Cunningham v Local Court of New South Wales [2018] NSWSC 499

Cunningham v Local Court of New South Wales [2018] NSWSC 499

Leave to appeal and certiorari were refused because the plaintiff showed no meritorious ground warranting intervention. There was no evidentiary basis for apprehended or actual bias, especially where a magistrate from another Local Court had been brought in to hear the matter; there was no procedural unfairness because counsel had time to arrange representation, provided written submissions, and the magistrate stood the matter down; the s 30 point was not raised before the magistrate and, in substance, the relevant fair-trial consideration was addressed; the erroneous finding about delay did not vitiate the decision; and certiorari would be futile and discretionary relief was not...

Jurisdiction
Australia
Judgment Date
19 April 2018
Procedural Posture
Application for Leave to Appeal Under S 53(3)(b) of the Crimes (appeal and Review) Act 2001 (nsw) and Alternative Application for Relief in the Nature of Certiorari Under S 69 of the Supreme Court Act 1970 (nsw) / Supreme Court Review of Interlocutory Local Court Order Refusing to Vacate a Hearing Date and Transfer Proceedings to Another Court
Outcome
Leave to appeal refused and application to quash the Local Court order refused.
Legal Topics
['interlocutory Appeals From Local Court Summary Proceedings' 'apprehended Bias' 'actual Bias' 'procedural Fairness' 'change of Venue' 'certiorari' 'discretionary Relief']
['criminal Law' 'administrative Law' 'judicial Review'] ['interlocutory Appeals From Local Court Summary Proceedings' 'apprehended Bias' 'actual Bias' 'procedural Fairness' 'change of Venue' 'certiorari' 'discretionary Relief']

Case Brief

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Procedural Posture

Application for Leave to Appeal Under S 53(3)(b) of the Crimes (appeal and Review) Act 2001 (nsw) and Alternative Application for Relief in the Nature of Certiorari Under S 69 of the Supreme Court Act 1970 (nsw) / Supreme Court Review of Interlocutory Local Court Order Refusing to Vacate a Hearing Date and Transfer Proceedings to Another Court

Legal Issues

  1. 1 ['Whether leave should be granted under s 53(3) of the Crimes (Appeal and Review) Act 2001 (NSW) to appeal the Local Court interlocutory order on a question of law alone.' 'Whether the Local Court order should be quashed by relief in the nature of certiorari under s 69 of the Supreme Court Act 1970 (NSW).' "Whether a fair-minded apprehension of bias arose because the plaintiff's estranged husband was employed by Corrective Services NSW at the relevant Local Court complexes." 'Whether the magistrate denied procedural fairness by determining the application when counsel who filed it was unavailable to appear.' 'Whether the magistrate erred by failing to apply s 30 of the Criminal Procedure Act 1986 (NSW).' 'Whether the magistrate acted with actual or apprehended bias or prejudged the application.' 'Whether an erroneous finding that counsel had delayed bringing the application vitiated the Local Court decision.' 'Whether expediency justified intervention or transfer to another Local Court.']

Ratio Decidendi

Leave to appeal and certiorari were refused because the plaintiff showed no meritorious ground warranting intervention. There was no evidentiary basis for apprehended or actual bias, especially where a magistrate from another Local Court had been brought in to hear the matter; there was no procedural unfairness because counsel had time to arrange representation, provided written submissions, and the magistrate stood the matter down; the s 30 point was not raised before the magistrate and, in substance, the relevant fair-trial consideration was addressed; the erroneous finding about delay did not vitiate the decision; and certiorari would be futile and discretionary relief was not...

Court Disposition

Leave to appeal refused and application to quash the Local Court order refused.

Orders

  • ['Leave to appeal pursuant to s 53(3) of the Crimes (Appeal and Review) Act 2001 against the order made in the Local Court on 6 June 2017 refusing to vacate a hearing date and transfer the proceedings to another court refused.' 'Application to quash the order made in the Local Court on 6 June 2017 refusing to vacate...