Enright v Beard - [2025] VSC 427

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2025 00600

SONIA MICHELLE ENRIGHT	Applicant
v
CONSTABLE TAYLAH JAYNE BEARD	Respondent

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JUDGE:	Watson J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 June 2025
DATE OF JUDGMENT:	16 July 2025
CASE MAY BE CITED AS:	Enright v Beard
MEDIUM NEUTRAL CITATION:	[2025] VSC 427

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APPEAL – Appeal from Magistrates’ Court – Statutory requirement to bring an appeal within 28 days after the day on which final order was made – Leave required for appeal commenced outside 28 day period – Whether applicant has demonstrated failure to commence appeal within 28 days was due to ‘exceptional circumstances’ – No exceptional circumstances demonstrated – Leave to appeal refused – Criminal Procedure Act2009 (Vic) s 272.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	Mr C Viney	Victorian Government Solicitor’s Office

HIS HONOUR:

The applicant, Ms Sonia Michelle Enright, seeks leave to appeal on a question of law under s 272 of the Criminal Procedure Act2009 (Vic) (‘the CPA’) from final orders made by the Magistrates’ Court on 10 December 2024.

On that day the learned Magistrate found the charge of refusing to undergo a breath test pursuant to s 49(1)(e) of the Road Safety Act 1986 (Vic) (‘the RSA’) proved and:

(a) imposed a fine of $800.00 with $93.10 statutory costs without conviction; and

(b) effective from 10 January 2025, cancelled Ms Enright’s licence and disqualified her from driving for a period of two years.

Section 272(3) of the CPA requires that an appeal be commenced within 28 days after the day on which the order complained of was made. In the case of Ms Enright that meant that, excluding the period from 24 December 2024 to 9 January 2025,[1] her appeal should have been filed by 24 January 2025.
[1]As required by rule 1.09 of the Supreme Court (Criminal Procedure) Rules 2017 (Vic).

In fact Ms Enright filed her notice of appeal on 5 February 2025, 12 days after the time prescribed by s 272(3). Section 272(7) of the CPA provides that an appeal filed after the end of the period prescribed by s 272(3) is deemed to be an application for leave to appeal. Section 272(8) provides as follows:

The Supreme Court may grant leave under subsection (7) and the appellant may proceed with the appeal if the Supreme Court—

(a) is of the opinion that the failure to commence the appeal within the period referred to in subsection (3) was due to exceptional circumstances; and

(b) is satisfied that the case of any other party to the appeal would not be materially prejudiced because of the delay.

For the reasons which follow, Ms Enright has failed to demonstrate that her failure to commence her appeal in time was due to exceptional circumstances and leave to appeal should be refused.

Leave to Appeal - principles

Section 272(8) of the CPA imposes a…

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.

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Details

Case: [2025] VSC 427
Decision Date: 16 July 2025

CaseChat Overview and Summary

In the matter of Enright v Beard, the appeal was lodged against a decision made by the Magistrates’ Court of Victoria. The dispute pertains to an application to appeal a final order issued by the court. The applicant, Enright, sought to appeal beyond the statutory 28-day limit, necessitating the need for leave to appeal under section 272 of the Criminal Procedure Act 2009 (Vic). The primary legal issue before the court was whether the applicant had sufficiently demonstrated that the failure to commence the appeal within the 28-day period was due to exceptional circumstances, warranting an extension of the statutory time limit.

The court meticulously examined the criteria for exceptional circumstances, which include situations where the applicant was not aware of the need to appeal, or there were other significant impediments to the timely filing of the appeal. The court found that Enright had not provided any compelling evidence to support a claim of exceptional circumstances. Consequently, the court concluded that the applicant had not met the requisite standard to justify an extension of the statutory time limit for filing an appeal.

Given the findings, the court declined to grant leave to appeal. The reasoning was grounded in the statutory framework, which mandates strict adherence to time limits unless exceptional circumstances are proven. As no such circumstances were demonstrated, the application for leave to appeal was dismissed. The court’s decision underscores the importance of timely compliance with statutory provisions and the high threshold required to justify deviations from these requirements.

Orders