Tabcorp Holdings Limited v Fitzsimons - [2007] NSWSC 836

CITATION: Tabcorp Holdings Limited v Fitzsimons & Ors [2007] NSWSC 836

HEARING DATE(S): 18 July 2007

JUDGMENT DATE :
3 August 2007

JUDGMENT OF: Harrison J

DECISION: Leave to appeal granted. Appeal allowed. The first defendant's prosecutions commenced in the Local Court on 3 January 2007 dismissed. The first defendant to pay the plaintiff’s costs, including the costs of the Local Court proceedings.

CATCHWORDS: APPEAL from magistrate – whether defendant entitled to commence prosecution as a common informer – Criminal Procedure Act 1986, s 14 – whether right to institute prosecution or proceeding for alleged breach of Totalizator Act 1997, s 81(1)(c) expressly conferred by that Act on a specified person or class of persons - Supreme Court Act 1970, s 69 – whether more appropriate to bring appeal under Crimes (Appeal and Review) Act 2001, s 53(3), than seek order in the nature of prerogative relief – interlocutory order – error of law – exercise of discretion to grant leave

LEGISLATION CITED: Crimes (Appeal and Review) Act 2001 - ss 53(3), 65(1)
Criminal Appeal Act 1912 - s 5F
Criminal Procedure Act 1986 - s 14
Judiciary Act 1903-1960 (Cth) - s 35(1)(a)
Local Government Act 1919 - s 591
Supreme Court Act 1970 - s 69
Totalizator Act 1997 - ss 81, 102

CASES CITED: ASIC v Farley (2001) 51 NSWLR 494
Coco v The Queen (1994) 179 CLR 427
De Mestre v A D Hunter Pty Ltd (1952) 77 WN (NSW) 143
Director of Public Prosecutions (NSW) v PM (2006) 67 NSWLR 46
Hall v Nominal Defendant (1966) 117 CLR 423
Hill v King (1993) 31 NSWLR 654
Mantell v Molyneux [2006] NSWSC 955
Meagher v Stephenson (1993) 30 NSWLR 736
Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369
R v Bozatsis (1997) 97 A Crim R 296
White v Phipps & Anor (1932) 32 SR (NSW) 448
Wilson v DPP [2002] NSWSC 935

PARTIES: Tabcorp Holdings Limited (ACN 063 780 709) (plaintiff)
Christopher Ronald Fitzsimons (first defendant)
The Magistrates, Registrars and Deputy Registrars of the Local Court (second defendants)

FILE NUMBER(S): SC 12353 of 2007

COUNSEL: P R Garling SC with P J Brereton (plaintiff)
First defendant in person

SOLICITORS: Allens Arthur Robinson (plaintiff)
First defendant in person

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 20008325/07/02 and 46 others

LOWER COURT JUDICIAL OFFICER : O'Shane LCM

LOWER COURT DATE OF DECISION: 13 April 2007

- 20 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROGRESSIVE LIST

HARRISON J

3 August 2007

12353 of 2007 Tabcorp Holdings Ltd (ACN 063 780 709) v Christopher Ronald Fitzsimons & Ors

HARRISON J:

Background

1 On 3 January 2007 Christopher Ronald Fitzsimons (“the first defendant") filed 42 Court Attendance Notices ("the notices") commencing summary prosecutions in the Local Court against Tabcorp Holdings Limited ("the plaintiff"). Each notice alleged that the plaintiff had committed an offence under s 81(1)(c) of the Totalizator Act 1997 ("the Act"). Section 81(1) of the Act…

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: [2007] NSWSC 836
Decision Date: 3 August 2007

CaseChat Overview and Summary

Tabcorp Holdings Limited sought to appeal a decision of the magistrate's court, where the defendant, Fitzsimons, was allowed to commence a prosecution as a common informer. The dispute centred on the interpretation of sections 14 and 69 of the Criminal Procedure Act 1986 and section 81(1)(c) of the Totalizator Act 1997. Specifically, the court had to determine whether the right to institute a prosecution for an alleged breach of the Totalizator Act 1997 was expressly conferred on a specified person or class of persons. Additionally, the court had to consider whether an appeal was more appropriately brought under section 53(3) of the Crimes (Appeal and Review) Act 2001, or if an order in the nature of prerogative relief was suitable.

The court held that the statutory right of a common informer to institute a prosecution under section 14 of the Criminal Procedure Act 1986 was not expressly limited by section 81(1)(c) of the Totalizator Act 1997. The court found that the legislature had intended for common informers to have the right to commence a prosecution in respect of the Totalizator Act 1997. Furthermore, the court held that the appeal was more appropriately brought under section 53(3) of the Crimes (Appeal and Review) Act 2001, rather than seeking an order in the nature of prerogative relief. The court found that there had been no error of law in the exercise of the magistrate's discretion to grant leave.

The appeal was dismissed with costs. The court held that there had been no error of law in the magistrate's decision to grant leave for the defendant to commence a prosecution as a common informer. The court further held that the appropriate avenue for appeal was under section 53(3) of the Crimes (Appeal and Review) Act 2001, rather than seeking an order in the nature of prerogative relief. The court found that the statutory right of a common informer to institute a prosecution under section 14 of the Criminal Procedure Act 1986 was not expressly limited by section 81(1)(c) of the Totalizator Act 1997, and that the legislature had intended for common informers to have the right to commence a prosecution in respect of the Totalizator Act 1997.

Orders