Gamage v Riashi [2023] NSWSC 1400

Gamage v Riashi [2023] NSWSC 1400

The DPP should be joined as a defendant because it is directly affected by the relief sought in the summons, has appeared and prosecuted the matter since its inception, and there is no evidentiary basis to rebut the statutory presumption regarding notification email receipt. The plaintiff’s application for adjournment was refused due to lack of evidentiary foundation, and the plaintiff is not disadvantaged by joinder. As the plaintiff did not accede to joinder despite notice about costs, the plaintiff is to pay the costs of the motion.

Jurisdiction
Australia
Judgment Date
17 November 2023
Procedural Posture
Joinder Application in Appeal From Interlocutory Orders (criminal Procedure) / Interlocutory, Application for Joinder and Costs
Outcome
Plaintiff's application for adjournment refused; DPP joined as defendant; plaintiff to pay DPP's costs of the motion
Legal Topics
['joinder of Parties' 'application for Adjournment' 'compliance With Legislative Requirements for Prosecution' 'costs of Motion']
['criminal Procedure'] ['joinder of Parties' 'application for Adjournment' 'compliance With Legislative Requirements for Prosecution' 'costs of Motion']

Case Brief

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Procedural Posture

Joinder Application in Appeal From Interlocutory Orders (criminal Procedure) / Interlocutory, Application for Joinder and Costs

Legal Issues

  1. 1 ['Whether the Director of Public Prosecutions (NSW) should be joined as a defendant to the summons' 'Whether the DPP complied with legislative requirements to take over the prosecution' 'Whether the plaintiff’s application for adjournment should be granted' 'Who should bear the costs of the motion']

Ratio Decidendi

The DPP should be joined as a defendant because it is directly affected by the relief sought in the summons, has appeared and prosecuted the matter since its inception, and there is no evidentiary basis to rebut the statutory presumption regarding notification email receipt. The plaintiff’s application for adjournment was refused due to lack of evidentiary foundation, and the plaintiff is not disadvantaged by joinder. As the plaintiff did not accede to joinder despite notice about costs, the plaintiff is to pay the costs of the motion.

Court Disposition

Plaintiff's application for adjournment refused; DPP joined as defendant; plaintiff to pay DPP's costs of the motion

Orders

  • ["The plaintiff's application for adjournment is refused" 'The Director of Public Prosecutions (NSW) be joined as a defendant to the summons' "The plaintiff to pay the DPP's costs of the motion as assessed or agreed"]