Keanu v Nicholls

1. [1]

   PRICE AJA: By summons filed on 24 October 2024, the plaintiff, Aiko Keanu (formerly known as Akira Ellis), seeks by way of judicial review under s 69 of the Supreme Court Act 1970 (NSW) an order in the nature of certiorari quashing the decision made on 6 December 2022 by the second defendant, Tim Henderson a Registrar of the Local Court, to issue a warrant for the plaintiff’s arrest pursuant to s 181 of the Criminal Procedure Act 1986 (NSW). The plaintiff also seeks declarations under s 75 of the Supreme Court Act that the second defendant’s decision to issue the arrest warrant is invalid and unlawful. The plaintiff requires an extension of time in which to commence these proceedings: r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

2. [2]

   Prayers 1 to 4 in the summons are as follows:

3. [3]

   It is relevant to note that prayers 2 and 3 of the summons, which alleged that the arrest warrant issued by the second defendant is invalid and unlawful are accompanied by detailed particulars. The following particulars are of significance, and have been repeated under both prayers 2 and 3:

   1. (1)

      Particulars (a)-(b), which allege that the second defendant should not have been satisfied that there were substantial reasons to issue a warrant to arrest the plaintiff or that it was in the interests of justice to do so under s 181(2) of the Criminal Procedure Act;

   2. (2)

      Particular (c), which alleges that the first defendant, Detective Cameron William Nicholls, did not apply for a warrant to arrest the plaintiff pursuant to s 181(1) of the Criminal Procedure Act;

   3. (3)

      Particular (e), which alleges that the first defendant did not have reasonable grounds to believe that the plaintiff had committed an offence, contrary to s 144G(1)(b) of the Roads Act 1993 (NSW) (“Roads Act”); and

   4. (4)

      Particulars (f)-(i), which allege that the first defendant did not advise the second defendant of various matters relating to the s 144G of the Roads Act offence, including the absence of evidence in support of the plaintiff committing the offence and that the offence had been withdrawn and dismissed.

4. [4]

   The plaintiff asserts that no record exists on JusticeLink, which is the computerised record system used by courts in New South Wales to enter orders amongst other things, or otherwise in the court record that a proper application for an arrest warrant was made. The plaintiff argues that the second defendant taking into account all the evidence before him could not have been satisfied that there were substantial reasons and that it was in the interests of justice to issue the warrant for the plaintiff’s arrest pursuant to s 181(2) of the Criminal Procedure Act. As a consequence, the plaintiff contends that the failure to consider the preconditions for the issuing of an arrest warrant renders it invalid and unlawful.

5. [5]

   In the response to summons filed on 20 January 2025, the first defendant resists the relief sought by the plaintiff on the basis that as the arrest warrant is no longer extant and the criminal proceedings to which it related have concluded, the present proceedings have no utility and the declarations would have no foreseeable consequences for the parties. The first defendant further argues that an order in the nature of certiorari does not lie to quash the second defendant’s decision as the decision to issue the arrest warrant has no present or continuing effect or consequences. The first defendant also opposes the grant of an extension of time pursuant to r 59.10 of the UCPR.

6. [6]

   In support of the summons, the plaintiff relied on an affidavit they had sworn on 30 July 2025 (“Keanu affidavit”) and Exhibit “AK-1” to that affidavit. The plaintiff also sought to rely upon two affidavits of Patrick Latham, the plaintiff’s solicitor, respectively sworn on 4 December 2024 (“first Latham affidavit”) and Exhibit “PL-1” to that affidavit, and on 27 August 2025 (“second Latham affidavit”) and Exhibit “PL-2” to that affidavit.

7. [7]

   The first defendant relied on an affidavit of Lisa Hogan, Director of Operations, Court Services at the NSW Department of Communities and Justice, sworn on 21 November 2025. The first defendant also relied on an affidavit of Agrima Shrestha, the first defendant’s solicitor, sworn on 24 November 2025 (“Shrestha affidavit”) and Exhibit “AS-1” to that affidavit.

8. [8]

   The second defendant has filed a submitting appearance. In these reasons, for convenience, I will refer to the first defendant as “the defendant”.

9. [9]

   During the hearing, the plaintiff’s counsel, Mr Skinner, pointed out that the plaintiff wished to be referred to by using the preferred pronoun as “they”.

Extension of time

1. [10]

   The plaintiff requires an extension of time within which to bring these proceedings having filed the summons outside the three month period prescribed under r 59.10(2) of the UCPR. Rule 59.10 of the UCPR requires that proceedings for judicial review must have been commenced within three months of the date of the second defendant’s decision made on 6 December 2022 subject to the Court’s exercise of its discretion to extend that time. This rule applies equally to the declaratory relief sought by the plaintiff: Buttrose v Attorney General of New South Wales [2015] NSWCA 221; (2015) 324 ALR 562 at [13] (Beazley P and Leeming JA).

2. [11]

   The principles applicable to the consideration of an application for an extension of time are well-known: Truong v Director of Public Prosecutions (NSW) [2023] NSWCA 64 at [56] (Ward P, Brereton JA and Griffiths AJA agreeing) and the authorities there cited. The relevant factors to be considered in determining whether to extend time include those provided under r 59.10(3) of the UCPR and in addition, the length of any delay, the reason for the delay and whether the plaintiff has a fairly arguable case: Dyason v Butterworth [2015] NSWCA 52 at [65] (McColl JA, Barrett and Gleeson JJA agreeing) citing Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [55] (Basten JA) (“Tomko”); Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133 at [9] (Basten JA, Barrett and Emmett JJA agreeing). The plaintiff bears the onus of persuading this Court that there are proper grounds to grant the extension of time: Tomko at [80] (Basten JA); Nanschild v Pratt [2011] NSWCA 85 at [44] (McColl JA, Campbell JA agreeing).

3. [12]

   Rule 59.10(3) of the UCPR provides:

4. [13]

   The consideration of the plaintiff’s application for an extension of time will be addressed after setting out the background to these proceedings.

Background

1. [14]

   The police alleged that the plaintiff was a member of Blockade Australia and had participated in an erratic unlawful assembly conducted by that group on 27 June 2022, which caused serious disruption to motor vehicles and pedestrian traffic. It was alleged by police, inter alia, that the group “proceeded north towards the Cahill Expressway on-ramp”. In response, police had established an emergency roadblock on the Cahill Expressway to stop the group in their attempt to gain access to it. The police noted that the “on-ramp of the Cahill Expressway to Macquarie Street is a gazetted main road for the purpose of [s 144G of the Roads Act]”. The police stated that the closing of “such an arterial road” on 27 June 2022 at approximately 8:50am had “caused significant disruption to vehicles” and that during this incident the police “commenced to affect the arrest of offenders at this location”. Police asserted that the plaintiff had been identified on “CCTV, media coverage and live Facebook streams of the event”. Police also noted that “[the plaintiff] can clearly be seen walking on the ground in participation with the group” (Ex PL-2, pp 78-80).

2. [15]

   In the Keanu affidavit, the plaintiff states that on 27 June 2022, they participated in a protest march organised by Blockade Australia in Sydney about climate change. The protest march commenced at Hyde Park and ended in Bridge Street. The plaintiff was not stopped or spoken to by police during the protest march and left once it had ended (Keanu affidavit, p 5).

3. [16]

   On 30 June 2022, the defendant who was the Officer in Charge of the investigations in relation to the protest, created a Computerised Operational Policing System (“COPS”) event entry in respect of the plaintiff (“the COPS entry”). A short while later, the defendant created an update to the COPS entry by including a long narrative which described the details of the plaintiff’s offending (second Latham affidavit, pp 7-8; Ex PL-2, pp 49-50).

4. [17]

   On 1 July 2022, the defendant filed three Court Attendance Notices (“the CANs”) at the Registry of the Downing Centre Local Court (“the Local Court Registry”), charging the plaintiff with the following three offences arising from involvement in the protest (Ex AS-1, p 18; Ex PL-2, p 40):

   1. (1)

      an offence contrary to s 144G(1)(b) of the Roads Act, which carries a maximum penalty of two years imprisonment or 200 penalty units, or both (“sequence 1”). The CAN provided the following details of the offence, “[e]nter etc Sydney Harbour Bridge/other major bridge etc disrupt etc vehicles etc between 8:00am and 9:30am on 27/06/2022 at Sydney … did cause disruption and obstruction of vehicles and pedestrians attempting to travel on the on-ramp of the Cahill Expressway to Macquarie Street”;

   2. (2)

      an offence of obstructing traffic, without reasonable excuse, contrary to s 6 of the Summary Offences Act 1988 (NSW), which carries a maximum penalty of four penalty units (“sequence 2”); and

   3. (3)

      an offence of unreasonably obstructing the path of a driver, contrary to r 236(2) of the Road Rules 2014 (NSW), which carries a maximum penalty of 20 penalty units (“sequence 3”).

5. [18]

   On 3 August 2022 at 5:06pm, Sharon Natoli, a Customer Service Officer at the NSW Police Force, sent an email to the defendant advising that a notification had been received from the Courts and Tribunal Services of the Department of Justice, which stated that a “Future CAN” had been created by him on 1 July 2022 but that “there is no warrant application filed at [the Local Court Registry]” and further stated that “as of this date, no warrant application is received by the court”. Ms Natoli then asked the defendant to advise her if he was “proceeding with the warrant application”. In response to that email, the defendant on 4 August 2022 at 8:34am, advised Ms Natoli that he had “forgot to file” the warrant application and would “file the CAN and P709 with the Downing Centre [Local Court] today” (Shrestha affidavit, pp 3-4; Ex AS-1, pp 20-21; Ex PL-2, pp 63-64).

6. [19]

   On 4 August 2022 at 1:21pm, the defendant sent an email to the Local Court Registry stating, “[p]lease find attached warrant applications and [the CANs] for … [the plaintiff]”. That email attached two PDF files, but only the first concerned the plaintiff. That PDF file comprised of the following four documents: a Future CAN Master Coversheet for sequences 1 to 3; the CANs for sequences 1 to 3; the NSW Police Facts Sheet for those offences (“the Police Facts Sheet”); and an application for a warrant to arrest the plaintiff under s 72 of the Local Court Act 2007 (NSW) dated 4 August 2022 (“the warrant application”). On that same day at 1:25pm, the defendant received an automated reply from the Local Court Registry acknowledging receipt of the email (Shrestha affidavit, p 4; Ex AS-1, pp 24-41; Ex PL-2, pp 65-83).

7. [20]

   The warrant application contained the following grounds for the application (Ex PL-2, pp 81-82; Ex AS-1, pp 39-40):

8. [21]

   On 4 August 2022, the defendant made a phone call to the Preston Police Station in Victoria and spoke to a member of Victoria Police (“VicPol”), Sergeant Allan Tickner. The defendant requested that Sergeant Tickner attempt to serve the CANs on the plaintiff. By email on that same day at 3:18pm, the defendant sent Sergeant Tickner a copy of the CANs and advised him that the plaintiff would be required to attend the Downing Centre Local Court on 15 September 2022. In that email, the defendant noted “[s]orry for the delay, we had to change [the CAN] from [w]arrant to [f]uture”. The defendant then provided Sergeant Tickner with the plaintiff’s address in Preston, Victoria and contact details. In an email exchange between 3:20pm and 3:25pm, Sergeant Tickner inquired about whether an affidavit of service was required, to which the defendant advised him that an email “confirming service” would suffice (Shrestha affidavit, p 5; Ex AS-1, pp 46-47; Ex PL-2, pp 100-114).

9. [22]

   Shortly later at 4:05pm, Sergeant Tickner sent an email to the defendant advising that all attempts to serve and contact the plaintiff were unsuccessful. By email in response at 4:24pm, the defendant stated that “I’ll update our systems and go through with the [w]arrant application” (Shrestha affidavit, p 5; Ex AS-1, p 45; Ex PL-2, pp 115-117).

10. [23]

    On 6 September 2022 at 3:02pm, Sergeant Ross Mitchell a Police Prosecutor in the Downing Centre Local Court unit of the Police Prosecutions Command sent an email to the defendant stating the following (Ex PL-2, pp 118-119):

11. [24]

    On 6 December 2022 at 8:26am, the defendant sent an email to the Local Court Registry stating, “[p]lease find attached [s 72 of the Local Court Act] application to grant leave to file a [CAN] that has not been served”. That email attached a PDF file which comprised of the following three documents: an application for leave to file an unserved CAN dated 6 December 2022 (“leave application”), along with a “Defendant Copy” form of the CAN and the Police Facts Sheet. The grounds for seeking that leave application included the matter would be statute barred on 27 December 2022; the plaintiff could not be located; and the CAN was not able to be served on the plaintiff despite attempts to do so. Further, the leave application provided details of VicPol’s unsuccessful attempts to serve the CAN on the plaintiff (Shrestha affidavit, p 5; Ex PL-2, pp 120-132).

12. [25]

    On that same day at 8:39am, the second defendant replied to the defendant’s email and sought to obtain a “Court Copy” form of the CAN. An exchange of correspondence ensued between the second defendant and an NSW Police Force Court Process Officer in relation to obtaining a Court Copy form of the CAN. The second defendant forwarded this email chain to the defendant and stated, “I am unable to proceed with this application until a Court Copy of [the CAN] is provided”. In response, the defendant sent an email to the second defendant stating, “[p]lease find attached court copy of the CAN”. The second defendant then by email advised the defendant that “[t]his application has been granted” and if he could “confirm with the Warrant Index Unit that ‘arrest warrant’ is on system and executable”. The defendant replied by email and stated, “[t]hank you very much for being patient and getting this application granted … I can confirm the warrant is on our system and executable” (Shrestha affidavit, p 6; Ex AS-1, pp 45-47; Ex PL-2, pp 133-155).

13. [26]

    The second defendant granted the leave application and issued the warrant. The leave application dated 6 December 2022, on page 3 contained under the heading “Application Determination”, the “granted box” marked with a tick, and included the second defendant’s signature and handwritten details which read as “IMP – 2YS” (Ex PL-2, pp 172-174; Ex AS-1, pp 83-85).

14. [27]

    The JusticeLink printout, under the heading “Record of Process”, records in the first two entries on 6 December 2022 at 2:42pm that an arrest warrant for an unserved CAN was produced and published (Ex AS-1, p 15). A screenshot from the “COPS Enquire History Log Entry” shows that the arrest warrant was authorised on 6 December 2022 at 2:44pm (Ex AS-1, p 98).

15. [28]

    On 21 December 2022, a further CAN was filed by which the plaintiff was charged with an offence of knowingly joining or continuing in an unlawful assembly, contrary to s 545C(1) of the Crimes Act 1900 (NSW), which carries a maximum penalty of six months imprisonment or five penalty units, or both (“sequence 4”) (second Latham affidavit, p 16).

16. [29]

    On 25 June 2024, the plaintiff was arrested in Newcastle for offences, contrary to ss 4(1)(b) and 4B(1)(b) of the Inclosed Lands Protection Act 1901 (NSW) for trespass by participating in a protest where they entered the premises of Port Waratah Coal Services at Kooragang (“Newcastle charges”). The warrant was executed on that same day, and the plaintiff was subjected to a strip search and kept in custody overnight at the Newcastle Police Station. The warrant in relation to the protest in Sydney and the Newcastle charges were listed in the Newcastle Local Court at 9:30am on the following day (Keanu affidavit, p 7; first Latham affidavit, p 3).

17. [30]

    On 26 June 2024, the plaintiff appeared before Longley LCM at the Newcastle Local Court and pleaded guilty to the offences alleged in the Newcastle charges. Magistrate Longley directed that the charges be dismissed pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW). His Honour also dispensed with bail with respect to sequences 1 to 4 and adjourned the proceedings to 9 July 2024. It appears that the matter was adjourned a number of times before being listed on 1 November 2024 at the Downing Centre Local Court (Keanu affidavit, pp 7-8).

18. [31]

    On 1 November 2024, the plaintiff appeared before Price LCM at the Downing Centre Local Court and pleaded guilty to the offence under s 6 of the Summary Offences Act alleged in sequence 3. The plaintiff was convicted of that offence and ordered to pay a fine of $200. Sequences 1, 2 and 4 were withdrawn and dismissed (Keanu affidavit, p 8).

Competing arguments of the parties on the extension of time and utility of the orders sought

1. [32]

   The defendant submitted that the application for an extension of time should be refused and referred to the applicable principles concerning inutility. In support of this submission, the defendant relied upon a large number of authorities: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 (“Ainsworth”); Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334; [1999] HCA 9 (“Bass”); Trans Realties Pty Ltd v Grbac [1975] 1 NSWLR 170 (“Grbac”); Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286; [1974] HCA 18 (“Neeta”); McGarrigle v Public Service Board [1979] 1 NSWLR 292 (“McGarrigle”); Coles v Wood [1981] 1 NSWLR 723 (“Coles v Wood”); Nudd v Australian Federal Police [2008] QCA 60 (“Nudd”); Cosenza v Magistrates Court of South Australia [2016] SASC 181 (“Cosenza”); Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (“Wingfoot”).

2. [33]

   The defendant submitted that in the present case the warrant was executed when the plaintiff was arrested on 25 June 2024. The criminal proceedings to which the warrant related were finalised on 1 November 2024, including by way of the plaintiff pleading guilty to sequence 3. The defendant argued that if this Court was minded to grant an extension of time, it would be adopting the language of Hutley JA in Coles v Wood at 728, where his Honour said that the Court would “therefore be solely concerned with quashing or declaring [invalid] a completely executed warrant”.

3. [34]

   The defendant referred to the correspondence which ensued between the solicitors for the parties concerning the utility of the proceedings and to the plaintiff’s solicitors email dated 9 October 2025 (marked as Ex 1 in the hearing), and pointed out that it was the plaintiff’s position that the proceedings raised “important and significant issues in relation to the administration of the criminal justice system in this state” and that “we will detail these matter when we file our submissions”. The defendant submitted that the plaintiff’s written submissions filed on 12 February 2026 do not identify any basis upon which it could be concluded that the present proceedings have any utility or foreseeable consequences for the parties.

4. [35]

   In arguing against the grant of an extension of time, the defendant relied on the observations of Moffitt P (with whom Reynolds JA agreed) in McGarrigle at 295, that where the proceedings are alleged to raise important issues in relation to the administration of the criminal justice system, if the plaintiff had a “real interest” in seeking that relief, it “would be unnecessary, and indeed irrelevant, to look at whether it is in the public interest” for the Court to determine the validity of the arrest warrant and further that if the declarations are sought to strengthen the plaintiff’s hand in possible future proceedings, this does “not provide a legitimate basis for the making of a declaration”. The defendant submitted that granting a declaration in such circumstances would fail to determine “completely and finally” the controversy between the parties, such that it would encourage, rather than avoid, the multiplicity of legal proceedings which s 63 of the Supreme Court Act seeks to avoid, by reference to the observations of Samuels JA (with whom Reynolds JA agreed) in McGarrigle at 303. A further argument advanced was that granting the declarations sought by the plaintiff could result in unfairness to the defendant relying on the reasoning of Gorton J in Kuksal v Victorian Legal Services Board [2024] VSC 732 at [66] (“Kuksal”).

5. [36]

   With respect to the order sought in the nature of certiorari, the defendant submitted that an order of this kind is not available in the circumstances the warrant is no longer extant and its legal effect was spent upon execution referring to Wingfoot at [25] (French CJ, Crennan, Bell, Gageler and Keane JJ). The defendant contended that the plaintiff has not discharged the burden of persuading the Court that there are proper grounds to grant an extension of time to commence the proceedings under r 59.10 of the UCPR, or (even if an extension were granted) that the declarations sought or an order in the nature of certiorari should be made. It was further submitted that in circumstances where the arrest warrant is no longer extant and the related criminal proceedings have concluded, these proceedings have no utility, the declarations sought would have no foreseeable consequences for the parties and certiorari is not available.

6. [37]

   In response to the defendant’s submissions as to an extension of time and inutility, the plaintiff placed reliance on Coles v Wood at 727 (Hutley JA, Moffitt P and Samuels JA agreeing) and R v Tillett; Ex parte Newton (1969) 14 FLR 101 at 107, 108, 118, 121-128 (Fox J) (“Tillett”). The plaintiff also referred to the judgment of N Adams J in Harland v Murphy [2022] NSWSC 1376; (2022) 303 A Crim R 83 (“Harland”), as a recent decision in this Court, where a plaintiff was seeking similar orders such as in these proceedings but in relation to a search warrant that had been executed which was declared to be invalid.

7. [38]

   The plaintiff submitted that the facts in Neeta and McGarrigle were clearly distinguishable and not of assistance to the present proceedings. It was further argued that the facts of the authorities relied upon by the defendant where declaratory relief was refused, are not analogous to those in the present case and referred to r 59.10 of the UCPR which specifically directs a court that in “considering whether to extend time [it] should take account of such factors as are relevant in the circumstances of the particular case”. The plaintiff contended that Neeta involved a dispute relating to a contract for sale of land whereas McGarrigle was an employment case.

8. [39]

   The plaintiff emphasised that the cases cited by the defendant are “quite aged” and outdated in the context of administrative law and also long pre-dated r 59.10 of the UCPR which in any event by subrule 59.10(3), essentially “codifies most of the principles that [the defendant] extracts from these judgments and the others cited”.

9. [40]

   A further submission was that s 63 of the Supreme Court Act must be considered in the light of s 75. In oral submissions, Mr Skinner said that the plaintiff’s interest for the purposes of r 59.10(3)(a) of the UCPR as at 6 December 2022 was “to go about [the plaintiff’s] business without an order of the State providing for [the plaintiff’s] immediate arrest and being taken before a Court”: Tcpt, 11 March 2026, p 16(32-35). As to the plaintiff’s interest now, Mr Skinner said they “is to perhaps seek redress for the way [the plaintiff] was treated”: Tcpt, 11 March 2026, p 16(42-43). Mr Skinner candidly said that a civil suit was anticipated: Tcpt, 11 March 2026, p 16(45-49).

10. [41]

    In the discussions concerning r 59.10(3)(a) of the UCPR, the relevant public interest was identified as being to ensure that arrest warrants are issued properly and that the process needs to be modified so as to ensure that arrest warrants are not issued inappropriately. Mr Skinner referred to Wingfoot at [25] and the case cited in the footnote of that paragraph of Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44 (“Hot Holdings”) and said (Tcpt, 11 March 2026, p 21(26-32)):

11. [42]

    Mr Skinner explained that Wingfoot was a case about medical tribunals. Mr Skinner submitted that there are “strong analogies” in the law about search warrants and on the facts, the order sought should be granted and the time extended for the plaintiff to commence these proceedings: Tcpt, 11 March 2026, p 22(5-10).

12. [43]

    The plaintiff pointed out that the defendant had neither provided an explanation of the prejudice occasioned by reason of the delay nor was reference made to the delay caused by the passage of time prior to the filing of the summons. In oral submissions, Mr Skinner submitted that “it is hard to see any prejudice from delay to [the defendant]” and referred to the passage of Gorton J in Kuksal at [66] cited by the defendant for the proposition that the declarations sought “could also result in unfairness”, being “very broad” and based on circumstances where a defendant is oppressed as “they do not know what is really at stake in the proceeding and so on”: Tcpt, 11 March 2026, p 17(33-39). The plaintiff further submitted that whilst delay is a relevant factor to be considered under r 59.10(3)(b) of the UCPR, the defendant has not specified any prejudice resulting from the delay.

13. [44]

    The defendant strongly opposes an extension of time being granted. Under r 59.10(2) of the UCPR the Court may, at any time, extend the time for commencing proceedings, such a decision is discretionary. I have referred at [10]-[12] above to the applicable principles and factors to be considered in determining whether to grant an extension of time.

14. [45]

    The length of the delay in commencing proceedings and the reasons for the delay were not in contest. Although the warrant for the plaintiff’s arrest was issued on 6 December 2022, the plaintiff was unaware that a warrant had been issued until they were arrested on 25 June 2024. These proceedings were commenced by summons on 24 October 2024, which is about four months after the plaintiff’s arrest in June 2024. In all the circumstances, I do not consider the delay to be significant.

15. [46]

    The controversy in this litigation arises from the fact that the warrant has been executed and the related criminal proceedings have been concluded. The defendant’s contention is that the plaintiff does not have an arguable case as the proceedings have no utility. The defendant argues for that reason both declaratory relief and certiorari are unavailable, notwithstanding that both forms of relief are discretionary.

16. [47]

    As to the availability of certiorari, the defendant placed emphasis on the following passage in Wingfoot where the High Court said at [25] (French CJ, Crennan, Bell, Gageler and Keane JJ):

17. [48]

    In Wingfoot, the High Court determined that certiorari was not available in that case for two independent reasons and stated at [67]:

18. [49]

    In oral submissions, Mr Skinner referred to Hot Holdings which was quoted in Wingfoot at [25] footnote 28. I do not understand how Hot Holdings assists the plaintiff’s case. In Hot Holdings, the majority (Brennan CJ, Gaudron and Gummow JJ) discussed the scope of certiorari. Their Honours said at 159:

19. [50]

    Mr Skinner’s attempt to distinguish Wingfoot on the basis that it was a decision in the context of a medical panel has no merit and should be rejected.

20. [51]

    The plaintiff’s reliance on Coles v Wood at 727 is misplaced. The passage in Hutley JA’s judgment to which Mr Skinner directed attention at 727 is as follows:

21. [52]

    The High Court in Wingfoot (see [47]-[48] above) has made clear that an order in the nature of certiorari is not available in respect of an exercise or purported exercise of power the legal effect or purported legal effect of which is spent.

22. [53]

    A similar observation may be made about the plaintiff’s reliance on Tillett.

23. [54]

    In the present case, the plaintiff did not contend that the warrant remained on foot. Although there is no statutory provision in New South Wales that provides a warrant remains on foot until executed, it is accepted that a warrant is spent once executed: Frugtniet v Attorney-General (NSW) (1997) 41 NSWLR 588 at 601 (Beazley JA, Meagher JA agreeing).

24. [55]

    The warrant authorised the arrest of the plaintiff. When the plaintiff was arrested, the force of the warrant had been spent. The warrant’s relevance had been overtaken by the plea of guilty when sequences 1, 2 and 4 were withdrawn and dismissed and the plaintiff was convicted and fined for sequence 3. An order in the nature of certiorari quashing the decision of the second defendant to issue the warrant “would be not simply inutile; it would be unavailable”: Wingfoot at [25].

25. [56]

    The plaintiff also seeks declarations that the order made by the second defendant to issue the warrant was invalid and unlawful. Section 75 of the Supreme Court Act provides:

26. [57]

    The court’s power to grant declaratory relief is discretionary. In Ainsworth, the plurality (Mason CJ, Dawson, Toohey and Gaudron JJ) at 581-582 expressed the following list of relevant factors which described the scope of the court’s power to grant declaratory relief:

27. [58]

    In Ainsworth, the Criminal Justice Commission (“the Commission”) prepared a report concerning the poker machine industry in Queensland. The report was tabled in Parliament without any notice given to the appellants, who were manufacturers and suppliers of poker machines. The report contained adverse recommendations and was highly defamatory of the appellants, who were denied natural justice by not having an opportunity to respond to the allegations put against them nor were they informed of the Commission’s investigations during the preparation of the report. However, the Commission’s report attracted Parliamentary privilege and immunities of a report tabled in Parliament under the Criminal Justice Act 1989 (Qld) (now repealed). The Commission’s report itself was of no legal effect and carried no legal consequences whether direct or indirect on anyone’s rights, obligations or powers. The plurality relevantly said at 581:

28. [59]

    However, as to the issue of whether to grant declaratory relief, the plurality observed at 582:

29. [60]

    In Ainsworth, the High Court granted the appellants declaratory relief as it was considered appropriate to redress some of the harm done and for the purposes of remedying the practical effect of “blackening the appellants’ reputations”, although the High Court determined that an order in the nature of certiorari was inutile and not available.

30. [61]

    The defendant referred to a number of authorities where declaratory relief had been refused which are relevant and of assistance to the issues in the present case.

31. [62]

    In Neeta, there was a dispute involving a contract of sale for land between a purchaser and the vendor. Before settlement, the purchaser’s solicitors insisted on the vendor procuring registration of the surrender of the tenant’s lease, which the vendor failed to do. The vendor’s solicitors then served a notice to complete on the purchaser and subsequently rescinded the contract. The purchaser by summons sought a declaration that the contract had not been validly rescinded by the vendor and the notice to complete was invalid. The primary judge dismissed the summons. The High Court allowed the appeal, determining that the contract had not been validly rescinded and the notice to complete was invalid but declined to grant declaratory relief. Barwick CJ and Jacobs J (with whom Stephen J agreed) made the following observations at 307:

32. [63]

    In Bass, the proceedings essentially involved three appeals arising out of the NSW Government’s HomeFund scheme, the purpose of which was to enable persons, who might not otherwise be able to do so, to purchase their own homes. The appellants who purchased homes through the HomeFund scheme, alleged that the State had engaged in misleading and deceptive conduct and other contraventions of the Trade Practices Act 1974 (Cth) (now Sch 2 of the Competition and Consumer Act 2010 (Cth)), as well as the Fair Trading Act 1987 (NSW). The majority (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) concluded that the answers given by the Full Court of the Federal Court of Australia and the declaration it made had not been “based on facts, found or agreed” it was purely hypothetical and “does not finally resolve the dispute or quell the controversy”. The majority emphasised that a judicial determination includes “a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy”. Their Honours stated at [49]:

33. [64]

    It is also important to bear in mind their Honours earlier observations at [48], which described one crucial difference between the court’s jurisdiction to grant declaratory relief as distinct to that of an advisory opinion involving the hypotheticality as being “the fact that an advisory opinion is not based on a concrete situation and does not amount to a binding decision raising a res judicata between parties”.

34. [65]

    Grbac was similar to Neeta as it involved a dispute between a purchaser and vendor over the sale and purchase of land. The parties had entered into a contract, but the vendor declined to complete and subsequently issued a notice of rescission asserting that the contract was induced by a fraudulent misrepresentation. The purchaser sought a declaration that the contract had not been validly rescinded. Hutley JA (Glass JA agreeing) at 173 described this as presenting a “false issue” in the pleading because the validity of the rescission did not depend only upon the grounds given in the notice of rescission, there were grounds other than in the notice that could justify recission if those grounds could be made out. His Honour observed at 173:

35. [66]

    Glass JA referring to Neeta and the utility of the practice developed of granting declaratory relief by the “Equity Court” expressed the following at 176:

36. [67]

    In oral submissions, the defendant placed emphasis on McGarrigle. In that case, the plaintiff, a nurse, had been granted a declaration by Rath J, the primary judge, that the Public Service Board should give effect to the Promotions Appeal Tribunal decision recommending her appointment to the vacant office of charge nurse. The nurse suffered an injury in the course of her employment and was subsequently terminated as she was unfit to discharge the duties of her office, and another person was appointed to that position. The Court of Appeal allowed an appeal by the Public Service Board and set aside the declaration and orders granted by the primary judge. Moffitt P whilst agreeing with Samuels JA made some additional observations (Reynolds JA agreeing with Samuels JA and the additional observations of Moffitt P), in relation to the grant of declaratory relief, and stated at 294-295:

37. [68]

    Moffitt P after referring to the requirements that should be satisfied before the discretion is exercised to grant declaratory relief as summarised by Lord Dunedin in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448 and adopted by Gibbs J in Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437-438; [1972] HCA 61 (“Forster”), made the following observations at 295-296:

38. [69]

    His Honour continued at 296:

39. [70]

    His Honour went on to say at 297:

40. [71]

    Ultimately, Moffitt P concluded that the two matters referred to in the passage at [67] above did “not provide a legitimate basis for the making of a declaration”. His Honour had earlier referred to Neeta and the duty imposed by s 63 of the Supreme Court Act.

41. [72]

    As I understood the defendant’s argument, the plaintiff’s submission that a declaration has public importance in ensuring that arrest warrants are appropriately issued and the plaintiff’s interest in seeking redress in an anticipated civil suit fell as discussed by Moffitt P into the “hypothetical”. This argument is relevant to the matters to be considered under rr 59.10(3)(a) and (d). The defendant directed attention to Coles v Wood, where the Court of Appeal refused leave to appeal out of time. In that case, the appellant sought a declaration that the search warrants which had been executed were invalid and relief in the nature of certiorari quashing the search warrants that had been issued. The Court of Appeal (Hutley JA, Moffitt P and Samuels JA agreeing) concluded that an order for certiorari can be refused on the grounds of utility and there was no utility in quashing or declaring invalid an executed warrant. Hutley JA (with whom Moffitt P and Samuels JA agreed) said at 727-728:

42. [73]

    Hutley JA explained at 728 that s 63 of the Supreme Court Act is “[a] provision fundamental to the efficient, economical and rational administration of the Supreme Court”. His Honour having regard to the High Court authority of Neeta and various authorities of the Court of Appeal such as Grbac, emphasised “the importance of adhering to the philosophy” of s 63 of the Supreme Court Act. His Honour concluded at 728-729:

43. [74]

    Section 63 of the Supreme Court Act which has not been subject to any legislative amendments since the decision of Coles v Wood is as follows:

44. [75]

    In Nudd, a warrant was issued by a Justice of Peace in Queensland for the arrest of the appellant, Mr Nudd on 6 May 2001. Mr Nudd was living in the United States and was alleged to be involved in the importation of a commercial quantity of cocaine into Australia. Mr Nudd was arrested in the United States in May 2001 and extradited to Australia in February 2002. Before Mr Nudd’s extradition from the United States, he obtained advice from counsel which challenged the validity of the arrest warrant as the alleged offending occurred outside of Queensland, there was an argument that the warrant was invalid. Mr Nudd by application sought declarations that the arrest warrant and extradition process were invalid. He further contended that determinations in his favour would bolster his prospects of obtaining a pardon and a favourable outcome in civil proceedings that had not yet been commenced.

45. [76]

    Byrne J, the primary judge, refused to grant the declarations on the basis that such relief could not serve a useful purpose; that there was no utility in the declarations sought; that the administration of justice and public confidence would not be advanced by facilitating a collateral challenge to the finality of Mr Nudd’s criminal proceedings; and that it would not be appropriate to regard declaratory relief of the kind sought as some step towards the completion of proceedings that were yet to be commenced. The issue before the Queensland Court of Appeal was confined to whether the primary judge had erred in exercising his discretion by refusing to grant the declarations sought by Mr Nudd that the arrest warrant and extradition from the United States were invalid. Mackenzie AJA (with whom McMurdo P and Mullins J agreed) was satisfied that the primary judge had not erred in the exercise of his discretion and dismissed Mr Nudd’s application.

46. [77]

    In Cosenza, the plaintiff, Mr Cosenza sought to challenge by way of judicial review a decision of a magistrate to issue a warrant for his arrest following his failure to appear at the Port Adelaide Magistrates Court (“the PAMC”). Mr Cosenza also challenged the decision by South Australia Police (“SAPOL”) to issue a warrant for his arrest “with endorsement that [Mr Cosenza] be excluded from bail”. Mr Cosenza sought relief, inter alia, an order in the nature of certiorari certifying that the decision to issue the arrest warrant was made ultra vires and in breach of the statutory duty (under s 58 of the Criminal Procedure Act 1921 (SA), formerly the Summary Procedure Act 1921 (SA)); the decision by SAPOL to seek the arrest warrant was made for an ulterior purpose; a declaration that the process of issuing the arrest warrant was unlawful; and damages for trespass, wrongful arrest, false imprisonment, breach of statutory duty and misfeasance in public office. The defendants (collectively, the PAMC, the State of South Australia and SAPOL), by application sought summary judgment, or alternatively that the proceedings be struck out, on the grounds that Mr Cosenza’s action lacked utility and there was no reasonable prospect that the application would succeed. It was further argued that certain orders sought by Mr Cosenza were unrelated to the decisions challenged and are not available in judicial review proceedings.

47. [78]

    Bampton J considered at [38] that once the warrant was executed, it was no longer extant and its legal effect was spent upon the execution of the warrant. His Honour then applied the reasoning of the High Court in Wingfoot at [25], and stated at [39]:

48. [79]

    His Honour recognised that declaratory relief is discretionary and found that as the arrest warrant was no longer extant, there was “no utility in making the declarations sought as they would not determine any existing issue between the parties”. His Honour then at [43]-[44] referred to the passage of the plurality in Ainsworth at 581-582 (Mason CJ, Dawson, Toohey and Gaudron JJ) (see [57] above), and contended that any declaration as to the lawfulness or validity of the decisions would not produce any foreseeable consequences for the parties. In those circumstances, his Honour concluded that declaratory relief was unavailable, that there was no reasonable prospect the relief sought by Mr Cosenza would be granted, and summary judgment was granted for the defendants.

49. [80]

    There is Victorian Authority that supports the defendant’s argument that declaratory relief is not available when an arrest warrant has been executed and is spent: see, eg, Marriner v Smorgon [1989] VR 485; Marriner v Smorgon (1989) 167 CLR 368; [1989] HCA 69 (the application for special leave to appeal was rescinded).

50. [81]

    The plaintiff contended that they’s case found support in Harland. That case concerned proceedings for judicial review of an executed search warrant, in which the plaintiff challenged the validity of the warrant on the basis that the issuing officer did not have reasonable grounds to issue the warrant. N Adams J referred at [272] to the observations of Simpson JA (Beazley P and McColl JA agreeing) in Polley v Johnson [2015] NSWCA 256; (2015) 253 A Crim R 521 at [40] (“Polley”), and reiterated that “the issuing officer’s satisfaction must be that of the applicant”. Her Honour had earlier found that when viewed objectively, the Registrar did not turn her mind to the elements of the searchable offence and “there were insufficient facts to induce the relevant state of belief in the mind of a reasonable person”. It followed that her Honour was satisfied the issuing officer did not have reasonable grounds to issue the warrant given that finding was made. N Adams J concluded that “there were not reasonable grounds to issue the warrant” and made a declaration that the search warrant was invalid and an order in the nature of certiorari quashing the decision of the Registrar to issue the warrant.

51. [82]

    It is important to note that in Harland, it appears that the High Court’s decision in Wingfoot was neither brought to her Honour’s attention nor was an argument advanced that the prerogative relief sought should not be granted as the warrant had been spent and either certiorari or a declaration would be inutile.

52. [83]

    More recently, in Unions NSW v New South Wales (2023) 277 CLR 627; [2023] HCA 4 at [26] (Kiefel CJ, Gageler, Gordon, Gleeson and Jagot JJ), the plurality reaffirmed the well established principle that declaratory relief will be refused in the circumstances where “the plaintiff cannot point to any other foreseeable consequences from the grant of a declaration” in which in that case (although in the context of the issue of standing) it was because the “only advantage that the plaintiffs would achieve from a declaration of invalidity would be the satisfaction of a statement by the Court validating their contentions of an historical wrong”.

53. [84]

    While the court has a wide discretion to grant declaratory relief, I am mindful that such relief “ought not to be issued unless there are circumstances that call for their making”: Forster at 438 (Gibbs J), quoting Ibeneweka v Egbuna [1964] 1 WLR 219 at 225 (Lord Radcliffe). It is well recognised from the authorities discussed above that a matter which may guide the discretion to refuse declaratory relief includes its lack of utility: see, eg, Ainsworth at 581-582.

54. [85]

    The preponderance of authority supports the defendant’s case. That extends to the issues of certiorari and declaratory relief. The decisions of the High Court, Court of Appeal and intermediate appellate courts of other jurisdictions discussed above bind me and I am obliged to follow and apply those authorities: Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 at 177 (Moffitt P); Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76 at [261]-[301] (Allsop P, Beazley and Basten JJA); Spicer Thoroughbreds Pty Ltd v Stewart [2023] NSWCA 82 at [56] (Leeming JA, Mitchelmore JA and Griffiths AJA agreeing) and the authorities there cited. The plaintiff neither argued nor has established that any of those decisions are “plainly wrong” and that there are “compelling reasons” to depart from them: Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ); [1993] HCA 15; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [135] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ); Hill v Zuda Pty Ltd (2022) 275 CLR 24; [2022] HCA 21 at [25]-[26] (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ).

55. [86]

    Another consideration is that there is no reason to conclude that the duty under s 63 of the Supreme Court Act has lesser importance now than when Neeta and McGarrigle were considered. The overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW) “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”, in my view, adds emphasis to the significance of s 63, which is to be considered in conjunction with s 75 as Barwick CJ and Jacobs J observed in Neeta at 307 (see [62] above).

56. [87]

    The plaintiff’s case that a declaration might assist the plaintiff in some way in proceedings that had not been commenced and would have public importance in ensuring arrest warrants are appropriately issued does not arise above the hypothetical. Furthermore, the plaintiff in these proceedings does not claim any substantive remedies. The declarations the plaintiff seeks would not result in the final determination of any issues between the parties: Zurich Australian Insurance Ltd v Cimic Group Ltd (2024) 115 NSWLR 297; [2024] NSWCA 229 at [574]-[593] (White, Stern JJA and Griffiths AJA). If the plaintiff were to bring proceedings for damages in tort, for example for wrongful arrest and false imprisonment, as a result of the execution of the purported invalid arrest warrant, the validity of the warrant would still be an issue in those proceedings: see, eg, Harris (pseudonym) v Secretary, Department of Communities & Justice [2021] NSWCA 261 at [12] (Brereton JA, Meagher and Gleeson JJA agreeing). There is no utility to be served by setting aside the arrest warrant. The circumstances do not call for the grant of declaratory relief. The plaintiff has not established a fairly arguable case. Having taken into account all of the factors relevant to the circumstances of this case, I do not grant the plaintiff an extension of time to commence the proceedings.

The arrest warrant was not invalid

1. [88]

   If I had granted an extension of time, for the reasons stated above certiorari would be unavailable (see [52] above), however recognising that declaratory relief may be granted even where certiorari may not be available, in relation to the declaratory relief claimed I would not have been satisfied that the plaintiff had established a basis to declare the arrest warrant invalid and unlawful. Having declined to extend time, the reasons that follow will be stated relatively briefly.

2. [89]

   The plaintiff’s complaint that “there is no record in JusticeLink, or otherwise in the court record that a proper application for an arrest was ever made” fails as the defendant’s email on 4 August 2022, sending the warrant application to the Local Court Registry complied with r 8.7 of the Local Court Rules 2009 (NSW). It is plain that the warrant application was received by the Local Court Registry by reason of the defendant receiving an automated reply at 1:25pm on the same day from the Registry acknowledging receipt of the email.

3. [90]

   The plaintiff’s contention that the defendant’s email to Sergeant Tickner on 4 August 2022 in which he apologised for the delay and stated, “we had to change [the CAN] from [w]arrant to [f]uture” and the email from Sergeant Mitchell on 6 September 2022 (see [21] and [23] above) implies a lapsing and abandonment of the warrant application is not a reasonable inference that can be drawn from all the circumstances. The email to Sergeant Tickner was sent on the same day that the application for the warrant was filed. When Sergeant Tickner later on that same day advised by email that all attempts to serve and contact the plaintiff were unsuccessful, the defendant responded stating “I’ll update our systems and go through with the [w]arrant application” (see [22] above). Furthermore, it is plain from the defendant’s response to the second defendant detailed at [25] above, that the defendant had not at any stage abandoned the application for the warrant. When all of the evidence is viewed in combination, including Sergeant Mitchell’s email and the application for leave to file a CAN that had not been served, I would reject the plaintiff’s contention.

4. [91]

   The plaintiff further submitted that there were no reasonable grounds for the second defendant to issue the warrant. That submission embraced a contention that the second defendant did not have before him material upon which he could have rationally reached the mandatory conclusion required under s 181(2) of the Criminal Procedure Act (which is in the same terms as s 54(2)), before a warrant to arrest could be issued namely satisfaction that “there are substantial reasons to do so and that it is in the interests of justice to do so”.

5. [92]

   In the context of administrative law, it is recognised that where a decision-maker is required to be satisfied of matters prescribed by statute the scope for review may be limited. As Gibbs J observed in Buck v Bavone (1976) 135 CLR 110 at 118-119; [1976] HCA 24 (“Buck”):

6. [93]

   There is simply nothing in the present proceedings that suggests the second defendant acted “arbitrarily or capriciously”. It is clear that the second defendant acted in good faith: Buck at 118-119.

7. [94]

   It may be reasonably inferred that the second defendant had before him the application for the warrant and the leave application. It may also be reasonably inferred that the handwritten details which read as “IMP — 2YS”, and appeared in the leave application under the heading “Application Determination”, above the second defendant’s name and signature were written by the second defendant after he had conscientiously checked the maximum penalty for the offence contrary to s 144G(1)(b) of the Roads Act, being sequence 1 in the CAN. Another reasonable inference which may be drawn from the handwritten details and the application for leave to extend the CAN as it would be statute barred is that the second defendant was not misled by the statement in the warrant application that the plaintiff was “charged with an indictable offence”.

8. [95]

   Both the application for the warrant and the leave application provided details of the attempts made to serve the CAN on the plaintiff. The Police Facts Sheet included details of the plaintiff being a member of Blockade Australia and the serious disruption to pedestrians and vehicles allegedly caused on 27 June 2022 by the protest march with the plaintiff being identified on “CCTV, media courage and live Facebook Streams of the event”. Furthermore, the warrant application detailed a “[p]ossible risk of injury to people in the greater community” (see [20] above).

9. [96]

   In accordance with s 181(3) of the Criminal Procedure Act, regard must be had to r 7.3(2) of the Local Court Rules which relevantly provides in respect of proceedings commenced by a CAN:

10. [97]

    It may be reasonably inferred that the second defendant gave careful consideration to the requirements of s 181(2) of the Criminal Procedure Act and r 7.3(2) of the Local Court Rules before the warrant for the plaintiff’s arrest was issued.

11. [98]

    In Polley, the validity of a search warrant was challenged. Simpson JA (with whom Beazley P and McColl JA agreed) said at [45]-[46] that it was not the role of the eligible issuing officer “to consider the sufficiency of the supporting material to found a conviction of the searchable offence identified in the application”: see also, Murphy v The Queen (1989) 167 CLR 94 at 106 (Mason CJ and Toohey J); [1989] HCA 28; McArthur v Williams (1936) 55 CLR 324 at 365-366 (Dixon, Evatt and McTiernan JJ); [1936] HCA 10.

12. [99]

    Although a warrant for arrest involves the deprivation of freedom, when an application for an arrest warrant is made, the eligible issuing officer is in my opinion not obliged to consider whether the information provided to the eligible issuing officer is sufficient to found a conviction of the offence charged. It was not part of the second defendant’s task to determine whether the material provided to him was sufficient to establish a conviction of the offence contrary to s 144G(1)(b) of the Roads Act. Furthermore, contrary to the plaintiff’s submissions, the defendant and the second defendant were not required to search the statistics compiled by the Judicial Commission of New South Wales to ascertain the sentences imposed by the Local Court for the offence under s 144G(1)(b). The question for the second defendant was whether there were substantial reasons to issue the warrant and that it was in the interests of justice to do so.

13. [100]

    I am not persuaded that the second defendant did not carefully consider that question before he issued the warrant.

14. [101]

    Although referred to in Particular (e) of the summons (see [3(3)] above), the plaintiff neither raised in written nor oral submissions the complaint that the defendant did not have reasonable grounds to believe that the plaintiff had committed an offence contrary to s 144G(1)(b). Nevertheless, as the details in the CAN and the Police Facts Sheet make clear (see [14] and [17(1)] above), the disruption caused was not on the Harbour Bridge but to the on-ramp to the Cahill Expressway with the plaintiff being identified as participating in the protest march. I am not persuaded that the defendant did not have reasonable grounds to believe that the plaintiff had committed the offence.

15. [102]

    As to the plaintiff’s submission that there was no record as to why the second defendant was satisfied that there were substantial reasons to issue the warrant and it was in the interests of justice to do so, there is no requirement under the Criminal Procedure Act or the Local Court Rules for the issuing officer to make a record of the reasons for issuing or refusing to issue a warrant. Further, there is nothing in the text of those Acts that requires the giving of reasons for issuing an arrest warrant. The omission of such a requirement is to be contrasted with s 65 of Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) which relevantly provides:

16. [103]

    Generally, there is no free-standing common law duty to give reasons for making a statutory decision: Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 662 (Gibbs CJ); [1986] HCA 7; Wingfoot at [43]. As the High Court observed in Wingfoot at [43], the content of a statutory duty to give reasons defines the statutory standard that a written statement must meet to fulfil it. There is no statutory duty that exists under the Criminal Procedure Act or the Local Court Rules to give reasons for issuing or refusing to issue an arrest warrant.

17. [104]

    Furthermore, the matters to be included in an arrest warrant are set out in s 236 of the Criminal Procedure Act. There is no form of an arrest warrant prescribed by the rules required by s 236(1) of the Criminal Procedure Act. Nevertheless, the warrant that the second defendant issued complied with ss 236(2) and (3). I would agree with the defendant’s submission that ss 236(2) and (3) of the Criminal Procedure Act should be regarded as an exhaustive statement of the matters an arrest warrant must contain. In support of this submission, the defendant placed reliance on Ousley v The Queen (1997) 192 CLR 69 at 82-84 (Toohey J), 111 (McHugh J), 128 (Gummow J); [1997] HCA 49.

18. [105]

    The plaintiff has not established that the second defendant’s decision suffers from any jurisdictional error or error of law on the face of the record.

19. [106]

    The plaintiff contended that reasonable attempts had not been made to serve the CAN on they. In the Keanu affidavit, the plaintiff disclosed that they had sent an email to the Downing Centre Local Court on 17 January 2022 concerning a Field CAN listed at that Court on 19 January 2022. In that email the plaintiff advised that they were unable to attend the Local Court in person due to “the covid situation” and requested to attend the hearing online by audio-visual link (Keanu affidavit, p 3). By email the Local Court Registrar replied to the plaintiff on 24 January 2022 and advised the matter was listed on 23 February 2022. The plaintiff further referred to having a residential address in Carlton Victoria, which was used by a number of services including Centrelink, the Australian Electoral Commission and also that they’s residential address was known to the Victorian Department of Justice and Community Safety, the National Australia Bank, Belong (a subsidiary of Telstra) and Vic Roads office (Keanu affidavit, pp 3-4).

20. [107]

    The plaintiff submitted that the plaintiff’s address “could have been easily discovered on more than a cursory search by police”. The material provided to the second defendant revealed that the attempts by police to serve the plaintiff were more than cursory. The warrant application detailed in the grounds for the application that “reasonable attempts” had been made to serve the CAN between “27/06 to 03/07” (see [20] above). Further efforts were made at the defendant’s request to Sergeant Tickner of VicPol (see [21]-[22] above). The leave application included the following (Ex PL-2, p 123; Ex AS-1, p 84):

21. [108]

    Rule 7.3(2) of the Local Court Rules imposes an obligation on the eligible issuing officer to take into account whether “reasonable attempts” have been made. It does not require the eligible issuing officer to ascertain whether all possible attempts have been taken nor is there an obligation imposed upon police. I am not persuaded that the police did not make reasonable attempts to personally serve the CAN on the plaintiff. Furthermore, it was open to the second defendant to be satisfied that reasonable attempts had been made to serve the CAN and that an order for substituted service should not be made.

Orders

1. [109]

   Neither party made submissions that there should be any order other than costs should follow the event.

2. [110]

   Accordingly, I make the following orders:

   1. (1)

      Refuse the application for an extension of time pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW).

   2. (2)

      Dismiss the summons filed on 24 October 2024.

   3. (3)

      The plaintiff is to pay the first defendant’s costs.