Bindaree Beef Pty Ltd v Riley

Case [2013] NSWCA 343

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Patsalis v Attorney General for New South Wales [2013] NSWCA 343
Hearing dates:2 August 2013
Decision date: 16 October 2013
Before: Bathurst CJ at [1];
Beazley P at [7];
Basten JA at [8]
Decision:

(1) Dismiss the application for leave to appeal as incompetent.

(2) Dismiss the summons to the extent that it seeks relief otherwise than by way of seeking leave to appeal.

(3) Order the applicant to pay the costs of the respondent to the summons.

[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:

ADMINISTRATIVE LAW - judicial review - relief - whether quashing order available unless rights directly affected or decision a step in a process with legal consequences - whether jurisdictional or legal error - whether order available against judge of Supreme Court

APPEAL - refusal to grant an inquiry under Crimes (Appeal and Review) Act 2001 (NSW), Part 7 - decision by judge of a superior court - whether exercise of judicial function - whether appeal available under Supreme Court Act 1970 (NSW), s 101

CRIMINAL LAW - appeal and review - unsuccessful appeal - application for inquiry - whether doubt or question as to guilt - whether refusal to direct an inquiry reviewable

WORDS & PHRASES - "proceedings" - Crimes (Appeal and Review) Act 2001 (NSW), s 79 - "judgment or order" - Supreme Court Act 1970 (NSW), s 101
Legislation Cited: Crimes Act 1900 (NSW), ss 474E, 475; Pt 13A
Crimes Act 1900 (ACT), s 475
Crimes (Appeal and Review) Act 2001 (NSW), ss 76, 77, 78, 79; Pt 7
Criminal Appeal Act 1912 (NSW), s 26
Criminal Law Amendment Act 1883 (NSW), ss 383
Evidence Act 1995 (NSW), ss 138, 139
Judiciary Act 1903 (Cth), s 2, 35, 78B
Supreme Court Act 1970 (NSW), ss 23, 69, 79, 101
Cases Cited: Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564
The Commonwealth v Mullane [1961] HCA 28; 106 CLR 166
Craig v The State of South Australia [1995] HCA 58; 184 CLR 163
Director of Public Prosecutions (ACT) v Eastman [2002] ACTSC 35; 130 A Crim R 588; [2002] FCAFC 209; 118 FCR 360
Driclad Pty Ltd v Commissioner of Taxation (Cth) [1968] HCA 91; 121 CLR 45
Eastman v Miles [2007] ACTSC 27; 210 FLR 417
Eastman v Australian Capital Territory [2008] ACTCA 8; 227 FLR 279
Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318
Grierson v The King [1938] HCA 45; 60 CLR 431
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Details
AGLC
Patsalis v Attorney General for New South Wales [2013] NSWCA 343
Case
[2013] NSWCA 343
Decision Date

CaseChat Overview and Summary

Bindaree Beef Pty Ltd sought leave to appeal against a decision of a judge of the Supreme Court of New South Wales, who had refused to grant an inquiry under Part 7 of the *Crimes (Appeal and Review) Act 2001* (NSW). The application for leave to appeal was made under section 101 of the *Supreme Court Act 1970* (NSW).

The central legal issues before the Court of Appeal were whether the refusal to grant an inquiry under the *Crimes (Appeal and Review) Act 2001* (NSW) constituted a "judgment or order" within the meaning of section 101 of the *Supreme Court Act 1970* (NSW), and if so, whether an appeal lay from such a decision. Relatedly, the Court considered whether a quashing order was available in administrative law unless rights were directly affected or the decision was a step in a process with legal consequences, and whether the refusal to direct an inquiry was reviewable.

The Court of Appeal held that the refusal to grant an inquiry under the *Crimes (Appeal and Review) Act 2001* (NSW) was an exercise of a judicial function by a judge of the Supreme Court, but it did not constitute a "judgment or order" for the purposes of section 101 of the *Supreme Court Act 1970* (NSW). Consequently, the application for leave to appeal was deemed incompetent. The Court further determined that the relief sought by Bindaree Beef Pty Ltd, other than by way of seeking leave to appeal, was not available.

The Court of Appeal ordered that the application for leave to appeal be dismissed as incompetent. The summons was also dismissed to the extent that it sought relief otherwise than by way of seeking leave to appeal, and Bindaree Beef Pty Ltd was ordered to pay the costs of the respondent to the summons.

Orders

Orders of the court

(1) Dismiss the application for leave to appeal as incompetent.

(2) Dismiss the summons to the extent that it seeks relief otherwise than by way of seeking leave to appeal.

(3) Order the applicant to pay the costs of the respondent to the summons.

[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

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Ratio Decidendi

Legal Principle Established

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