Li v Attorney General for New South Wales

Case [2019] NSWCA 95

Court of Appeal


Supreme Court


New South Wales

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Medium Neutral Citation: Li v Attorney General for New South Wales [2019] NSWCA 95
Hearing dates: 31 January 2019
Date of orders: 03 May 2019
Decision date: 03 May 2019
Before: Basten JA at [1];
White JA at [69];
Brereton JA at [101]
Decision:

Dismiss the application for judicial review of the decision of Harrison J under the Crimes (Appeal and Review) Act 2001 (NSW), Pt 7.

Catchwords:

ADMINISTRATIVE LAW – refusal to direct inquiry under Crimes (Appeal and Review) Act 2001 (NSW), Part 7 – decision by judge of a superior court

  ADMINISTRATIVE LAW – judicial review – grounds of review – where decision is substantially similar to a party’s submissions – whether judge failed to consider submissions – whether judge formed the relevant opinion – whether reasons were inadequate – whether justice seen to be done
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), ss 74, 78, 79; Pt 7, Divs 2, 3
Criminal Appeal Act 1912 (NSW)
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), r 59.10
Cases Cited: Al-Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245
Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7
Australian Securities Commission v Schreuder (1994) 14 ACSR 614
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430
Beaman v Bond (2017) 254 FCR 480; [2017] FCAFC 142
Boele v Rinbac Pty Ltd (2014) 88 NSWLR 381; [2014] NSWCA 451
Bright v Westmoreland County 380 F 3d 729 (3d Cir 2004)
Buttrose v Attorney General (NSW) (2015) 324 ALR 562; [2015] NSWCA 221
C v B (2006) 35 Fam LR 285; [2006] Fam CA 513
Calvin v Carr [1979] 1 NSWLR 1
Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284
Carson v Legal Services Commissioner [2000] NSWCA 308
Cojocaru (Guardian Ad Litem) v British Columbia Women’s Hospital 2011 BCCA 192; 17 BCLR (5th) 253
Cojocaru v British Columbia Women’s Hospital and Health Centre 2013 SCC 30; [2013] 2 SCR 357
Commissioner for Railways for the State of Queensland v Peters (1991) 24 NSWLR 407
Connell v Auckland City Council [1977] 1 NZLR 630
Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2) (2002) 6 VR 1; [2002] VSCA 189
Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242
Fyntray Constructions Pty Ltd v Macind Drainage & Hydraulic Services Pty Ltd [2002] NSWCA 238
GAR v Attorney General of New South Wales (No 2) [2017] NSWCA 314
Goodwin v Commissioner of Police [2012] NSWCA 379
Grierson v The King (1938) 60 CLR 431; [1938] HCA 45
Huluba v Minister for Immigration and Ethnic Affairs (1995) 59 FCR 518
James v Surf Road Nominees Pty Ltd [2004] NSWCA 475
Johnson v Johnson (2000) 201…

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AGLC
Li v Attorney General for New South Wales [2019] NSWCA 95
Case
[2019] NSWCA 95
Decision Date

CaseChat Overview and Summary

The applicant, Li, sought judicial review of a decision made by Harrison J of the Supreme Court of New South Wales. The decision in question was Harrison J's refusal to direct an inquiry under Part 7 of the *Crimes (Appeal and Review) Act 2001* (NSW). This Part of the Act governs the process for directing inquiries into potential miscarriages of justice.

The central legal issues before the Court of Appeal were whether Harrison J had failed to consider the applicant's submissions, whether the judge had formed the necessary opinion required by the Act, and whether the reasons provided for the refusal were inadequate, thereby failing to ensure that justice was seen to be done. These issues arose from the applicant's contention that the judge's decision was substantially similar to the Crown's submissions, suggesting a lack of independent consideration.

Basten, White and Brereton JJA dismissed the application for judicial review. The Court found that Harrison J had properly considered the relevant material and formed the necessary opinion under the *Crimes (Appeal and Review) Act 2001* (NSW). The reasons provided by the judge were deemed sufficient, and the Court concluded that there was no basis to find that justice had not been seen to be done. Consequently, the application for judicial review was dismissed.

Orders

Orders of the court

Dismiss the application for judicial review of the decision of Harrison J under the Crimes (Appeal and Review) Act 2001 (NSW), Pt 7.

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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