Court of Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Huynh v Attorney General (NSW) [2023] NSWCA 190 Hearing dates: 27 July 2023 Date of orders: 16 August 2023 Decision date: 16 August 2023 Before: Bell CJ at [1];
Kirk JA at [55];
Simpson AJA at [56]Decision: 1. Order that pursuant to s 6(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) the application for judicial review be determined by the Court of Appeal.
2. The proceedings should be listed before the Registrar for the making of directions for written submissions in relation to the application and the setting of a further date for its hearing if the parties do not otherwise consent to the application being determined on the papers.
Catchwords: CIVIL PROCEDURE – cross-vesting – transfer to Federal Court – whether special federal matter – whether a matter arising under the Administrative Decisions (Judicial Review) Act 1977 (Cth) – whether a matter within the original jurisdiction of the Federal Court – where underlying proceedings concern an application for judicial review of a decision of a Supreme Court judge acting persona designate not to order a post-appeal inquiry in the Court of Criminal Appeal – s 78(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) – where post-appeal inquiry procedures “picked up” and applied as surrogate federal laws by virtue of s 68(1) of the Judiciary Act 1903 (Cth) in respect of convictions for Commonwealth offences – where proceedings on remitted from the High Court of Australia
CIVIL PROCEDURE – cross-vesting – transfer to Federal Court – whether special reasons for the proceedings to be determined by the Court of Appeal – s 6(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) – where Commonwealth legislative scheme for criminal procedure favours territorial not national uniformity – where Court of Appeal possesses practical familiarity with the Crimes (Appeal and Review) Act 2001 (NSW) – where lengthy procedural history – where Applicant self-represented
Legislation Cited: Acts Interpretation Act 1901 (Cth) s 13
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3, 5, 9
Crimes (Appeal and Review) Act 2001 (NSW) Pt 7
Criminal Code Act 1995 (Cth) ss 11.5(1) and 307.11(1)
Judiciary Act 1903 (Cth) ss 39, 39B
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) ss 3, 4, 6
Real Property Act 1900 (NSW)
Sentencing Act 1989 (NSW) s 13A(3A)
Supreme Court Act 1970 (NSW) ss 65, 69, 101
Cases Cited: Anglo American Investments Pty Ltd v Deputy Commissioner of Taxation (2017) 347 ALR 134; [2017] NSWCA 17
Attorney-General (Cth) v Huynh (2023) 97 ALJR 298; [2023] HCA 13
Attorney-General (Cth) v Ogawa (2020) 281 FCR 1; [2020] FCAFC 180
Baker v The Queen (2004) 223 CLR 513; [2004] HCA 45
Buttrose v Attorney General (NSW) (2015) 324 ALR 562; [2015] NSWCA 221
Clark v Attorney General (NSW) [2020] NSWCA 70
Cranney v R; Huynh v R (2017) 269 A Crim R 449; [2017] NSWCCA 234
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- Case
- [2023] NSWCA 190
- Decision Date
CaseChat Overview and Summary
The Court was required to determine whether the matter constituted a "special federal matter" for the purposes of cross-vesting legislation, specifically whether it arose under the *Administrative Decisions (Judicial Review) Act 1977* (Cth) or fell within the original jurisdiction of the Federal Court. A key aspect of this determination was whether the post-appeal inquiry procedures under the NSW Act were effectively applied as surrogate federal laws by virtue of s 68(1) of the *Judiciary Act 1903* (Cth) in relation to Commonwealth offences. The Court also had to consider whether there were special reasons, under s 6(3) of the *Jurisdiction of Courts (Cross-vesting) Act 1987* (Cth), for the proceedings to be determined by the Court of Appeal.
The Court reasoned that while the underlying proceedings involved the application of NSW legislation, the operation of s 68(1) of the *Judiciary Act 1903* (Cth) meant that the NSW procedures were being applied in a federal context. However, the Court ultimately concluded that special reasons existed for the proceedings to be determined by the Court of Appeal. These reasons included the Commonwealth legislative scheme for criminal procedure favouring territorial rather than national uniformity, the Court of Appeal's practical familiarity with the *Crimes (Appeal and Review) Act 2001* (NSW), the lengthy procedural history of the matter, and the fact that the applicant was self-represented.
The Court ordered that, pursuant to s 6(3) of the *Jurisdiction of Courts (Cross-vesting) Act 1987* (Cth), the application for judicial review be determined by the Court of Appeal. The proceedings were to be listed before the Registrar for directions regarding written submissions and the setting of a further hearing date, unless the parties agreed to determine the application on the papers.
Orders
Orders of the court
1. Order that pursuant to s 6(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) the application for judicial review be determined by the Court of Appeal.
2. The proceedings should be listed before the Registrar for the making of directions for written submissions in relation to the application and the setting of a further date for its hearing if the parties do not otherwise consent to the application being determined on the papers.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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