Alloway v Crampton - [2015] ACTSC 168

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Alloway v Crampton
Citation:	[2015] ACTSC 168
Hearing Date(s):	1 July 2015
DecisionDate:	1 July 2015
Before:	Refshauge J
Decision:	The appeal is dismissed for want of prosecution.
Category:	Principal Judgment
Catchwords:	PRACTICE AND PROCEDURE – Appeal – Failure to appear at hearings – Failure to progress the appeal – Appeal has no prospect of success – Dismissal for want of prosecution
Legislation Cited:	Magistrates Court Act 1930 (ACT), s 209 Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 8, 13A, 13E, 20(1) Court Procedures Rules 2006 (ACT), rr 5130, 5191(2), 6145
Cases Cited:	Maher v Carpenter (2012) 7 ACTLR 216 Burow v Hoyer [2015] ACTSC 21
Texts Cited:	Supreme Court Practice Direction No 3 of 2012, “Criminal Appeals from the Magistrates Court”
Parties:	Karl Andrew Alloway (Appellant) Brooke Amy Crampton (Respondent)
Representation:	Counsel No appearance (Self-represented) (Appellant) Mr A Williamson (Respondent)
Solicitors No appearance (Self-represented) (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number(s):	SCA 93 of 2014
Decision under appeal:	Court/Tribunal: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 23 September 2014 Case Title: Crampton v Alloway Court File Number(s): CC 14/5392

REFSHAUGE J:

On 3 May 2014, police stopped a motor vehicle being driven by the appellant, Karl Andrew Alloway, in Chisholm and subjected him to an alcohol screening test under s 8 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the Alcohol and Drugs Act) which proved negative.

He was, however, then required to undergo a drug screening test under s 13A of the Alcohol and Drugs Act which was positive to a prescribed drug.

He was placed in custody and taken to Tuggeranong Police Station where he was required to, and did, supply a sufficient sample of oral fluid under s13E of the Alcohol and Drugs Act which showed positive to a prescribed drug.

He was then charged with being a driver of a motor vehicle on a road while he had within the relevant period, a prescribed drug in his oral fluid, an offence contrary to s 20(1) of the Alcohol and Drugs Act.

He appeared in the Magistrates Court and, on 23 September 2014 was convicted and fined $123. No order was made reducing the automatic period of driver licence disqualification which, accordingly, was for five years.

On 31 October 2014, he appealed against the disqualification of his licence.

There have, since then, been few steps taken by Mr Alloway to progress the appeal and the informant, the respondent to the appeal, has now sought to have the appeal struck out for want of prosecution.

Jurisdiction

Under r 5191(2) of the Court Procedures Rules 2006 (ACT), the court may dismiss an appeal for want of prosecution if an appellant:

(a)has not done anything required to be done under these rules during a period of 3 months after the day the requirement arises; or
(b)otherwise has not prosecuted the appellant’s appeal with appropriate effort during a period…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alloway v Crampton

Details

AGLC: Alloway v Crampton [2015] ACTSC 168
Case: [2015] ACTSC 168
Decision Date: 1 July 2015

CaseChat Overview and Summary

Alloway v Crampton is an appeal case heard by the Supreme Court of Queensland. The appellant, Alloway, sought to appeal a decision made by a lower court, but failed to appear at the scheduled hearing and did not progress the appeal. The respondent, Crampton, applied for the appeal to be dismissed for want of prosecution.

The court had to determine whether the appeal could be dismissed for the appellant's failure to appear and progress the appeal. The legal issue was whether the appeal had any prospect of success given the appellant's conduct.

The court found that the appellant's conduct warranted the dismissal of the appeal. The appellant's failure to appear and progress the appeal demonstrated a lack of interest in pursuing the appeal, and the appeal had no reasonable prospect of success. The court noted that it has the discretion to dismiss an appeal for want of prosecution where the appellant has not taken reasonable steps to progress the appeal. In this case, the court found that the appellant's conduct justified the exercise of that discretion.

The appeal was dismissed for want of prosecution. The court made no further orders.

Orders

Orders of the court

The appeal is dismissed for want of prosecution.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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