Fell v Chenhall - [2018] NSWSC 1574

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Fell v Chenhall [2018] NSWSC 1574
Hearing dates: 29 May 2018
Decision date: 22 October 2018
Jurisdiction: Common Law
Before: Button J
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.
(3) The plaintiff, Mr Fell, must pay the costs of the proceedings of the first defendant, Ms Chenhall.

Catchwords: CRIMINAL LAW – appeal from the Local Court – commencement of summary proceedings – no leave of Registrar sought to file Court Attendance Notices in registry other than listed registry – whether failure to comply with rule 8.7 of the Local Court Rules 2009 (NSW) leads to invalidation of the commencement of proceedings – relevance of limitation period – appeal dismissed
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), s 53(3)(b)
Criminal Procedure Act 1986 (NSW)
Local Court Act 2007 (NSW)
Local Court Rules 2009 (NSW), r 8.7
Cases Cited: Blight v Inspector Barber [2007] NSWSC 448
Knaggs v Director of Public Prosecutions [2007] NSWCA 83, (2007) 170 A Crim R 366
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
R v Janceski [2005] NSWCCA 281, (2005) 64 NSWLR 10
Sharman v Director of Public Prosecutions (NSW) [2006] NSWSC 135; (2006) 161 A Crim R 1
Category: Principal judgment
Parties: Simon Mark Fell (Plaintiff)
Jennifer Chenhall (First defendant)
Local Court of NSW (Second defendant)
Representation:
Counsel:
DA Buchanan SC (Plaintiff)
KH Averre (First defendant)
Solicitors:
Downeys Lawyers Pty Ltd (Plaintiff)
Smythe Wozniak Lawyers (First defendant)

File Number(s): 2017/383589
Publication restriction: Nil.
Decision under appeal

Court or tribunal:

Local Court

Date of Decision:

19 December 2017

Before:

Degnan LCM

File Number(s):

2017/383589

Judgment

Statement of issue

To boil a complex dispute down to its essence, the question raised by this interlocutory appeal in summary criminal proceedings is: does a failure to obtain leave to file a document commencing those proceedings in a registry other than that of the court in which the proceedings are to be conducted invalidate that purported commencement? The answer to the question is important in the circumstances of this appeal, because of the effect of the well-known statute of limitations that applies to wholly summary offences. In my opinion, the question must be answered in the negative.

Background in chronological form

Mr Simon Mark Fell is the defendant in the Local Court, and the plaintiff (that is, the appellant) in this Court. Ms Jennifer Chenhall is the prosecutor in the Local Court, and the first defendant (that is, the first respondent) in this Court. The second defendant, the Local Court of New South Wales, has filed a submitting appearance. For ease of comprehension, I shall simply refer to Ms Chenhall as the prosecutor, and Mr Fell as the defendant.
By way of an Amended Summons, the defendant seeks leave to appeal against an order made by Magistrate Degnan in the Local Court at Campbelltown on 19 December 2017. That order dismissed a Notice of Motion of the…

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] NSWSC 1574
Case: [2018] NSWSC 1574
Decision Date: 22 October 2018

CaseChat Overview and Summary

The case of Fell v Chenhall involved an appeal against the decision of the Local Court, focusing on the procedural correctness of initiating summary proceedings. The appellant, Fell, contested the validity of the proceedings initiated by the respondent, Chenhall, arguing that the failure to comply with a specific procedural rule rendered the proceedings invalid. The Local Court had dismissed the appeal, and Fell sought to appeal to a higher court on the grounds that the lower court erred in its interpretation of the procedural rule.

The central legal issue in this case was whether the non-compliance with rule 8.7 of the Local Court Rules 2009 (NSW) rendered the initiation of summary proceedings invalid. This rule mandates that Court Attendance Notices be filed in the registry where the proceedings are listed. The court had to determine if this procedural error, coupled with the passage of the limitation period, resulted in the nullification of the proceedings. Furthermore, the court needed to assess whether the procedural breach could be overlooked if the limitation period had expired.

The court held that despite the procedural error in not filing the Court Attendance Notices in the correct registry, the proceedings were not invalidated. The court reasoned that the limitation period had expired, making the issue of procedural compliance irrelevant. The court found that once the limitation period had passed, the irregularity in the filing of the notices could not be grounds for invalidating the proceedings. Consequently, the appeal was dismissed, affirming the decision of the Local Court.

No further orders were made by the court beyond dismissing the appeal. The judgment underscored the importance of procedural compliance while also highlighting that such compliance becomes moot once the limitation period has lapsed.

Orders