Legal Research
Cases
Bishop v The Queen

Bishop v The Queen

Case [1982] FCA 33 24 March 1982

No judgment structure available for this case.

Type to search within this case.

Re: IAN ROY BISHOP
And: THE QUEEN (1982) 58 FLR 233
No. ACT G9 of 1982
Practice and Procedure - Practice

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Deane(2) and Davies(3) JJ.

CATCHWORDS

Practice and Procedure - Notice of Appeal filed within time but not served - No sufficient explanation for failure to serve within time.

Federal Court of Australia Rules - O.3 r.2,3. O.52r.15(2).

Practice - Appeal - Crown appealed against sentence - Notice of appeal filed within time but not served - No adequate explanation for failure to serve within time - Whether time for service should be extended - Whether appellant being in gaol relevant - Federal Court Rules, O. 3, r. 3; O. 52, r. 15.

HEADNOTE

The appellant was convicted and sentenced in the Supreme Court of the Australian Capital Territory to a term of imprisonment. The Crown filed an appeal against the sentence within the prescribed twenty-one days after the date when judgment was pronounced. The notice of appeal was not served on the appellant until well beyond the time limit specified by the Federal Court Rules. An application by the respondent to the Federal Court (Fox J.) for an order extending the time for service having been granted, the appellant appealed to the Full Court against that decision.

Held, per curiam, upholding the appeal, that in the special circumstances of an appeal by the Crown against sentence it would be wrong and unjust, after the prescribed period for filing and service of notice of appeal had expired without a notice of appeal having been served, to accede to an application by the Crown to extend the time in which service could properly be effected unless special circumstances were established to justify the grant of the indulgence sought. In the instant case the Crown failed to establish an acceptable explanation of why the notice of appeal was not served in time. The fact that the appellant was in gaol did not in any way lessen the need for special circumstances to be shown.

Morres v. Papuan Rubber and Trading Co. Ltd. (1914), 14 SR (N.S.W.) 141; R. v. Tait (1979), 46 FLR 386, applied.

Whitehouse Hotels Pty. Ltd. v. Lido Savoy Pty. Ltd. (1974), 131 CLR 333; Ratnam v. Cumarasamy, (1965) 1 WLR 8; Revici v. Prentice Hall Incorporated, (1969) 1 WLR 157, referred to.

HEARING

Canberra, 1982, March 24. #DATE 24:3:1982

APPEAL.

Appeal from a decision of Fox J. to the Full Court of the Federal Court of Australia.

H. D. Palmer, for the appellant.

J. R. Pritchard, for the respondent.

Solicitor for the appellant: G. M. Wheeler.

Solicitor for the respondent: B. J. O'Donovan, Commonwealth Crown Solicitor.

E. F. FROHLICH

ORDER

1. The appeal be upheld.

2. The order of Fox J. extending the time for filing the notice of appeal be set aside.

3. The application for extension of time be dismissed.

JUDGE1

Mr. Justice Deane will deliver…

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 Bishop v The Queen

Details

AGLC: Bishop, Ian Roy v The Queen [1982] FCA 33 ((1982) 58 FLR 233)
Case: [1982] FCA 33
Decision Date: 24 MARCH 1982

CaseChat Overview and Summary

In the matter of Bishop v The Queen, the appellant sought to appeal against a decision made by Fox J. The appellant filed a notice of appeal within the statutory time limit, but failed to serve it on the respondent within the required period. The legal issue before the court was whether the appellant's failure to serve the notice of appeal within the prescribed time could be excused, despite the notice of appeal being filed within the statutory period. The court was required to determine whether the appellant had provided a sufficient explanation for the failure to serve the notice of appeal within the time limit.

The court considered the relevant statutory provisions and case law on the issue of extensions of time for service of notices of appeal. The court noted that while the appellant had filed the notice of appeal within the statutory period, the failure to serve it within the required time was a serious procedural default. The court held that the appellant had not provided a sufficient explanation for the failure to serve the notice of appeal within the time limit. The court found that the appellant's reasons for the delay were not compelling and did not amount to a sufficient explanation. The court concluded that the appellant had not satisfied the test for an extension of time for service of the notice of appeal.

The appeal was upheld, and the order of Fox J extending the time for filing the notice of appeal was set aside. The application for extension of time was dismissed. The court's decision highlights the importance of strict compliance with procedural requirements in appellate proceedings, and the need for a compelling explanation for any failure to meet those requirements.

Orders

Orders of the court

1. The appeal be upheld.

2. The order of Fox J. extending the time for filing the notice of appeal be set aside.

3. The application for extension of time be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Bishop, Ian Roy v The Queen [1982] FCA 33 ((1982) 58 FLR 233)

Most Recent Citation

The Queen v Pizzata, Filippo [1983] FCA 256

Cases citing this decision · 11 of 11 shown

Matson v Attorney-General (Cth)
[2022] FCA 461 Para 6

…eding, by way of an extension of the time to comply with a self-executing order, should be viewed as “in the nature of an indulgence”: Bishop v R (1982) 58 FLR 233 at 235 per Deane J. Further amended supplementary notice of appeal…
DPP v Keller (a pseudonym)
[2021] VSCA 334 Para 1

…ect of the prosecution in prosecuting such appeals,[25] if the court were to now permit the Director to file and serve a new notice of appeal. [25] Bishop v The Queen (1982) 40 ALR 40, 42 (Deane J); DPP v Craib (2001) 3 VR 388, 402 [40] (Chernov JA); [2001] VSCA 92; DPP v Hayden [2006] VSCA 152, [7] (Maxwell P and Vincent J…
Mayen v Ryan
[2013] ACTSC 172 Para 1

…the same effect was what Martin CJ said in Diamond Leisure Pty Ltd v Gusmao (1993) 114 FLR 293 at 294, relying on the authority of Bishop v The Queen (1982) 58 FLR 233. There, the applicant had provided “no explanation whatever” for the delay. His Honour said (at 295) that this “ought to be enough to dispose of the…
Skinner v Commonwealth of Australia
[2012] FCA 1194 Para 9

…to a party who has failed to comply with an order previously made is an order in the nature of an “ indulgence ”: Bishop v The Queen (1982) 58 FLR 233 at 235 per Deane J.…
Project Lab North America Pty Ltd v Bell Microproducts Inc
[2007] FCA 306 Para 10

…In Bishop v The Queen (1982) 40 ALR 40 at 41‑42 Deane J, with whom the Chief Judge and Davies J agreed, said: “the relevant principles … were …enunciated by Cullen CJ in Morres v Papuan Rubber & Trading Co Ltd (1914) 14 SR (NSW) 141 at 144 ‘… when a party, who has neglected to observe those requirements which the rules plac…
Commissioner of Corrective Services of New South Wales & 1 Ors v Middleton
[2004] NSWCA 156

…even escape the prison in his mind, through further education. Further, as Deane J observed in Bishop v The Queen (1982) 58 FLR 233 at 236, “the fears, apprehensions and expectations of ordinary men are prone to be exaggerated rather than lessened by confinement.” 11 It is upon that basis as well as what is said by…
Verdell Pty Ltd v F & G Nominees Pty Ltd
[2002] WASC 58 (S2)

…s, unreported; SCt of WA (Anderson J); Library No 970183; 23 April 1997 Schmidt v Gilmore [1988] WAR 219 Tenbohmer v Eden (1992) 6 WAR 366 Bishop v R (1982) 58 FLR 233 Bruce Angelo Gatti as trustee of the Bruce Gatti Family Trust v Brett Davies [2000] WASC 190 City of Rockingham v Curley & Anor [2000] WASCA 202 Cosh…
Verdell Pty Ltd v F & G Nominees Pty Ltd & Anor
[2002] WASC 58

…Bishop v R (1982) 58 FLR 233 Bruce Angelo Gatti as trustee of the Bruce Gatti Family Trust v Brett Davies [2000] WASC 190 City of Rockingham v Curley & Anor [2000] WASCA 202 Coshott v Learoyd [1999] FCA 276 Dent v Moore (1919) 26 CLR 316 Eaton Developments Pty Ltd v NTC Pty Ltd (1998) 19 WAR 552 Fountain Selected Me…
Tabet, Nahia v The Minister for Immigration and Multicultural Affairs
[1997] FCA 547

…would or might meet in some way the declared intent of the respondent to object to the competency of the application in its then form: cf. Bishop v R (1982) 58 FLR 233 at 235 per Deane J.…
Mitchell, Graham Bruce v Minister for Immigration & Ethnic Affairs
[1983] FCA 260

…is neglect of the rules" (Cullen C.J. in Morres v. Papuan Rubber and Trading Co. Ltd. (1914) 14 SR(NSW) 141 at p.144, approved in Bishop v. The Queen (1982) 58 FLR 233 at p.235). In the rather confusing and conflicting state of the evidence I am not satisfied that there is a reasonable explanation or excuse for the…
The Queen v Pizzata, Filippo
[1983] FCA 256

…I N THE FEDERAL COURT OF A U S T m I A ) ) AUSTRALIAN C PITAL ERRITORY j ) No. ACT G76 of 1983 DISTRICT REGISTRY GENERAL D I V I S I O N I BETWEEN : THE QUEEN L 3 A p p l i c a n t AND : - FILIPPO PIZZATA R e s p o n d e n t O R D E R I JUDGE MAKING ORDER: Neaves J. DATE OF ORDER: 1 6 S e p t e m b …

View all 11 citing cases →

Cases cited in this decision · 4 of 4 shown

Whitehouse Hotels Pty Ltd v Lido Savoy Pty Ltd
[1974] HCA 38

…Whitehouse Hotels Pty. Ltd. v. Lido Savoy Pty. Ltd. (1974), 131 CLR 333; Ratnam v. Cumarasamy, (1965) 1 WLR 8; Revici v. Prentice Hall Incorporated, (1969) 1 WLR 157, referred to.…
R v Tait
[1936] HCA 62

…A right in the Crown to appeal against the sentence imposed in a criminal proceeding has become common place in Australia. It is, nonetheless, a right of appeal which raises special considerations. As a Full Court of this Court commented in The Queen v. Tait & Bartley ((1979) 24 A.L.R. 473 at p. 476…
Committee of the Privy Council pointed out in Ratnam v Cumarasamy
(1965) 1 WLR 8

…Whitehouse Hotels Pty. Ltd. v. Lido Savoy Pty. Ltd. (1974), 131 CLR 333; Ratnam v. Cumarasamy, (1965) 1 WLR 8; Revici v. Prentice Hall Incorporated, (1969) 1 WLR 157, referred to.…
The judge citing Revici v Prentice Hall Inc
(1969) 1 WLR 157

…Whitehouse Hotels Pty. Ltd. v. Lido Savoy Pty. Ltd. (1974), 131 CLR 333; Ratnam v. Cumarasamy, (1965) 1 WLR 8; Revici v. Prentice Hall Incorporated, (1969) 1 WLR 157, referred to.…

Legislation cited in this decision · 0

No legislation cited in this case.