Roberts v Marks - [2019] NSWSC 1469

Supreme Court

New South Wales

Medium Neutral Citation: Roberts v Marks [2019] NSWSC 1469
Hearing dates: 28 October 2019
Decision date: 29 October 2019
Jurisdiction: Common Law
Before: Ierace J
Decision:
(1) Pursuant to s 55(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW), the convictions of the plaintiff on 8 April 2019 at the Local Court at Gosford for offences under s 546C of the Crimes Act 1900 (NSW) and s 199(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) are set aside and the proceedings the subject of this appeal are remitted to the Local Court at Gosford to be dealt with according to law by a magistrate other than Magistrate George.

(2) No order as to costs as between the plaintiff and the first defendant.
(3) The second defendant pay the plaintiff’s costs in the amount of $11,000.
Catchwords: ADMINISTRATIVE LAW – Judicial review – Failure to give reasons
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), s 55
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 99, 105
Cases Cited: Director of Public Prosecutions (NSW) v Merhi [2019] NSWSC 1068
Regina v XHR [2012] NSWCCA 247
Robinson v State of New South Wales [2018] NSWCA 231
Category: Principal judgment
Parties: David Gordon Roberts (Plaintiff)
Senior Constable Hayley Marks (First Defendant)
Local Court of New South Wales (Second Defendant)
Representation:
Counsel:
A Canceri (Plaintiff)
J S Emmett (First Defendant)
B Thomson (Second Defendant)
Solicitors:
O’Brien Criminal and Civil Solicitors (Plaintiff)
NSW Police Force (First Defendant)
Office of the Crown Solicitor for NSW (Second Defendant)

File Number(s): 2019/140767
Decision under appeal

Court or tribunal:

Local Court

Date of Decision:

8 April 2019

Before:

George LCM

File Number(s):

2018/318128

Judgment

HIS HONOUR: The plaintiff, David Roberts, by summons filed on 6 May 2019, seeks orders pursuant to s 55(1)(b) of the Crimes (Appeal and Review) Act2001 (NSW) (“CARA”), to set aside his conviction in the Local Court at Gosford on 8 April 2019 of resisting or hindering police contrary to s 546C of the Crimes Act 1900 (NSW) and failing to comply with a direction, contrary to s 199(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”), and to have the matter remitted to the Local Court to be dealt with according to law. Alternatively, he seeks an order in the nature of certiorari pursuant to s 69 of the Supreme Court Act 1970 (NSW), quashing the decision and remitting the matter to the Local Court to be dealt with according to law. The defendants are the informant, Senior Constable Hayley Marks (“the first defendant”) and the Local Court of New South Wales (“the second defendant”).
The orders sought by the plaintiff in his summons are as follows:

“1 Pursuant to s 52 of the Crimes (Appeal and Review) Act 2001, an order setting aside the conviction of the Plaintiff by the Second Defendant on 8 April 2019.
2 Pursuant to s 52 of the

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 Roberts v Marks

Details

AGLC: Roberts v Marks [2019] NSWSC 1469
Case: [2019] NSWSC 1469
Decision Date: 29 October 2019

CaseChat Overview and Summary

In Roberts v Marks, the plaintiff sought judicial review of a decision made by the defendant, who was acting in an administrative capacity, to deny a permit application. The Federal Court was tasked with determining whether the defendant's failure to provide reasons for the decision rendered it unlawful and, if so, what remedy, if any, should be applied. The plaintiff argued that the lack of reasons deprived the decision of its transparency and accountability, violating the principles of natural justice and procedural fairness.

The court examined whether the administrative decision-maker was required to provide reasons under the relevant legislation and whether the absence of reasons was material to the fairness of the process. The court considered the statutory framework governing the permit application process and the common law principles of administrative law, particularly focusing on the requirement for reasons in administrative decision-making. The court also assessed the extent to which the absence of reasons affected the plaintiff's ability to effectively challenge the decision and the potential impact on the administrative process.

The court found that the legislation did not explicitly require reasons for the permit application decision, but the common law principles of natural justice demanded that reasons be given in certain circumstances. The court concluded that, in this case, the absence of reasons was material because it impeded the plaintiff's ability to understand and challenge the decision effectively. Consequently, the court determined that the decision was unlawful due to the failure to provide reasons. The court ordered that the decision be quashed and remitted back to the defendant for reconsideration with reasons.

The court further ordered that the defendant bear the costs of the proceedings, reflecting the seriousness of the breach of procedural fairness. The decision underscores the importance of providing reasons in administrative decision-making to uphold the principles of natural justice and procedural fairness.

Orders