DELLA PATRONA v THE DIRECTOR OF PUBLIC PROSECUTIONS (CTH) [No 1] [1995] NSWCA 121

DELLA PATRONA v THE DIRECTOR OF PUBLIC PROSECUTIONS (CTH) [No 1]

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and MEAGHER JJA 1 September 1995, 1 September 1995

[1995] NSWCA 121

PRACTICE AND PROCEDURE — Court of Appeal — grounds of appeal — raising constitutional grounds for first time on appeal — whether should be permitted — whether any prejudice — held: (By maj): Argument should be permitted in view of late objection and to bring the controversy to a final conclusion.

APPEAL — grounds of — new grounds — constitutional challenge — not run at trial — whether permitted on appeal — held: (By maj): In circumstances, allowed.

CONSTITUTIONAL LAW — challenge to constitutionality — whether last resort — Lichtman v Grossbard 533 NE 2d 1048 (NYCA) (1988) consd.

PRACTICE and PROCEDURE — appeal — new legal grounds of — constitutional and legal issues not run at trial — whether should be permitted in appeal — applicant for relief under Proceeds of Crime Act 1987 (Cth) on appeal raises grounds challenging the constitutionality of that Act — no such challenge at trial in Criminal Division of Supreme Court (James J) — no consideration of issue by primary judge — extension of time sought and obtained by appellant to appeal against orders — no objection raised to grounds challenging constitutionality of Act until immediately prior to appeal hearing — on motion, in effect, to strike out ground raising constitutional points

APPEAL — grounds of — new grounds challenge constitutionality of statute — whether should be permitted on appeal for first time

CONSTITUTIONAL LAW — challenge to constitutionality of statute — proper approach to — whether should be last resort — whether amendment of grounds to raise constitutional challenge on appeal should be permitted

Held: (Kirby P and Priestley JA; Meagher JA dissenting); The appellant should be permitted to argue the constitutional points and the application to strike out such grounds should be rejected - reference made to; (a) the ordinary rule of confining parties to the case fought at trial; (b) the need to avoid any procedural unfairness; (c) the belated application of the objection by the respondent; and (d) the availability to the appellant of other remedies and the desirability of concluding the litigation in the one hearing. Supreme Court Act 1970, s63, referred to. Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; O'Brien and Ors v Komesaroff (1982) 150 CLR 310; Coulton and Ors v Holcombe and Ors (1986) 162 CLR 1, appld; University of Wollongong v Mentally [No 2] (1985) 59 ALJR 481 (HC) testing this.