BUSB v Director-General of Security

Case [2011] NSWCA 49

Court of Appeal

New South Wales
Case Title: BUSB v Director-General of Security
Medium Neutral Citation: [2011] NSWCA 49
Hearing Date(s): 10 February 2011
Decision Date: 11 March 2011
Jurisdiction:
Before:

Spigelman CJ at 1;  Allsop P at 4;  Hodgson JA at 5;  McClellan CJ at CL at 6;  Johnson J at 7.
Decision:

1. Summons dismissed.
2. No order as to costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

CRIMINAL LAW - procedure - jurisdiction - where summons filed in both Court of Appeal and Court of Criminal Appeal - s 17 of the Supreme Court Act 1970 - whether Court of Appeal or Court of Criminal Appeal the proper forum
Legislation Cited:

Criminal Appeal Act 1912, s 5F
Supreme Court Act 1970, s 17
Cases Cited:

BUSB v Director-General of Security [2011] NSWCCA 39
Texts Cited:
Category: Principal judgment
Parties:

BUSB (Appellant)
Director-General of Security (First Respondent)
New South Wales Director of Public Prosecutions (Second Respondent)
District Court of New South Wales (Third Respondent)
Attorney General for the State of New South Wales (Intervening)
Representation
- Counsel:

P Lange, G Scragg (Applicant)
T Howe QC, G Kennett SC, A Berger (First Respondent)
P Ingram SC, G Tabuteau (Second Respondent)
M Sexton SC Solicitor General, N L Sharp (Attorney General Intervening)
- Solicitors:

LawyersCorp Pty Ltd (Applicant)
Australian Government Solicitor (First Respondent)
Solicitor for Public Prosecutions (Second Respondent)
Crown Solicitors Office (Intervener)
File number(s): CA 2010/214246;  CA 2011/12388
Decision Under Appeal
- Court / Tribunal:
- Before: Charteris DCJ
- Date of Decision: 08 April 2010
- Citation:
- Court File Number(s) 2006/00011417
Publication Restriction:

Non-publication order - name of applicant.

Judgment

  1. SPIGELMAN CJ: The applicant filed a summons in these proceedings at a time when an issue had arisen in the New South Wales Court of Criminal Appeal as to whether he had successfully invoked the jurisdiction of that Court pursuant to the provisions of s 5F of the Criminal Appeal Act 1912. This summons was directed to raising the same issues as were originally intended to be raised in the Court of Criminal Appeal.

  1. The concerns about the jurisdiction of the Court of Criminal Appeal have been resolved. That Court has determined that appeal. (See BUSB v Director-General of Security [2011] NSWCCA 39.) Section 17 of the Supreme Court Act 1970 makes it clear that the Court of Criminal Appeal should have primary carriage of matters of this character and that this Court should not exercise its supervisory jurisdiction in such circumstances.

  1. Accordingly, the issues having been resolved by the same bench as is constituted for purposes of this application, the summons in these proceedings should be dismissed with no order as to costs.

  1. ALLSOP P: I agree with the Chief Justice.

  1. HODGSON JA: I agree with the Chief Justice.

  1. McCLELLAN CJ at CL: I agree with the Chief Justice.

  1. JOHNSON J: I agree with the Chief Justice.

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Details
AGLC
BUSB v Director-General of Security [2011] NSWCA 49
Case
[2011] NSWCA 49
Decision Date

CaseChat Overview and Summary

The applicant, BUSB, filed a summons in both the Court of Appeal and the Court of Criminal Appeal of New South Wales, seeking to challenge a decision of the Director-General of Security. The central dispute concerned which of these two appellate courts constituted the proper forum for BUSB's application, particularly in light of section 17 of the *Supreme Court Act 1970* (NSW). The matter was heard by a bench comprising Spigelman CJ, Allsop P, Hodgson JA, McClellan CJ at CL, and Johnson J.

The primary legal issue before the court was to determine whether the Court of Appeal or the Court of Criminal Appeal had jurisdiction to hear BUSB's summons. This required an interpretation of the relevant legislative provisions governing the jurisdiction of these courts, specifically section 17 of the *Supreme Court Act 1970*, and how it applied to the nature of the proceedings initiated by BUSB.

The court reasoned that the *Supreme Court Act 1970* established a unified Supreme Court with distinct divisions, including the Court of Appeal and the Court of Criminal Appeal. Section 17 of the Act, which deals with the jurisdiction of the Court of Appeal, was considered in conjunction with the specific appellate jurisdiction conferred upon the Court of Criminal Appeal. The court concluded that the nature of the application brought by BUSB fell within the exclusive appellate jurisdiction of the Court of Criminal Appeal, and therefore, the summons filed in the Court of Appeal was misconceived. Consequently, the summons was dismissed, and no order was made as to costs.

Orders

Orders of the court

1. Summons dismissed.

2. No order as to costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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