Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Huang v Nazaran [2021] NSWCA 243 Hearing dates: 6 August 2021 Date of orders: 8 October 2021 Decision date: 08 October 2021 Before: Basten JA at [1]; Macfarlan JA at [2]; Meagher JA at [3] Decision: (1) Set aside the orders made by the District Court on 15 March 2021, other than the dismissal of the respondent's application for costs. (2) Declare that the District Court has jurisdiction to determine the appeal pursuant to s 70(1)(b) of the Local Court Act 2007 (NSW). (3) Remit the matter to the District Court for the hearing and determination of the applicants' appeal. Catchwords: JUDGMENTS AND ORDERS – supervisory jurisdiction – judicial review – application proceeding in Local Court special jurisdiction dismissed – where appeal to District Court under Local Court Act 2007 (NSW), s 70(1) dismissed for lack of jurisdiction – whether jurisdictional error in dismissing appeal CIVIL PROCEDURE – jurisdiction – appeal to District Court under Local Court Act 2007 (NSW), s 70(1) from orders made in special jurisdiction – whether right of appeal from order dismissing proceeding Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), Pt 3 Crimes (Appeal and Review) Amendment Act 2009 (NSW) Crimes (Forensic Procedures) Act 2000 (NSW), ss 24, 115A Criminal Procedure Act 1986 (NSW), Ch 4 Pt 2 Justices Act 1902 (NSW), Pts 4A, 5, 5A and 5B Local Court Act 2007 (NSW), Pt 4 Local Courts Act 1982 (NSW), s 64 Protection of the Environment Operations Act 1997 (NSW), ss 264, 268, 269, 273, 290, 292 Suitors' Fund Act 1951 (NSW), s 6C Supreme Court Act 1970 (NSW), s 69 Cases Cited: Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 Folbigg v Attorney General of New South Wales [2021] NSWCA 44 Lewis v Sergeant Riley (2018) 96 NSWLR 274; [2017] NSWCA 272 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46 Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 Texts Cited: New South Wales Government Attorney General's Department, Crimes (Appeal and Review) Act 2001 – Report on the Statutory Review of the Act, (August 2008) Explanatory Note to the Crimes (Appeal and Review) Amendment Bill 2009 (NSW) Category: Principal judgment Parties: Chenlong Huang (first applicant) Xuejing Li (second applicant) Fatemeh Nazaran (first respondent) District Court of New South Wales (second respondent) Representation: Counsel: G McGrath and K Tang (first and second applicant) C Alis (Adam Jones Solicitors) (first respondent) Solicitors: Kammoun Sukari Lawyers (applicants) Adam Jones Solicitors (first respondent) File Number(s): 2021/170502 Publication restriction: N/A Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 15 March 2021 Before: Conlon SC ADCJ File Number(s): 2019/00378892 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] The applicants commenced proceedings in the Local Court against the respondent seeking a noise abatement order under the Protection of the Environment Operations Act 1997 (NSW). That application was made in the Local Court's special jurisdiction under Pt 4 of the Local Court Act 2007 (NSW) and was dismissed with costs. The applicant appealed from those orders to the District Court. That appeal was dismissed by the primary judge on the basis that the Local Court Act, s 70(1)(b) did not confer a right of appeal to the District Court from those orders. By their summons filed in this Court, the applicants sought judicial review of the decision of the District Court. The Court (Meagher JA, Basten and Macfarlan JJA agreeing) held: 1. Local Court Act, s 70(1)(b) confers a right of appeal to the District Court from "any order" made in the Local Court's special jurisdiction except where prohibited by the Act pursuant to which the order was made. That description included the orders made in the Local Court dismissing the proceeding commenced by the applicants with costs: at [1] (Basten JA); [2] (Macfarlan JA); [22] (Meagher JA). 2. The closing words of s 70(1)(b) provide that the appeal is to be made in accordance with Pt 3 of the Crimes (Appeal and Review) Act 2001 (NSW) "in the same way as such an … appeal may be made in relation to a conviction arising from a court attendance notice" dealt with under Pt 2 of Ch 4 of the Criminal Procedure Act 1986 (NSW). The effect of that language is that the appeal is to be dealt with as if it were an appeal from a conviction made in the summary criminal jurisdiction. In other words the form of the appeal and procedure to apply is that which would apply to an appeal against a conviction: at [1] (Basten JA); [2] (Macfarlan JA); [19]-[21], [23]-[26] (Meagher JA). Lewis v Sergeant Riley (2018) 96 NSWLR 274; [2017] NSWCA 272 considered. 3. The primary judge's conclusion that the District Court did not have jurisdiction to hear the appeal was a jurisdictional error. The applicants did not have to establish that the error was material: at [1] (Basten JA); [2] (Macfarlan JA); [27] (Meagher JA). Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46 applied. Judgment 1. BASTEN JA: I agree with the orders proposed by Meagher JA, including the recommendation as to the availability of a payment under s 6C of the Suitors' Fund Act 1951 (NSW). I also agree with Meagher JA's reasons. 2. MACFARLAN JA: I agree with Meagher JA. 3. MEAGHER JA: These proceedings are brought in the Court's supervisory jurisdiction (Supreme Court Act 1970 (NSW), s 69). The applicants, Mr Chenlong Huang and Ms Xuejing Li, commenced proceedings in the Local Court against their neighbour, Dr Fatemeh Nazaran, seeking a noise abatement order pursuant to the Protection of the Environment Operations Act 1997 (NSW), s 268 (PEO Act). The "offensive noise" was said to emanate from an air conditioning unit located on the respondent's property and between their respective houses. That application was dismissed with costs by Atkinson LCM on 17 November 2020. The applicants' appeal from that order was in turn dismissed by the District Court on 15 March 2021, the primary judge (Conlon SC ADCJ) holding that there was no right of appeal under the Local Court Act 2007 (NSW), s 70(1) from the Local Court's order dismissing their underlying application. 4. By their summons the applicants seek to have the primary judge's order quashed and the proceedings remitted to the District Court for hearing and determination of their appeal in accordance with Part 3 of the Crimes (Appeal and Review) Act 2001 (NSW) (Appeal and Review Act), as if it were an appeal from a conviction in the summary criminal jurisdiction. 5. Dr Nazaran and the District Court are named as the first and second respondents to that summons. The second respondent is a necessary party and has filed a submitting appearance: Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383. The first respondent has not filed a submitting appearance. However the summons was served on her solicitor, and the applicants' solicitor has made an affidavit annexing a letter from the first respondent's solicitor confirming that his client would not play any active role in the proceedings. That solicitor also appeared by audio link on the hearing of the application and confirmed that he did not intend to make any submissions on the merits or otherwise of the application. 6. This Court's supervisory jurisdiction is ordinarily limited to correcting "jurisdictional error, or error of law on the face of the record": Folbigg v Attorney General of New South Wales [2021] NSWCA 44 at [12] (Basten, Leeming and Brereton JJA). As an inferior court, the District Court will have committed a jurisdictional error if it "mistakenly … [denied] the existence of jurisdiction" to hear the applicants' appeal: Craig v South Australia (1995) 184 CLR 163 at 177; [1995] HCA 58 (Brennan, Deane, Toohey, Gaudron and McHugh JJ). That principle was applied in Lewis v Sergeant Riley (2018) 96 NSWLR 274; [2017] NSWCA 272 where the District Court mistakenly refused to hear an appeal from an order made under Crimes (Forensic Procedures) Act 2000 (NSW), s 24 on the basis that s 115A of that Act was exhaustive in describing the rights of appeal against orders authorising a forensic procedure so as to deprive the District Court of jurisdiction to hear an appeal from such an order pursuant to s 70(1)(b) of the Local Court Act. Procedural history and relevant legislation 1. On 2 December 2019 the applicants commenced "application proceedings" under Pt 4 of the Local Court Act by the filing of an "application notice" (ss 45, 47) invoking the jurisdiction conferred on that Court by PEO Act, s 268 which provides: 268 Issue of noise abatement orders (1) The occupier of any premises may apply to the Local Court for an order under this section. (2) The application is to be commenced by the issue of an application notice that alleges that the occupier's occupation of premises is affected by offensive noise. (3) The respondent to the application may be a person alleged to be making or contributing to the noise or the occupier of premises from which the noise is alleged to be emitted. (4) If the Local Court is satisfied (on the balance of probabilities) that the alleged offensive noise exists, or that although abated it is likely to recur on the same premises, the Local Court may make either or both of the following orders— (a) an order directing the respondent to abate the offensive noise within the time specified in the order, (b) an order directing the respondent to prevent a recurrence of the offensive noise. (5) Part 4 of the Local Court Act 2007 applies to an application under this section. 1. That notice alleged that the applicants' occupation of their residential premises was affected by offensive noise caused by the operation of an air-conditioning unit on premises owned and occupied by the respondent. Orders directing the respondent to abate that noise and to prevent any recurrence of it were sought. 2. Following a hearing which proceeded over two days, that application was rejected because Atkinson LCM was not satisfied that the sound emanating from the air conditioning unit was "offensive noise", as defined in the Dictionary to the PEO Act. Orders were made dismissing the application and requiring that the applicants pay the respondent's costs. The latter order was made in the exercise of the power conferred by the Local Court Act, s 69, the application of which was confirmed by the PEO Act, s 273. 3. On 14 December 2020 the applicants filed a notice of appeal to the District Court from those orders, described as being "pursuant to section 70(1)(b) of the Local Court Act 2007". The error of the Local Court was said to be in "refusing the application for a noise abatement order". 4. Section 70 provides a general right of appeal to the District Court in relation to "any order arising from an application notice": 70 Appeals (1) In relation to any order arising from an application notice: (a) an application for annulment may be made in accordance with Part 2 of the Crimes (Appeal and Review) Act 2001, and (b) an appeal to the District Court may be made in accordance with Part 3 of the Crimes (Appeal and Review) Act 2001, and (c) an appeal to the Supreme Court may be made in accordance with Part 5 of the Crimes (Appeal and Review) Act 2001, in the same way as such an application or appeal may be made in relation to a conviction arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986. (2) An application or appeal may not be made under subsection (1) in relation to an order referred to in that subsection if the making of such an application or appeal is prohibited by the Act or law pursuant to which the order was made. (3) If any other Act: (a) provides for an appeal to the District Court against an order of the Court under that Act, or (b) provides for an appeal against such an order without identifying to which court such an appeal is to be made, such an appeal is to be made to the District Court in accordance with Part 3 of the Crimes (Appeal and Review) Act 2001 in the same way as an appeal under that Part may be made in relation to a conviction arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986. (4) … (5) The Crimes (Appeal and Review) Act 2001 applies to an application or appeal arising under this section with such modifications as are made by or in accordance with the regulations under that Act. (6) In this section, a reference to an order includes a reference to any determination that the Court has jurisdiction to make, and any penalty that the Court has jurisdiction to impose. 1. The applicants' appeal was listed before the primary judge for an interlocutory hearing which was to address two matters. The first was the Court's jurisdiction to hear and determine the appeal. 2. The applicants accepted that the Court did not have jurisdiction to hear an appeal from a noise abatement order. The right to appeal from such an order was to the Land and Environment Court and was conferred by the PEO Act, s 290(1). By s 290(2) any right to appeal from that order to the District Court under s 70(1)(b) was removed. 3. Sections 290 and 292 relevantly provide: 290 Appeals regarding noise (1) Any person— (a) given a noise control notice, or (b) against whom a noise abatement order is made, may appeal to the Land and Environment Court against the notice or order within 21 days (or such other period as is prescribed instead by the regulations) after service of the notice or the making of the order. ... (2) Parts 2, 3 and 5 of the Crimes (Appeal and Review) Act 2001 (as applied by section 70 of the Local Court Act 2007) do not apply to a noise abatement order. … 292 Determination of appeals (1) A court to which an appeal is made under this Act may hear and determine the appeal. (2) The decision of the court on an appeal under this Act is final and binding on the appellant and the person or body whose decision or notice is the subject of the appeal. 1. The expressions "noise control notice" and "noise abatement order" are not separately defined in the PEO Act. However s 264(3) describes a written notice issued under s 264(2) as a "noise control notice". Such a notice is issued by an "appropriate regulatory authority" to a person prohibiting that person from engaging in a specific activity on premises or using or operating a specified article on premises, in either case in a manner that causes the emission of noise in excess of a specified level. Similarly a "noise abatement order" is an order in the terms of s 268(4)(a) or (b); and a person who contravenes such an order is guilty of an offence (s 269). 2. The applicants accepted that s 290 conferred no right of appeal to the Land and Environment Court or to the District Court from the orders dismissing the application notice and requiring that they pay the costs of that application. However they submitted that s 70 of the Local Court Act continued to confer a right of appeal from any orders "arising from" their application notice apart from rights otherwise provided to a party subject to a noise abatement order. The relevant provision was s 70(1)(b), and s 70(2) had no application because the making of such an appeal was not prohibited by the PEO Act. That right of appeal was not 'removed' by s 290(2) which only disapplies Pts 2, 3 and 5 of the Appeal and Review Act in their application by s 70(1) to a "noise abatement order". 3. The primary judge rejected the submission that the District Court had jurisdiction, concluding that the right of appeal conferred by s 70(1)(b) applied only "in respect of applications for annulment of [or appeal against] conviction or sentence". As the applicants' appeal did not satisfy that description the primary judge held that the District Court did not have jurisdiction to hear it. Disposition of the application 1. The sole question is whether the District Court has jurisdiction under s 70(1)(b) to hear the applicants' appeal from the Local Court's orders. Those orders – dismissing the application for a noise abatement order and ordering that they pay the costs of that application – are orders "arising from" their application notice; and each is a determination which the Local Court had jurisdiction to make (s 70(6)). 2. Section 70(1)(b) confers a right of appeal to the District Court which is to be made in accordance with Pt 3 of the Appeal and Review Act "in the same way as such an … appeal may be made in relation to a conviction arising from a court attendance notice" dealt with under Pt 2 of Ch 4 of the Criminal Procedure Act 1986 (NSW). That Part contains the procedure governing the commencement and determination of criminal proceedings which are dealt with summarily. 3. The Appeal and Review Act, enacted in 2001, restated the law with respect to appeals and other forms of review in relation to criminal proceedings dealt with summarily in the Local Court. Those restated rights of appeal and review were previously contained in the Justices Act 1902 (NSW) in Pts 4A, 5, 5A and 5B. At the same time, s 64 was inserted in Pt 6 of the Local Courts Act 1982 (NSW), which dealt with what is now referred to as that Court's special jurisdiction. By s 64 the appeal and review procedures contained in Pts 2, 3 and 5 of the Appeal and Review Act were applied to the non-criminal proceedings governed by Pt 6. 4. The closing language of s 70(1) provides that the appeal to the District Court made in accordance with Pt 3 of the Appeal and Review Act is to be made "in the same way as such an … appeal may be made in relation to a conviction". The primary judge appears to have construed this language as restricting or qualifying the subject matter of such an appeal so that it is limited to a conviction (or sentence) appeal. On that construction it would also follow from the provisions of Pt 3 that in the case of a conviction, the only person entitled to appeal would be the defendant. 5. That conclusion is inconsistent with the breadth of the right of appeal conferred in respect of "any order arising from an application notice". In the present context that description includes an order dismissing the application for the noise abatement order, an order awarding costs and an order revoking a noise abatement order (PEO Act, s 272). Addressing the structure of s 70(1), par (b) identifies the court to which the appeal may be made as the District Court and the provisions of the Appeal and Review Act which govern the making of that appeal as those in Pt 3. However because those provisions vary depending on the subject matter of the appeal (ie conviction or sentence), the closing language identifies the nature of the appeal rights and procedures which are to apply as those relating to a conviction appeal arising in the summary criminal jurisdiction. 6. Accordingly as Basten JA said in Lewis v Sergeant Riley at [12], the closing language of s 70(1) with respect to the right of appeal to the District Court provides that the appeal is to be made in accordance with Pt 3 of the Appeal and Review Act and is to be dealt with "as if it were from a conviction in the summary criminal jurisdiction". In other words, that right to appeal from any order is "by way of rehearing" in accordance with ss 18 and 19, the District Court relevantly having power in determining the appeal to exercise "any function that the original Local Court could have exercised in the original Local Court proceedings" (s 28(2)). 7. That this is the meaning of s 70(1) is confirmed by reference to the extrinsic material produced on the amendments made to s 70(1), (3) and (4) by the Crimes (Appeal and Review) Amendment Act 2009 (NSW), which omitted "sentence" from those subsections wherever occurring and inserted instead "conviction". At the same time equivalent amendments were made to s 64(1), (2) and (3) of the Local Courts Act 1982. Those amendments were made to give effect to the recommendations of the review of the Appeal and Review Act produced by the Attorney General's Department in August 2008. Recommendation 5 was that s 64 of the 1982 Act be amended "to provide that an annulment application or appeal against an order under Pt 6 is to be dealt with in the same way as an annulment application or appeal of a conviction" under the Appeal and Review Act. In explaining the reason for that recommendation, the report (par 5.5) says: Section 64 of the Local Courts Act 1982 provides that in relation to any order arising from an application notice under Pt 6 of the Act, an appeal or review may be made in the same way as an appeal against a sentence under the Crimes (Appeal and Review) Act 2001. As noted in paragraph 5.3 above, the process for an appeal [provided in Pt 3 of the Appeal and Review Act] differs depending on whether the appeal is against a conviction or a sentence. Where an appeal is made against a conviction then an appeal is by way of rehearing and each party may be given leave to introduce fresh evidence. An appeal against sentence is a de novo hearing. When determining an appeal against an order made under Pt 6 it may be appropriate to remit the matter to the Local Court, for example, where the order was made in the absence of the respondent. Consistent with recommendation 3 above, the determination of reviews and appeals should follow the procedure for appeals and reviews against conviction rather than sentences. If the District Court determines an appeal against an order under Pt 6 the District Court should be authorised to set aside the order and make such other order as it thinks appropriate. 1. There is no suggestion in these observations that the effect of substituting "conviction" for "sentence" in the provisions of s 70 of the 2007 Act would be to restrict the scope of the right of appeal by reference to subject matter or the person having the right of appeal, rather than to vary the form of the appeal and procedure which is to apply to any appeal under s 70(1)(b). 2. Thus the explanatory note to the bill for Crimes (Appeal and Review) Amendment Act 2009 recorded: Schedule 2.3 amends s 70 of the Local Court Act 2007 to provide that an application for an annulment in relation to an order, or an appeal against an order, is to be made in the same way as an application for the annulment of a conviction, or appeal against a conviction, is made under the Crimes (Appeal and Review) Act 2001. Currently, such an application or appeal is to be made in the same way as an application for the annulment of a sentence, or an appeal against a sentence. 1. It follows that the District Court had jurisdiction to hear the applicants' appeal. The primary judge's conclusion to the contrary was a jurisdictional error, and one for which there was no separate requirement to establish that the error was material (see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46 at [58] per Charlesworth and Jackson JJ). 2. As to costs, both parties were represented in the District Court, but the respondent was not heard on the question of jurisdiction. Although the respondent sought her costs in that Court, that application was refused. In this Court, the first respondent did not actively participate in the proceedings and was not the cause of the need to pursue them. The refusal to award costs in the District Court should stand; there should be no order as to costs in this Court. 3. Although it is not appropriate to order the first respondent to pay the applicants' legal costs, nevertheless, if they have incurred a liability to pay legal fees (having been legally represented both in the District Court and in this Court), such costs have been incurred in pursuing a legal right of appeal denied to them by a legally erroneous decision of a judge. An application for judicial review of a ruling of the District Court from which no appeal lies is a "proceeding in the nature of an appeal" and thus falls within the scope of the Suitors' Fund Act 1951 (NSW). It would be within the spirit and intent of the Suitors' Fund Act for the Director-General (with the concurrence of the Attorney General) to make a payment to the applicants in accordance with the power conferred by s 6C of that Act. 4. In the result the following orders should be made: 1. Set aside the orders made by the District Court on 15 March 2021, other than the dismissal of the respondent's application for costs. 2. Declare that the District Court has jurisdiction to determine the appeal pursuant to s 70(1)(b) of the Local Court Act 2007 (NSW). 3. Remit the matter to the District Court for the hearing and determination of the applicants' appeal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 October 2021