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"-- SHELLER JA: I'm sorry I can't hear you. Order 1 should read how? KINTOMINAS: That the orders and the conviction made on that day by his Honour be quashed. SHELLER JA: Yes. And otherwise that's satisfactory? KINTOMINAS: And otherwise 1, 2 and 3 are satisfactory. 2 SHELLER JA: The order 1 made will be amended by adding the words "and conviction" after "Orders" on the second last line. I should point out that the reason why the Court makes the orders today is because the claimant is at the present time the subject of a custodial sentence and the effect of this Order will be that that sentence is quashed. KINTOMINAS: I don't know that it's necessary, but would your Honours order that he be discharged from his bail? COLE AJA: Bail as granted by this Court? KINTOMINAS: It was granted by Hidden J. SHELLER JA: I see no harm in making such an order. So what is the order you ask? That he be discharged from his bail? KINTOMINAS: Yes. 3 SHELLER JA: The Court further orders that the claimant is discharged from his bail. The Court will deliver it's reasons for judgment in due course. I take it that if, as is obviously going to happen, this summons is successful, the first opponent pays the claimant's costs, is that right? JOHNSON: I think there is agreement between the claimant and the first opponent that whatever the outcome there be no order as to costs. That's been agreed. SHELLER JA: Is that right? KINTOMINAS: Yes your Honour. After this was drafted I was made aware by the Legal Aid Commission that they have in effect a knock for knock agreement with the DPP. COLE AJA: What about the second and third opponents? KINTOMINAS: I suppose they've submitted save as to any order as to costs. SHELLER JA: I must say it would be quite unusual, wouldn't it, to order the District Court to pay the costs in a case like this. Do you seek any such orders? KINTOMINAS: Perhaps I should refrain from making a suggestion as to who ought to pay the costs of this. 4 SHELLER JA: At the moment we will make no order as to costs. Is there anything else? KINTOMINAS: Nothing your Honour. 5 SHELLER JA: The Orders of the Court will therefore be as I have announced them and we will deliver our reasons in due course. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.