SAMOOTIN v. DEANS [2001] NSWCA 399

New South Wales Court of Appeal

CITATION : SAMOOTIN v. DEANS [2001] NSWCA 399 FILE NUMBER(S) : CA 40614/01 HEARING DATE(S) : 16/11/01 JUDGMENT DATE : 16 November 2001

PARTIES : ALEXANDRA SAMOOTIN (Claimant) PETER JOHN DEANS (Opponent) JUDGMENT OF : Mason P at 1, 16; Powell JA at 2; Heydon JA at 17

LOWER COURT JURISDICTION : District Court LOWER COURT 01/12/0297 FILE NUMBER(S) : LOWER COURT Nield DCJ JUDICIAL OFFICER :

COUNSEL : (Claimant) In person (Opponent) B. T. Muir (solicitor) SOLICITORS : (Claimant) In person (Opponent) Brian Muir & Company CATCHWORDS : INFERIOR COURTS - Apprehended violence order made in Local Court - Appeal to District Court by defendant - Appeal upheld - Apprehended violence order quashed - Application for prerogative relief in respect of District Court order - Application for leave to appeal from District Court order - Whether either form of relief available D Crimes Act 1990 ss 562WA, 562WC, 562Y LEGISLATION CITED : Supreme Court Act 1970 s69 Justices Act 1902 s.146 District Courts Act 1973 ss 4, 127, 166, 169 CASES CITED: Kopuz v. District Court of New South Wales (1992) 28 NSWLR 232 DECISION : Summons dismissed

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40614/01 DC 01/12/0297 MASON P POWELL JA HEYDON JA

16 November 2001 SAMOOTIN v. DEANS

Judgment 1 MASON P. Miss Samootin, the Court is of the view that it does not have jurisdiction and I invite Powell JA to deliver the reasons of the Court. 2 POWELL JA: In the Summons which she filed on 13 August 2001, in which Summons she was described as the Appellant, the Claimant claimed the following "relief":

"1. Relief by a prerogative writ to be granted to Alexandra Samootin.

2. The proceedings appealed from were heard on 19 July 2001 and decided on 19 July 2001.

3. The Appellant appeals from the whole of the decision of Justice (sic) J. R. Nield." while in her Amended Summons, filed by leave granted by the Registrar, the Claimant seeks the following Order:

"That leave be granted by way of a rehearing to Alexandra Samootin of the proceedings that were heard on 19 July 2001 and decided on 19 July 2001 in the District Court of New South Wales by Justice (sic) J.R. Neild (sic)." 3 The fact that the Registrar granted the Claimant leave to amend her Summons has led the Claimant to believe that she has been granted leave to appeal to this Court from Nield DCJ's decision, and that fact has, regrettably, led her to press on with an application which in my view, for the reasons which I will shortly record, is bound to fail. 4 In my opinion for the reasons which I will shortly record, relief prerogative in nature was not available, and an appeal, even by leave of this Court, does not lie, in respect of the Judgment delivered, and the Orders made, by Nield DCJ in the proceedings heard by him on 19 July 2001. 5 The proceedings with which his Honour was concerned to deal involved an appeal – which his Honour upheld - by the Opponent from an apprehended personal violence order and an order for costs made by George LCM in favour of the Claimant and against the Opponent in the Manly Local Court on 19 March 2001, that apprehended personal violence order to continue in force for a period of 12 months. 6 Apprehended violence orders – both apprehended domestic violence orders and apprehended personal violence orders – are provided for in Part 15A of the Crimes Act 1900. So far as is relevant, that Part provides as follows:

"562G(1) The following courts have jurisdiction (in the circumstances specified) to make orders under this Part:

(a) a Local Court – except where the defendant is less than 18 years of age at the time the complaint is made;

…

562WA(1) A defendant may appeal to the District Court under Part 5A of the Justices Act 1902 against an apprehended violence order made by a Local Court or the Childrens Court.

…

(3) Part 5A of the Justices Act 1902 applies with any necessary adaptations to such an appeal.

…

562WC The jurisdiction conferred on the District Court by this Part is conferred on the Court in its criminal jurisdiction.

…

562Y Except as expressly provided, nothing in this part affects the operation that Parts 4A and 5A of the Justices Act 1902 would have if Division 4 of this Part had not been enacted." (Division 4 includes those provisions dealing with the jurisdiction of, and appeals to, the District Court.) 7 Although s.69 of the Supreme Court Act 1970 enables the Supreme Court to grant relief prerogative in nature, the exercise of the jurisdiction of the Supreme Court under s.69 is limited by the provisions of s.146 of the Justices Act 1902 which provides:

"No adjudication on appeal of the District Court is to be removed by any order into the Supreme Court." 8 Although it has been held (Kopuz v. District Court of New South Wales (1992) 28 NSWLR 232) that the prohibition contained in s.146 of the Justices Act 1902 does not operate in respect of orders and convictions made in excess of jurisdiction or from a partial exercise of jurisdiction which might be categorised as in substance a failure to exercise jurisdiction, the prohibition does operate in respect of orders and convictions made within jurisdiction. 9 The written submissions advanced by the Claimant in the materials which she has filed with the Court are directed to what might be called the merits of the Judgment delivered by Nield DCJ on 19 July 2001 and do not assert that the orders made by His Honour on that day were made in excess of jurisdiction or from a partial exercise of jurisdiction which might be categorised as in substance a failure to exercise jurisdiction. 10 This being so, as I have earlier indicated, and as the Registrar would appear to have advised the Claimant, it would not have been open to this Court to grant the Claimant relief prerogative in nature which she – apparently – originally sought. 11 An appeal to the Court of Appeal lies only in those circumstances provided for in the District Court Act 1973 which, so far as is relevant, provides as follows:

"4(1) In this Act, except in so far as the context or subject matter otherwise indicates or requires:

'action' means action in the Court but does not include any proceeding under Division 8 of Part 3 or under Part 4.

…

127(1) A party who is dissatisfied with a Judge's judgment or order in an action may appeal to the Supreme Court.

…

166(1) The court has the criminal jurisdiction conferred or imposed on it by or under this Act, the Criminal Procedure Act 1986 and any other Act.

…

169 …

(2) Except where express provision to the contrary is made by any other Act:

(a) the trial of all issues arising in the Court in the exercise of its criminal jurisdiction,

(b) the hearing of any application, or the making of any order, in relation to any such issues, and

(c) all other matters relating to the exercise of that jurisdiction,

shall be held before or dealt with by a Judge sitting alone.

…" (Part 4 of the District Court Act 1973, which Part includes the provisions of ss. 166, 169 which I have set out above, makes provision for the criminal jurisdiction of the District Court.) 12 As an appeal to the District Court by a defendant against an apprehended violence order made by a Local Court is, by virtue of the provisions of s.562WC of the Crimes Act 1900, to be dealt with by the District Court in its criminal jurisdiction, such an appeal does not constitute an "action" for the purposes of the District Court Act 1973, it following that s.127 of the District Court Act 1973, does not provide for an appeal, whether by leave or otherwise, to this Court. 13 For the reasons which I have set out above, the Claimant's Summons, in its original form was, and in its amended form is, bound to fail and should be dismissed. 14 The question of the Court's jurisdiction was raised by the solicitor for the Opponent in a letter written by him to the Claimant on 7 September 2001. In that letter he indicated that it was his view that the Court had no such jurisdiction and, as I understood his reading of the letter, advised the Claimant to seek advice in an endeavour to save costs, at the same time indicating that if she nonetheless pressed on with her application an order for costs would be sought in the event that the application was dismissed. 15 In the circumstances, regrettable though it would appear to be, I conclude that the Summons should be dismissed with costs and I so propose. 16 MASON P. I agree. 17 HEYDON JA: I agree. 18 MASON P. Miss Samootin, I will hand back you the copy of the letter that you tendered to the Court. 19 CLAIMANT: Could you tell me why you're dismissing the Summons. Why was it accepted in the first place and the hearing listed and I was asked to produce all the books? I came here for a hearing. Could you tell me why? 20 MASON P. You pressed for a hearing, you've had the hearing and the Court has given its reasons for dismissing the proceedings. I am sorry, there is nothing further to be said in the matter. **********

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