Devitt v Ross [2018] NSWSC 1675

Devitt v Ross [2018] NSWSC 1675

The Supreme Court dismissed the Amended Summons because the District Court had dismissed the plaintiff's application for leave to appeal out of time and confirmed the Local Court orders. Those District Court orders were operative and displaced the Local Court sentence orders. Since the plaintiff did not challenge the District Court orders, his proposed appeal to the Supreme Court against the Local Court sentence was incompetent and the Court had no jurisdiction to hear the application.

Jurisdiction
Australia
Judgment Date
06 November 2018
Procedural Posture
Application for Leave to Appeal Out of Time Against Sentence Imposed in the Local Court / Supreme Court Determination of Amended Summons Dated 2 October 2018
Outcome
Amended Summons dismissed; no order as to costs.
Legal Topics
['leave to Appeal Out of Time' 'appeal Against Sentence From Local Court' 'mixed Question of Law and Fact' 'jurisdiction After District Court Dismissal of Leave Application' 'operative Orders']
['criminal Law' 'criminal Procedure' 'appeals'] ['leave to Appeal Out of Time' 'appeal Against Sentence From Local Court' 'mixed Question of Law and Fact' 'jurisdiction After District Court Dismissal of Leave Application' 'operative Orders']

Case Brief

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Procedural Posture

Application for Leave to Appeal Out of Time Against Sentence Imposed in the Local Court / Supreme Court Determination of Amended Summons Dated 2 October 2018

Legal Issues

  1. 1 ["Whether the Supreme Court had jurisdiction to entertain the plaintiff's application for leave to appeal out of time against the Local Court sentence after the District Court had dismissed an application for leave to appeal out of time and confirmed the Local Court orders." "Whether the plaintiff's appeal was incompetent because it sought to challenge Local Court orders that were no longer operative." 'Whether Nand v Director of Public Prosecutions (NSW) [2016] NSWSC 85 could be distinguished.']

Ratio Decidendi

The Supreme Court dismissed the Amended Summons because the District Court had dismissed the plaintiff's application for leave to appeal out of time and confirmed the Local Court orders. Those District Court orders were operative and displaced the Local Court sentence orders. Since the plaintiff did not challenge the District Court orders, his proposed appeal to the Supreme Court against the Local Court sentence was incompetent and the Court had no jurisdiction to hear the application.

Court Disposition

Amended Summons dismissed; no order as to costs.

Orders

  • ['The Amended Summons dated 2 October 2018 is dismissed.' 'There should be no order as to costs.']