Director of Public Prosecutions v Geraghty

[2000] NSWSC 228

CITATION:	DPP v Geraghty & Ors [2000] NSWSC 228
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 11375 of 1997
HEARING DATE(S):	16/03/2000; 23/03/2000
JUDGMENT DATE:	23 March 2000
PARTIES :	Director of Public Prosecutions (Cth) (respondent/plaintiff) Kevin Michael Geraghty (1st defendant) Maree Patricia Woodcroft (aka Marie Patricia Woodcroft) (applicant/2nd defendant) John Francis Magee (applicant/3rd defendant) Anthony Peter Woodcroft (applicant/4th defendant)
JUDGMENT OF:	Hidden J at 1

COUNSEL :	S J Motbey (applicants) P Brereton SC and M Cinque (respondent)
SOLICITORS:	Barry Geraghty (applicants) Cth Director of Public Prosecutions (respondent)
CATCHWORDS:	PROCEDURE - Motion to single judge to set aside interlocutory order of another judge - claim that order made without jurisdiction - whether one judge of a division has power to set aside the order of another judge in those circumstances
LEGISLATION CITED:	Supreme Court Act 1970 Supreme Court Rules 1970 Proceeds of Crime Act 1987 (Cth)
CASES CITED:	Douglas v John Fairfax & Sons Ltd (1983) 3 NSWLR 126 NSW Crime Commission v Gardiner (unreported 3 December 1999) Brennan v Brennan (1953) 89 CLR 129 Wilkshire and Coffey v Cth of Australia (1976) 9 ALR 325
DECISION:	Motion dismissed with costs (see paragraphs 12, 19 & 20)

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

Thursday 23 March 2000

Director of Public Prosecutions v Kevin Michael Geraghty & 3 Ors
No: 11375/97

Reasons for judgment

1     HIS HONOUR: Before me is an application to set aside an order made, by consent, by Simpson J under the Proceeds of Crime Act 1987 (Cth). That order was made at a time when the applicants were differently represented.

2     Counsel for the applicants who now appears submitted that there was no jurisdiction to make the orders in the light of certain provisions of the Proceeds of Crime Act. Counsel for the Director of Public Prosecutions disputed that assertion and maintains there was jurisdiction to make the orders.

3 A preliminary question which counsel for the Director has taken is whether it is appropriate that I should deal with this application, because effectively it invites me to determine that Simpson J acted without jurisdiction. Counsel for the Director submits that the proper course is for the applicant to seek leave to appeal against that order to the Court of Appeal, pursuant to s101(2)(e) of the Supreme Court Act.

4     It is common ground that the order of Simpson J is an interlocutory order such as might on its face attract the power of a judge of this Court to set it aside under Pt 40 r9(4) of the Rules. Counsel for the Director submits, however, that that subrule does not extend to the exercise effectively of appellate review of the order of Simpson J. He referred to the decision of Hunt J (as he then was) in Douglas v John Fairfax & Sons Limited (1983) 3 NSWLR 126 at 134, where his Honour referred to the common law power of a judge of this Court to vary the interlocutory order of another judge in the light of changed circumstances. His Honour went on to say that that power was not affected by Pt 40 r9, as subrule(5) expressly provides.

5     I think there is force in that submission. It appears to me to be consistent with the scheme of the Act and the Rules and, in particular, with the right to appeal, albeit by leave, to the Court of Appeal against an interlocutory judgment or order made by a single judge of the Court. Indeed, I note that Douglas v John Fairfax itself was a case in which Hunt J varied an order made by another judge of the Court. Before doing so, his Honour expressed considerable reservation about the power of that other judge to make the order that he did. Nonetheless, his Honour observed, at 134 D:

But I accept that, in the absence of any appeal, I am unable to treat the order as having been made wrongly or without power. Notwithstanding the absence of such an appeal, however, I am satisfied I have power to vary that order.

6     It seems to me that, clearly, his Honour recognised a distinction between a challenge to an interlocutory order upon the basis that it was wrong in law or without jurisdiction, on the one hand, and an application to rescind or vary an interlocutory order in the light of changed circumstances, on the other.

7     This view was assumed, although it seems the matter was not fully argued, by Adams J, in NSW Crime Commission v Gardiner (unreported 3 December 1999). Counsel for the applicant referred to the High Court decision in Brennan v Brennan (1953) 89 CLR 129 and, in particular, the passage at 134. However, that case does not appear to me to bear on the issue at hand.

8     Counsel also referred to the decision of Muirhead J in Wilkshire and Coffey v Commonwealth of Australia (1976) 9 ALR 325, which contains a useful examination of this question by reference to English and Australian authority at 330ff. However, it appears to me that the view I have expressed is entirely consistent with the conclusion at which his Honour arrived at in that case.

9     Accordingly, I am satisfied that this motion is not properly brought in this Division of the Court and, if the matter is to be pursued, it must be by way of application for leave to appeal to the Court of Appeal.

(In respect of a further notice of motion (see separate transcript)

10     My having determined that the motion to which I have referred is not properly before me, counsel for the applicants has sought leave to file a fresh motion seeking that I remove the proceedings, the subject of the motion, into the Court of Appeal pursuant to Pt 12 r2 of the Rules for determination of the very questions which would have been the subject of the motion if I had proceeded to hear it, together with the determination of the question of whether I had jurisdiction to hear it.

11     It does not appear to me to be appropriate to make such orders. The view I take of Pt 12 r2 is that it empowers a judge of this jurisdiction, when proceedings are properly before him or her, to remove them into the Court of Appeal for the resolution of specific questions of law.

12     In view of my conclusion that the original motion raises matters which are exclusively within the jurisdiction of the Court of Appeal, I do not consider it would have been appropriate to make the orders sought in the motion which has just been presented.

13     Accordingly, I take the view there is no utility in filing that motion and that leave is refused.

14     I should say this: It does appear that the original motion before me raises questions of some importance relating to the administration of the Proceeds of Crime Act. That said, the question of leave is obviously entirely a matter for the Court of Appeal and not for me.

15     I should also add I shall return the motion for removal of the proceedings into the Court of Appeal as I stated I would not grant leave to file that motion. However, this morning counsel for the applicants sought leave to file an amended notice of motion in relation to the proceedings which were part heard before me. That leave is granted. However, that motion, in the light of my reasons, must be dismissed.

16     The applicants must pay the Director's costs.

17     I recommend that a transcript of both today's proceedings and the previous proceedings on 16 March 2000 before me be prepared as soon as possible, as there is a real question of time affecting this appeal if it is to be pursued. The Court would appreciate it if it could be prepared with all due expedition.

**********

Last Modified: 09/25/2000