Allen v Ewing - [2017] NSWSC 1696

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Allen v Ewing and Anor [2017] NSWSC 1696
Hearing dates: 30 November 2017
Date of orders: 07 December 2017
Decision date: 07 December 2017
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1) The proceedings in this Court (17/308967) are stayed pending the resolution of the criminal proceedings in the Local Court commenced by Court Attendance Notice H 65675339.
(2) The plaintiff has liberty to apply to the Court on two days’ notice.
(3) No order as to costs.

Catchwords:
CIVIL LAW – summary dismissal of proceedings seeking declarations – judicial review of validity of search warrants – where criminal proceedings pending before Local Court – whether proceedings abuse of process by causing fragmentation of criminal proceedings – whether trial court has jurisdiction to consider validity of warrant beyond errors on face of warrant – latent invalidity – stay pending outcome of criminal proceedings

Legislation Cited:
Evidence Act 1995 (NSW)

Cases Cited:
Flanagan v Australian Federal Police (1996) 60 FCR 149; [1996] FCA 16
Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43
Lee v the New South Wales Commissioner of Police [2017] NSWSC 1594
Minister for Immigration v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11
Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49
Plaintiff S157 (2003) 211 CLR 476; [2003] HCA 2
R v Simmons; R v Moore (No 3) [2015] NSWSC 189
Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43

Category: Principal judgment
Parties: Christopher Georgian Allen (Plaintiff/Respondent)
Detective Sergeant Russell Ewing (First Defendant/Applicant)
Niki Valentine (Second Defendant)
Representation:
Counsel:
Mr E Ozen (Plaintiff/Respondent)
Mr D Hume (First Defendant//Applicant)
Solicitors:
Randall Legal (Plaintiff/Respondent)
Makinson d'Apice (First Defendant//Applicant)

File Number(s): 2017/00308967

Judgment

The plaintiff filed proceedings in this Court on 13 October 2017 seeking declarations that a search warrant executed at premises in a place called Dorroughby in northern New South Wales was invalid and that a search conducted on 31 May 2017 pursuant to that warrant was unlawful. The nominated defendants to the summons were the police officer who applied for the warrant (the first defendant) and the Registrar of the Local Court who issued the warrant (the second defendant). As is customary, the second defendant will submit to the orders of the court. The first defendant will contest the summons.
By notice of motion filed on 2 November 2017, the first defendant seeks an order that the proceedings be dismissed, or in the alternative that they be permanently stayed, or in the further alternative that they be stayed pending the resolution of criminal proceedings commenced against the plaintiff in the Local Court. At this time, the question before the Court is whether any of those alternative orders should be made.
The grounds upon which such orders might be made are that the proceedings commenced by the summons are vexatious or frivolous, or that no reasonable cause of action…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Allen v Ewing and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NSWSC 1696
Decision Date: 07 December 2017

CaseChat Overview and Summary

In the case of Allen v Ewing, the plaintiff, Allen, sought declarations and injunctive relief against Ewing, who is alleged to have executed search warrants in relation to criminal proceedings against Allen pending in the Local Court. The plaintiff argued that the execution of the warrants was unlawful and that the proceedings against him were an abuse of process, resulting in fragmentation of the criminal proceedings. Allen applied for judicial review of the validity of the search warrants, arguing that the trial court had jurisdiction to consider the validity of the warrants beyond errors on the face of the warrants and latent invalidity.

The court had to decide whether the proceedings were an abuse of process and whether the trial court had jurisdiction to consider the validity of the search warrants beyond errors on the face of the warrants and latent invalidity. The court held that the proceedings were not an abuse of process and that the trial court did not have jurisdiction to consider the validity of the search warrants beyond errors on the face of the warrants and latent invalidity. The court found that the plaintiff had not demonstrated that the search warrants were invalid or that their execution was unlawful.

The court found that the proceedings were not an abuse of process because the search warrants were valid and the execution of the warrants did not cause fragmentation of the criminal proceedings. The court also found that the trial court did not have jurisdiction to consider the validity of the search warrants beyond errors on the face of the warrants and latent invalidity because such issues were more appropriately dealt with in a separate proceeding for judicial review. The court held that the application for summary dismissal was well founded and dismissed the proceedings.

The court dismissed the proceedings seeking declarations and injunctive relief and ordered that the plaintiff pay the defendant's costs of the application.

Orders