Cooper v Director of Public Prosecutions (NSW) [2023] NSWCA 65

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Cooper v Director of Public Prosecutions (NSW) [2023] NSWCA 65 Hearing dates: 13 September 2022 Decision date: 14 April 2023 Before: White JA at [1]; Brereton JA at [54]; Kirk JA at [64] Decision: (1) Extend the time for the filing of the applicant's Summons for Judicial Review to 22 April 2022. (2) Set aside the order made by the Drug Court on 26 November 2021 terminating the applicant's Drug Court program. (3) Direct the Drug Court to determine the first respondent's application under s 10(1)(b) of the Drug Court Act 1998 (NSW) according to law. Catchwords: ADMINISTRATIVE LAW – Judicial review – Jurisdictional error – Constructive failure to exercise jurisdiction – Non-satisfaction of subjective jurisdictional fact – Where order made to terminate applicant's Drug Court program pursuant to Drug Court Act 1998 (NSW) s 10(1)(b) – Where applicant unable to comply with program due to detention on remand for offences charged after commencement of program – Where primary judge terminated applicant's program after oral application focusing on probability of sentence of fulltime imprisonment in respect of new charges – Where primary judge did not expressly deal with jurisdictional preconditions to exercise of order – Whether primary judge constructively failed to exercise jurisdiction – Whether primary judge failed to take into account relevant considerations or had regard to irrelevant considerations – held that primary judge's failure to address either remaining jurisdictional precondition evinced constructive failure to exercise jurisdiction – Impugned decision quashed and remitted for determination according to law ADMINISTRATIVE LAW – Judicial review – Error of law on the face of the record – Whether transcript containing parties' submissions constitutes part of "record" of oral application to terminate applicant's Drug Court program Legislation Cited: Drug Court Act 1998 (NSW) Supreme Court Act 1970 (NSW), s 69 Cases Cited: Commissioner of Police v Attorney General for New South Wales [2022] NSWSC 595 Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 Hockey v Yelland (1984) 157 CLR 124; [1984] HCA 72 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407; [1944] HCA 42 Secretary, Department of Communities and Justice v KH & Ors [2022] NSWCA 221 Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 VV v District Court of New South Wales [2013] NSWCA 469 Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; [2005] HCA 57 Category: Principal judgment Parties: James Cooper (Appellant) Director of Public Prosecutions (NSW) (First Respondent) Drug Court of New South Wales (Second Respondent) Representation: Counsel: L Fernandez (Appellant) E Jones (First Respondent) Submitting appearance (Second Respondent)