NEW SOUTH WALES CRIME COMMISSION v DALTON [2004] NSWSC 786

New South Wales Supreme Court

CITATION : NEW SOUTH WALES CRIME COMMISSION v DALTON [2004] NSWSC 786 HEARING DATE(S) : 23 August 2004 JUDGMENT DATE : 23 August 2004

JUDGMENT OF : Levine J DECISION : 1. Declare that a single judge of the Supreme Court of New South Wales does not have the power to set aside an order made ex parte by another single judge of the Supreme Court of New South Wales pursuant to s76 of the Service and Execution of Process Act; 2. The plaintiff, Mr Dalton, is to pay the defendant Commission's costs in respect of the notice of motion filed 13 May 2004.; 3. That part of the plaintiff's summons filed on 16 April 2004 relating to the setting aside of an order made 17 March 2004 pursuant to s76 of the Service and Execution of Process Act 1992 is dismissed.; 4. The plaintiff, Mr Dalton, is to pay the defendant Commission's costs in respect of the partial dismissal of the summons filed 16 April 2004.; 5. The plaintiff, Mr Dalton, is to file and serve any affidavits in support of the balance of his summons on or before 6 September 2004.; 6. The defendant Commission is to file and serve any affidavits in reply on or before 20 September 2004.; 7. The balance of the plaintiff's summons filed on 16 April 2004 stood over for further mention at 9 am on Monday 20 September 2004.; 8. I grant liberty to either party to apply on three days' notice.

CATCHWORDS : SCR Pt 31 r 2 - separate determination of question of whether ex parte order under s76 Service and Execution of Process Act 1992 (Cth) could be set aside by another judge - prerogative relief LEGISLATION CITED : SCR Pt 31 r 2 Service and Execution of Process Act 1992 (Cth) s76 Barton v Walker [1979] 2 NSWLR 740 Bird v Free, Minister for Schools, Vocational Education and Training (1994) 126 ALR 475 Ex parte Williams (1934) 51 CLR 545 CASES CITED : Farrell v Delaney (1952) 69 WN (NSW) 260 Re Superintendent of Training Centre at Goulburn; Ex parte Pelle (1983) 48 ALR 225 The Queen v Commonwealth Court of Conciliation and Arbitration; Ex parte Amalgamated Engineering Union (1953) 89 CLR 636 Witness v Marsden & Anor (2000) 49 NSWLR 429 NEW SOUTH WALES CRIME COMMISSION (Plaintiff)