Prott v Munro - [2013] NSWCA 241

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Prott v Munro [2013] NSWCA 241
Hearing dates: 23 July 2013
Decision date: 26 July 2013
Before: Macfarlan JA at [1]; Meagher JA at [2]; Ward JA at [3]
Decision:
Summons seeking leave to appeal 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 AND NEW TRIAL - application for leave to appeal - whether an error of principle resulting in substantial injustice is identified
Legislation Cited: Crimes (Forensic Procedures) Act 2000
Supreme Court Act 1970
Cases Cited: ACP v Munro [2012] NSWSC 1510
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Darrell Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd [1969] VR 401
Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572; (2000) 104 FCR 564
Lo v Chief Commissioner of State Revenue [2013] NSWCA 180
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minogue v Williams (2000) 60 ALD 366; BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 756
Munro v ACP [2012] NSWSC 100
Niemann v Electronic Industries Ltd [1978] VR 431
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v A [2008] EWCA Crim 2908; [2009] 1 WLR 1947
Category: Principal judgment
Parties: Adrian Curtis Prott (Applicant)
Detective Sergeant Siobhan Munro (First Respondent)
The Local Court of NSW (Second Respondent) (submitting appearance)
Representation: Counsel:
H Dhanji SC with D Randle (Applicant)
Ms N Adams SC with Ms J Davidson (First Respondent)
Solicitors:
Armstrong Legal (Applicant)
I V Knight, Crown Solicitor (First Respondent)

File Number(s): CA 2013/078260
Decision under appeal

Jurisdiction:

9111

Citation:

ACP v Munro [2012] NSWSC 1510

Date of Decision:

2012-12-07 00:00:00

Before:

Button J

File Number(s):

SC 2012/126666

Judgment

MACFARLAN JA: I agree with Ward JA.

MEAGHER JA: I agree with Ward JA.

WARD JA: By Summons dated 28 February 2013, application is made by Mr Prott for leave to appeal to this Court from that part of the decision of Button J in ACP v Munro [2012] NSWSC 1510 in which his Honour dismissed Mr Prott's appeal from an order by Kok LCM in the Local Court authorising a non-intimate forensic procedure under the Crimes (Forensic Procedures) Act 2000 (NSW), namely the taking of a photograph of Mr Prott's face. The application for leave to appeal was listed to be heard concurrently with the appeal.

The grounds of appeal in the Draft Notice of Appeal are that his Honour erred in failing to find that Kok LCM:

(i) did not properly construe…

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 Prott v Munro

Details

AGLC: Prott v Munro [2013] NSWCA 241
Case: [2013] NSWCA 241
Decision Date: 26 July 2013

CaseChat Overview and Summary

The parties to this matter were Prott (the applicant) and Munro (the respondent). The applicant sought leave to appeal against a decision of the primary judge. The dispute concerned the applicant's application to set aside or vary a judgment or order previously made by the court. The application for leave to appeal was heard in the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether the applicant had demonstrated an error of principle on the part of the primary judge that had resulted in a substantial injustice. This required the court to consider the grounds upon which a judgment or order could be set aside or varied, and whether the applicant's circumstances met the threshold for such an intervention, particularly in light of the time limits prescribed by the Uniform Civil Procedure Rules 2005.

The Court of Appeal considered the applicant's arguments and found that no error of principle had been established that would warrant setting aside or varying the original judgment or order. Consequently, the court determined that the applicant had not satisfied the criteria for granting leave to appeal, as no substantial injustice had been demonstrated. The summons seeking leave to appeal was therefore dismissed.

Orders

Orders of the court

Summons seeking leave to appeal 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.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Prott v Munro [2013] NSWCA 241
Hearing dates:	23 July 2013
Decision date:	26 July 2013
Before:	Macfarlan JA at [1]; Meagher JA at [2]; Ward JA at [3]
Decision:	Summons seeking leave to appeal 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 AND NEW TRIAL - application for leave to appeal - whether an error of principle resulting in substantial injustice is identified
Legislation Cited:	Crimes (Forensic Procedures) Act 2000 Supreme Court Act 1970
Cases Cited:	ACP v Munro [2012] NSWSC 1510 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Darrell Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd [1969] VR 401 Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572; (2000) 104 FCR 564 Lo v Chief Commissioner of State Revenue [2013] NSWCA 180 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minogue v Williams (2000) 60 ALD 366; BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 756 Munro v ACP [2012] NSWSC 100 Niemann v Electronic Industries Ltd [1978] VR 431 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 R v A [2008] EWCA Crim 2908; [2009] 1 WLR 1947
Category:	Principal judgment
Parties:	Adrian Curtis Prott (Applicant) Detective Sergeant Siobhan Munro (First Respondent) The Local Court of NSW (Second Respondent) (submitting appearance)
Representation:	Counsel: H Dhanji SC with D Randle (Applicant) Ms N Adams SC with Ms J Davidson (First Respondent) Solicitors: Armstrong Legal (Applicant) I V Knight, Crown Solicitor (First Respondent)
File Number(s):	CA 2013/078260
Decision under appeal	Jurisdiction: 9111 Citation: ACP v Munro [2012] NSWSC 1510 Date of Decision: 2012-12-07 00:00:00 Before: Button J File Number(s): SC 2012/126666