Northern Territory of Australia v AB

[2010] NTCA 5

NTA v AB [2010] NTCA 5

PARTIES:NORTHERN TERRITORY OF AUSTRALIA

v

AB

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:AP 3 OF 2010 (20939565)

DELIVERED:  21 JUNE 2010

HEARING DATES:  Affidavits filed 15 April, 21 May and 4 June 2010

JUDGMENT OF:  MILDREN J

APPEAL FROM:  KELLY J

CATCHWORDS:

CASE STATED – leave to appeal to part of judgment by Judge – judgment binding on Local Court – construction of the Act – leave not required – directions enabling leave application to proceed as if leave given

Supreme Court Act, s 52(3)(b)
Supreme Court Rules, O.85.07A
Victims of Crime Assistance Act 2006, s 48, s 51, s 51(2), s 53

Mellifont v Attorney-General for the State of Queensland (1991) 173 CLR 289; O’Toole v Charles David Pty Ltd (1990-91) 171 CLR 232; applied

REPRESENTATION:

Counsel:

Appellant:E Johnson

Respondent:  O Henderson

Solicitors:

Appellant:Solicitor for the Northern Territory

Respondent:  Central Australian Aboriginal Family Legal Unit Aboriginal Corporation

Judgment category classification:    B

Number of pages:  3

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

NTA v AB [2010] NTCA 5

No AP 3 of 2010 (20939565)

BETWEEN:

NORTHERN TERRITORY OF AUSTRALIA

Appellant

AND:

AB

Respondent

CORAM:    MILDREN J

REASONS FOR JUDGMENT

(Delivered 21 June 2010)

Mildren J:

1. This is an application for leave to appeal from part of the judgment of Kelly J given on 18 March 2010.

2. The respondent made an application for financial assistance under the provisions of the Victims of Crime Assistance Act 2006 (the Act).  The respondent’s application was determined by an assessor.  The respondent was dissatisfied with the assessor’s award and appealed to the Local Court pursuant to s 48 of the Act.

3. The learned Magistrate reserved a number of questions of law for the decision of the Supreme Court pursuant to s 51 of the Act.  The reserved questions of law were heard by Kelly J.  Her Honour delivered judgment in respect of the questions of law so reserved on 18 March 2010.

4. Pursuant to s 51(2) of the Act, her Honour’s decision is binding on the Local Court.

5. On 15 April 2010, the applicant filed an application for leave to appeal to this Court from part of her Honour’s judgment.

6. In my opinion, leave to appeal is not necessary.  Because her Honour’s decision is binding on the Local Court, her Honour’s decision is not an advisory opinion and therefore is not an interlocutory judgment.[1]

7. If I am wrong in my opinion that no leave is required, I would grant leave in any event, because there is no appeal from a decision of the Local Court[2] and the Act is a relatively new Act which has not previously been considered by the Court and the appeal raises questions of the true construction to be given to the relevant provisions of the Act which are of public importance in the administration of justice to victims of crime.  Therefore leave to appeal would be granted in relation to each of the grounds of appeal set out in the affidavit of Earl David Johnson affirmed 15 April 2010.

8. In order to facilitate the hearing of the appeal, I give the following directions pursuant to s 52(3)(b) of the Supreme Court Act:

   1.   To the extent that an abridgement of time is necessary to enable the appellant to lodge a notice of appeal, time is abridged to the date of the lodging and service of the application for leave to appeal in this matter.

   2.   The application for leave to appeal is to stand as the appellant’s Notice of Appeal.

   3. The appeal is to proceed in accordance with O.85.07A of the Supreme Court Rules.

   4.   The question of the costs of the application for leave is adjourned to be considered by the Court of Appeal following the hearing of the appeal.

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[1]See O’Toole v Charles David Pty Ltd (1990-91) 171 CLR 232 at 243 per Mason CJ, at 265 per Brennan J, at 279 per Deane, Gaudron & McHugh JJ; see also Mellifont v Attorney-General for the State of Queensland (1991) 173 CLR 289.

[2]Victims of Crime Assistance Act 2006, s 53.