NEW SOUTH WALES CRIME COMMISSION v DALTON [2004] NSWSC 786

NEW SOUTH WALES CRIME COMMISSION v DALTON [2004] NSWSC 786

Because an order under s76 of the Service and Execution of Process Act 1992 (Cth) is an order of the Supreme Court, and the Supreme Court is a superior court of record not subject to prerogative relief from itself, a single judge of the Supreme Court of New South Wales lacks power to set aside an ex parte s76 order made by another single judge of that Court.

Jurisdiction
Australia
Judgment Date
23 August 2004
Procedural Posture
Notice of Motion for Separate Determination of a Question of Law Under SCR Pt 31 R 2 / Separate Determination of Whether an Ex Parte Order Under S76 of the Service and Execution of Process Act 1992 (cth) Could Be Set Aside by Another Single Judge
Outcome
The Commission's motion succeeded; the Court declared that a single judge of the Supreme Court of New South Wales does not have power to set aside an ex parte s76 order made by another single judge, dismissed the relevant part of Mr Dalton's summons, ordered costs against Mr Dalton, and stood over the balance of the...
Legal Topics
['separate Determination of Question of Law' 'prerogative Relief' 'ex Parte Orders' 'service and Execution of Process Act 1992 (cth) S76' 'jurisdiction of a Superior Court of Record']
['civil Procedure' 'administrative Law'] ['separate Determination of Question of Law' 'prerogative Relief' 'ex Parte Orders' 'service and Execution of Process Act 1992 (cth) S76' 'jurisdiction of a Superior Court of Record']

Case Brief

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Procedural Posture

Notice of Motion for Separate Determination of a Question of Law Under SCR Pt 31 R 2 / Separate Determination of Whether an Ex Parte Order Under S76 of the Service and Execution of Process Act 1992 (cth) Could Be Set Aside by Another Single Judge

Legal Issues

  1. 1 ['Whether a single judge of the Supreme Court of New South Wales has power to set aside an order made ex parte by another single judge of that Court pursuant to s76 of the Service and Execution of Process Act 1992 (Cth).' 'Whether relief sought against the s76 order was in the nature of prerogative relief unavailable against the Supreme Court itself.']

Ratio Decidendi

Because an order under s76 of the Service and Execution of Process Act 1992 (Cth) is an order of the Supreme Court, and the Supreme Court is a superior court of record not subject to prerogative relief from itself, a single judge of the Supreme Court of New South Wales lacks power to set aside an ex parte s76 order made by another single judge of that Court.

Court Disposition

The Commission's motion succeeded; the Court declared that a single judge of the Supreme Court of New South Wales does not have power to set aside an ex parte s76 order made by another single judge, dismissed the relevant part of Mr Dalton's summons, ordered costs against Mr Dalton, and stood over the balance of the...

Orders

  • ['Declare that a single judge of the Supreme Court of New South Wales does not have the power to set aside an order made ex parte by another single judge of the Supreme Court of New South Wales pursuant to s76 of the Service and Execution of Process Act.' "The plaintiff, Mr Dalton, is to pay the defendant...