FEDERAL COURT OF AUSTRALIA
Dallow v Ferguson [2021] FCA 1124
File number: TAD 34 of 2021 Judgment of: ANDERSON J Date of judgment: 17 September 2021 Catchwords: PRACTICE AND PROCEDURE – application for extension of time for leave to appeal under r 36.05 of the Federal Court Rules 2011 (Cth) – where the applicant was incarcerated in prison and stated that he faced difficulty in filing the application for leave to appeal – where there is no merit in the applicant’s application – application denied Legislation: Federal Court Rules 2011 (Cth) Cases cited: Allbeury v Corruption and Crime Commission [2012] WASCA 84; 42 WAR 425
Ferguson v Dallow (No 3) [2021] FCA 177
Ferguson v Dallow (No 4) [2021] FCA 513
Ferguson v Dallow (No 5) [2021] FCA 698
Gallagher v Durack [1983] HCA 2; (1983) 152 CLR 238
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
House v The King (1936) 55 CLR 499
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Jackamarra v Krakouer (1998) 195 CLR 516
Jones v Toben (No 2) [2009] FCA 477
Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618
Kazal v Thunder Studios Inc (California) [2017] FCAFC 111; (2017) 256 FCR 90
Lowndes v the Queen (1999) 195 CLR 655
Martin v Norton Rose Fulbright Australia [2019] FCAFC 234
Mentink v Minister for Home Affairs [2013] FCAFC 113
Postiglione v The Queen (1997) 189 CLR 295
Vaysman v Deckers Outdoor Corporation Inc [2014] FCAFC 60; (2014) 222 FCR 387
Division: General Division Registry: Tasmania National Practice Area: Federal Crime and Related Proceedings Number of paragraphs: 52 Counsel for the Applicant: Professor K Karunadasa Solicitor for the Applicant: Tai Lawyers Darwin Counsel for the Respondent: Ms J Sawyer Solicitor for the Respondent: Page Seager ORDERS
TAD 34 of 2021 BETWEEN: KANE DALLOW
Applicant
AND: MICHAEL DARREL JOSEPH FERGUSON
Respondent
ORDER MADE BY:
ANDERSON J
DATE OF ORDER:
17 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The applicant’s application for an extension of time under r 36.05 of the Federal Court Rules 2011 (Cth) in which to file a notice of appeal be dismissed.
2.The applicant pay the respondent’s costs of the application on a lump sum basis in an amount to be agreed or in default of agreement such lump sum be fixed by a Registrar of the Court.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ANDERSON J:
Introduction
This is an application for an extension of time in which to file an appeal to this Court under r 36.05 of the Federal Court Rules 2011 (Cth) (Rules).
Background
The applicant in this proceeding, Mr Kane Dallow (Mr Dallow) was sentenced to serve a term of imprisonment of nine months from 28 June 2021 to 27…
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- AGLC
- Dallow v Ferguson [2021] FCA 1124
- Case
- [2021] FCA 1124
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether the applicant's proposed grounds of appeal had any real prospect of success. The Court had to determine if the case was devoid of merit or clearly failed, was hopeless, or was unarguable. The Court noted that while the applicant's difficulties in prison provided an acceptable reason for the delay, it was not sufficient on its own to justify an extension of time. The Court had to consider the merits of the substantive application to assess whether the applicant had any real prospect of success on appeal.
After considering the proposed grounds of appeal, the Court concluded that they lacked merit. The Court found that the applicant had not demonstrated that the sentencing judge made an error in the exercise of his discretion. Furthermore, the Court held that the applicant had not shown that the sentence imposed was manifestly excessive or that the sentencing judge failed to consider alternative punishments or the applicant's personal circumstances. The Court emphasised that an appellate court must not substitute its opinion for that of the sentencing judge merely because it would have exercised its discretion differently.
The Court dismissed the applicant's application for an extension of time and ordered the applicant to pay the respondent's costs of the application on a lump sum basis. The Court held that the proposed grounds of appeal were devoid of merit and that granting an extension of time would not serve the interests of justice. The Court's decision underscores the importance of assessing the merits of an appeal application and the need for applicants to demonstrate a real prospect of success on appeal.
Orders
Orders of the court
1. The applicant’s application for an extension of time under r 36.05 of the Federal Court Rules 2011 (Cth) in which to file a notice of appeal be dismissed.
2. The applicant pay the respondent’s costs of the application on a lump sum basis in an amount to be agreed or in default of agreement such lump sum be fixed by a Registrar of the Court.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Leave will not be granted where there are no reasonable prospects of success on the appeal: Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5]. The applicant will have no real prospects of success where the case is devoid of merit or clearly fails; is hopeless; or is unarguable. In making an assessment the Court is not required to go into too great a detail, but is to “assess the merits in a fairly rough and ready way”: Jackamarra v Krakouer (1998) 195 CLR 516 at [7]-[9].Consideration I accept the explanations provided in Mr Thompson’s affidavit filed with the Court on 13 August 2021, and I consider the difficulties faced by the applicant during his time at Risdon Prison are an acceptable reason for the delay in filing the notice of appeal. I am also satisfied on the evidence that a delay of 18 days will not prejudice the respondent should an extension of time be granted. However, as the authorities referred to above make clear, the mere absence of prejudice to the respondent is not enough to justify the grant of an extension of time. The merits of the substantive application must be taken into account in considering whether an extension of time is to be granted. I now turn to consider the proposed grounds of appeal to make an assessment of whether the applicant has any real prospect of success on appeal or whether the case is devoid of merit. PROPOSED GROUND 1 By this ground, the applicant contends that the sentencing judge’s sentence was manifestly excessive. The applicant submits that the sentencing judge erred in law in imposing a manifestly excessive sentence. The applicant submits that the sentencing judge failed to consider alternative punishments such as a fine. The applicant also submits that the sentencing judge failed to take into account the applicant’s personal circumstances when sentencing. For these reasons, the applicant submits, that the sentencing judge had not weighed the evidence before him in an appropriate manner. The respondent submitted that the principles on which an applicant must succeed on an appeal against sentence are well settled and may be distilled as follows:(a)To succeed the applicant must demonstrate that the sentencing judge made an error in the exercise of his discretion: House v The King (1936) 55 CLR 499 at 505.(b)Appellate intervention is not justified simply because the result is markedly different from other sentences, rather, it is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons: Hili v The Queen [2010] HCA 45; 242 CLR 520 (Hili) at [59]-[60] referring to Dinsdale v The Queen [2000] HCA 54 and Wong v The Queen [2001] HCA 64; 207 CLR 584.(c)An appellate court must not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different form the sentencing judge: Lowndes v the Queen (1999) 195 CLR 655.(d)The sentencing judge should be afforded ‘wide measure of latitude’: Postiglione v The Queen (1997) 189 CLR 295.