Upholding your rights in courts and tribunals

Our lawyers will not hesitate to uphold your rights with fear or favour. We’ve done this continually for 60 years – the length of time that our firm has been in existence.

It is important that lawyers pay careful attention at every stage of the litigation including in what are known as ‘interlocutory’ steps (or the in the intermediate hearings before the final hearing). Some of these ‘intermediate’ hearings can for example make or break your case. The example of the interesting and controversial case of R v Kahtan ABDUL-WAHAB No 3 [2025] NSWLC is informative.

The case was conducted in the Local Court of NSW, and one of the main issues arose at an interlocutory stage, where the constitutionality (or legality) of a certain provision of the Crimes Act 1900 NSW was essentially a question which needed to be answered.

The Local Court may have effectively had no choice but to determine that ‘constitutionality’ (perhaps it could have referred (or ‘removed’) the matter to a court of inherent jurisdiction or a higher court, of its own motion but it did not — it did not refer or remove the matter to the High Court or to the Supreme Court of NSW).

The Court used the doctrine of ‘necessity to do justice as between the parties’ (Lambert v Weichelt (1954) 28 ALJ 282) to decide the constitutionality of a provision of a legislative instrument.

The essential fact is that it seems that no objection was taken during the course of the hearing for the accused in relation to that course with the Court itself saying that the “constitutional issue was not removed to the High Court by any of the parties under s 40 of the Judiciary Act (Cth) 1939.”

It is very hard to envisage that the Court had the jurisdiction to decide these questions without reference.

Cases such as Lambert v Weichelt seem to imply that the ‘necessity to decide constitutional questions’ arises only when those questions are within their own purview (i.e. when the jurisdiction exists for these courts to decide such questions).

It seems to us that the accused should have perhaps objected.

The lawyers at Papallo Kouchoo do our utmost to uphold our clients’ rights under the law, without fear, or favour.

If you have any questions, please do not hesitate to contact us for an obligation free professional consultation.

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