Ly v Commonwealth Director of Public Prosecutions

FEDERAL COURT OF AUSTRALIA
Ly v Commonwealth Director of Public Prosecutions [2001] FCA 211
THANH DAI LY v
COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
N953 of 2000
THANH HAO LY v
COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
N954 of 2000
TAMBERLIN J
SYDNEY
28 FEBRUARY 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N953 of 2000
and N954 of 2000

BETWEEN:

THANH DAI LY
FIRST APPLICANT

THANH HAO LY
SECOND APPLICANT

AND:

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT

JUDGE:

TAMBERLIN J

DATE:

28 FEBRUARY 2001

PLACE:

SYDNEY

REASONS FOR JUDGMENT

I have before me a Notice of Motion to substitute three respondents for the presently named respondent which is the Commonwealth Director of Public Prosecutions in matters number N953 of 2000 and N954 of 2000. These matters are appeals in relation to convictions under the Copyright Act 1968. Having read the affidavit of Simon Paul Mitchell, and having heard submissions from counsel and the present respondent, I am satisfied that the appropriate respondents in this matter are the two persons named in the Notice of Motion, namely Grant Raper and Glenn Jenkins, and I am also satisfied that in view of the fact that there is to be a jurisdictional argument that it is appropriate to join the Magistrate in this matter in her capacity as the Presiding Magistrate. The Commonwealth Director of Public Prosecutions should be removed as a party.
Accordingly, I make orders in accordance with the Notice of Motion filed on 16 February. The orders which are made are orders one and three in that Motion.
I will reserve any question of costs.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.
Associate:
Dated: 15 March 2001

Counsel for the Applicant: P Roberts SC

Solicitor for the Applicant: LMG Solicitors & Attorneys

Solicitor for the Respondent: Commonwealth Director of Public Prosecutions

D Hill, instructed by the Crown Solicitor’s Office,
appeared for Mr Jenkins and Mr Raper

Date of Hearing: 28 February 2001

Date of Judgment: 28 February 2001

CaseChat Overview and Summary

The Federal Court of Australia was presented with a case where the applicants, Thanh Dai Ly and Thanh Hao Ly, sought to substitute the Commonwealth Director of Public Prosecutions with two individuals, Grant Raper and Glenn Jenkins, as the respondents in their appeals against convictions under the Copyright Act 1968. The applicants also sought to include the Magistrate who presided over the original proceedings, in her capacity as Presiding Magistrate. This motion arose from concerns regarding the appropriate respondents for the appeals and the necessity of a jurisdictional argument being addressed.

The court had to decide whether the substitution of respondents was appropriate, and if so, which individuals should be substituted, as well as whether the Magistrate should be included as a party to the appeal. The decision hinged on the affidavit of Simon Paul Mitchell, the submissions from counsel, and the arguments presented by the present respondent, the Commonwealth Director of Public Prosecutions.

Justice Tamberlin determined that the appropriate respondents in the appeals were indeed Grant Raper and Glenn Jenkins, and that it was suitable to include the Magistrate as a party due to the jurisdictional argument to be made. Consequently, the court ordered that the Commonwealth Director of Public Prosecutions be removed as a party, and the two named individuals and the Magistrate be substituted as the respondents. The court also reserved any questions of costs for a later determination. This decision was made on the basis of the presented evidence and arguments, and it effectively realigned the parties involved in the appeal process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N953 of 2000 and N954 of 2000

JUDGE:	TAMBERLIN J
DATE:	28 FEBRUARY 2001
PLACE:	SYDNEY

Counsel for the Applicant:	P Roberts SC
Solicitor for the Applicant:	LMG Solicitors & Attorneys
Solicitor for the Respondent:	Commonwealth Director of Public Prosecutions
D Hill, instructed by the Crown Solicitor’s Office, appeared for Mr Jenkins and Mr Raper
Date of Hearing:	28 February 2001
Date of Judgment:	28 February 2001