Kang v Bishop (No 2) - [2018] NSWSC 1073

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Kang v Bishop (No 2) [2018] NSWSC 1073
Hearing dates: 28 June 2018
Date of orders: 12 July 2018
Decision date: 12 July 2018
Jurisdiction: Common Law
Before: Schmidt J
Decision:
(1) Mr Kang’s application is dismissed.
(2) Mr Kang is to pay the First and Second Defendant’s costs of the proceedings as agreed or assessed.
Catchwords:
ADMINISTRATIVE LAW – judicial review – appeal from Local Court– application to quash orders made by Magistrate – jurisdiction of Local Court – whether prosecution in Local Court authorised – whether delegate authorised under Fair Trading Act 1987(NSW) required to bring prosecution under s 192E and s 192 G of the Crimes Act 1900 (NSW) – proper construction of s 14 and s 173 of the Criminal Procedure Act1986 (NSW) – consideration of the interaction between Criminal Procedure Act, Crimes Act and Fair Trading Act – application dismissed
COSTS –departure from usual costs order sought – no basis – costs as agreed or assessed
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)
Fair Trading Act 1987 (NSW)
Government Sector Employment Act 2013 (NSW)
Home Building Act 1989 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Amalgamated Television Ltd v Marsden [2001] NSWCA 32
Kang v Bishop & Ors [2018] NSWSC 46
Kew v Commissioner of Fair Trading and Robinson [2007] NSWSC 394
NSW Department of Fair Trading v Edward Kang (Local Court (NSW), Magistrate Keady, 29 November 2016, unrep)
NSW Department of Fair Trading v Edward Kang (Local Court (NSW), Magistrate Keady, 29 March 2017, unrep)
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185
Warren Gibson, NSW Fair Trading v Roberta Graham [2013] NSWSC 1909
Category: Principal judgment
Parties: Edward Kang (Plaintiff)
Jay Bishop (First Defendant)
Secretary, Department of Finance, Services and Innovation (Second Defendant)
Local Court of New South Wales (Third Defendant)
Representation:
Counsel:
Mr R Johnson with Ms E Kovacs (Plaintiff)
Ms T L Phillips (First and Second Defendants)
Solicitors:
Legal Exchange Lawyers (Plaintiff)
Crown Solicitor’s Office (First and Second Defendants)

File Number(s): 2017/93130
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Local Court

Jurisdiction:

Criminal

Citation:

--

Date of Decision:

29 November 2016

Before:

Magistrate TB Keady

File Number(s):

2015/48316

Judgment

By judgment of 29 November 2016 given in the Local Court Mr Kang was found guilty of sixteen of the offences charged under ss 192E and 192G of the Crimes Act1900 (NSW): NSW Department of Fair Trading v Edward Kang (Local Court (NSW), Magistrate Keady, 29 November 2016, unrep). Those prosecutions were bought by Mr Bishop, a senior investigator employed at NSW Fair Trading. Mr Kang was later convicted and sentenced for his offences to a term of imprisonment of 12 months, with a non-parole period of 9 months: NSW Department of Fair Trading v Edward Kang

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 Kang v Bishop (No 2)

Details

AGLC: Kang v Bishop (No 2) [2018] NSWSC 1073
Case: [2018] NSWSC 1073
Decision Date: 12 July 2018

CaseChat Overview and Summary

The dispute in Kang v Bishop (No 2) was an appeal against a decision of the Local Court. The appellant sought to have orders made by a magistrate quashed. The appellant argued that the Local Court lacked jurisdiction to prosecute under the Fair Trading Act 1987 (NSW) and that the delegate authorised under the Act was required to bring any prosecution under the Crimes Act 1900 (NSW). The appellant further contended that the relevant sections of the Criminal Procedure Act 1986 (NSW) should be construed in a particular way, and that there was an error in the interaction between the three Acts.

The court had to determine whether the Local Court had jurisdiction to prosecute under the Fair Trading Act. The court also had to consider whether a delegate authorised under the Act was required to bring any prosecution under the Crimes Act. The court had to construe the relevant sections of the Criminal Procedure Act and determine if there was an error in the interaction between the three Acts. The court had to consider whether the appellant's arguments had any merit and whether the orders made by the magistrate should be quashed.

The court found that the Local Court did have jurisdiction to prosecute under the Fair Trading Act, and that a delegate authorised under the Act was not required to bring any prosecution under the Crimes Act. The court held that the relevant sections of the Criminal Procedure Act should be construed in a particular way, and that there was no error in the interaction between the three Acts. The court found that the appellant's arguments had no merit and dismissed the application to quash the orders made by the magistrate. The court also dismissed the appellant's application for a departure from the usual costs order, holding that there was no basis for such an order and that costs should be as agreed or assessed.

The court dismissed the appeal and ordered the appellant to pay the respondent's costs of the appeal as agreed or assessed.

Orders