Alloway v Crampton
[2015] ACTSC 168
•1 July 2015
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 of 3 months after that day the last step in the proceeding was taken.
The Facts
As noted above (at [6]), Mr Alloway lodged a Notice of Appeal on 21 October 2014. That is within the period allowed for an appeal under s 209 of the Magistrates Court Act 1930 (ACT). It was, however, requisitioned by Registry since the address for service was missing, as was the Notice of Appointment for the settlement of the Index to the Appeal Papers.
These parts were added and the document re-lodged on 31 October 2014, outside the appeal period, but, under r 6145 of the Court Procedures Rules, the date of first lodgement (21 October 2014) is taken to be the date of filing.
The appeal then proceeded. An affidavit affirmed by a prosecutor in the Office of the Director of Public Prosecutions, Emilija Beljic, deposed to the facts and, also relying on the court record, I find as follows.
Mr Alloway appeared before the Deputy Registrar on 11 December 2014, the date set for the settling of the Index of the Appeal Papers (the Appeal Index). He told the Deputy Registrar that he had engaged a lawyer but that that person was not present at court.
The Deputy Registrar explained to Mr Alloway how to obtain a copy of the transcript of the hearing in the Magistrates Court as required and how to apply for a waiver of the fees payable for the transcript. The settlement of the Appeal Index was then adjourned to 19 February 2015.
Mr Alloway did not appear on 19 February 2015 and, from the court record, no lawyer appeared for him. The settlement of the Appeal Index was then adjourned to 12 March 2015. The Registry was required to notify Mr Alloway of the adjourned date.
Neither Mr Alloway nor a lawyer for him appeared at the adjourned date on 12 March 2015. Again the Deputy Registrar adjourned the settlement of the Appeal Index to 26 March 2015 and requested the Registry to notify Mr Alloway of the adjourned date.
Again, there was no appearance of Mr Alloway or a lawyer for him on 26 March 2015. The Deputy Registrar adjourned the proceedings until 7 May 2015. Again, the Registry was requested to notify Mr Alloway of the adjourned date. The respondent’s lawyer advised that an application to strike out the appeal would be served and liberty was reserved to the respondent to relist the matter for that purpose with 7 days’ prior notice.
On 7 May 2015, the adjourned date, neither Mr Alloway nor a lawyer for him appeared and the respondent again foreshadowed that an application to strike out the appeal would be filed. Nevertheless, the proceedings were adjourned to 28 May 2015. There was no notation on the bench sheet that Registry was to notify Mr Alloway.
On 28 May 2015, there was no appearance of Mr Alloway or any lawyer and the matter was adjourned to 18 June 2015. No notation was made to the bench sheet that Registry was to notify Mr Alloway. No mention was made of any application to strike out the appeal.
On 18 June 2015, the matter was mentioned before the Deputy Registrar who noted that, on that day, the Application in Proceedings seeking an order that the Appeal be struck out had been filed. Nevertheless, the Settlement of the Appeal Index was adjourned to 16 July 2015. The Registry was again requested to notify Mr Alloway of the adjourned date.
I have inspected the court’s records and a Notice was, on each occasion, whether required by the Deputy Registrar or not, sent to Mr Alloway at his address for service which was, as required by the prescribed form of Notice of Appeal (Form 5.4; Approved Forms AF2006-388), set out in the Notice of Appeal.
The Application in Proceedings seeking to strike out the appeal for want of prosecution was initially made returnable on 25 June 2015. By arrangement in chambers, it was stood over to 1 July 2015 as, for reasons not apparent to me, the Application in Proceedings and supporting affidavit had not been served on Mr Alloway.
Consideration
It is clear that Mr Alloway’s failure to appear at the adjourned hearings of the settlement of the Appeal Index constitutes a failure on his part to prosecute the appeal with appropriate effort.
In addition, the file discloses that Mr Alloway has not filed a draft Index of the Appeal Papers as required by r 5130 of the Court Procedures Rules. Further, Mr Alloway has not filed a copy of the transcript of the proceedings from which the appeal has been brought. This is required by paragraph 2 of the Supreme Court Practice Direction No 3 of 2012, “Criminal Appeals from the Magistrates Court”.
While the court is required to provide appropriate assistance to a litigant who is not represented by a lawyer (Maher v Carpenter (2012) 7 ACTLR 216 at 224; [41]), there are limits to this and it is also necessary to ensure that the rights and interests of the other party to proceedings are not prejudiced by such assistance.
Here, there is one matter that suggests, in addition, that this appeal is problematic. On the current state of the law, the appeal has no prospects of success. In Burow v Hoyer [2015] ACTSC 21, I held that there is no jurisdiction in this Court to appeal from an automatic licence disqualification where the court has made no order. I am aware that there is an appeal against my decision and that this will be heard by the Court of Appeal later this year. The law, however, is as I have presently stated it.
Had Mr Alloway proceeded properly with his appeal, there may be some case for delaying it until after the Court of Appeal had decided the appeal from Burow v Hoyer.
The other circumstances would, of themselves, confirm that the appeal should be dismissed for want of prosecution and without the suggested deferment, which Mr Alloway has not sought the court’s indulgence to be granted, the likely dismissal of the appeal itself supports dismissal at this stage.
| I certify that the preceding twenty seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 6 July 2015 |
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