Patsalis v Attorney General for the State of New South Wales [2013] NSWCA 98

Patsalis v Attorney General for the State of New South Wales [2013] NSWCA 98

The applicant should be permitted to file the amended summons because the procedural objections did not justify preventing commencement of proceedings seeking supervisory relief or leave to appeal. Any time difficulty under r 59.10 was doubtful and, if an extension were required, it should be granted. The Court of Appeal had a sufficient procedural basis to entertain the matter, and substantive questions about the availability of prerogative relief, supervisory jurisdiction, and appeal competence were matters for the Court hearing the summons rather than determination by a single judge.

Jurisdiction
Australia
Judgment Date
17 April 2013
Procedural Posture
Application for Leave to Appeal and for Relief in the Supervisory Jurisdiction of the Court of Appeal / Single Judge Procedural Ruling on Leave to File an Amended Summons, Directions, and the First Respondent's Notice of Motion
Outcome
Leave granted to file the amended summons; directions made for s 78B notice, submissions, preparation of a white folder and expedition; remaining part of the first respondent's notice of motion stood over; costs of the day to be costs in the summons proceedings.
Legal Topics
['prerogative Relief Against a Non Judicial Decision of a Supreme Court Judge' 'supervisory Jurisdiction of the Court of Appeal' 'leave to Appeal' 'inquiry Into Conviction Under S 78 of the Crimes (appeal and Review) Act 2001 (nsw)' 'time Limit Under R 59.10 of the Uniform Civil Procedure Rules 2005 (nsw)' 'notice Under S 78 B of the Judiciary Act 1903 (cth)']
['administrative Law' 'appeals' 'civil Procedure' 'judicial Review'] ['prerogative Relief Against a Non Judicial Decision of a Supreme Court Judge' 'supervisory Jurisdiction of the Court of Appeal' 'leave to Appeal' 'inquiry Into Conviction Under S 78 of the Crimes (appeal and Review) Act 2001 (nsw)' 'time Limit Under R 59.10 of the Uniform Civil Procedure Rules 2005 (nsw)' 'notice Under S 78 B of the Judiciary Act 1903 (cth)']

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Procedural Posture

Application for Leave to Appeal and for Relief in the Supervisory Jurisdiction of the Court of Appeal / Single Judge Procedural Ruling on Leave to File an Amended Summons, Directions, and the First Respondent's Notice of Motion

Legal Issues

  1. 1 ['Whether proceedings for prerogative or supervisory relief against a non-judicial decision of a Supreme Court judge could be commenced in the Court of Appeal.' 'Whether the applicant should be granted leave to file an amended summons seeking leave to appeal and supervisory relief under ss 65 and 69 of the Supreme Court Act 1970 (NSW).' 'Whether any time limit under r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) precluded reliance on s 69 of the Supreme Court Act 1970 (NSW).' 'Whether the substantive objections to prerogative relief and the availability of supervisory jurisdiction should be determined by a single judge.' 'Whether a notice under s 78B of the Judiciary Act 1903 (Cth) was required because of an issue concerning the scope of Kirk v Industrial Court of New South Wales.']

Ratio Decidendi

The applicant should be permitted to file the amended summons because the procedural objections did not justify preventing commencement of proceedings seeking supervisory relief or leave to appeal. Any time difficulty under r 59.10 was doubtful and, if an extension were required, it should be granted. The Court of Appeal had a sufficient procedural basis to entertain the matter, and substantive questions about the availability of prerogative relief, supervisory jurisdiction, and appeal competence were matters for the Court hearing the summons rather than determination by a single judge.

Court Disposition

Leave granted to file the amended summons; directions made for s 78B notice, submissions, preparation of a white folder and expedition; remaining part of the first respondent's notice of motion stood over; costs of the day to be costs in the summons proceedings.

Orders

  • ['Grant leave to the applicant to file an amended summons in the form of the "Draft amended summons seeking leave to appeal" dated 10 April 2013.' 'Treat the statement of the nature of the case in that document as submissions in support of the application.' 'Direct that following consultation with the applicant, the...