Palfrey v South Penrith Sand and Soil Pty Ltd [2013] NSWCA 99

Palfrey v South Penrith Sand and Soil Pty Ltd [2013] NSWCA 99

The appeal is incompetent because the order appealed from was made in proceedings of a kind specified in the Third Schedule to the Supreme Court Act 1970 – namely, proceedings for the prosecution of offenders by information or its equivalent – and the Act's appeal provisions in s 101 do not apply. An application under s 246(1) of the Criminal Procedure Act 1986 is, for these purposes, the equivalent of an information. The only avenue of appeal would be under the Criminal Appeal Act 1912, which is not available here as the proceedings were not 'to which the Crown was a party'.

Parties
Applicant: David Palfrey; Respondent: South Penrith Sand & Soil Pty Limited
Jurisdiction
Australia
Judgment Date
02 May 2013
Procedural Posture
Appeal / Determination of Competency of Appeal
Outcome
Appeal dismissed as incompetent
Legal Topics
Appeal Competency, Summary Jurisdiction, Prosecution of Offences, Definition of Information, Right of Appeal Under Supreme Court Act 1970
Criminal Law Civil Procedure Appeal Competency Summary Jurisdiction Prosecution of Offences Definition of Information Right of Appeal Under Supreme Court Act 1970

Case Brief

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Parties

David Palfrey

Applicant

South Penrith Sand & Soil Pty Limited

Respondent

Procedural Posture

Appeal / Determination of Competency of Appeal

Legal Issues

  1. 1 Whether an appeal lies to the Court of Appeal from an order of the Supreme Court in its summary jurisdiction dismissing summonses under s 246(1) of the Criminal Procedure Act 1986.
  2. 2 Whether an application made or filed under s 246(1) is an 'information presented or filed as provided by law for the prosecution of offenders'.
  3. 3 Whether the appeal is competent under s 101 of the Supreme Court Act 1970 or the Criminal Appeal Act 1912.

Ratio Decidendi

The appeal is incompetent because the order appealed from was made in proceedings of a kind specified in the Third Schedule to the Supreme Court Act 1970 – namely, proceedings for the prosecution of offenders by information or its equivalent – and the Act's appeal provisions in s 101 do not apply. An application under s 246(1) of the Criminal Procedure Act 1986 is, for these purposes, the equivalent of an information. The only avenue of appeal would be under the Criminal Appeal Act 1912, which is not available here as the proceedings were not 'to which the Crown was a party'.

Court Disposition

Appeal dismissed as incompetent

Orders

  • The appeal be dismissed as incompetent.
  • The appellant pay the respondent's costs of the notice of motion and the appeal.