Bransby v City of Wanneroo
[2019] WASC 305
•30 AUGUST 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: BRANSBY -v- CITY OF WANNEROO [2019] WASC 305
CORAM: LE MIERE J
HEARD: ON THE PAPERS
DELIVERED : 30 AUGUST 2019
FILE NO/S: SJA 1077 of 2018
BETWEEN: JUSTIN DEAN BRANSBY
Appellant
AND
CITY OF WANNEROO
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE M FLYNN
File Number : JO 9862 of 2017 & JO 9863 of 2071
Catchwords:
Practice and procedure - Appellant's failure to comply with programming orders - Matter dismissed by the court - Application to set aside dismissal - Whether notice or communication from the court received - Change to email address - Power to set aside dismissal of appeal - Interest of justice considered - Whether adequate explanation of delay and non-compliance - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 14, s 40
Criminal Procedure Rules 2005 (WA), r 62
Planning and Development Act 2005 (WA), s 214 (7), s 218(b)
Result:
Appellant's application allowed
The order dismissing the appeal be set aside
Category: B
Representation:
Counsel:
| Appellant | : | No appearance |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | De Vita Legal |
Case(s) referred to in decision(s):
Nil
LE MIERE J:
On 4 May 2018 the appellant, Justin Dean Bransby was convicted after a two day trial in the Magistrates Court at Joondalup of two offences. The first was for carrying out a development contrary to a planning scheme by parking commercial vehicles at his property contrary to s 218(b) of the Planning and Development Act 2005 (WA). The second was failing to comply with a written direction to cease the development contrary to s 214(7) of the Planning and Development Act. Mr Bransby was fined $37,500, comprised of a fine of $20,000 and $50 per day for each of the 350 days of the continuing contravention, and ordered to pay costs of $3,197.42.
Mr Bransby appealed against his convictions by an appeal notice of 24 May 2018. Mr Bransby's wife, Kasey Louise Talbot Bransby (Mrs Bransby) who was convicted of one offence of failing to comply with a written direction, also appealed against her conviction.
On 7 September 2018, Justice McGrath made orders in each of the appeals requiring the appellants to inform the court of their unavailable dates for the hearing of the appeals between September 2018 and February 2019 and not less than 28 days before the hearing of the appeals to file and serve an outline of submissions and an affidavit in support of their applications for leave to appeal and the appeals. On 14 November 2018, the court sent notice to the appellants by email that the applications for leave to appeal and the appeals had been listed for hearing on 26 February 2019. In January and February 2019, the court informed the appellants by email that they had failed to comply with the orders for the filing of affidavits and submissions. On 21 February 2019, the court dismissed the appeals on the ground that the appellants had failed to comply with the orders of Justice McGrath.
Mr Bransby now applies to set aside the dismissal of his appeal on the ground that he did not receive notice of the hearing date of the appeals or the communications from the court requiring him to file an affidavit and outline of submissions. Mrs Bransby has not appealed the dismissal of her appeal. The respondent, the City of Wanneroo opposes Mr Bransby's application to set aside the dismissal of his appeal.
For the reasons which follow, Mr Bransby's application will be allowed and the order dismissing his appeal will be set aside.
Proceedings in the Magistrates Court
On 4 May 2018 after a two day trial:
(a)Mr Bransby was convicted of two breaches of the Planning and Development Act, namely commencing or continuing a development in breach of a planning scheme and failing to comply with a written direction;
(b)Mrs Bransby was convicted of failing to comply with a written direction.
The development the subject of the charges involved the parking of commercial vehicles at a property in the City of Wanneroo which Mr and Mrs Bransby owned and resided in, 33 Kentia Loop, Wanneroo (the Property). The Property is zoned 'special residential' under the City of Wanneroo's District Planning Scheme No 2 (the scheme). Relevantly, the scheme prohibited the parking of commercial vehicles on a property which was zoned 'special residential' with an exception being that one commercial vehicle could be parked if certain conditions were met.
Mr Bransby conducted a demolition business called Smash It Demolition and Earthworks Pty Ltd and vehicles relating to that business were parked on the Property. The magistrate found that a large truck was parked on the Property for the entirety of the charge period and that the exceptions of clause 4.23.3 of the scheme which permitted one commercial vehicle to be parked did not apply because it was visible from the boundary without adequate screening. The magistrate also found that other commercial vehicles pertaining to Mr Bransby's business were also parked on the Property on various occasions during the charge period.
The magistrate imposed on Mr Bransby a global fine on both charges of $37,500 comprised of a fine of $20,000 and $50 per day for each of the 350 days of the continuing penalty and costs of $3,197.42.
Mr Bransby's appeal
Mr Bransby's notice of appeal contains ten grounds. He says he was denied natural justice. He says that the magistrate made procedural errors. He says the magistrate erred in fact. He says the magistrate erred in law. He says the prosecution was a malicious and vexatious prosecution. He says the penalties were manifestly unjust and oppressively excessive.
Procedural history of the appeal
Mr Bransby filed his notice of appeal on 24 May 2018. Mr Bransby's details for service on his notice of appeal included a street address and an email address.
On 7 September 2018 Justice McGrath made a number of orders (the September 2018 orders) including:
(1)Mr Bransby and Mrs Bransby's appeal be heard together.
(2)The applications for leave to appeal be heard with the appeals.
(3)The appellant's appeal notice was amended.
(4)Within 14 days of the date of the order the appellant was to write to the court providing unavailable dates for the hearing of the appeal between September 2018 and February 2019 inclusive.
(5)Not less than 28 days before the hearing of the appeal the appellant file and serve an outline of submissions on the application for leave to appeal and the appeal.
(6)Not less than 28 days before the hearing of the appeal, the appellant file and serve an affidavit in support of the application to adduce additional evidence, attaching all of the additional evidence sought to be relied upon at the hearing of the appeal.
(7)The application for leave to adduce additional evidence be heard with the appeal.
(8)Not less than 14 days before the hearing of the appeal the respondent file and serve an outline of submissions on the application for leave to appeal and the appeal.
On 7 September 2019, the court sent notice to the appellants by letter and email attaching the September 2018 orders with an explanation of each of the orders and asked the appellants to ensure the documents were filed and served in the timeframes set out in the provisional orders.
On 14 November 2018, the court sent notice to the appellants by email that the applications for leave to appeal and the appeals had been listed for hearing on 26 February 2019, attached the September 2018 orders and reminded parties that they must strictly comply with the orders.
On 31 January 2019, the court informed the parties by email that the appellants had not filed submissions or an affidavit and that the hearing on 26 February 2019 would be vacated unless either party showed cause through either letter or email by 6 February 2019.
On 5 February 2019, the court wrote to the appellants by letter informing them that the hearing on 26 February 2019 would be vacated unless either party showed cause why it should not.
On 8 February 2019, the court wrote to the appellants by letter stating that they had not responded to any of the court's communications and if there was any reason why the appeal should not be dismissed they should inform the court by 13 February 2019. The court further informed the appellants that if the court received no communication from them or any reason why the appeal should not be dismissed for failure to comply with the September 2018 orders, the appeal would be dismissed.
On 21 February 2019 the appeal was dismissed and the hearing for 26 February 2019 was vacated.
Mr Bransby applies to set aside the dismissal of appeal
By letter of 28 February 2019 Mr Bransby wrote to the court stating, amongst other things, statements to the following effect:
(1)Having received the orders of Justice McGrath dated 6 September 2018 in the post only, as I had received every other communication from the court, I complied by way of providing my unavailable dates within 14 days.
(2)I waited to be advised of the date for the hearing so that I could then comply with the timetable of the programming orders from Justice McGrath.
(3)I did not receive any communication from the Court between October 2018 and 27 February 2019.
(4)On 27 February 2019 I received in my mail box three envelopes from the Court, containing various correspondence going back several weeks informing me that I had 7 days to respond and that my appeal is dismissed.
(5)The email address the Court sent the correspondence to is no longer attended, as Mrs Bransby and I have separated and I got a new email address.
(6)It did not occur to me to inform the Court of the change of my email address.
(7)I ask that the dismissal of the appeal be set aside and my appeal be reinstated.
Mr Bransby swore to those facts in an affidavit sworn by him on 11 March 2019. Mr Bransby's stepfather, Richard Caesar, swears in an affidavit of 11 March 2019 that he found three large A4 envelopes from the Supreme Court in Mr Bransby's letterbox on 27 February 2019.
I find that Mr Bransby did not receive any of the relevant communications from the court prior to 27 February 2019.
Power to set aside dismissal of appeal
Rule 62(1) of the Criminal Procedure Rules provides that 'if in a party's absence a judge makes an order, whether or not at a hearing, the judge may subsequently, but before the order is carried out, set aside the order and again deal with the matter that gave rise to the order'.
Order 65 r 6 of the Rules of the Supreme Court 1971 (WA) is in the same terms as r 62(1) of the Criminal Procedure Rules. Section 14(1)(i) of the Criminal Appeals Act 2004 (WA) provides that in deciding an appeal, the Supreme Court may make any order it thinks fit. Section 40(1)(l) provides that for the purposes of dealing with an appeal, an appeal court may exercise any power that the Supreme Court may exercise in a civil case. It is not necessary to decide whether O 65 r 6 of the RSC applies in this instance.
In my opinion r 62(1) of the Criminal Procedure Rules empowers the court to set aside an order dismissing an appeal in the absence of the appellant. The judge may set aside the order before the order is 'carried out'. In this context, an order is not carried out merely because it has been entered or recorded. An order is carried out when it has been effected or accomplished. For example, an order that an offender be released is carried out when the person has been released not when the order has been entered and recorded.
In any event, the respondent does not dispute the power of the court to set aside its order dismissing Mr Bransby's appeal.
Application opposed by the respondent
The respondent says that Mr Bransby's application to set aside the order should be dismissed on three grounds. First, there was a significant delay and non‑compliance with procedural orders. Secondly, the procedural orders were served on Mr Bransby by email and some cases by post and such service was effective whether those notices came to his attention or not. Thirdly, the substantive appeal lacks merit
The respondent says that there has been significant delay and non‑compliance with procedural orders. However, Mr Bransby has explained the delay and non‑compliance.
The respondent's says that the procedural orders was served on Mr Bransby by email and in some cases by post and such service was effective whether those notices came to his attention or not. Nevertheless, Mr Bransby has not had an opportunity to present his appeal. The court may set aside an order dismissing an appeal if it is in the interests of justice to do so, notwithstanding that the order was regularly made.
The respondent says that Mr Bransby's appeal lacks merit. Mr Bransby has not addressed the merits of his appeal in the course of his application. He is self‑represented. I do not consider it appropriate to enter upon an assessment of the merits of the appeal without calling upon Mr Bransby to respond to the matters raised by the respondent. It may then be necessary to give the respondent an opportunity to respond. It is not in the interests of justice to embark upon that course in the circumstances of this application.
It is in the interests of justice to set aside the order dismissing the appeal. Mr Bransby applied to the court to set aside the order as soon as he became aware of it. That was only a short time after the order had been made. He has provided an explanation for his non‑compliance with the court orders which led to his appeal being dismissed. There is no substantial prejudice to the respondent. The orders appealed from are orders for the payment of fines and costs. No substantial injustice is done to a local government authority by delaying any payment of those fines until the appeal is determined. So far as the costs which the respondent has incurred in answering this application, or a substantial part of those costs are incurred in addressing the merits of Mr Bransby's appeal. That work is not wasted.
I will set aside the order made on 21 February 2019 dismissing Mr Bransby's appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MS
Associate to the Honourable Justice Le Miere30 AUGUST 2019
0
3