Green v Severin [2013] NSWSC 495

Green v Severin [2013] NSWSC 495

The plaintiff’s summons did not disclose a reasonable cause of action and was otherwise an abuse of the process of the court, as it constituted a collateral attack on criminal convictions that remained valid and effective; habeas corpus is not available to challenge the correctness of a conviction or sentence imposed by a court of competent jurisdiction unless those orders are shown to be a nullity.

Jurisdiction
Australia
Judgment Date
07 May 2013
Procedural Posture
Application for Writ of Habeas Corpus / Motion to Dismiss at Supreme Court of Nsw, Common Law Division
Outcome
Plaintiff's Summons dismissed. Plaintiff to pay defendant's costs of the Motion and of the proceedings.
Legal Topics
['habeas Corpus' 'summary Dismissal' 'collateral Attack on Conviction']
['criminal Law' 'practice and Procedure'] ['habeas Corpus' 'summary Dismissal' 'collateral Attack on Conviction']

Case Brief

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Procedural Posture

Application for Writ of Habeas Corpus / Motion to Dismiss at Supreme Court of Nsw, Common Law Division

Legal Issues

  1. 1 ["Whether the application for a writ of habeas corpus constituted a collateral attack on the plaintiff's conviction and sentence." 'Whether any reasonable cause of action was disclosed for the relief sought.' 'Whether the proceedings amounted to an abuse of process.']

Ratio Decidendi

The plaintiff’s summons did not disclose a reasonable cause of action and was otherwise an abuse of the process of the court, as it constituted a collateral attack on criminal convictions that remained valid and effective; habeas corpus is not available to challenge the correctness of a conviction or sentence imposed by a court of competent jurisdiction unless those orders are shown to be a nullity.

Court Disposition

Plaintiff's Summons dismissed. Plaintiff to pay defendant's costs of the Motion and of the proceedings.

Orders

  • ["The plaintiff's Summons is dismissed pursuant to Rules 13.4(1) and 14.28(1) UCPR." "The plaintiff is to pay the defendant's costs of the Motion." "The plaintiff is to pay the defendant's costs of the proceedings."]