Kang v Bishop (No 2) [2018] NSWSC 1073

Kang v Bishop (No 2) [2018] NSWSC 1073

Mr Bishop was authorised by s 14 of the Criminal Procedure Act 1986 (NSW) to commence prosecutions under ss 192E and 192G of the Crimes Act 1900 (NSW) because the Crimes Act did not expressly confer the right to institute those prosecutions on a specified person or class of persons. Section 173 of the Criminal Procedure Act regulated the manner of commencement by a police officer or public officer and did not impose an additional requirement for delegated authority from the Secretary under the Fair Trading Act 1987 (NSW). Mr Bishop was an employee in the Public Service who brought the prosecutions in the ordinary course of his employment as a Fair Trading investigator and therefore acted...

Jurisdiction
Australia
Judgment Date
12 July 2018
Procedural Posture
Administrative Law Judicial Review; Appeal From Local Court / Final Hearing of Further Amended Summons Seeking Declarations and Orders Under S 69 of the Supreme Court Act 1970 (nsw) to Quash Local Court Orders
Outcome
Mr Kang's application is dismissed.
Legal Topics
['judicial Review of Local Court Proceedings' 'authority to Commence Prosecutions' 'public Officer Under the Criminal Procedure Act 1986 (nsw)' 'court Attendance Notices' 'interaction Between the Criminal Procedure Act 1986 (nsw), Crimes Act 1900 (nsw) and Fair Trading Act 1987 (nsw)' 'extension of Time for Judicial Review' 'admissibility of Evidence' 'indemnity Costs']
['administrative Law' 'criminal Procedure' 'costs'] ['judicial Review of Local Court Proceedings' 'authority to Commence Prosecutions' 'public Officer Under the Criminal Procedure Act 1986 (nsw)' 'court Attendance Notices' 'interaction Between the Criminal Procedure Act 1986 (nsw), Crimes Act 1900 (nsw) and Fair Trading Act 1987 (nsw)' 'extension of Time for Judicial Review' 'admissibility of Evidence' 'indemnity Costs']

Case Brief

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Procedural Posture

Administrative Law Judicial Review; Appeal From Local Court / Final Hearing of Further Amended Summons Seeking Declarations and Orders Under S 69 of the Supreme Court Act 1970 (nsw) to Quash Local Court Orders

Legal Issues

  1. 1 ['Whether Mr Kang required an extension of time to bring the proceedings under r 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW).' "Whether Mr Bishop required the Secretary's delegated authority under the Fair Trading Act 1987 (NSW) to bring prosecutions against Mr Kang under ss 192E and 192G of the Crimes Act 1900 (NSW)." 'Whether Mr Bishop was a public officer acting in an official capacity for the purposes of ss 3 and 173 of the Criminal Procedure Act 1986 (NSW).' 'Whether affidavits relied on by the defendants were relevant and admissible.' 'Whether there should be a departure from the usual costs order.']

Ratio Decidendi

Mr Bishop was authorised by s 14 of the Criminal Procedure Act 1986 (NSW) to commence prosecutions under ss 192E and 192G of the Crimes Act 1900 (NSW) because the Crimes Act did not expressly confer the right to institute those prosecutions on a specified person or class of persons. Section 173 of the Criminal Procedure Act regulated the manner of commencement by a police officer or public officer and did not impose an additional requirement for delegated authority from the Secretary under the Fair Trading Act 1987 (NSW). Mr Bishop was an employee in the Public Service who brought the prosecutions in the ordinary course of his employment as a Fair Trading investigator and therefore acted...

Court Disposition

Mr Kang's application is dismissed.

Orders

  • ["Mr Kang's application is dismissed." "Mr Kang is to pay the First and Second Defendant's costs of the proceedings, as agreed or assessed."]