Alves v State Insurance Regulatory Authority - [2023] NSWCA 232

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Alves v State Insurance Regulatory Authority [2023] NSWCA 232
Hearing dates: 26 September 2023
Date of orders: 29 September 2023
Decision date: 29 September 2023
Before: Ward P at [1]
Gleeson JA at [2]
Leeming JA at [31]
Decision:
(1) The summons filed 7 February 2023 be dismissed.
(2) The applicant to pay the first respondent’s costs of the proceedings.

Catchwords:
ADMINISTRATIVE LAW — Judicial review — Jurisdictional error — Application for review of District Court decision dismissing appeal against sentence imposed by Local Court — Where applicant pleaded guilty to charge of dishonestly obtaining financial advantage by deception — Where applicant claimed he was criminalised for no reason — Where leave to appeal against conviction not sought — Whether District Court committed jurisdictional error in determining sentence appeal

Legislation Cited:
Crimes Act 1900 (NSW), s 192E
Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 12, 17, 20
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 4, 5, 7, 73, 73A
District Court Act 1973 (NSW), s 176
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 59.4

Cases Cited:
Blissett v Director of Public Prosecutions (NSW) [2021] NSWCA 253
Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34
Lazarus v Independent Commission Against Corruption [2019] NSWCA 100; (2019) 367 ALR 274
Morgan v District Court of NSW (2017) 94 NSWLR 463; [2017] NSWCA 105
Roads and Traffic Authority of New South Wales v Higginson [2011] NSWCA 151
South Eastern Sydney Local Health District v Lazarus [2020] NSWCA 183

Category: Principal judgment
Parties: Luis Manuel Farinha Alves (Applicant)
State Insurance Regulatory Authority (First respondent)
District Court of New South Wales (Second respondent)
Representation:
Counsel:
Luis Alves (Applicant – self-represented)
P J Gow (First respondent)
Solicitors:
Luis Alves (Applicant – self-represented)
State Insurance Regulatory Authority, Department of Customer Service (First respondent)
Crown Solicitor’s Office (Second respondent – submitting)

File Number(s): 2023/40721
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

13 January 2023

Before:

M L Williams SC DCJ

File Number(s):

2021/223833

HEADNOTE

[This headnote is not to be read as part of the judgment]

On the first day of his trial on 20 June 2022, the applicant, Luis Alves, pleaded guilty to one count of fraud contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) in that he dishonestly obtained a financial advantage by deception. The applicant had received some $170,000 of overpayments of workers’ compensation benefits over a 6.5-year period, in circumstances where he failed to disclose that he had commenced employment as a bus driver. On 5 October 2022, the applicant was sentenced to imprisonment for 12 months to be served by way of an intensive correction order (ICO) in the community pursuant to s 7 of the Crimes (Sentencing Procedure) Act

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.

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Details

Case: [2023] NSWCA 232
Decision Date: 29 September 2023

CaseChat Overview and Summary

The applicant, Alves, sought judicial review of a decision by the District Court of New South Wales which dismissed his appeal against a sentence imposed by the Local Court. Alves had pleaded guilty to dishonestly obtaining a financial advantage by deception and contended that he had been criminalised without reason. The proceedings were before the Court of Appeal of New South Wales, constituted by Ward P, Gleeson and Leeming JJA.

The central legal issue before the Court of Appeal was whether the District Court had committed jurisdictional error in its determination of Alves's sentence appeal. Specifically, the court was required to consider whether the District Court had erred in law by proceeding to hear and determine the sentence appeal when leave to appeal against the conviction itself had not been sought.

The Court of Appeal reasoned that the applicant's contention that he was criminalised for no reason was a challenge to his conviction, not merely his sentence. As leave to appeal against the conviction had not been sought from the District Court, the District Court lacked the jurisdiction to entertain an appeal against the conviction. Consequently, its subsequent consideration of the sentence appeal, in the absence of a valid appeal against conviction, constituted a jurisdictional error. The Court of Appeal applied the principle that an appeal against sentence is generally contingent upon a valid appeal against conviction, or at least an application for leave to appeal against conviction.

The summons filed by the applicant on 7 February 2023 was dismissed, and the applicant was ordered to pay the first respondent's costs of the proceedings.

Orders

Orders of the court

(1) The summons filed 7 February 2023 be dismissed.

(2) The applicant to pay the first respondent’s costs of the proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Alves v State Insurance Regulatory Authority [2023] NSWCA 232
Hearing dates:	26 September 2023
Date of orders:	29 September 2023
Decision date:	29 September 2023
Before:	Ward P at [1] Gleeson JA at [2] Leeming JA at [31]
Decision:	(1) The summons filed 7 February 2023 be dismissed. (2) The applicant to pay the first respondent’s costs of the proceedings.
Catchwords:	ADMINISTRATIVE LAW — Judicial review — Jurisdictional error — Application for review of District Court decision dismissing appeal against sentence imposed by Local Court — Where applicant pleaded guilty to charge of dishonestly obtaining financial advantage by deception — Where applicant claimed he was criminalised for no reason — Where leave to appeal against conviction not sought — Whether District Court committed jurisdictional error in determining sentence appeal
Legislation Cited:	Crimes Act 1900 (NSW), s 192E Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 12, 17, 20 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 4, 5, 7, 73, 73A District Court Act 1973 (NSW), s 176 Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 59.4
Cases Cited:	Blissett v Director of Public Prosecutions (NSW) [2021] NSWCA 253 Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 Lazarus v Independent Commission Against Corruption [2019] NSWCA 100; (2019) 367 ALR 274 Morgan v District Court of NSW (2017) 94 NSWLR 463; [2017] NSWCA 105 Roads and Traffic Authority of New South Wales v Higginson [2011] NSWCA 151 South Eastern Sydney Local Health District v Lazarus [2020] NSWCA 183
Category:	Principal judgment
Parties:	Luis Manuel Farinha Alves (Applicant) State Insurance Regulatory Authority (First respondent) District Court of New South Wales (Second respondent)
Representation:	Counsel: Luis Alves (Applicant – self-represented) P J Gow (First respondent) Solicitors: Luis Alves (Applicant – self-represented) State Insurance Regulatory Authority, Department of Customer Service (First respondent) Crown Solicitor’s Office (Second respondent – submitting)
File Number(s):	2023/40721
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 13 January 2023 Before: M L Williams SC DCJ File Number(s): 2021/223833