Gibson v Director of Public Prosecutions (NSW) (No 2) [2021] NSWCA 218

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Gibson v Director of Public Prosecutions (NSW) (No 2) [2021] NSWCA 218 Hearing dates: 20 August 2021 Date of orders: 14 September 2021 Decision date: 14 September 2021 Before: Bell P at [1]; Basten JA at [38]; Meagher JA at [64] Decision: 1. Extend the time for the filing of the Summons. 2. Summons dismissed with costs. Catchwords: ADMINISTRATIVE LAW – Judicial review – where questions sought to be referred by the applicant to the Court of Criminal Appeal were plainly not pure "questions of law" – where any jurisdictional error by the primary judge in finding that she lacked power to refer questions to the Court of Criminal Appeal because she was functus officio was thus immaterial – where relief withheld in the exercise of the Court's discretion because of its lack of demonstrated utility CRIMINAL PROCEDURE – Submission of purported questions of law to Court of Criminal Appeal – nature of the power and role of a District Court judge in deciding whether or not to submit a question of law to the Court of Criminal Appeal – contextual considerations surrounding the operation of s 5B of the Criminal Appeal Act 1912 (NSW) CRIMINAL PROCEDURE – Submission of purported questions of law to Court of Criminal Appeal – where applicant submitted questions informally via email to the Registrar of the Local Court – where no formal order was made by the primary judge dismissing the applicant's request to state a case to the Court of Criminal Appeal – where no reasons were published by the primary judge for declining the applicant's request – where applicant was advised of the primary judge's refusal to state a case via an email from the Registrar of the Local Court CRIMINAL PROCEDURE – Submission of purported questions of law to Court of Criminal Appeal – where questions sought to be referred to the Court of Criminal Appeal were plainly not pure "questions of law" JUDGMENTS AND ORDERS – where no formal order was made by the primary judge dismissing the applicant's request to state a case to the Court of Criminal Appeal – where no reasons were published by the primary judge for declining the applicant's request – where applicant was advised of the primary judge's refusal to state a case via an email from the Registrar of the Local Court – general requirement for judgments to be given in open court where practicable to do so – requirement for clarity as to when a judgment has been given – requirement that a judgment reaches the parties Legislation Cited: Civil Procedure Act 2010 (Vic) s 7(1) Crimes (Appeal and Review) Act 2001 (NSW) ss 20, 27, 28; Pt 3 Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 13(1), 14(1) Criminal Appeal Act 1912 (NSW) s 5B District Court Act 1973 (NSW) s 176; Pt 4 Justices Act 1901 (NSW) s 146 Supreme Court Act 1970 (NSW) s 69 Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353; [1949] HCA 26 Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd [2018] VSCA 33 Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24 Charara v The Director of Public Prosecutions (2001) 120 A Crim R 225; [2001] NSWCA 140 Craig v The State of South Australia (1995) 184 CLR 163; [1995] HCA 58 Di Benedetto v Kilton Grange Pty Ltd [2017] VSCA 119 Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160 Esso Australia Pty Ltd v Robertson [2005] VSCA 138 Ex parte Hall; Re Howie (1932) 50 WN (NSW) 30 Forrest v Director of Public Prosecutions (NSW) (2020) 286 A Crim R 191; [2020] NSWCA 162 Franklin v Director of Public Prosecutions (NSW) [2021] NSWCA 83 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 Jankovic v Director of Public Prosecutions [2020] NSWCA 31 King v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407; [1944] HCA 42 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Mack Fleet Pty Ltd v Transport for NSW [2020] NSWCA 149 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441; [2021] HCA 17 Nominal Defendant v Livaja [2011] NSWCA 121 Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 Palmer v Clarke (1989) 19 NSWLR 158 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v State of New South Wales (2014) 242 IR 338; [2014] NSWCA 116 Reimers v Health Care Complaints Commission [2012] NSWCA 317 Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) (2016) 95 NSWLR 157; [2016] NSWCA 379 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Toth v Director of Public Prosecutions (NSW) [2018] NSWCA 253 Wang v Farkas (2014) 85 NSWLR 390; [2014] NSWCA 29 Category: Principal judgment Parties: Scott Gibson (Applicant) Office of the Director of Public Prosecutions (NSW) (First Respondent) District Court of New South Wales (Second Respondent) (Submitting appearance) Representation: Counsel: