Fell v Chenhall [2018] NSWSC 1574

Fell v Chenhall [2018] NSWSC 1574

The failure by the prosecutor to obtain leave to file originating Court Attendance Notices in the Mount Druitt registry for prosecutions to be conducted at Campbelltown did not, as a matter of statutory construction, invalidate the commencement of the prosecutions. Rule 8.7(4) is procedural, concerns filing geography within the same Court, appears in delegated rules rather than in an Act itself, and the statutory scheme did not disclose an intention that every breach of that rule render prosecutions void ab initio. The Mount Druitt CANs therefore commenced the proceedings within the limitation period, so the appeal failed.

Jurisdiction
Australia
Judgment Date
22 October 2018
Procedural Posture
Interlocutory Appeal in Summary Criminal Proceedings From the Local Court / Application for Leave to Appeal Against Dismissal of a Notice of Motion Seeking Dismissal of Local Court Proceedings for Want of Jurisdiction
Outcome
Leave to appeal granted; appeal dismissed; plaintiff ordered to pay the first defendant's costs.
Legal Topics
['commencement of Summary Proceedings' 'court Attendance Notices' 'filing in Local Court Registry' 'failure to Obtain Leave of Registrar' 'limitation Period for Summary Offences' 'validity of Proceedings']
['criminal Law' 'criminal Procedure' 'statutory Interpretation'] ['commencement of Summary Proceedings' 'court Attendance Notices' 'filing in Local Court Registry' 'failure to Obtain Leave of Registrar' 'limitation Period for Summary Offences' 'validity of Proceedings']

Case Brief

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Procedural Posture

Interlocutory Appeal in Summary Criminal Proceedings From the Local Court / Application for Leave to Appeal Against Dismissal of a Notice of Motion Seeking Dismissal of Local Court Proceedings for Want of Jurisdiction

Legal Issues

  1. 1 ['Whether failure to obtain leave under r 8.7 of the Local Court Rules 2009 (NSW) to file Court Attendance Notices in a registry other than the registry where the proceedings were to be listed invalidated the commencement of the summary prosecutions.' 'Whether the Local Court proceedings were commenced within the six-month limitation period for wholly summary offences.']

Ratio Decidendi

The failure by the prosecutor to obtain leave to file originating Court Attendance Notices in the Mount Druitt registry for prosecutions to be conducted at Campbelltown did not, as a matter of statutory construction, invalidate the commencement of the prosecutions. Rule 8.7(4) is procedural, concerns filing geography within the same Court, appears in delegated rules rather than in an Act itself, and the statutory scheme did not disclose an intention that every breach of that rule render prosecutions void ab initio. The Mount Druitt CANs therefore commenced the proceedings within the limitation period, so the appeal failed.

Court Disposition

Leave to appeal granted; appeal dismissed; plaintiff ordered to pay the first defendant's costs.

Orders

  • ['Leave to appeal granted.' 'Appeal dismissed.' 'The plaintiff, Mr Fell, must pay the costs of the proceedings of the first defendant, Ms Chenhall.']