PHILIPSEN v THE DISTRICT COURT OF NEW SOUTH WALES [1992] NSWCA 187

PHILIPSEN v THE DISTRICT COURT OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P MAHONEY CLARKE JJA 4 June 1992, 4 June 1992 [1992] NSWCA 187

PRACTICE and PROCEDURE — summons to District Court — application for relief in nature of certiorari — satisfaction that grounds made out — parties agree that orders should be made — absence of objection to order or to jurisdiction of the Court of Appeal to grant relief — held: Orders should be made as consented.

Kirby P (Delivering the judgment of the Court): On 14 June 1991 Gallen DCJ in the District Court purported to cancel an order for periodic detention which had been made in respect of Wendy Loretta Spittals (the claimant).

The claimant has brought proceedings in this Court seeking relief, prerogative in nature. Put shortly, it is claimed that there was a denial of procedural fairness and compliance with the applicable legislation in the way in which the order in the District Court was made. The claimant was not aware of the proceedings and was not present when the order now challenged was made.

The District Court, the first opponent, has appeared to submit to any order of the Court. The Director General of Corrective Services (the second opponent) appears to consent to orders which are proposed by counsel for the claimant. Those orders have been put before the Court in a document which I will initial and which will be placed with the papers. In respect of the second order there referred to, the amount for costs to be paid by the second deponent is to be noted as agreed between the representatives of the claimant and the second deponent.

It does appear appropriate in the light of what has been disclosed today that relief should be afforded. No issue in respect of the jurisdiction of the Court to provide the relief has been raised. On the contrary, the second opponent joins in the request that the Court make the orders sought. Accordingly, it is appropriate to make the orders that are sought.