Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Dougan v Mann [2025] NSWCA 109 Hearing dates: 24 April 2025 Date of orders: 21 May 2025 Decision date: 21 May 2025 Before: Bell CJ at [1];
Ward P at [68];
Leeming JA at [69].Decision: 1. Direct the Local Court to correct JusticeLink by deleting the words “Convicted in Absence (ID 64460559)”, “Convicted in Absence (ID 64460557)”, and “Convicted in Absence (ID 64460558)” in respect of each of the three sequences 1, 2 and 5 in the entry for 17 November 2023 in respect of the applicant.
2. Leave to appeal refused with costs.
Catchwords: ADMINISTRATIVE LAW – Jurisdictional error – Application to appear by audiovisual link under s 5B of the Evidence (Audio and Audiovisual Link) Act 1998 (NSW) – Convenience of applicant to be taken into account – Whether magistrate excluded consideration of applicant’s “convenience”
APPEALS – Leave to appeal – Departure from arguments advanced before primary judge – Relevance to grant of leave to appeal – Importance of formal orders of lower courts being attained for purposes of appeals and applications for leave to appeal
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) s 53(3)(b)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 17C, 25, 47
Crimes Act 1900 (NSW)
Evidence (Audio and Audiovisual Links) Act 1998 (NSW) ss 5B, 3, 3A,
Property, Stock and Business Agents Act 2002 (NSW)
Supreme Court Act 1970 (NSW) s 69
Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170; [1981] HCA 39
Age Co Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
BE Financial Pty Ltd v Das [2012] NSWCA 164
Brodie v Streeter [2003] ACTSC 88; (2003) 180 FLR 176
Director of Public Prosecutions v Yerbury [2020] NSWSC 905
Gooley v Senior Constable Chad Stewart [2018] NSWSC 1738; 86 MVR 478
In the matter of the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
JD v Commissioner of Police, NSW Police Force [2022] NSWSC 911
Lazarus, Sandra v Director of Public Prosecutions (NSW) [2019] NSWCA 125
Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
R v Chute (No 9) [2019] ACTSC 69
R v Wilkie, R v Burroughs, R v Mainprize [2005] NSWSC 794; (2005) 193 FLR 291
Russell v Scott & Anor [2017] NSWSC 1720
Secretary, Department of Communities and Justice v KH (2022) 110 NSWLR 57; [2022] NSWCA 221
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206
Category: Principal judgment Parties: Sarah Dougan (Applicant)
Natasha…
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- AGLC
- Dougan v Mann [2025] NSWCA 109
- Case
- [2025] NSWCA 109
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court of Appeal was whether the Local Court magistrate had committed a jurisdictional error by failing to consider the convenience of the applicant when determining the application to appear by audiovisual link. A secondary issue arose concerning the grant of leave to appeal, specifically whether the applicant's departure from the arguments advanced before the primary judge was relevant to the determination of that application.
The Court of Appeal found that the magistrate had not erred in law. While the magistrate's reasons did not explicitly use the word "convenience," the Court concluded that the magistrate had, in substance, considered the applicant's convenience as required by the Act. The Court noted that the magistrate's decision was based on a proper understanding of the statutory provision and the relevant considerations. Regarding the application for leave to appeal, the Court observed that it is important for parties to adhere to the arguments presented in the court below when seeking leave to appeal, and that a departure from such arguments could be relevant to the exercise of discretion to grant leave.
The Court of Appeal ordered that the Local Court correct JusticeLink by deleting specific notations relating to convictions in absence from the applicant's record. However, leave to appeal was refused, and the applicant was ordered to pay the costs of the appeal.
Orders
Orders of the court
1. Direct the Local Court to correct JusticeLink by deleting the words “Convicted in Absence (ID 64460559)”, “Convicted in Absence (ID 64460557)”, and “Convicted in Absence (ID 64460558)” in respect of each of the three sequences 1, 2 and 5 in the entry for 17 November 2023 in respect of the applicant.
2. Leave to appeal refused with costs.
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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