Potier v The New South Wales State Parole Authority [2015] NSWSC 1775

Potier v The New South Wales State Parole Authority [2015] NSWSC 1775

The Supreme Court does not have jurisdiction under s 151 of the Migration Act 1958 to issue a criminal justice stay warrant of its own motion or on application by an unlawful non-citizen. That section does not confer power but merely preserves it where otherwise enacted; standing to apply for such a warrant is limited to those administering the criminal justice system. Nor has it been established that exercise of jurisdiction under s 23 of the Supreme Court Act is necessary for the administration of justice in this case. Accordingly, the application must be dismissed.

Parties
Plaintiff: Malcolm Huntley Potier; First Defendant: New South Wales State Parole Authority; Second Defendant: Minister for the Department of Immigration and Border Protection; Third Defendant: The New South Wales Commissioner for the Department of Corrective Services
Jurisdiction
Australia
Judgment Date
26 November 2015
Procedural Posture
Notice of Motion (in Ongoing Supreme Court Proceedings) / Interlocutory Application/determination of Notice of Motion
Outcome
Application dismissed. Costs ordered against the plaintiff (unless application for different order within seven days).
Legal Topics
Criminal Justice Stay Warrant, Jurisdiction Under S 151 Migration Act 1958, Supreme Court Inherent Jurisdiction, Standing to Apply for Warrants, Administration of Criminal Justice
Criminal Law Migration Law Parole/corrections Criminal Justice Stay Warrant Jurisdiction Under S 151 Migration Act 1958 Supreme Court Inherent Jurisdiction Standing to Apply for Warrants Administration of Criminal Justice

Case Brief

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Parties

Malcolm Huntley Potier

Plaintiff

New South Wales State Parole Authority

First Defendant

Minister for the Department of Immigration and Border Protection

Second Defendant

The New South Wales Commissioner for the Department of Corrective Services

Third Defendant

Procedural Posture

Notice of Motion (in Ongoing Supreme Court Proceedings) / Interlocutory Application/determination of Notice of Motion

Legal Issues

  1. 1 Whether the Supreme Court has jurisdiction under s 151 of the Migration Act 1958 (Cth) to issue a criminal justice stay warrant on its own motion
  2. 2 Whether the plaintiff has standing to apply for a criminal justice stay warrant under s 151 of the Migration Act
  3. 3 Whether the Supreme Court can exercise power under s 23 of the Supreme Court Act 1970 (NSW) to issue such a warrant

Ratio Decidendi

The Supreme Court does not have jurisdiction under s 151 of the Migration Act 1958 to issue a criminal justice stay warrant of its own motion or on application by an unlawful non-citizen. That section does not confer power but merely preserves it where otherwise enacted; standing to apply for such a warrant is limited to those administering the criminal justice system. Nor has it been established that exercise of jurisdiction under s 23 of the Supreme Court Act is necessary for the administration of justice in this case. Accordingly, the application must be dismissed.

Court Disposition

Application dismissed. Costs ordered against the plaintiff (unless application for different order within seven days).

Orders

  • Notice of Motion filed on 19 November 2015 is dismissed.
  • Unless written application is made to my Associate within seven days for a different order, order that the plaintiff pay the defendants' costs of the Notice of Motion filed 19 November 2015.