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

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”).
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.
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 …”

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…

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 Fell v Chenhall

Details

AGLC: Fell v Chenhall [2018] NSWCA 260
Case: [2018] NSWCA 260
Decision Date: 07 November 2018

CaseChat Overview and Summary

The parties involved were Fell (appellant) and Chenhall (respondent). The dispute concerned an application for leave to appeal against an interlocutory ruling made in summary criminal proceedings in the Local Court of New South Wales. The appeal was heard by Macfarlan JA and Barrett AJA.

The primary legal issue before the appellate court was the interpretation of rule 8.7(4) of the Local Court Rules 2009 (NSW), which governed applications for leave to appeal against interlocutory rulings in summary criminal proceedings. The court was required to determine whether the appellant had met the criteria for granting such leave.

The court refused leave to appeal. While the specific reasoning for this refusal is not detailed in the provided text, the outcome indicates that the appellant failed to satisfy the requirements of rule 8.7(4) for obtaining leave to appeal an interlocutory decision in the context of summary criminal proceedings. Consequently, both the Notice of Motion for a stay and the Summons seeking leave to appeal were dismissed, with costs awarded to the respondent.

Orders

Orders of the court

The Notice of Motion for a stay and Summons seeking leave to appeal is each dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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