BUSB v Director-General of Security [2011] NSWCA 49 (11 March 2011)

Last Updated: 30 March 2011

Court of Appeal New South Wales

Case Title:	BUSB v Director-General of Security
Medium Neutral Citation:	[2011] NSWCA 49
Hearing Date(s):	10 February 2011
Decision Date:	11 March 2011
Jurisdiction:
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
Texts Cited:
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
- Counsel:	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)
- Solicitors:	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
Decision Under Appeal
- Court / Tribunal:
- Before:	Charteris DCJ
- Date of Decision:	08 April 2010
- Citation:
- Court File Number(s)	2006/00011417
Publication Restriction:	Non-publication order - name of applicant.

Judgment

1. SPIGELMAN 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.
   
2. The 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.
   
3. Accordingly, 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.
   
4. ALLSOP P: I agree with the Chief Justice.
   
5. HODGSON JA: I agree with the Chief Justice.
   
6. McCLELLAN CJ at CL: I agree with the Chief Justice.
   
7. JOHNSON J: I agree with the Chief Justice.
   

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