Andrei Vatarescu v Commonwealth of Australia

[2013] ACTCA 8

ANDREI VATARESCU v COMMONWEALTH OF AUSTRALIA & ANOR
[2013] ACTCA 8 (6 February 2013)

APPEAL AND NEW TRIAL – Leave to appeal from a decision of a single judge of the Supreme Court – Six month delay in filing notice of appeal – No reasonable explanation for delay – Whether reasonable prospects of success – Applicant’s most important ground relating to submissions by defence counsel – Impugned submissions not forming part of trial judge’s reasons – No error attributable to trial judge – Whether error of fact – All findings by trial judge supported by evidence – No reasonable prospects of success – Leave to appeal refused

EX TEMPORE JUDGMENT

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

No. ACTCA 2 – 2013
No. SC 428 of 2007

Judge:           Burns J
Court of Appeal of the Australian Capital Territory
Date:            6 February 2013

IN THE SUPREME COURT OF THE       )          No. ACTCA 2 – 2013
  )          No. SC 428 of 2007
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

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

BETWEEN:ANDREI VATARESCU

Appellant

AND:THE COMMONWEALTH OF

AUSTRALIA

First Respondent

THE AUSTRALIAN CAPITAL

TERRITORY

Second Respondent

ORDER

Judge:  Burns J
Date:  6 February 2013
Place:  Canberra

THE COURT ORDERS THAT:

1. Leave to appeal is refused.

1. The applicant is to pay the respondent’s costs of the application. 

IN THE SUPREME COURT OF THE       )          No. ACTCA 2 – 2013
  )          No. SC 428 of 2007
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

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

BETWEEN:ANDREI VATARESCU

Appellant

AND:THE COMMONWEALTH OF

AUSTRALIA

First Respondent

THE AUSTRALIAN CAPITAL

TERRITORY

Second Respondent

Judge:  Burns J
Date:  6 February 2013
Place:  Canberra

REASONS FOR JUDGMENT

BURNS J:

1. This is an application for leave to appeal out of time against a judgment of Penfold J which was given on 15 June 2012.  Her Honour at that time was dealing with proceedings in which the current applicant, as plaintiff, brought proceedings against the Commonwealth of Australia and the Australian Capital Territory in malicious prosecution and in false imprisonment.  Ultimately, however, her Honour found that the applicant’s case was really one of malicious prosecution against the two defendants to the proceedings.

2. Her Honour handed down her decision, as I have said, on 15 June 2012.  Even before her Honour had handed down the decision, and of course the applicant at that time could not have been aware of what decision her Honour would come to, the applicant had emailed her Honour’s associate indicating that he was proposing to appeal the decision if it was made against him.

3. There were email communications between the applicant and her Honour’s associate in which the applicant was advised by her Honour’s associate that the matter would be handed down on 15 June.  The applicant advised that he was unable to attend at that time.  Her Honour, through her associate, offered to delay the handing down of the decision until 18 June if that would enable the applicant to attend.  The applicant responded simply saying that he would return to Canberra in early October 2012, but again indicating that he intended to appeal any decision which encouraged and condoned bullying and abuse by the Australian Federal Police and the ACT DPP.

4. Amongst the information provided to the applicant in the course of that email correspondence was information advising the applicant that any appeal would have to be initiated within the standard 28 day period after the decision was handed down unless leave to appeal out of time was given by the Court.

5. Thereafter, the applicant took no steps after the handing down of the decision on 15 June last year to appeal the decision of her Honour until he lodged an application for leave to appeal on 15 January this year, some seven months after the decision was handed down.  The only communication that occurred between the applicant and the Court in that period of seven months was an email dated 12 December 2012 in which the applicant made complaints about the decision arrived at by her Honour and apparently attaching some forms, which I presume were draft forms in relation to a proposed appeal.

6. As I indicated in discussion with Mr Vatarescu, in the present proceedings he really had to establish two things.  Firstly, that there was an explanation for his delay in lodging his appeal in this matter.  He lodged his application for leave to appeal and the draft notice of appeal six months outside of the time which is prescribed by legislation for lodging appeals.  This is not simply a technicality.  There is a very significant public interest in ensuring that litigation is finalised at the earliest possible opportunity, and that parties to litigation know that the matter is finalised.

7. The applicant lodged an affidavit in support of his application for leave to appeal.  There is nothing in that affidavit which provides any reasonable explanation for the delay, and in particular the length of delay, in the applicant seeking to agitate an appeal against her Honour’s decision.

8. In his submissions to the Court today the applicant has said that he had financial difficulties in obtaining legal representation.  He has not referred to his financial position in the affidavit that he provided in support of the application, nor has he provided any information about attempts to obtain legal representation in that affidavit.  I am not satisfied that there is any reasonable explanation for the delay by the applicant in lodging his application for leave to appeal. 

9. The second thing that the applicant needs to demonstrate in the current application is that he has reasonable grounds - or reasonable prospects of success.  In that regard, the applicant lodged a notice of appeal setting out the proposed grounds of appeal if his application for leave to appeal is granted. In his submissions, the applicant has said that paragraph 5(C) is the most important ground.  That reads, and I quote, “The defence barristers fabricated two “encounters” in their submissions to the Supreme Court.”    It is not abundantly clear to me precisely how that ground of appeal could be said to have reasonable prospects of success in terms of overturning the decision made by her Honour in circumstances where the applicant was not able to point me to that part of her Honour’s decision where her Honour dealt with that issue.

10. It appears from the ground of appeal as drafted by the applicant that he is complaining about something that was contained within the submissions of counsel appearing for the defendants in the proceedings before her Honour.  Of course, unless some error can be demonstrated in that regard with respect to what her Honour said in her decision, it matters not what the defence barristers said in their submissions to her.

11. The applicant has made no complaint about the law as enunciated by her Honour in her decision.  He has effectively made complaints about findings of facts that were made by her Honour.  I’ve had the opportunity to read the decision handed down by her Honour, and I note that the evidence, or virtually all of the evidence, which her Honour referred to in the course of that decision was evidence which was tendered by the applicant himself or alternatively was given orally by the applicant himself.

12. I am satisfied that there was evidence supporting each of the findings of fact made by her Honour.  It appears to me that there are no reasonable prospects of success with respect to the appeal which the applicant would seek to agitate. 

13. I note for the record that the applicant has now left the court.

14. In those circumstances, the application for leave to appeal will be refused.

15. The applicant is to pay the respondents’ costs of the application.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

Associate:

Date:            25 February 2013

Counsel for the Applicant:  The applicant appeared in person
Counsel for the First Respondent:  Mr W Sharwood
Solicitor for the First Respondent:  HWL Ebsworth Lawyers
Counsel for the Second Respondent:                Mr J Harris SC
Solicitor for the Second Respondent:                ACT Government Solicitor
Date of Hearing:  6 February 2013
Date of Judgment:  6 February 2013