Court of Appeal Supreme Court New South Wales Medium Neutral Citation: BUSB v Director-General of Security [2011] NSWCA 49 Hearing dates: 10 February 2011 Decision date: 11 March 2011 Before: Spigelman CJ at 1; Allsop P at 4; Hodgson JA at 5; McClellan CJ at CL at 6; Johnson J at 7. Decision: 1. Summons dismissed. 2. No order as to costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: CRIMINAL LAW - procedure - jurisdiction - where summons filed in both Court of Appeal and Court of Criminal Appeal - s 17 of the Supreme Court Act 1970 - whether Court of Appeal or Court of Criminal Appeal the proper forum Legislation Cited: Criminal Appeal Act 1912, s 5F Supreme Court Act 1970, s 17 Cases Cited: BUSB v Director-General of Security [2011] NSWCCA 39 Category: Principal judgment Parties: BUSB (Appellant) Director-General of Security (First Respondent) New South Wales Director of Public Prosecutions (Second Respondent) District Court of New South Wales (Third Respondent) Attorney General for the State of New South Wales (Intervening) Representation: P Lange, G Scragg (Applicant) T Howe QC, G Kennett SC, A Berger (First Respondent) P Ingram SC, G Tabuteau (Second Respondent) M Sexton SC Solicitor General, N L Sharp (Attorney General Intervening) LawyersCorp Pty Ltd (Applicant) Australian Government Solicitor (First Respondent) Solicitor for Public Prosecutions (Second Respondent) Crown Solicitors Office (Intervener) File Number(s): CA 2010/214246; CA 2011/12388 Publication restriction: Non-publication order - name of applicant. Decision under appeal Date of Decision: 2010-04-08 00:00:00 Before: Charteris DCJ File Number(s): 2006/00011417 Judgment 1SPIGELMAN CJ: The applicant filed a summons in these proceedings at a time when an issue had arisen in the New South Wales Court of Criminal Appeal as to whether he had successfully invoked the jurisdiction of that Court pursuant to the provisions of s 5F of the Criminal Appeal Act 1912. This summons was directed to raising the same issues as were originally intended to be raised in the Court of Criminal Appeal. 2The concerns about the jurisdiction of the Court of Criminal Appeal have been resolved. That Court has determined that appeal. (See BUSB v Director-General of Security [2011] NSWCCA 39.) Section 17 of the Supreme Court Act 1970 makes it clear that the Court of Criminal Appeal should have primary carriage of matters of this character and that this Court should not exercise its supervisory jurisdiction in such circumstances. 3Accordingly, the issues having been resolved by the same bench as is constituted for purposes of this application, the summons in these proceedings should be dismissed with no order as to costs. 4ALLSOP P: I agree with the Chief Justice. 5HODGSON JA: I agree with the Chief Justice. 6McCLELLAN CJ at CL: I agree with the Chief Justice. 7JOHNSON J: I agree with the Chief Justice. ********** 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. Decision last updated: 11 March 2011