Brogan v NSW Crime Commission [1999] NSWSC 239 (16 March 1999)

Last Updated: 9 April 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Brogan v NSW Crime Commission [1999] NSWSC 239

CURRENT JURISDICTION: Equity

FILE NUMBER(S): 3367/97

HEARING DATE{S): 16 March 1999

JUDGMENT DATE: 16/03/1999

PARTIES:

John Alexander Brogan (P1)

John Robert Preston (P2)

Intercargo Clearance Services Pty Limited (P3)

New South Wales Crime Commission (D1)

Ian W Peebles (D2)

Anne O'Connell (D3)

State of New South Wales (D4)

JUDGMENT OF: Hamilton J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

R A Dalgleish (P1-3)

Mark Buscombe (D1-4)

SOLICITORS:

Glasheen & Quilty (P1-3)

I V Knight, Crown Solicitor (D1-4)

CATCHWORDS:

PROCEDURE [80] - Supreme Court - New South Wales - Jurisdiction and generally - Other matters - Transfer from one Division to another - Considerations

ACTS CITED:

Supreme Court Act 1970 s 54

DECISION:

Order for transfer of proceedings to Administrative Law Division or Common Law Division refused

JUDGMENT:

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THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

HAMILTON J

TUESDAY, 16 MARCH 1999

3367/97 JOHN ALEXANDER BROGAN & ORS v NEW SOUTH WALES CRIME COMMISSION & ORS

JUDGMENT

HIS HONOUR:

1 These proceedings are brought by the plaintiffs against the defendant seeking declaratory relief relating to the powers of the first defendant, the New South Wales Crime Commission, and consequential declarations of invalidity of search warrants issued by Justices of the Peace. This is an application under the Supreme Court Act 1970 s 54 that the proceedings be transferred to the Common Law Division or the Administrative Law Division of this Court. Normally proceedings of this sort would be brought in one or other of those Divisions to be dealt with by the Judges of the Court who usually exercise its jurisdiction relating to the criminal law. There is some debate as to whether the Administrative Law Division or the Common Law Division would be more appropriate. The proceedings relating to the New South Wales Crime Commission fall squarely within the class of proceedings assigned to the Administrative Law Division by s 53(3B)(b)(iii) of the Supreme Court Act 1970 but, insofar as they relate to the actions of the Justices of the Peace, the definitions contained in s 53(3C) appear to exclude proceedings from the purview of proceedings assigned to the that Division. Any proceedings, of course, can be heard in any Division, subject to the power of the Court to transfer them.

2 However, I need not make the choice in this case between the Administrative Law Division and the Common Law Division, because the defendants draw my attention to the fact that the relevant search warrants were issued and executed as long ago as October 1996 and these proceedings have been pending since 28 July 1997. It was only on 10 March 1999, when these proceedings were in the Registrar's callover list, to be fixed for hearing in the normal course of the business of the General List in this Division that the plaintiff filed the motion for transfer. Mr Buscombe, of counsel for the plaintiffs, asks me not to make the transfer because the matter is about to be assigned a trial date in this Division and his clients have fears of the matter returning to the bottom of the General List in the Common Law Division. Whilst that may, or may not, be what would occur, I can have no assurance, and the plaintiffs can have no assurance, as to what course the proceedings would follow in the Common Law Division. It would be unfair if the plaintiffs lost an opportunity for an early trial by the transfer of the matter. I can ensure that they have an early trial by retaining the matter in this Division and, in all the circumstances of the case, I think that is the proper course. I propose to dismiss the motion.

3 Whilst it is understandable, in a sense, that the motion has been brought, even at this late date, because in the normal order this matter would be dealt with in the Common Law Division or the Administrative Law Division, I do not think that there should be departure from the ordinary rule that the defendants, as the unsuccessful applicants in the motion, should pay the plaintiffs' costs of the motion. I add that, when I speak of the defendants, I refer to the first and fourth defendants, the New South Wales Crime Commission and the State of New South Wales, which are the active defendants in the proceedings. I do not refer to the second and third defendants, who are the relevant Justices of the Peace, and who have filed submitting appearances.

4 The orders of the Court will be as follows:

1 The first and fourth defendants' notice of motion filed 10 March 1999 is dismissed.

2 I order the first and fourth defendants to pay the plaintiffs' costs of the motion.

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LAST UPDATED: 08/04/1999