MALCOLM v SELBY and ORS [1994] NSWCA 192

MALCOLM v SELBY and ORS [1994] NSWCA 192

The claimant failed to produce sufficient evidence to show that Grove J could not have been satisfied, as required by s17(2) of the Listening Devices Act, and therefore did not discharge the onus of proof necessary for the court to grant relief.

Parties
Claimant: Malcolm; Opponents: Selby and Ors
Jurisdiction
Australia
Judgment Date
03 June 1994
Procedural Posture
Application for Prerogative Relief / Court of Appeal Judgment
Outcome
Summons dismissed with costs
Legal Topics
Listening Devices, Issuance of Warrant, Prerogative Relief, Onus of Proof, Procedural Fairness
Criminal Law Administrative Law Listening Devices Issuance of Warrant Prerogative Relief Onus of Proof Procedural Fairness

Case Brief

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Parties

Malcolm

Claimant

Selby and Ors

Opponents

Procedural Posture

Application for Prerogative Relief / Court of Appeal Judgment

Legal Issues

  1. 1 Whether the judge issuing the warrant under the Listening Devices Act failed to comply with s17(2)
  2. 2 Whether the onus of proof rests on the claimant to show non-compliance with s17(2) when seeking prerogative relief
  3. 3 Whether there is a shift of evidentiary onus when some evidence is tendered by the claimant

Ratio Decidendi

The claimant failed to produce sufficient evidence to show that Grove J could not have been satisfied, as required by s17(2) of the Listening Devices Act, and therefore did not discharge the onus of proof necessary for the court to grant relief.

Court Disposition

Summons dismissed with costs

Orders

  • Summons dismissed with costs
  • Liberty to the claimant to apply within seven days to seek variation or discharge of the costs order