. Costs of today will be costs of the summons as now removed to the Court of Appeal to be dealt with in that Court.
[3]
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Decision last updated: 18 October 2022