Collier v Cook - [2012] NSWCA 50

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Collier v Cook & Ors [2012] NSWCA 50
Hearing dates: 22 March 2012
Decision date: 22 March 2012
Before: Campbell JA
Decision:
Notice of Motion dismissed with 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:
APPEAL AND NEW TRIAL - practice and procedure - stay of proceedings - where stay of Local Court criminal proceedings sought in Supreme Court - stay refused - appeal to Court of Appeal - appeal and prerogative relief proceedings not to fragment criminal proceedings except in exceptional circumstances - stay of order that has been carried out impossible
APPEAL AND NEW TRIAL - practice and procedure - where stay of Local Court criminal proceedings sought in Supreme Court - appellant seeks stay to prevent anticipated imprisonment - lack of evidence to confirm this would be outcome - not a case of urgency - stay not available to prevent outcome one merely fears may result
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Cases Cited: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81; (2010) 73 NSWLR 302
Clyne v Director Public Prosecutions (Cth) (1984) 154 CLR 640
Collier v Director of Public Prosecutions (NSW) [2011] NSWCA 202
Collier v Director of Public Prosecutions [2011] HCASL 177
Joosse v ASIC (1998) 73 ALJR 232
McBride v Walton (NSWCA, Handley JA, 27 August 1993, unreported)
Oates v Williams (1998) 84 FCR 348
R v Iorlano (1983) 151 CLR 678
Sankey v Whitlam (1978) 142 CLR 1
Category: Principal judgment
Parties: Marion Louise Collier (Applicant)
Sen. Cons. Kelly Edwards, Cons Kate Lancer, Sen. Cons. Melanie Morgan & Nathan Cook (Second Respondents)
NSW Magistrate Jan Stevenson (Second Respondent)
The Local Court (NSW) (Third Respondent)
Representation: Solicitors
M Collier, in person (Applicant)
Crown Solicitor's Office (First Respondents)
Submitting Appearances (Second and Third Respondent)

File Number(s): 2012/88605
Decision under appeal

Jurisdiction:

9111

Date of Decision:

2012-03-16 00:00:00

Before:

Davies J

File Number(s):

2012/68854

Judgment - ex tempore on application for stay of local court proceedings pending leave to appeal

HIS HONOUR: This is the hearing of a notice of motion dated 17 March 2012. It is filed in an application for leave to appeal that Mrs Collier brings against four police officers, a magistrate called Ms Stevenson, and the Local Court of New South Wales.

The decision against which Mrs Collier seeks leave to appeal was given by Davies J on 16 March 2012 in proceedings numbered 2012/68854 which were then entitled Marion Collier v Director of Public Prosecutions. The defendants to those proceedings have altered…

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.

Continue reading Collier v Cook

Details

AGLC: Collier v Cook [2012] NSWCA 50
Case: [2012] NSWCA 50
Decision Date: 22 March 2012

CaseChat Overview and Summary

In *Collier v Cook*, the appellant sought a stay of criminal proceedings in the Local Court before the Supreme Court, which was refused. The appellant then appealed this refusal to the Court of Appeal.

The Court of Appeal was required to determine whether the Supreme Court had erred in refusing the stay. Specifically, the court considered whether a stay of Local Court criminal proceedings was appropriate, particularly when sought to prevent an anticipated outcome of imprisonment, and whether such an appeal or prerogative relief should be granted to fragment ongoing criminal proceedings.

Campbell JA held that appeals and prerogative relief proceedings should not fragment criminal proceedings except in exceptional circumstances. The court found that the appellant had not provided sufficient evidence to confirm that imprisonment would be the outcome of the Local Court proceedings, nor was there a demonstrable urgency. Consequently, a stay was not available to prevent an outcome that the appellant merely feared might result.

The Notice of Motion was dismissed with costs.

Orders

Orders of the court

Notice of Motion dismissed with 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

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:	Collier v Cook & Ors [2012] NSWCA 50
Hearing dates:	22 March 2012
Decision date:	22 March 2012
Before:	Campbell JA
Decision:	Notice of Motion dismissed with 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:	APPEAL AND NEW TRIAL - practice and procedure - stay of proceedings - where stay of Local Court criminal proceedings sought in Supreme Court - stay refused - appeal to Court of Appeal - appeal and prerogative relief proceedings not to fragment criminal proceedings except in exceptional circumstances - stay of order that has been carried out impossible APPEAL AND NEW TRIAL - practice and procedure - where stay of Local Court criminal proceedings sought in Supreme Court - appellant seeks stay to prevent anticipated imprisonment - lack of evidence to confirm this would be outcome - not a case of urgency - stay not available to prevent outcome one merely fears may result
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986
Cases Cited:	AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81; (2010) 73 NSWLR 302 Clyne v Director Public Prosecutions (Cth) (1984) 154 CLR 640 Collier v Director of Public Prosecutions (NSW) [2011] NSWCA 202 Collier v Director of Public Prosecutions [2011] HCASL 177 Joosse v ASIC (1998) 73 ALJR 232 McBride v Walton (NSWCA, Handley JA, 27 August 1993, unreported) Oates v Williams (1998) 84 FCR 348 R v Iorlano (1983) 151 CLR 678 Sankey v Whitlam (1978) 142 CLR 1
Category:	Principal judgment
Parties:	Marion Louise Collier (Applicant) Sen. Cons. Kelly Edwards, Cons Kate Lancer, Sen. Cons. Melanie Morgan & Nathan Cook (Second Respondents) NSW Magistrate Jan Stevenson (Second Respondent) The Local Court (NSW) (Third Respondent)
Representation:	Solicitors M Collier, in person (Applicant) Crown Solicitor's Office (First Respondents) Submitting Appearances (Second and Third Respondent)
File Number(s):	2012/88605
Decision under appeal	Jurisdiction: 9111 Date of Decision: 2012-03-16 00:00:00 Before: Davies J File Number(s): 2012/68854