DPP v Geraghty & Ors [2000] NSWSC 228

DPP v Geraghty & Ors [2000] NSWSC 228

Because the applicants' motion invited one judge of the Common Law Division to determine that another judge's interlocutory consent order was made without jurisdiction, it was in substance a matter for appellate review and was not properly brought before Hidden J. The proper course, if pursued, was an application for leave to appeal to the Court of Appeal. Since the original motion raised matters exclusively within the Court of Appeal's jurisdiction, there was no utility in filing a motion for removal under Pt 12 r2, and the motion had to be dismissed with costs.

Jurisdiction
Australia
Judgment Date
23 March 2000
Procedural Posture
Motion to Set Aside an Interlocutory Order Made by Consent Under the Proceeds of Crime Act 1987 (cth) / Application Before a Single Judge of the Common Law Division; Preliminary Question as to Jurisdiction and Further Application for Leave to File a Motion to Remove Proceedings Into the Court of Appeal
Outcome
Motion dismissed with costs; leave to file motion for removal into the Court of Appeal refused.
Legal Topics
['power of a Single Judge to Set Aside Interlocutory Order of Another Judge' 'appellate Review of Interlocutory Orders' 'removal of Proceedings Into the Court of Appeal' 'proceeds of Crime Act 1987 (cth) Orders']
['civil Procedure' 'criminal Proceeds/confiscation'] ['power of a Single Judge to Set Aside Interlocutory Order of Another Judge' 'appellate Review of Interlocutory Orders' 'removal of Proceedings Into the Court of Appeal' 'proceeds of Crime Act 1987 (cth) Orders']

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Procedural Posture

Motion to Set Aside an Interlocutory Order Made by Consent Under the Proceeds of Crime Act 1987 (cth) / Application Before a Single Judge of the Common Law Division; Preliminary Question as to Jurisdiction and Further Application for Leave to File a Motion to Remove Proceedings Into the Court of Appeal

Legal Issues

  1. 1 ['Whether a single judge of the Supreme Court could set aside an interlocutory order made by another judge on the ground that the earlier order was made without jurisdiction.' "Whether Pt 40 r9(4) of the Supreme Court Rules 1970 permitted the applicants' motion as an effective appellate review of Simpson J's order." 'Whether the proper course was an application for leave to appeal to the Court of Appeal under s101(2)(e) of the Supreme Court Act.' 'Whether leave should be granted to file a fresh motion to remove the proceedings into the Court of Appeal pursuant to Pt 12 r2 of the Rules.']

Ratio Decidendi

Because the applicants' motion invited one judge of the Common Law Division to determine that another judge's interlocutory consent order was made without jurisdiction, it was in substance a matter for appellate review and was not properly brought before Hidden J. The proper course, if pursued, was an application for leave to appeal to the Court of Appeal. Since the original motion raised matters exclusively within the Court of Appeal's jurisdiction, there was no utility in filing a motion for removal under Pt 12 r2, and the motion had to be dismissed with costs.

Court Disposition

Motion dismissed with costs; leave to file motion for removal into the Court of Appeal refused.

Orders

  • ['Leave to file the motion for removal of the proceedings into the Court of Appeal was refused.' 'Leave to file an amended notice of motion in relation to the part-heard proceedings was granted.' 'The amended motion was dismissed.' "The applicants must pay the Director's costs." 'A transcript of the proceedings on...