Folbigg v Attorney General of New South Wales

The case of Folbigg v Attorney General of New South Wales involved Kathleen Folbigg, who sought a review of an inquiry conducted under Part 7 of the Crimes (Appeal and Review) Act 2001. The inquiry was led by a former judicial officer and examined the conviction and sentence of Ms Folbigg for the murder of her three children. The matter was initially commenced in the Common Law Division of the Supreme Court of New South Wales, but was subsequently transferred to the Court of Appeal following the enactment of amending legislation. The court was required to determine whether the inquiry was conducted in a manner that warranted the exercise of the court's supervisory jurisdiction, including whether the removal of the matter from the Common Law Division to the Court of Appeal was justified.

The primary legal issue before the court was whether the application for review of the inquiry was properly before the Court of Appeal, given that the matter had been transferred from the Common Law Division by amending legislation. The court considered whether the transfer was retrospective in operation and whether it interfered with any accrued rights or procedural fairness. The court also had to consider the discretionary factors relevant to the exercise of its supervisory jurisdiction, including the appropriateness of the matter being heard by the Court of Appeal and the potential consequences of any orders made.

The court held that the application for review was properly before the Court of Appeal, and that the amending legislation did not operate retrospectively to interfere with any accrued rights or procedural fairness. The court also considered the discretionary factors and found that the matter was appropriate for the Court of Appeal to hear, and that any orders made would not have an adverse impact on the administration of justice. The court exercised its supervisory jurisdiction and made orders to review the inquiry and provide further directions.

The final orders of the court included a direction that the inquiry be reviewed by the Court of Appeal and that any findings or recommendations be reported to the Attorney General. The court also made orders for costs and provided directions for the conduct of the review. The decision of the Court of Appeal in Folbigg v Attorney General of New South Wales provides important guidance on the exercise of supervisory jurisdiction in relation to inquiries conducted by former judicial officers, and the application of legislative amendments to transfer matters between different courts.