Abdul Nikro v Jane Bridget O'Sullivan

[2013] ACTCA 33

ABDUL NIKRO v JANE BRIDGET O’SULLIVAN
[2013] ACTCA 33 (30 August 2013)

PRACTICE AND PROCEDURE – application for stay of disqualification order – whether appropriate case for exercise of discretion ­– whether appeal rendered nugatory without stay – risk of applicant serving most or all of disqualification period before Court of Appeal proceedings resolved – stay granted

Human Rights Act2004 (ACT), s 25(2)
Road Transport (Driver Licensing) Act1999 (ACT), s 32
Supreme Court Act1933 (ACT), s 37J(l)(e)

Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685

REASONS FOR JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 43 - 2013
No. SCA 8 of 2012

Judge:          Burns J
Court of Appeal of the Australian Capital Territory
Date:           30 August 2013

IN THE SUPREME COURT OF THE     )          No. ACTCA 43 - 2013
  )          No. SCA 8 of 2012
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:   ABDUL NIKRO

Applicant

AND:   JANE BRIDGET   O’SULLIVAN

Respondent

ORDER

Judge:  Burns J
Date:  30 August 2013 
Place:  Canberra

THE COURT ORDERS THAT:

1. The disqualification order imposed on 4 July 2013 is stayed until the appeal is heard and determined in the Court of Appeal.

IN THE SUPREME COURT OF THE     )          No. ACTCA 43 - 2013
  )          No. SCA 8 of 2012
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:   ABDUL NIKRO

Applicant

AND:   JANE BRIDGET   O’SULLIVAN

Respondent

Judge:  Burns J
Date:  30 August 2013
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. On 27 January 2012, the sentencing Magistrate found the appellant guilty of a charge of driving while suspended pursuant to s 32(2)(a) of the Road Transport (Driver Licensing) Act1999 (ACT) (the Act). He recorded a conviction, fined the appellant $500 and disqualified him from holding or obtaining a licence for 12 months. The Act, at that time, provided for an automatic disqualification from holding or obtaining a drivers licence for 12 months upon conviction for a first offence under s 32(2)(a).

1. On 30 January 2012, the appellant appealed to the ACT Supreme Court from his conviction and sentence.

1. On 17 April 2013, before the appellant’s appeal was heard in the Supreme Court, the legislature amended s 32 of the Act to reduce the automatic disqualification from holding or obtaining a driver’s licence for a conviction from 12 months to 1 month if the original suspension of the person’s licence was due to unpaid infringement notices or fine default. I understand the appellant’s original suspension to have resulted from one of these causes.

1. The appellant’s appeal was heard before Nield AJ on 17 May 2013.  On 4 July 2013, his Honour dismissed the appeal and confirmed the conviction and sentence imposed by the sentencing Magistrate.  Nield AJ made ancillary orders directing that the disqualification period commence on 1 July 2013, so that it will expire on 30 June 2014.

1. On 16 July 2013, the appellant appealed from the orders made by Nield AJ.  On the same date a Notice of Human Rights Matter was filed, advising that the appeal will involve the application of the Human Rights Act2004 (ACT). The appellant will seek to argue, in that regard, that “the imposition of the 12 month disqualification [by Nield AJ] failed to take account of the Appellant’s right to receive the benefit of the reduced penalty for the offence of Drive [sic] whilst suspended as required by s 25(2) of the Human Rights Act2004”.

1. On 25 July this year, the appellant sought an order pursuant to s 37J(l)(e) of the Supreme Court Act1933 (ACT) staying the disqualification order until the appeal is heard and determined in the Court of Appeal. After hearing counsel on that date I made the stay order, and indicated that I would publish my reasons at a later time. These are those reasons.

1. The general principles governing this application are set out in the NSW Court of Appeal decision in Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 at 694–5:

In our opinion it is not necessary for the grant of a stay that special or exceptional circumstances should be made out.  It is sufficient that the applicant... demonstrates a reason or appropriate case to warrant the exercise of discretion in his favour...

The Court has a discretion whether or not to grant the say and, if so, as to the terms that would be fair.  In the exercise of its discretion, the Court will weigh considerations such as the balance of convenience and the competing rights of the parties...

Two further principles may be mentioned.  The first is that where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay... where it is apparent that unless a stay is granted an appeal will be rendered nugatory, this will be a substantial factor in favour of the grant of a stay.

1. I was told that the appellant has already paid the fine imposed. It appears likely that the proceedings in the Court of Appeal will focus on the disqualification order and the application, if any, of s 25(2) of the Human Rights Act2004.  I was told that it is unlikely that the matter will be heard in the Court of Appeal until late this year or early 2014.

1. I was far from convinced that the appellant has good prospects of success on appeal, however if a stay was not granted there was a risk that the appellant would have served most, if not all, of the disqualification before the appeal was resolved.  For that reason I granted the stay.

   I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

   Associate:

   Date:                 30 August 2013

Counsel for the Applicant:  Mr M Kukulies-Smith
Solicitor for the Applicant:  Kamy Saeedi Lawyers
Counsel for the Respondent:  Ms M Jones
Solicitor for the Respondent:  ACT Director of Public Prosecutions
Date of Hearing:  25 July 2012 
Date of Judgment:  30 August 2013