Samad & Ors v District Court NSW - [2002] HCATrans 73

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S189 of 2001

B e t w e e n -
ABDUS SAMAD, MARY SAMAD and BARBARA STREET CLINIC
Appellants
and
DISTRICT COURT OF NEW SOUTH WALES
First Respondent
DIRECTOR-GENERAL OF THE NEW SOUTH WALES DEPARTMENT OF HEALTH
Second Respondent

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 8 MARCH 2002, AT 10.16 AM

MR A. ROBERTSON, SC: May it please the Court, I appear with my learned friend, MR G.L. TURNER, for the appellants. (instructed by Yandell Wright Stell)

MR J. BASTEN, QC: I appear with MR R.P.L. LANCASTER for the second respondent, your Honours. (instructed by Phillips Fox)

GLEESON CJ: There is a certificate from the Deputy Registrar to the effect that she has been informed by the solicitor for the first respondent that the first respondent does not wish to be represented at the hearing and will submit to any order of the Court save as to costs. Yes, Mr Robertson.

MR ROBERTSON: Thank you, your Honour. Your Honours, the appeal concerns a question of statutory construction and, in particular, of clause 149 of the Poisons and Therapeutic Goods Regulation which is conveniently set out at page 69 of the appeal book in the judgment of the Court of Appeal. It is also annexed to the appellants’ submissions at tab 2, page 83 of the reprint. The opening words of clause 149 are that:

The Director-General may suspend or cancel a licence or authority on any one or more of the following grounds –

and there are number of grounds which are then set out.

McHUGH J: If the argument against you is right, there is a discretion not to cancel, there is a discretion not to suspend, but according to the respondent, there is no discretion not to refuse to cancel or suspend.

MR ROBERTSON: Exactly so, your Honour, and that is the issue. The issue is whether, as the Court of Appeal held, that is the extent of the discretion, that is to the choice of remedy, or whether the discretion, as the appellants would contend, extends to whether or not to do either of those things.

GLEESON CJ: That would apply to paragraph (b) as well?

MR ROBERTSON: 149(b)?

GLEESON CJ: Yes.

MR ROBERTSON: Yes, your Honour.

GLEESON CJ: What if there was a trivial breach of the condition?

MR ROBERTSON: On the construction favoured by the Court of Appeal, in any breach ‑ as we understand what the Court of Appeal said, any breach would require, as Justice McHugh points out, either suspension or cancellation.

McHUGH J: Including if your annual fee is paid a day late?

MR ROBERTSON: Of course, yes. If I could give your Honours an indication of the sorts of conditions that your Honour the Chief Justice was asking about: some of them, any way, are conveniently set…

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.

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Details

Case: [2002] HCATrans 73
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicants, Samad and others, against a decision of the District Court of New South Wales. The dispute concerned the applicants' entitlement to a stay of proceedings in the District Court pending the determination of an appeal to the Court of Criminal Appeal. The applicants had been convicted of various offences and sentenced, and they sought to appeal their convictions and sentences.

The central legal issue before the High Court was whether the District Court had the power to grant a stay of proceedings in circumstances where the applicants had not yet filed their notice of appeal in the Court of Criminal Appeal. Specifically, the court had to determine the scope of the District Court's inherent jurisdiction and any statutory powers it might possess to grant such a stay.

The High Court held that the District Court did not possess the inherent jurisdiction to grant a stay of proceedings in the circumstances presented. Their Honours reasoned that the power to grant a stay of execution of a sentence pending an appeal was a matter for the appellate court itself, not the court of first instance. The Court of Criminal Appeal had the statutory power to grant a stay under the relevant legislation, and it was to that court that such applications should be made. The High Court noted that the District Court's jurisdiction was largely spent upon conviction and sentencing, save for limited residual powers.

The High Court dismissed the appeal, upholding the District Court's refusal to grant the stay.

Orders