NITIVA v DIRECTOR OF PUBLIC PROSECUTIONS & ORS [1999] NSWCA 272

New South Wales Court of Appeal CITATION : NITIVA v DIRECTOR OF PUBLIC PROSECUTIONS & ORS [1999] NSWCA 272 FILE NUMBER(S) : CA 40663/98 HEARING DATE(S) : 23 July 1999 JUDGMENT DATE : 23 July 1999

Joseph Nitiva - Claimant PARTIES : Director of Public Prosecutions - First Opponent District Court of NSW - Second Opponent Lillian Horler - Third Opponent JUDGMENT OF : Sheller JA; Beazley JA; Cole AJA

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/12/0142 LOWER COURT JUDICIAL OFFICER : Naughten DCJ

J S Coombs QC/ Peter Kintominas - Claimant COUNSEL : P Johnson SC - First Opponent Submitting - Second and Third Opponent SOLICITORS : T A Murphy - Legal Aid Commission - Claimant S E O'Connor - Solicitor for Public Prosecutions - Opponents CATCHWORDS : SUMMONS - certiorari - remittance of proceedings to Local Court ACTS CITED : N/A CASES CITED: N/A DECISION : Orders 1 to 3 in the summons made; Claimant discharged from bail; No order as to costs

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40663/98 DC 98/12/0142 SHELLER JA BEAZLEY JA COLE AJA

Friday, 23 July 1999

NITIVA v DIRECTOR OF PUBLIC PROSECUTIONS JUDGMENT

1 SHELLER JA: This application by summons seeks orders in the nature of certiorari against the District Court and a Magistrate of the Local Court. It also seeks an order that the proceedings be returned to the Local Court in order that the information against the claimant may be dealt with according to law. Those are the first three orders that are set out in the summons. The application was argued today and counsel, who appears for the first opponent, the other opponents having filed submitting appearances, agrees that orders 1 to 3 in the summons should be made. The Court proposes to deliver reasons for judgment later but makes orders 1 to 3 in the summons. The question of any further orders will be reserved until such time as the Court delivers its reasons. Now is the form of those orders satisfactory? KINTOMINAS: My friend has pointed out to me that insofar as Naughton DCJ purported to convict the claimant, it would be better if Order 1 was amended so that it read: "Be called up and the Orders"--