Russell v Scott & Anor [2017] NSWSC 1720

Russell v Scott & Anor [2017] NSWSC 1720

A direction under s 5B of the AVL Act for evidence to be given by audio-visual link is not an 'interlocutory order' within the meaning of s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) and thus not subject to statutory appeal. Further, the Deputy Chief Magistrate did not err in law or jurisdiction by relying on the signed written AVL application in chambers without sworn evidence, as no statutory provision or rule of the Local Court required a different procedure, and no procedural unfairness arose as the plaintiff did not request a hearing or object to that process at the time.

Jurisdiction
Australia
Judgment Date
12 December 2017
Procedural Posture
Statutory Appeal and Judicial Review / Supreme Court Determination on Statutory Appeal/judicial Review of Local Court Interlocutory Decision
Outcome
Summons dismissed; costs to first defendant.
Legal Topics
['statutory Appeal From Local Court' 'evidence Via Audio Visual Link' 'judicial Review of Interlocutory Decisions' "proper Construction of 'interlocutory Order'" 'procedural Fairness in Criminal Proceedings']
['criminal Law' 'administrative Law'] ['statutory Appeal From Local Court' 'evidence Via Audio Visual Link' 'judicial Review of Interlocutory Decisions' "proper Construction of 'interlocutory Order'" 'procedural Fairness in Criminal Proceedings']

Case Brief

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Procedural Posture

Statutory Appeal and Judicial Review / Supreme Court Determination on Statutory Appeal/judicial Review of Local Court Interlocutory Decision

Legal Issues

  1. 1 ["Whether a direction for AVL evidence is an 'interlocutory order' under s 53(3)(b) Crimes (Appeal and Review) Act 2001 (NSW)" 'Whether the Deputy Chief Magistrate constructively failed to exercise jurisdiction by acting on unsubstantiated assertions' 'Whether the Local Court erred by not requiring sworn evidence for AVL applications']

Ratio Decidendi

A direction under s 5B of the AVL Act for evidence to be given by audio-visual link is not an 'interlocutory order' within the meaning of s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) and thus not subject to statutory appeal. Further, the Deputy Chief Magistrate did not err in law or jurisdiction by relying on the signed written AVL application in chambers without sworn evidence, as no statutory provision or rule of the Local Court required a different procedure, and no procedural unfairness arose as the plaintiff did not request a hearing or object to that process at the time.

Court Disposition

Summons dismissed; costs to first defendant.

Orders

  • ['The summons is dismissed.' "The plaintiff is to pay the first defendant's costs."]