Fell v Chenhall

[2018] NSWCA 260

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Fell v Chenhall [2018] NSWCA 260
Hearing dates:	5 and 7 November 2018
Date of orders:	07 November 2018
Decision date:	07 November 2018
Before:	Macfarlan JA; Barrett AJA
Decision:	The Notice of Motion for a stay and Summons seeking leave to appeal is each dismissed with costs.
Catchwords:	APPEAL – application for leave to appeal against interlocutory ruling in Local Court summary criminal proceedings – interpretation of r 8.7(4) of Local Court Rules 2009 (NSW) – leave refused
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW), s 53(3) Criminal Procedure Act 1986 (NSW), ss 175(3)(d), 179 Local Court Rules 2009 (NSW), r 8.7(4) Supreme Court Act 1970 (NSW), s 101(2)
Cases Cited:	Emanuele v Australian Securities Commission (1997) 188 CLR 114; [1997] HCA 20 Knaggs v Director of Public Prosecution (NSW) [2007] NSWCA 83; (2007) 170 A Crim R 366 Sharman v Director of Public Prosecutions [2006] NSWSC 135; (2006) 161 A Crim R 1 Toth v Director of Public Prosecutions (NSW) [2018] NSWCA 253
Category:	Procedural and other rulings
Parties:	Simon Mark Fell (Applicant) Jennifer Chenhall (First Respondent) Local Court of New South Wales (Second Respondent)
Representation:	Counsel: S Pararajasingham (Applicant on 5 November 2018) I McLachlan (Applicant on 7 November 2018) M Swift (First Respondent on 5 November 2018) N D Funnell (First Respondent on 7 November 2018)   Solicitors: Downey Lawyers Pty Ltd (Applicant) Smythe Wozniak Lawyers (First Respondent)
File Number(s):	CA 2018/335329
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2018] NSWSC 1574 Date of Decision: 22 October 2018 Before: Button J File Number(s): SC 2017/383589

Judgment

1. THE COURT: Mr Fell is an authorised examiner of modified motor vehicles who is licensed under the NSW Vehicle Safety Compliance Certification Scheme. This scheme is administered by the Roads and Maritime Services (“RMS”).

2. On 22 July 2016 an employee of the solicitor for the present respondent (“the prosecutor”) filed two Court Attendance Notices (“CANs”) at the registry of the Local Court at Mount Druitt. The first charged Mr Fell with an offence of breaching conditions of his licence and the second charged him with failing to maintain inspection records. Both CANs identified the Local Court at Campbelltown as the place at which Mr Fell was required to appear before the Court.

3. The specification in the CANs of a place for Mr Fell’s appearance reflected the terms of s 175(3)(d) of the Criminal Procedure Act 1986 (NSW) which states that a Court Attendance Notice must:

“[r]equire the accused person to appear before the court at a specified date, time and place, unless a warrant is issued for the arrest of the person or the person is refused bail …”

4. Mr Fell alleges that the CANs did not however comply with r 8.7(4) of the Local Court Rules 2009 (NSW) which states:

“A document that is required by the Criminal Procedure Act 1986 or the Local Court Act 2007 or this rule to be filed in the registry is, except with the leave of the registrar, to be filed in the registry before which the relevant proceedings are, or are to be, listed.”

5. The hearing of the proceedings commenced at Campbelltown Local Court on 3 May 2017 and continued on the following day. Further hearing dates fixed for 16 to 18 August 2017 were vacated due to an issue concerning an expert report. The hearing was fixed to recommence on 19 December 2017.

6. In early December 2017 Mr Fell’s solicitor noticed the alleged departure from r 8.7(4) referred to above, as a result of which, on 5 December 2017, Mr Fell filed a Notice of Motion seeking an order that the Local Court proceedings be dismissed for want of jurisdiction. The Motion was heard by Magistrate Degnan on 13 and 19 December 2017. Mr Fell contended that the non-compliance with r 8.7(4) rendered the proceedings a nullity and that, because the time limit for commencement of proceedings for a summary offence of six months had expired, no further proceedings could be commenced (see s 179 of the Criminal Procedure Act). Magistrate Degnan dismissed the Notice of Motion on 19 December 2017 and proceeded with the hearing on that day and on 20 and 21 December 2017.

7. The hearing continued in the Local Court for four further days in March 2018 and is fixed to continue for 10 additional days commencing on 19 November 2018.

8. In the meantime, on 19 December 2017, Mr Fell filed an application in the Common Law Division of the Supreme Court for leave to appeal against Magistrate Degnan’s interlocutory order refusing to dismiss the Local Court proceedings for want of jurisdiction. Section 53(3) of the Crimes (Appeal and Review) Act 2001 (NSW) confers a right of appeal from such an interlocutory decision on a question of law only, albeit that leave to appeal must be obtained.

9. The application was heard by Button J on 29 May 2018. By judgment of 22 October 2018, his Honour granted leave to appeal but dismissed the appeal ([2018] NSWSC 1574).

10. By Summons filed in this Court on 1 November 2018, Mr Fells seeks leave under s 101(2) of the Supreme Court Act 1970 (NSW) to appeal to this Court against Button J’s decision and, by Notice of Motion filed on the same date, seeks a stay of the Local Court proceedings pending determination of that appeal.

11. For the following reasons both applications should in our opinion be refused.

12. First, Mr Fell has not persuaded us that he would have any serious prospects of successfully challenging Button J’s judgment in the event that leave to appeal were granted. Whilst we should not be taken to express a final view on the point at issue, as it may arise again when the proceedings in the Local Court are concluded, Button J’s judgment appears to apply the correct principles and to reach the correct result on the point of construction at issue. His Honour’s decision derives considerable support from this Court’s decision in Knaggs v Director of Public Prosecution (NSW) [2007] NSWCA 83; (2007) 170 A Crim R 366.

13. Secondly, notwithstanding Button J’s grant of leave to appeal and dismissal of the appeal, Magistrate Degnan’s decision on the jurisdictional issue remains interlocutory. It (or any further decision on the point which supercedes it) will achieve finality only if and when Mr Fell is convicted. Until that time the decision may be reconsidered if there is good reason to do so. Additional evidence or arguments may justify that occurring. If Mr Fell is successful in persuading the Magistrate that the decision should be revisited, other arguments supporting the decision may have to be considered (see Toth v Director of Public Prosecutions (NSW) [2018] NSWCA 253 at [27]-[29]). For example, Button J’s determination, necessarily on an interlocutory basis, that the acceptance of the CANs by the Mount Druitt registry did not amount to an implicit grant of leave for the purpose of r 8.7 might arise for reconsideration. Secondly, the validity of a purported grant of leave to file the CANs that the Local Court Registrar recently made is likely to arise for determination. The relevance and correctness of the decision in Sharman v Director of Public Prosecutions [2006] NSWSC 135; (2006) 161 A Crim R 1 would need to be considered in this context, and also the applicability of Emanuele v Australian Securities Commission (1997) 188 CLR 114; [1997] HCA 20.

14. Thirdly, as was recently reiterated in this Court in Toth v Director of Public Prosecutions at [35], the High Court has counselled against the fragmentation of criminal proceedings, and there have been a number of decisions of this Court to the same effect. As in Toth, there is no reason not to apply this oft-stated policy in the present case. Indeed, the Court should clearly do so when no reasonable prospect of success on appeal has been demonstrated.

15. It does not appear that the Local Court proceedings have yet been fragmented by Mr Fell’s application to the Supreme Court because the Local Court hearing proceeded in December 2017 and March 2018 and is fixed to continue further in November 2018, despite Mr Fell’s application to the Supreme Court having been made on 19 December 2017. However, even if the application had already caused some fragmentation of the Local Court proceedings, that would not be a reason to allow further interruption to them.

Orders

16. For these reasons, Mr Fell’s Notice of Motion for a stay and his Summons seeking leave to appeal is each dismissed with costs.

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Decision last updated: 07 November 2018