PEYTON & ANOR v NOBBS & ANOR [2000] NSWSC 43

New South Wales Supreme Court

CITATION : PEYTON & ANOR v NOBBS & ANOR [2000] NSWSC 43 CURRENT JURISDICTION: Civil FILE NUMBER(S) : SC 12627/99 HEARING DATE(S) : 10 February 2000 JUDGMENT DATE : 15 February 2000

James Peyton and Leanne Hackett (Plt) PARTIES : Kaylene Leslie Nobbs (1D) Ross Clugston (2D) JUDGMENT OF : Newman J

LOWER COURT Local Court JURISDICTION : LOWER COURT 147/99 FILE NUMBER(S) : LOWER COURT Ross Clugston LCM JUDICIAL OFFICER :

P O'Donnell (Plt) COUNSEL : J Papayanni (1D) Submitting Appearance (2D)) SOLICITORS : Smythe & Mallam (Plt) Ramrakha Jenkins (1D) CATCHWORDS : Jurisdiction of court pursuant to s 104(4) of the Justices Act 1902 - whether rulings relating to pleadings and an application for extension of time may be an interlocutory order LEGISLATION CITED : Justices Act 1902 Prevention of Cruelty to Animals Act 1979 Singh-Brar v Connors, unreported, 25 March 1994 CASES CITED : R v Steffan (1993) 67 A Crim R 506 R v Bozatsis & Spanakakis (1997) 97 A Crim R 296 R v Lisoff 1999 NSWCCA 364 DECISION : Both applications for leave to appeal dismissed

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

NEWMAN J

TUESDAY, 15 FEBRUARY 2000

12627/99 - PEYTON & ANOR v NOBBS & ANOR

JUDGMENT

1 HIS HONOUR: These are applications for leave to appeal and cross appeal lodged by the informant and the defendant pursuant to s 104(4) of the Justices Act 1902 as amended against rulings made in the Bankstown Local Court on 13 September 1999 by his Worship, Mr Clugston LCM. 2 Additionally, the defendant in this Court (who was the defendant below) seeks an order extending time by twenty-eight days to lodge her cross appeal. 3 In view of the importance of the matter I am of the view that I should grant that extension of time. 4 This matter is important because it is one of the first matters to come before this Court under amendments made to the Justices Act in relation to appeals from magistrates to this Court which came into effect on 1 September 1999. 5 As I have already mentioned the matters which the parties have agitated before this Court arose as a consequence of events which occurred on 13 September 1999 when his Worship delivered the decision which is now under review. 6 Prior to 1 September 1999 appeals from magistrates to this Court were brought either by way of stated case or by way of relief being sought by an aggrieved party in the nature of prerogative relief. 7 The amended legislation by s 104 allows appeals by both defendants and informants in the Local Court on specified grounds. 8 Relevantly, following a final determination by a magistrate dismissing proceedings, an informant may appeal to this Court on a ground involving a question of law alone. See s 104(2)(b). 9 In the matter now before the court, as I have said, the parties seek leave to appeal pursuant to s 104(4). That section is in the following terms: "104(4) Appeals in relation to interlocutory orders A defendant or an informant may appeal under this Division to the Supreme Court against any order that is made in relation to committal proceedings, on a ground that involves a question of law alone, but only with the leave of the Supreme Court." 10 Here both parties have urged rulings made prior to the final determination of the matter before him were interlocutory orders thus entitling them to challenge those decisions with the leave of the court. 11 Before his Worship the defendant stood charged with forty six counts of aggravated cruelty upon an animal in breach of s 6(1) of the Prevention of Cruelty to Animals Act 1979. Six counts in contravention of s 5(3)3(c) of that Act, namely failing to provide veterinary treatment to such an animal in breach of that section and finally one count of failing to provide sufficient food to such animal being in breach of s 8(1) of that Act. 12 The defendant before his Worship had contended:-