Zaksaw Pty Ltd v Gudu - [2024] NSWCA 296

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Zaksaw Pty Ltd v Gudu [2024] NSWCA 296
Hearing dates: 6 December 2024
Decision date: 06 December 2024
Before: Leeming JA at [1], [26];
Mitchelmore JA at [24];
McHugh JA at [25]
Decision:
The summons filed on 24 September 2024 is dismissed with costs.

Catchwords:
ADMINISTRATIVE LAW – judicial review – supervisory jurisdiction over District Court determining criminal appeals – review limited by s 176 of District Court Act 1973 (NSW) to jurisdictional error – whether error in construing offence provision jurisdictional – whether error jurisdictional if question of construction is “core” issue in prosecution – no jurisdictional error established – inappropriate to determine questions of construction

Legislation Cited:
Children (Education and Care Services National Law Application) Act 2010 (NSW), s 4
Children (Education and Care Services) National Law (NSW), s 167
Crimes (Appeal and Review) Act 2001 (NSW), s 11
District Court Act 1973 (NSW), s 176

Cases Cited:
ABC Developmental Learning Centres Pty Ltd v Wallace (2007) 16 VR 409; [2007] VSCA 138
Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58
Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211
Federated Engine Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398; [1911] HCA 31
Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115
Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121
Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37
LDF Enterprise Pty Ltd v State of New South Wales (2017) 95 NSWLR 70; [2017] NSWCA 89
Morgan v District Court of New South Wales (2017) 94 NSWLR 463; [2017] NSWCA 105
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17
Vok v Director of Public Prosecutions (NSW) [2019] NSWCA 242
W O v Director of Public Prosecutions (NSW) [2009] NSWCA 370

Category: Principal judgment
Parties: Zaksaw Pty Ltd (First applicant)
Stefania Giacchi (Second applicant)
Sharon Gudu, in her role as the Executive Director Quality Assurance and Regulatory Services, Early Childhood Education, Department of Education (First respondent)
District Court of New South Wales (Second respondent)
Representation:
Counsel:
M Higgins with M Hunter (Applicants)
Z Heger SC with H Rogers (First respondent)
Solicitors:
GMH Legal (Applicants)
Crown Solicitor’s Office (First respondent, second respondent (submitting))

File Number(s): 2024/00355451
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

28 June 2024

Before:

Kumar DCJ

File Number(s):

2020/00326152 and 2020/00326144

EX TEMPORE JUDGMENT

LEEMING JA: The moving parties on the summons before the Court are Zaksaw Pty Ltd and Ms Stefania Giacchi. Zaksaw owns and operates the “Rise and Shine Kindergarten and Childcare Service” at Carlton in Sydney, and Ms Giacchi is its “nominated supervisor” for the purposes of the Children (Education and Care Services) National Law (NSW), to which I shall refer as 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.

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Details

Case: [2024] NSWCA 296
Decision Date: 06 December 2024

CaseChat Overview and Summary

Zaksaw Pty Ltd, the applicant, sought judicial review of a decision of the District Court of New South Wales, which had dismissed its appeal against a conviction in the Local Court. The dispute concerned the interpretation of an offence provision under the *Crimes Act 1900* (NSW).

The primary legal issue before the Court of Appeal was whether the District Court judge had committed a jurisdictional error in construing the relevant offence provision. The applicant contended that the District Court's interpretation was erroneous and that this error amounted to a jurisdictional error, thereby attracting the supervisory jurisdiction of the Supreme Court.

The Court of Appeal held that an error in construing an offence provision, even if significant, does not automatically constitute a jurisdictional error. Applying the principles established in cases such as *Project Blue Sky Inc v Australian Broadcasting Authority*, the Court determined that the District Court judge had not acted outside their jurisdiction. The error, if any, was an error of law within jurisdiction, and the question of construction was a "core" issue in the prosecution, meaning the District Court had the power to err in its determination of that issue. The Court emphasised that judicial review under section 176 of the *District Court Act 1973* (NSW) is limited to jurisdictional error, and it is inappropriate to use this supervisory jurisdiction to determine questions of statutory construction that do not involve a jurisdictional error.

Consequently, the summons filed by Zaksaw Pty Ltd on 24 September 2024 was dismissed with costs.

Orders

Orders of the court

The summons filed on 24 September 2024 is dismissed with 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:	Zaksaw Pty Ltd v Gudu [2024] NSWCA 296
Hearing dates:	6 December 2024
Decision date:	06 December 2024
Before:	Leeming JA at [1], [26]; Mitchelmore JA at [24]; McHugh JA at [25]
Decision:	The summons filed on 24 September 2024 is dismissed with costs.
Catchwords:	ADMINISTRATIVE LAW – judicial review – supervisory jurisdiction over District Court determining criminal appeals – review limited by s 176 of District Court Act 1973 (NSW) to jurisdictional error – whether error in construing offence provision jurisdictional – whether error jurisdictional if question of construction is “core” issue in prosecution – no jurisdictional error established – inappropriate to determine questions of construction
Legislation Cited:	Children (Education and Care Services National Law Application) Act 2010 (NSW), s 4 Children (Education and Care Services) National Law (NSW), s 167 Crimes (Appeal and Review) Act 2001 (NSW), s 11 District Court Act 1973 (NSW), s 176
Cases Cited:	ABC Developmental Learning Centres Pty Ltd v Wallace (2007) 16 VR 409; [2007] VSCA 138 Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211 Federated Engine Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398; [1911] HCA 31 Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121 Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37 LDF Enterprise Pty Ltd v State of New South Wales (2017) 95 NSWLR 70; [2017] NSWCA 89 Morgan v District Court of New South Wales (2017) 94 NSWLR 463; [2017] NSWCA 105 MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 Vok v Director of Public Prosecutions (NSW) [2019] NSWCA 242 W O v Director of Public Prosecutions (NSW) [2009] NSWCA 370
Category:	Principal judgment
Parties:	Zaksaw Pty Ltd (First applicant) Stefania Giacchi (Second applicant) Sharon Gudu, in her role as the Executive Director Quality Assurance and Regulatory Services, Early Childhood Education, Department of Education (First respondent) District Court of New South Wales (Second respondent)
Representation:	Counsel: M Higgins with M Hunter (Applicants) Z Heger SC with H Rogers (First respondent) Solicitors: GMH Legal (Applicants) Crown Solicitor’s Office (First respondent, second respondent (submitting))
File Number(s):	2024/00355451
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 28 June 2024 Before: Kumar DCJ File Number(s): 2020/00326152 and 2020/00326144