14 October 2019

International Cases

Laurent v. City of greater geraldton




Appellate power is to be exercised only once an error by primary court or a miscarriage of justice is demonstrated

In instant matter, Respondent issued a notice requiring Appellant to pull down a fence which he had constructed without obtaining a building licence. Appellant applied to State Administrative Tribunal for review of notice. Tribunal dismissed review application on 10 December, 2012. Respondent commenced a prosecution of Appellant in February 2013. Respondent alleged that, Appellant had committed an offence against Section115 of Building Act 2011 (WA). Section 115 provides that, a person who is served with a copy of a building order must not without reasonable excuse fail to comply with the order. It was alleged that, between 25 December 2012 and 23 January 2013, Appellant failed, without reasonable excuse, to comply with a building order, constituted by notice of 17 November 2011 with which he had been served. Appellant was convicted of this offence after trial in the Magistrates Court.

Appellant appealed against his conviction to General Division of Supreme Court. His appeal was heard on various dates between March 2014 and September 2015. On 17 February 2016, primary judge delivered comprehensive reasons for refusing leave to appeal and dismissing appeal to General Division. On 9th March, 2016, the appellant filed an appeal notice in this court against the primary judge's orders. Appellant did not file his Appellant's Case by 14 September 2016, with the consequence that his appeal to this court was dismissed pursuant to the springing order. On 20 September 2016, the appellant filed an application in an appeal seeking, in effect, a further extension of time within which to file his Appellant's Case. The effect of such an extension of time would be to restore the appeal, notwithstanding that the time for compliance with the springing order has passed.

Appellant was given ample opportunity to file his Appellant's Case and failed to do so before 14 September 2016, with consequence that, appeal was dismissed. It was his responsibility, and not that of Court of Appeal registry, to prepare a document which complied with the Rules. Section 16(2) of Criminal Appeals Act 2004 (WA) provides for a right of appeal to this Court from primary judge's decision. Section 9 and s 18 of Criminal Appeals Act, provide that, leave of this Court is required for each ground of appeal to this Court, and that this Court must not give leave to appeal on a ground of appeal unless, it is satisfied the ground has a reasonable prospect of succeeding.

Criminal Appeals Act does not prescribe grounds on which an aggrieved party may appeal to this Court under Section 16 of that Act. However, appellate power is to be exercised only once an error by primary court or a miscarriage of justice is demonstrated: Wright v McMurchy [2012] WASCA 257 [28], [97]. Where error is asserted, the grounds of appeal in an appeal under div 3 of pt 2 of the Act must identify an error by the single judge whose decision is under appeal.

A document filed on 20 December 2016 contains Appellant's 10 proposed grounds of appeal and submissions. Document does not comply with Rules, in particular the requirement for a succinct statement of grounds, and concise particulars of them. Much of that material is incoherent. Nothing in document filed on 20 December 2016, in additional evidence which Appellant seeks to adduce in this appeal or in Appellant's oral submissions provides any reason to doubt correctness of primary judge's decision. Appeal to General Division was properly dismissed for reasons given by primary judge. None of proposed grounds of appeal to this Court have any reasonable prospect of success.

There is nothing to be gained by extending time for filing of Appellant's Case. In all circumstances, it is in interests of justice that, Appellant's application in an appeal, filed on 20th September 2016, be dismissed. Consequence of dismissal of application in appeal is that, Appeal to this court remains dismissed, pursuant to springing order. Applications to adduce further evidence are therefore redundant, and should be dismissed.

Tags : Filing Time Extension

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