Forster v State of New South Wales; Tajjour v State of New South Wales; Hawthorne v State of New South Wales

ex tempore Judgment

1. [1]

   This is an application under r 1.21 of the Uniform Civil Procedure Rules 2005 for the removal of the proceedings into the Court of Appeal.

2. [2]

   There are three sets of proceedings arising out of the circumstance that each of the plaintiffs faces a charge under s 93X of the Crimes Act 1900. Section 93X prohibits a person from habitually consorting with a convicted offender after having been given what is described as an "official warning" in relation to a particular convicted offender or offenders.

3. [3]

   Each of the three plaintiffs has filed a summons seeking a declaration that s 93X is invalid. Between them the parties have identified various questions to be decided separately from other questions in the proceedings. In broad terms, those questions set out various potential bases of invalidity, including but not restricted to the contention that the section is invalid because it impermissibly infringes upon the implied freedom of communication on political and government matters said to be guaranteed by the Commonwealth Constitution.

4. [4]

   The parties have identified questions in those terms in order to isolate separate questions of law for decision under UCPR 28.2, and thus give rise to the power of referral of the whole of the proceedings to the Court of Appeal under UCPR 1.21(1)(a).

5. [5]

   The Court suggested to the legal representatives, and they agreed that a question which is simply framed in terms "is s 93X of the Crimes Act 1900 invalid?" would encompass all the various points made in their agreed questions. It would leave the bases of potential invalidity to be identified in submissions to be filed in the Court of Appeal.

6. [6]

   In my view, a question framed in those terms in a case such as this has the added advantage of not procedurally inhibiting the further conduct of the proceedings if they were referred.

7. [7]

   I am aware that there is some controversy surrounding the enactment and prosecution of persons under s 93X. The fact that three persons have already been charged and have challenged the provision indicates that the testing of its validity is a matter that should be determined reasonably expeditiously.

8. [8]

   Further, the nature of the arguments is such that it seems to me inevitable that these matters will eventually find their way to the Court of Appeal, if not beyond. Although no doubt the Court of Appeal would be grateful to receive the views of a judge at first instance on the validity of the section, in my view a consideration of the relevant factors warrants the referral of all of the proceedings to that court.

9. [9]

   Accordingly, the Court will make the following orders in each matter:

   1. (1)

      pursuant to UCPR 28.2 the following question be decided separately from all other questions in the proceedings, namely, is s 93X of the Crimes Act 1900 New South Wales invalid?

   2. (2)

      pursuant to UCPR 1.21, the proceedings be removed into the Court of Appeal;

   3. (3)

      the costs of the appearances today will be costs in the cause.