MADDOCKS v DIRECTOR OF PUBLIC PROSECUTIONS and ANOR [1997] NSWCA 192

MADDOCKS v DIRECTOR OF PUBLIC PROSECUTIONS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, PRIESTLEY and BEAZLEY JJA 19 September 1997, 19 September 1997

[1997] NSWCA 192 SUMMONS FOR PREROGATIVE RELIEF

Priestley JA This is a summons seeking relief in the nature of prerogative relief in circumstances which, in a factual sense have become somewhat entangled. However it is not necessary to recite them. They are neatly set out in the chronology which was put before the court by the first opponent and which bears the court stamp 18 September 1997.

From the facts set out in that chronology and from the submissions that have been put to the court today, it appears that if the claimant had any legal point of an arguable kind within the ambit of the matters raised in his summons, then it was a point involving the application of s122(2)(c) of the Justices Act. It further appears that that point came to light on 27 October 1995 and that orders made by Phelan J on that day were orders which, if the claimant had wished to pursue the point that arguably may have been available to him to pursue on that day, he could then have taken steps to have the matter tested by a similar procedure to that which he has followed in the present summons. However, the claimant took no step to seek relief in the nature of prerogative relief until he filed the present summons on 11 June 1997. In the meantime he had pursued alternative remedies.

In his written submissions to this Court the claimant acknowledged, quite correctly, that relief of the kind which he was seeking is discretionary and that one of the factors which the court will consider in deciding whether to entertain the application for relief, is the delay that has occurred between the matter complained of and the commencement of the proceedings and the reasons for that delay.