Singh v Hicks and Nissan - [2021] NSWCA 80

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Singh v Hicks and Nissan [2021] NSWCA 80
Hearing dates: 7 May 2021
Date of orders: 10 May 2021
Decision date: 10 May 2021
Before: Gleeson JA at [1]
Leeming JA at [23]
Decision:
(1)   That “NSW Police” be removed as the respondent in this proceeding and Robert Hicks and John Nissan be substituted as the first and second respondents.
(2)   Refuse to extend time for the filing of the summons seeking leave to appeal to 22 January 2021.
(3)   Summons seeking leave to appeal be dismissed.
(4)   Applicant to pay the respondents’ costs.

Catchwords:
APPEALS – application for leave – applicant convicted in Local Court of offences contrary to Inclosed Lands Protection Act 1901 (NSW) – District Court dismissed conviction and sentence appeal and confirmed orders in Local Court – where applicant refused leave to appeal to Supreme Court from interlocutory orders made in Local Court – no issue of principle or question of general importance – whether Court should extend time for filing of summons – no utility in an appeal where orders of District Court stand unreversed

Legislation Cited:
Crimes (Appeal and Review) Act 2001 (NSW), Pt 5, s 53
Criminal Procedure Act 1986 (NSW), s 173
Inclosed Lands Protection Act 1901 (NSW), ss 4(1), 9A
Supreme Court Act 1970 (NSW), ss 69, 101(2)(h)
Supreme Court Rules 1970 (NSW), Pt 51B, rr 3, 10(1)
Uniform Civil Procedure Rules 2005 (NSW), r 51.10

Cases Cited:
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das[2012] NSWCA 164
Dyason v Butterworth [2015] NSWCA 52
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206
Singh v NSW Police [2020] NSWSC 1214
Stephens v Director of Public Prosecutions (NSW) [2019] NSWSC 761
Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369

Category: Principal judgment
Parties: Tirath Singh (Applicant)
Senior Constable Robert Hicks (First respondent)
Senior Constable John Nissan (Second respondent)
Representation:
Counsel:
Mr T Singh (Self-represented) (Applicant)
Ms N Oreb (Respondents)
Solicitors:
Makinson & d’Apice Lawyers (Respondents)

File Number(s): 2021/19389
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

Citation:

[2020] NSWSC 1214

Date of Decision:

7 September 2020

Before:

Cavanagh J

File Number(s):

2020/247508

Judgment

GLEESON JA: This application for leave to appeal arises out of two proceedings brought in the Local Court by police officers as the informants charging Mr Tirath Singh with three offences contrary to s 4(1)(b) of the Inclosed Lands Protection Act 1901 (NSW) as the result of entering a Sikh temple at Jamisontown without consent. The substance of the charges was that Mr Singh had entered the land at Jamisontown, near Penrith, upon which stood a Sikh temple, in contravention of a banning notice dated 7 November 2019 signed by Mr…

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: [2021] NSWCA 80
Decision Date: 10 May 2021

CaseChat Overview and Summary

Singh applied for leave to appeal to the Supreme Court of New South Wales against orders made by the District Court, which had dismissed his appeal against convictions and sentences imposed in the Local Court. The original convictions were for offences contrary to the *Inclosed Lands Protection Act 1901* (NSW). Singh had previously been refused leave to appeal to the Supreme Court from interlocutory orders made in the Local Court.

The primary legal issues before the Supreme Court were whether it should grant leave to appeal from the District Court's dismissal of his appeal, whether it should extend the time for filing the summons seeking leave to appeal, and whether there was any issue of principle or question of general importance justifying such an appeal.

Gleeson and Leeming JJA found that there was no utility in entertaining an appeal where the orders of the District Court, which confirmed the Local Court's decisions, remained unreversed. They noted the absence of any issue of principle or question of general importance that would warrant the Supreme Court's intervention. Consequently, the Court refused to extend the time for filing the summons seeking leave to appeal and dismissed the summons. The Court also ordered that "NSW Police" be removed as a respondent and substituted with Robert Hicks and John Nissan, and that the applicant pay the respondents' costs.

Orders

Orders of the court

(1) That “NSW Police” be removed as the respondent in this proceeding and Robert Hicks and John Nissan be substituted as the first and second respondents.

(2) Refuse to extend time for the filing of the summons seeking leave to appeal to 22 January 2021.

(3) Summons seeking leave to appeal be dismissed.

(4) Applicant to pay the respondents’ costs.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Singh v Hicks and Nissan [2021] NSWCA 80
Hearing dates:	7 May 2021
Date of orders:	10 May 2021
Decision date:	10 May 2021
Before:	Gleeson JA at [1] Leeming JA at [23]
Decision:	(1) That “NSW Police” be removed as the respondent in this proceeding and Robert Hicks and John Nissan be substituted as the first and second respondents. (2) Refuse to extend time for the filing of the summons seeking leave to appeal to 22 January 2021. (3) Summons seeking leave to appeal be dismissed. (4) Applicant to pay the respondents’ costs.
Catchwords:	APPEALS – application for leave – applicant convicted in Local Court of offences contrary to Inclosed Lands Protection Act 1901 (NSW) – District Court dismissed conviction and sentence appeal and confirmed orders in Local Court – where applicant refused leave to appeal to Supreme Court from interlocutory orders made in Local Court – no issue of principle or question of general importance – whether Court should extend time for filing of summons – no utility in an appeal where orders of District Court stand unreversed
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW), Pt 5, s 53 Criminal Procedure Act 1986 (NSW), s 173 Inclosed Lands Protection Act 1901 (NSW), ss 4(1), 9A Supreme Court Act 1970 (NSW), ss 69, 101(2)(h) Supreme Court Rules 1970 (NSW), Pt 51B, rr 3, 10(1) Uniform Civil Procedure Rules 2005 (NSW), r 51.10
Cases Cited:	Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das[2012] NSWCA 164 Dyason v Butterworth [2015] NSWCA 52 Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 Singh v NSW Police [2020] NSWSC 1214 Stephens v Director of Public Prosecutions (NSW) [2019] NSWSC 761 Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369
Category:	Principal judgment
Parties:	Tirath Singh (Applicant) Senior Constable Robert Hicks (First respondent) Senior Constable John Nissan (Second respondent)
Representation:	Counsel: Mr T Singh (Self-represented) (Applicant) Ms N Oreb (Respondents) Solicitors: Makinson & d’Apice Lawyers (Respondents)
File Number(s):	2021/19389
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2020] NSWSC 1214 Date of Decision: 7 September 2020 Before: Cavanagh J File Number(s): 2020/247508