Burridge v Chief Magistrate of the Magistrates Court of the Australian Capital Territory
[2017] ACTCA 24
•19 May 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Burridge v Chief Magistrate of the Magistrates Court of the Australian Capital Territory |
Citation: | [2017] ACTCA 24 |
Hearing Date: | 18 May 2017 |
DecisionDate: | 19 May 2017 |
Before: | Murrell CJ |
Decision: | 1. The applicant is granted an extension of time to appeal on the three grounds stated in the judgment. 2. Otherwise, the application for extension of time is refused. 3. The applicant is to file a notice of appeal confined to these grounds within seven days. |
Catchwords: | APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – PRACTICE AND PROCEDURE – Appeal from Magistrates Court – Application for leave to appeal out of time – Explanation for delay – Merits of proposed appeal |
Legislation Cited: | Australian Road Rules r 20 Court Procedures Rules 2006 (ACT) r 5405 Road Transport (General) Act 1999 (ACT) ss 60(1)(a), 75 |
Cases Cited: | Burridge v Chief Magistrate of the Magistrates Court of the Australian Capital Territory [2016] ACTSC 332 Clark v Bluett [2016] ACTSC 312; 313 FLR 321 |
Parties: | Lindsay John Burridge (Applicant) Chief Magistrate of the Magistrates Court of the Australian Capital Territory (First Respondent) James McCue (Second Respondent) |
Representation: | Counsel Self-represented (Applicant) Ms K McCann (Respondent) |
| Solicitors Self-represented (Applicant) ACT Director of Public Prosecutions (Respondent) | |
File Numbers: | ACTCA 2 of 2017; ACTCA 20 of 2017 |
MURRELL CJ:
The applicant seeks an extension of time within which to institute an appeal against a judgment of Mossop AsJ (the primary judge) delivered on 18 November 2016.
The primary judge dismissed the applicant’s application for an order in the nature of prohibition to restrain the Magistrates Court from hearing a speeding charge and a related charge of failing to provide information as to the identity of the driver of the speeding vehicle. In the proceedings before the primary judge, the applicant asserted that the Magistrates Court lacked jurisdiction to hear the proceedings.
An appeal must be lodged not later than 28 days after the day the order appealed from was made, unless time is extended “for special reasons”: Court Procedures Rules 2006 (ACT) (CPR) r 5405.
The applicant is self-represented.
On this application, there are two significant issues:
(a)Whether there is an acceptable explanation for the delay; and
(b)Whether the merits of the proposed appeal justify the granting of leave.
Chronology
25.03.14 Alleged breach of Australian Road Rules r 20 (exceed the speed limit by more than 15 kph and no more than 30 kph)
13.06.14 Summons
15.06.14 Summons served
08.08.14 Plea of not guilty entered in the Magistrates Court
15.08.14 Demand under Road Transport (General) Act 1999 (ACT) s 60(1)(a) to identify the driver on 25.03.14
14.11.14 Charge alleging failure to respond to the demand
23.04.15 Chief Magistrate dismissed applications (filed in Court):
1. To dismiss the proceedings for abuse of process; and
2. To discharge a subpoena to the applicant’s wife on the basis that she was not a compellable witness
Applicant submitted that he had not been properly served with the summons
Written admission by the applicant that he drove the vehicle
10.06.15 Chief Magistrate decided that the summons was validly issued and served
15.07.15 Originating application in Supreme Court seeking an order in the nature of prohibition directed to the Chief Magistrate
30.07.15 Magistrates Court hearing date, vacated because of the Supreme Court proceedings
10.11.15 Hearing before primary judge
18.11.16 Primary judge dismissed the application
05.01.17 Notice of Appeal – ACTCA 2 of 2017
22.03.17 The Crown filed notice of intention to respond to appeal
27.03.17 Applicant filed an amended notice of appeal
27.03.17 Chief Magistrate filed notice of intention to respond
04.04.17 Informant filed notice of intention to respond
07.04.17 Applicant filed notice of discontinuance
28.04.17 Applicant filed an application for leave to appeal out of time and draft notice of appeal – ACTCA 20 of 2017
Delay
Prior to the expiry of the 28 day period, the applicant attempted to file a notice of appeal, but was requisitioned, possibly because the applicant was using an incorrect form. Ultimately, on 5 January 2017, the Courts Registry accepted a notice of appeal. By this stage, the appeal was slightly out of time. However, as the applicant was self-represented and the delay was slight, the respondent takes little issue with this period of delay.
Thereafter, there was an issue about the correct identity of the respondent or respondents to the appeal.
On 7 April 2017, the applicant filed a notice of discontinuance of the appeal. I accept that he did so because, based on Registry advice, he understood that this was necessary to enable him to proceed against the proper respondent or respondents.
At all times since 18 November 2016, it has been the applicant’s intention to pursue an appeal against the decision of the primary judge. At most times the informant and/or the ACT Director of Public Prosecutions has been aware of the applicant’s intention. The delay has not caused prejudice.
Consequently, to the extent that the appeal seems arguable on the merits, I will grant an extension of time.
Merits
At [31] of his Honour’s decision, the primary judge identified the following issues:
(a)Does the Magistrates Court lack jurisdiction because the information failed to specify “the length of road where the driver is driving”?
(b)Does the Magistrates Court lack jurisdiction because the information and/or summons was not sworn, signed and dated by the informant?
(c)Does the Magistrates Court lack jurisdiction because the summons was signed by an unidentified deputy registrar?
(d)Does the Magistrates Court lack jurisdiction because the informant was not validly delegated power to lay the information?
(e)Does the Magistrates Court lack jurisdiction because the summons was not validly served?
(f)Does the Magistrates Court lack jurisdiction because the prosecutor provided particulars of the charge orally in response to a request by the Court?
On the application to extend time, the applicant’s handwritten material was both difficult to decipher and difficult to understand. However, discussion with the applicant revealed that the applicant wishes to pursue five core grounds of appeal.
Ground 1
The first proposed ground of appeal is that, in chambers, the primary judge erroneously and “secretly” made a direction that the Courts Registry should accept written submissions filed by the ACT Director of Public Prosecutions on behalf of the second defendant, despite the fact that the second defendant had filed no notice of intention to respond as required by the CPR. It was suggested that the mere failure to comply with a rule requiring the filing of a notice of intention to respond could invalidate what occurred thereafter. Further, the applicant suggested that impropriety by the primary judge and a possible denial of procedural fairness somehow invalidated what occurred thereafter.
This proposed ground is entirely without merit. The primary judge was entitled to waive any requirement to comply with a rule. At the conclusion of the hearing, the primary judge made directions for the filing of written submissions and all parties were aware that written submissions were to be filed. The applicant conceded that he was provided with the submissions that were filed by the ACT Director of Public Prosecutions and had an opportunity to respond to them.
Ground 2
The second proposed ground of appeal is that the primary judge erred in finding that the service requirements of s 116B of the Magistrates Court Act1930 (ACT) (MCA) were not mandatory and that, in any event, any defect in relation to the service of the summons was inconsequential because the applicant was personally served and did appear at the Magistrates Court hearing: see [18], [108] and [109] of his Honour’s reasons.
It is almost impossible to see how any defect in a summons could invalidate proceedings or deprive the Magistrates Court of jurisdiction in circumstances where the summonsed person has in fact received the summons and appeared. A summons is a means to achieve attendance. This ground of appeal is completely unmeritorious.
Ground 3
The third proposed ground of appeal is that the primary judge erred in failing to find that the Magistrates Court lacked jurisdiction because the informant had not been validly delegated power to lay the information; the evidence did not establish a valid delegation and the primary judge erred in finding that the onus lay on the applicant to prove want of authority.
The applicant submitted that the primary judge’s approach to this issue was at odds with the approach of Elkaim J in Clark v Bluett [2016] ACTSC 312; 313 FLR 321.
This ground and the related submissions are a matter of central concern to the applicant.
I will grant the applicant an extension of time to appeal on this ground.
Ground 4
The fourth proposed ground of appeal is that the primary judge erred in failing to find that contents of the information were fundamentally defective; the terms of the information were so devoid of detail that it could not be remedied by the provision of particulars.
The primary judge dealt with this matter at [48] – [76]. As his Honour observed at [48], the issue of the manner in which a charge must be formulated is controversial and was controversial in this case.
I will grant the applicant an extension of time to appeal on this ground.
Ground 5
The fifth proposed ground of appeal is related to the fourth; it is that the primary judge erred in finding that s 75 of the Road Transport (General) Act 1999 (ACT) (which provides that a short description of offences is adequate) means that it is not necessary that an information or summons state the location where an alleged offence occurred.
I will grant the applicant an extension of time to appeal on this ground.
The grant of an extension of time is confined to grounds 3, 4 and 5 above.
It is with some reluctance that I grant an extension of time to appeal on limited bases. The proceedings concern minor traffic offences that allegedly occurred three years ago. Those proceedings need to be brought to finality.
Orders
(a)The applicant is granted an extension of time to appeal on grounds 3, 4 and 5 above.
(b)The applicant is to file a notice of appeal confined to those grounds within seven days.
(c)Otherwise, the application for extension of time is refused.
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell Associate: Date: 16 June 2017 |