Ritson v Myers

[2013] NSWCA 176

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Ritson v Myers [2013] NSWCA 176

Hearing dates:

7 June 2013

Decision date:

07 June 2013

Before:

Macfarlan JA at [1] and [19];
Gleeson JA at [2]

Decision:

The application for leave to appeal be 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 - leave to appeal - s 556(2) Crimes Act - whether judge erred in determining that s 556(2) barred private prosecution of criminal charges

Legislation Cited:

Crimes Act 1900
Crimes (Appeal and Review) Act 2001
Law Reform (Vicarious Liability) Act 1983

Cases Cited:

House v The King (1936) 55 CLR 499
Knezevic v Markovic (1985) 5 FCR 219

Category:

Procedural and other rulings

Parties:

Brendan Ritson (Applicant)
Karen Myers (Respondent)

Representation:

Counsel:
P Barham (Applicant)
M Thangaraj SC with B Haverfield (Respondent)
Solicitors:
Mitchell Lawyers (Applicant)
Oates Legal (Respondent)

File Number(s):

2012/277750

Publication restriction:

No

 Decision under appeal 

Jurisdiction:

9111

Citation:

Ritson v Myers [2012] NSWSC 1504

Date of Decision:

2012-09-03 00:00:00

Before:

Latham J

File Number(s):

2011/356598

Judgment

1. MACFARLAN JA: I will ask Gleeson JA to give the first judgment.

1. GLEESON JA: This is an application by Mr Ritson, the plaintiff in the Court below, for leave to appeal against a decision of Latham J given on 3 September 2012 ([2012] NSWSC 1504) dismissing an appeal against a decision of Magistrate Wynhausen of 7 October 2011. The magistrate dismissed proceedings brought by Mr Ritson against Ms Myers by way of private prosecution in the Local Court of New South Wales.

1. On this application for leave to appeal, the plaintiff contends that both the magistrate and the learned Judge erred in determining that the defendant could rely on s 556(2) of the Crimes Act 1900. Section 556(2) was held to be a bar to the private prosecution of criminal charges by Mr Ritson against Ms Myers pursuant to s 60(1) and s 61 of the Crimes Act, and hence the criminal proceedings should be dismissed.

1. The plaintiff further contends that the alternative discretionary basis on which Latham J would have dismissed the appeal under the power conferred by s 59(2) of the Crimes (Appeal and Review) Act 2001 was also erroneous, for two reasons. First, contrary to the finding of Latham J, the incident referred to below was not a trivial matter. Secondly, that her Honour failed to give any weight to the fact that Ms Myers will avoid any liability whatsoever if the criminal proceedings are not allowed to continue against her.

1. The circumstances in which the bar to the criminal proceedings was held to…