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Supreme Court 3 August 2007

Tabcorp Holdings Limited v Fitzsimons & Ors

[2007] NSWSC 836

Public order & justice offences
APPEAL FROM MAGISTRATE CRIMINAL PROCEDURE ACT 1986, S 14 SUPREME COURT ACT 1970, S 69 INTERLOCUTORY ORDER ERROR OF LAW EXERCISE OF DISCRETION TO GRANT LEAVE

Citation: Tabcorp Holdings Limited v Fitzsimons & Ors [2007] NSWSC 836
Court: Supreme Court of New South Wales (Common Law Division)
Date: 3 August 2007
Judge(s): Harrison J

Background

A private individual filed 42 Court Attendance Notices in the Local Court on 3 January 2007, commencing summary prosecutions against a major totalisator operator (Tabcorp Holdings Limited). Each notice alleged a breach of section 81(1)(c) of the Totalizator Act 1997 (NSW), which prohibits acceptance of bets on a totalisator except by specified payment methods, including credit betting facilities secured or guaranteed in accordance with ministerial approval or prescribed arrangements.

The private individual (the first defendant) relied on section 14 of the Criminal Procedure Act 1986 (NSW), which allows any person to institute a prosecution for an offence under an Act, unless the right to do so is "expressly conferred" on a specified person or class of persons by that Act. The defendant was effectively proceeding as a "common informer," a term describing a private citizen who brings a criminal prosecution in the public interest without any particular connection to the alleged offence.

When the matter came before Magistrate O'Shane, Tabcorp applied to have the prosecutions dismissed, struck out, or stayed on the basis that the first defendant lacked standing. The Magistrate dismissed that application, finding that section 102 of the Totalizator Act did not "expressly confer" the right to prosecute on a specified person or class so as to exclude a common informer. Tabcorp then sought relief in the Supreme Court.

  • Whether section 102 of the Totalizator Act 1997, which lists inspectors, police officers, and persons prescribed by regulation as those who may bring proceedings, "expressly confers" the right to prosecute on a specified person or class within the meaning of section 14 of the Criminal Procedure Act 1986, thereby excluding a common informer.
  • Whether the appropriate avenue for Tabcorp's challenge was an order in the nature of prerogative relief under section 69 of the Supreme Court Act 1970, or leave to appeal under section 53(3) of the Crimes (Appeal and Review) Act 2001.
  • Whether leave to appeal should be granted in respect of an interlocutory order, given the general reluctance of appellate courts to intervene in proceedings before they are completed.

Decision

Harrison J held that section 102 of the Totalizator Act does expressly confer the right to bring prosecutions on specified persons or classes of persons, namely inspectors, police officers, and any person prescribed by regulation. This satisfied the condition in section 14 of the Criminal Procedure Act that removes the default right of any person to institute a prosecution. The common informer right available under section 14 was therefore not available to the first defendant in respect of offences under the Totalizator Act.

The Magistrate had erred in law by finding otherwise. Her Honour's reasoning treated section 102 as insufficiently specific to constitute an express conferral of prosecutorial standing, distinguishing it from legislation that names very particular persons. Harrison J did not accept that distinction: the combined effect of section 102(a) (inspectors), 102(b) (police officers), and 102(c) (prescribed persons or classes) amounted to a sufficiently clear and express conferral on those categories, which triggered the exclusion in section 14.

On the procedural question, Harrison J concluded that the more appropriate path was leave to appeal under section 53(3) of the Crimes (Appeal and Review) Act 2001, rather than seeking prerogative relief. His Honour nonetheless acknowledged that, on the facts, the plaintiff would have been entitled to relief under either avenue.

Regarding the grant of leave, the Court recognised that appellate intervention in interlocutory orders is generally reserved for cases where there has been a clear error of law or where substantial injustice would otherwise result. Here, the prosecutions were at an early stage (no pleas entered, no brief of evidence served, no trial date fixed), the error of law was clear, and compelling the plaintiff to defend invalid proceedings would work a substantial injustice. Leave was therefore granted.

Orders Made

  • Leave to appeal granted under section 53(3) of the Crimes (Appeal and Review) Act 2001 against Magistrate O'Shane's order of 13 April 2007.
  • Appeal allowed.
  • All 42 prosecutions commenced in the Local Court on 3 January 2007 dismissed.
  • The first defendant ordered to pay the plaintiff's costs, including the costs of the Local Court proceedings.

Key Takeaways

  • Section 102 of the Totalizator Act 1997 "expressly confers" the right to institute prosecutions on specified persons (inspectors and police officers) and a prescribed class, which is sufficient to engage the exclusion in section 14 of the Criminal Procedure Act 1986 and remove the default common informer right.
  • A private individual purporting to prosecute as a common informer under section 14 cannot do so where the relevant legislation already assigns prosecutorial standing to identified categories of persons, even if the legislation also contemplates a further class to be prescribed by regulation.
  • Where a Magistrate's interlocutory ruling contains a clear error of law and the proceedings are still at a preliminary stage, the threshold for granting leave to appeal under section 53(3) of the Crimes (Appeal and Review) Act 2001 can be met, particularly where continuing the proceedings would cause substantial injustice.
  • The Supreme Court confirmed that section 53(3) of the Crimes (Appeal and Review) Act 2001 is generally the more appropriate avenue to challenge an erroneous interlocutory ruling by a Magistrate, rather than seeking prerogative relief under section 69 of the Supreme Court Act 1970, although both routes were available on the facts here.
  • Forcing a party to defend prosecutions that were legally invalid from inception was recognised as a form of substantial injustice capable of supporting an appellate court's exercise of discretion to intervene in interlocutory proceedings.

Legislation and Cases Referenced

Legislation:
- Totalizator Act 1997 (NSW), ss 81, 102
- Criminal Procedure Act 1986 (NSW), s 14
- Crimes (Appeal and Review) Act 2001 (NSW), ss 53(3), 65(1)
- Supreme Court Act 1970 (NSW), s 69
- Criminal Appeal Act 1912 (NSW), s 5F
- Local Government Act 1919 (NSW), s 591
- Judiciary Act 1903-1960 (Cth), s 35(1)(a)

Cases:
- ASIC v Farley (2001) 51 NSWLR 494
- Coco v The Queen (1994) 179 CLR 427
- De Mestre v A D Hunter Pty Ltd (1952) 77 WN (NSW) 143
- Director of Public Prosecutions (NSW) v PM (2006) 67 NSWLR 46
- Hall v Nominal Defendant (1966) 117 CLR 423
- Hill v King (1993) 31 NSWLR 654
- Mantell v Molyneux [2006] NSWSC 955
- Meagher v Stephenson (1993) 30 NSWLR 736
- Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369
- R v Bozatsis (1997) 97 A Crim R 296
- White v Phipps & Anor (1932) 32 SR (NSW) 448
- Wilson v DPP [2002] NSWSC 935