Huynh v Attorney General (NSW)

The proceedings before the Court of Appeal of New South Wales involved an application for judicial review by Mr Huynh against the Attorney General (NSW). The core of the dispute concerned a decision by a Supreme Court judge, acting *persona designate*, not to order a post-appeal inquiry under s 78(1)(b) of the *Crimes (Appeal and Review) Act 2001* (NSW). These proceedings had been remitted from the High Court of Australia.

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.