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Dougan v NSW Fair Trading

Dougan v NSW Fair Trading

Case [2024] NSWSC 1429 11 November 2024

Judicial Review

Standing

Natural Justice & Procedural Fairness

Administrative Law

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Supreme Court

New South Wales

Medium Neutral Citation: Dougan v NSW Fair Trading [2024] NSWSC 1429
Hearing dates: 08 November 2024
Date of orders: 11 November 2024
Decision date: 11 November 2024
Jurisdiction: Common Law
Before: Griffiths AJA
Decision:
1. The amended summons be dismissed.
2. The plaintiff pay the first defendant’s costs.

Catchwords:
ADMINISTRATIVE LAW – judicial review – where magistrate refused to direct plaintiff to appear by audiovisual link rather than in person for sentencing hearing – whether magistrate misapprehended duty under s 5B(2)(b) of Evidence (Audio and Audio Visual Links) Act 1998 (NSW) by excluding consideration of inconvenience to the plaintiff – where court warrant for plaintiff’s arrest subsequently issued pursuant to s 25(2) of Crimes (Sentencing Procedure) Act 1999 (NSW) – whether magistrate required to take into account plaintiff’s willingness and capacity to attend hearing by audiovisual link

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), s 25
Evidence (Audio and Audio Visual Links) Act 1998 (NSW), ss 3(2), 5B
Supreme Court Act 1970 (NSW), s 69

Cases Cited:
Brodie v Streeter (2003) 180 FLR 176; [2003] ACTSC 86
Corcoran v Far [2019] NSWSC 1284
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088
Ian Lawrence Struthers (in his capacity as liquidator) of P.A.C.I. Pty Ltd [2005] NSWSC 864
Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
R v Chute (No 9) [2019] ACTSC 69
R v Knight (No 1) [2023] NSWSC 195
R v Wilkie (2005) 193 FLR 291; [2005] NSWSC 794
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22
Small v K & R Fabrications (W’gong) Pty Ltd [2016] NSWCA 70

Texts Cited:
Nil

Category: Principal judgment
Parties: Sarah Dougan (Plaintiff)
NSW Fair Trading (First Defendant)
Local Court of New South Wales (Second Defendant) (submitting appearance)
Representation:
Counsel:
P Lange / F Tao (Plaintiff)
P McEniery (First Defendant)
Solicitors:
Aquila Lawyers (Plaintiff)
Department of Customer Service (First Defendant)

File Number(s): 2024/61315
Publication restriction: Nil
Decision under review

Court or tribunal:

Local Court

Jurisdiction:

Criminal

Date of Decision:

17 November 2023

Before:

Feather LCM

File Number(s):

2013/275395

JUDGMENT

By an amended summons for judicial review, the plaintiff seeks to have set aside an order made by the Local Court on 17 November 2023 refusing to direct that the plaintiff appear by audiovisual link (AVL) rather than in person for a sentencing hearing. The plaintiff also seeks to set aside a warrant issued that day under s 25(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) for her arrest. The plaintiff asks this Court to…

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 Dougan v NSW Fair Trading

Details

AGLC: Dougan v NSW Fair Trading [2024] NSWSC 1429
Case: [2024] NSWSC 1429
Decision Date: 11 November 2024

CaseChat Overview and Summary

In Dougan v NSW Fair Trading, the dispute involved a challenge to the decision of a magistrate to refuse a direction for the plaintiff to attend a sentencing hearing via audiovisual link, instead insisting on the plaintiff's physical presence. The case was heard in the Supreme Court of New South Wales. The plaintiff argued that the magistrate misapplied the law by not considering the inconvenience to him, as stipulated by section 5B(2)(b) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), when making the decision. Furthermore, the plaintiff contended that, following the issuance of a court warrant for his arrest under section 25(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the magistrate should have taken into account his willingness and ability to participate in the hearing via audiovisual link.

The primary legal issues the court addressed were whether the magistrate correctly exercised his discretion under the relevant statutory provisions and whether he failed to consider relevant factors, specifically the inconvenience to the plaintiff and his willingness to attend the hearing remotely. The court had to interpret the statutory provisions and assess if the magistrate's decision was legally sound and if it complied with the statutory requirements.

The court found that the magistrate had indeed misapprehended his duty under section 5B(2)(b) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) by not considering the plaintiff's circumstances, including the inconvenience to him, when deciding against audiovisual attendance. The court held that the magistrate was required to take into account the plaintiff's willingness and capacity to attend the hearing remotely, especially after the issuance of the arrest warrant. Consequently, the court quashed the magistrate's decision and remitted the matter for reconsideration, ensuring that the magistrate properly considers the statutory requirements and the plaintiff's circumstances.

Orders