State of New South Wales v Hage-Ali [2011] NSWCA 31 (18 February 2011)

Last Updated: 31 May 2011

Court of Appeal New South Wales

Case Title:	State of New South Wales v Hage-Ali
Medium Neutral Citation:	[2011] NSWCA 31
Hearing Date(s):	18 February 2011
Decision Date:	18 February 2011
Jurisdiction:
Before:	Tobias JA at [1] Whealy JA at [13] Sackville AJA at [14]
Decision:	Leave to appeal granted on 21 April 2010 be revoked. The summons for leave to appeal filed on 14 January 2010 be dismissed. The appellant is to pay the respondent's costs of the summons for leave to appeal and of the appeal today, the latter on an indemnity basis and to include the costs of retaining senior and junior counsel and solicitors. I note that the consequence of the foregoing is that the orders for costs made by the primary judge stand, whatever they may have been. [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:	APPEAL - leave to appeal - basis of leave granted being question of construction - notice of appeal failed to raise any question of construction - when leave is granted, appeal should be conducted on that basis - leave revoked - consideration of the administration of justice
Legislation Cited:	Law Enforcement (Powers and Responsibilities) Act 2002
Cases Cited:
Texts Cited:
Category:	Principal judgment
Parties:	State of New South Wales Iktimal Hage-Ali
Representation
- Counsel:	Counsel: A: P Bodor QC / P Saidi R: A G Melick SC / J Sheller / G O'Mahoney
- Solicitors:	Solicitors: A: I V Knight, Crown Solicitors, Sydney R: Greg Walsh, Oatley
File number(s):	CA 2010/13382
Decision Under Appeal
- Court / Tribunal:
- Before:	Elkaim J
- Date of Decision:	14 October 2009
- Citation:	Hage-Ali v State of New South Wales [2009] NSWDC 266
- Court File Number(s)	DC 2007/1883
Publication Restriction:	NON PUBLICATION ORDER AS TO IDENTITY OF MR B

Judgment

1. TOBIAS JA : On 19 April 2010 a bench of this Court comprising myself and McColl JA heard an application by the State of New South Wales, the appellant, for leave to appeal from the orders made by Elkaim J on 14 October 2009 in favour of the respondent. At the conclusion of that hearing we reserved judgment. On 21 April 2010 we ordered that leave be granted to the appellant to appeal from the orders of Elkaim J upon condition that the appellant pay the respondent's costs of the appeal on an indemnity basis irrespective of the outcome of the appeal.
   
2. The basis upon which leave was granted was that we were persuaded by the appellant that the appeal involved a question of construction of s 99(3) of the Law Enforcement (Powers and Responsibilities) Act 2002 ( LEPRA ) and for that reason was a test case of public importance with respect to the administration of police arresting powers and practices.
   
3. A consideration of the transcript of the argument on the application for leave makes clear particularly at Red 73 that I asked junior counsel then appearing for the appellant whether he was submitting that the primary judge misconstrued s 99(3) to which we received a positive answer. When asked where do we find in the judgment the relevant misconstruction, we were referred to the fact that it started at [11] and following.
   
4. A consideration of the discussion that then took place with counsel made it fairly clear that the Court was concerned that what it was really being asked to consider were only questions of fact and given that the amount in issue was approximately $18,000 being the total of the damages awarded to the respondent, it would not be a matter upon which the Court would normally grant leave.
   
5. However, towards the end of the argument at Red 87, the following exchange took place:
   

"TOBIAS JA: Are you still submitting that this matter raises a matter of public importance in relation to the manner in which this section is administered?

SAIDI: Yes, your Honour, because of the police strike forces, the task forces, the operational briefings, it raises issues as to how much information, the extent to which the police service has to go to comply with s 99(3).

TOBIAS JA: So you regard this as a test case?

SAIDI: Yes, your Honour."

6. The notice of appeal that was filed and which I am informed was in draft form before McColl JA and myself on the leave application, did not on its face raise any question of construction of s 99(3) or indicate that there was a matter of public importance which transcended the facts of the present case. It was no doubt for that reason that the counsel for the appellant was questioned by members of the Court in order to try and tease out what was the true question of public importance that was involved and which in fact did transcend the facts of the case.
   
7. A consideration of the written submissions on the appeal confirms, as the respondent submits in its written submissions, that the issues in the appeal that are now sought to be argued do not in fact raise questions that transcend the facts of the present case and involve only questions of fact. In particular it was accepted in those submissions that the two arresting officers gave evidence that they in fact turned their mind to the requirements of s 99(3), if not the actual section itself, and that they were satisfied that the relevant requirements that necessitated the arrest of the respondent were satisfied.
   
8. Criticism is then made of the manner in which the primary judge rejected that evidence, he having found that neither of the two arresting officers turned their mind to the requirements of the subsection. The appellant's written submissions assert that his Honour misconstrued how he should deal with the evidence and, in particular, that he was in grievous error in rejecting the evidence of the two police officers upon the basis of evidence of another police officer called Phillips. Whether that is so or not, it does not raise a matter that transcends the facts of this particular case and certainly does not in my opinion, involve a matter of public importance in relation to the administration of s 99(3).
   
9. The same comment applies to the submissions made by the appellant to the effect that the primary judge made perverse findings of fact. If he made perverse findings of fact, then it may well be that he ought to have accepted the evidence of the two police officers that they in fact turned their mind to the requirements of s 99(3). If they did not, then his decision would stand but in neither case, in my opinion, does it involve the type of question upon the basis of which leave was granted.
   
10. The administration of justice requires that when leave is granted on a particular basis as it was in the present case, the appeal should be conducted on that basis. In the event that it is not proposed to so conduct the appeal on that basis, leave should be revoked. In my opinion, the administration of justice calls for the revocation of leave in the present case.
    
11. The facts of this case are unique and in my opinion do not provide any particular assistance one way or the other as to how police officers are to deal with the requirements of s 99(3). Furthermore, the revocation of leave in this case should not be taken as indicating any view of mine as to the correctness or otherwise of the primary judge's findings and in particular with respect to his rejection of the evidence of the two arresting officers. As to that, I have no view one way or the other.
    
12. Accordingly, I would propose the following orders:
    
    • (1) Leave to appeal granted on 21 April 2010 be revoked.
    • (2) The summons for leave to appeal filed on 14 January 2010 be dismissed.
    • (3) The appellant is to pay the respondent's costs of the summons for leave to appeal and of the appeal today, the latter on an indemnity basis and to include the costs of retaining senior and junior counsel and solicitors.
    • (4) I note that the consequence of the foregoing is that the orders for costs made by the primary judge stand, whatever they may have been.
      
13. WHEALY J : Yes, I agree.
    
14. SACKVILLE AJA : I also agree.
    
15. TOBIAS JA : The orders of the Court are therefore those that I have proposed.
    

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