El-Zayet v Director of Public Prosecutions

[2014] NSWCA 422

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

El-Zayet v Director of Public Prosecutions [2014] NSWCA 422

Hearing dates:

26 March 2014

Decision date:

10 December 2014

Before:

Beazley P;
McColl JA;
Emmett JA

Decision:

Summons for leave to appeal dismissed.

[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:

JURISDICTION - Court of Appeal - whether appeal properly lay to the Court of Appeal

Legislation Cited:

Costs in Criminal Cases Act 1967 (NSW)
Criminal Appeal Act 1912 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

El-Zayet v R [2014] NSWCCA 298

Category:

Principal judgment

Parties:

Nasaem El-Zayat (Applicant)
Director of Public Prosecutions (Respondent)

Representation:

Counsel:
I McLachlan (Applicant)
H Wilson (Respondent)
Solicitors:
Trimmer Criminal Defence Lawyers (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s):

CA 2013/198067

 Decision under appeal 

Jurisdiction:

9111

Citation:

Aouad v R; El-Zayet v R [2013] NSWSC 760

Date of Decision:

2013-06-14 00:00:00

Before:

Price J

File Number(s):

2005/2678

Judgment

1. THE COURT: On 14 June 2013, Price J dismissed the applicant's claim that the Director of Public Prosecutions (the Director) had waived privilege in respect of a document upon which the Director had written a direction that no further proceedings be taken against the applicant: Aouad v R; El-Zayet v R [2013] NSWSC 760. That claim, by way of an amended notice of motion, arose in the context of Mr El-Zayet's application for costs pursuant to the Costs in Criminal Cases Act 1967 (NSW). The procedural background to this application is outlined in the decision of El-Zayet v R [2014] NSWCCA 298 with which this judgment must be read.

1. On 27 June 2013, the applicant filed an application for leave to appeal in the Court of Criminal Appeal pursuant to the Criminal Appeal Act 1912 (NSW) against Price J's dismissal of the amended notice of motion.

1. On 28 June 2013, the applicant filed a notice of intention to seek leave to appeal to the Court of Appeal in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.8. The summons seeking leave to appeal to the Court of Appeal was filed on 12 September 2013.

1. An order was made that the summons for leave to appeal to this Court and, if granted, the appeal, were to be heard concurrently by this Court on 26 March 2014. At the hearing, doubts were raised about whether the appeal was properly brought to this Court. The parties were invited to make further written submissions and the Chief Justice constituted the Court as a Court of Criminal Appeal, pursuant to the Criminal Appeal Act, s 3.

1. For the reasons given by us sitting in the Court of Criminal Appeal: El-Zayet v R [2014] NSWCCA 298, no appeal lies to this Court from Price J's judgment. Accordingly, the application for leave to appeal to this Court should be dismissed.

1. We would not make any order for costs in circumstances where both parties originally came to the Court without having turned any attention to the question whether this Court had jurisdiction to make the orders sought.

1. The Court makes the following order:

Summons for leave to appeal dismissed.

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Decision last updated: 10 December 2014