Margan v NSW Director of Public Prosecutions

[2013] NSWCA 367

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Margan v NSW Director of Public Prosecutions [2013] NSWCA 367

Hearing dates:

30 October 2013

Decision date:

30 October 2013

Before:

Macfarlan JA at [1]
Meagher JA at [5]

Decision:

The application for leave to appeal is dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - application for leave to appeal refused - no significant prospects of success - no issue of principle

Legislation Cited:

Anti-Discrimination Act 1977
Criminal Procedure Act 1986

Category:

Procedural and other rulings

Parties:

Simon Margan (Applicant)
NSW Director of Public Prosecutions (First Respondent)
Attorney General of New South Wales (Second Respondent)

Representation:

Counsel:
Unrepresented Applicant
B K Baker (Respondents)
Solicitors:
Unrepresented Applicant
I V Knight, Crown Solicitor (Respondents)

File Number(s):

CA 2013/70427

 Decision under appeal 

Jurisdiction:

9111

Citation:

Simon Margan v NSW Director of Public Prosecutions and Attorney General of New South Wales [2013] NSWSC 44

Date of Decision:

2013-02-07 00:00:00

Before:

Grove AJ

File Number(s):

SC 2012/00103496

Judgment

1. MACFARLAN JA: The applicant appears for himself on this application for leave to appeal. He is a gay man who alleges that on an occasion in August 2010 he was subjected to verbal homosexual vilification by a Mr Danny Manias and, a few days later, was physically assaulted by Mr Manias and subjected to further verbal vilification. Mr Manias was charged with, and convicted, of assault occasioning actual bodily harm, and other offences.

1. On 6 August 2011, Mr Margan lodged a complaint with the Anti-Discrimination Board under the Anti-Discrimination Act 1977 (the "AD Act") in which he referred to the vilification of which he complained as having concluded on 9 August 2010. On 11 November 2011, the President of the Anti-Discrimination Board notified Mr Margan that he had referred Mr Margan's complaint to the Attorney General under s 91 of the AD Act. This section provides for such a referral where the President considers that an offence may have been committed under, inter alia, s 49ZTA of the AD Act. The President further advised Mr Margan that the matter had been considered by the Director of Public Prosecutions ("the DPP") who advised that a prosecution of Mr Manias for an offence under that section could not occur because it was a summary offence and the period of six months specified by s 179(1) of the Criminal Procedure Act 1986 for prosecution of summary offences had expired.

1. Mr Margan subsequently commenced the present proceedings against the DPP and the Attorney General seeking a declaration that the DPP's advice was incorrect and consequential relief. In his judgment of 7 February 2013, Grove AJ considered, and rejected, the three reasons proffered by Mr Margan for his contention that the six month time limit was inapplicable ([2013] NSWSC 44). These reasons were, first, that an offence under s 49ZTA is not a summary offence, secondly, that Mr Manias' offence was a continuing one because the impact of his conduct was felt long after 9 August 2010 and, thirdly, that s 89B(2)(b) of the AD Act has the effect of extending the 6 months time limit to 12 months. As a result, his Honour dismissed Mr Margan's Summons. In doing so, his Honour noted that it was unnecessary for him to determine whether the Court had power to make "orders concerning the prosecutorial functions of the Director of Public Prosecutions or the Attorney General, particularly in regard to their respective discretionary powers".

1. On his application for leave to appeal to this Court, Mr Margan has elaborated on these submissions but has not persuaded me that an appeal from the decision of Grove AJ would have any significant prospect of success, my views being in accordance with those of his Honour. In these circumstances, leave to appeal should be refused with costs.

1. MEAGHER JA: I agree with Macfarlan JA that leave to appeal should be refused with costs for the reasons his Honour has given.

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Decision last updated: 30 October 2013