Ly v Jenkins [2001] FCA 1640

Ly v Jenkins [2001] FCA 1640

The Local Court of New South Wales, at the time of the offences, possessed jurisdiction to hear and determine proceedings for offences under s 132(2A) of the Copyright Act, punishable by five years' imprisonment, as there was no express or implied State law limiting its jurisdiction to lower penalties for summary offences; s 132(6A) of the Copyright Act does not contravene s 80 of the Constitution as it is for Parliament to specify trial on indictment; the learned Magistrate miscarried in the exercise of the discretion under s 81 of the Justices Act in making costs orders, as there was insufficient consideration of whether the costs claimed were just and reasonable.

Parties
Appellant: Thanh Hao Ly; Appellant: Thanh Dai Ly; First Respondent: Glenn Jenkins; Second Respondent: Grant Raper; Third Respondent: Jennifer Betts, a Local Court Magistrate
Jurisdiction
Australia
Judgment Date
14 May 2001
Procedural Posture
Criminal Appeal / Final Judgment on Appeal
Outcome
Costs orders set aside; appeal otherwise dismissed; proceedings remitted to Magistrate to determine costs in line with the judgment.
Legal Topics
Summary Offences Under Commonwealth Law, Jurisdiction of State Courts for Federal Offences, Right to Trial by Jury Under Constitution S 80, Assessment of Costs in Criminal Prosecutions, Scope of Costs Under Justices Act 1902 (nsw)
Criminal Law Constitutional Law Copyright Law Costs Summary Offences Under Commonwealth Law Jurisdiction of State Courts for Federal Offences Right to Trial by Jury Under Constitution S 80 Assessment of Costs in Criminal Prosecutions +1 more

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Parties

Thanh Hao Ly

Appellant

Thanh Dai Ly

Appellant

Glenn Jenkins

First Respondent

Grant Raper

Second Respondent

Jennifer Betts, a Local Court Magistrate

Third Respondent

Procedural Posture

Criminal Appeal / Final Judgment on Appeal

Legal Issues

  1. 1 Does s 132(6A) of the Copyright Act contravene s 80 of the Constitution by denying trial by jury for 'serious offences'?
  2. 2 Does the New South Wales Local Court have jurisdiction to hear, convict and impose penalties for offences under s 132(2A) of the Copyright Act 1968 (Cth), where the maximum penalty is five years imprisonment?
  3. 3 Can orders for costs under s 81 of the Justices Act 1902 (NSW) include investigative and in-house expenses, and can costs be ordered in US dollars?

Ratio Decidendi

The Local Court of New South Wales, at the time of the offences, possessed jurisdiction to hear and determine proceedings for offences under s 132(2A) of the Copyright Act, punishable by five years' imprisonment, as there was no express or implied State law limiting its jurisdiction to lower penalties for summary offences; s 132(6A) of the Copyright Act does not contravene s 80 of the Constitution as it is for Parliament to specify trial on indictment; the learned Magistrate miscarried in the exercise of the discretion under s 81 of the Justices Act in making costs orders, as there was insufficient consideration of whether the costs claimed were just and reasonable.

Court Disposition

Costs orders set aside; appeal otherwise dismissed; proceedings remitted to Magistrate to determine costs in line with the judgment.

Orders

  • The costs orders made by the Local Court at Burwood on 19 July 2000 against each of the appellants be set aside.
  • The proceedings be remitted to the learned Magistrate for the purposes of determining, consistently with the reasons of the Court, what, if any, orders for costs should be made against the appellants.