Gavin Walter Bailey and Rosemary Lorraine Bailey v Rscpa No. SCGRG 93/427 and 93/428 Judgment No. 3923 Number of Pages 4 Justices

[1993] SASC 3923

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DUGGAN J

CWDS
Justices - jurisdiction and procedure generally - Appeal against convictions recorded on ex parte hearing - appellants husband and wife - charged with summary offence - male appellant attended on date of hearing but permitted to return home to pick up his wife - returning to court later in day when magistrate in course of ex parte hearing - refusal by magistrate to desist from hearing matter ex parte - convictions quashed and new trial ordered. Maider v Dancis (1985) 39 SASR 136 referred to.

HRNG ADELAIDE, 14 April 1993 #DATE 30:5:1993
Counsel for appellants:     Mr R.M. Armour
Solicitors for appellant:     Armour and Co
Counsel for respondent:     Mr A.H. Charlton
Solicitors for respondent:    Murray and Cudmore

ORDER
Appeal allowed.

JUDGE1 DUGGAN J The appellants, who are husband and wife, were defendants in a prosecution brought by the respondent. They were charged with ill treating one of their dogs and the matter was set down for hearing at the Magistrates Court at Murray Bridge after it had been adjourned on four previous occasions on the application of the appellants who were unrepresented. The matter was called on during the morning on the day of the proposed hearing and the male appellant sought yet another adjournment on the basis that he did not have legal representation as yet and that he had noted the wrong day for the hearing. The learned magistrate adjourned the case, but only for a short time to enable the male appellant to go home and pick up his wife in order to bring her to the court. 2. The appellants returned later, but in the meantime the learned magistrate had decided to proceed with the case ex parte and was in the course of imposing penalties when the appellants arrived. The magistrate continued with the sentencing phase and imposed fines. The appellants have now appealed to this court in order to have the convictions and penalties set aside. The appeals are out of time but for reasons which I give later I consider that an extension should be granted. 3. At the hearing of the appeal I received an affidavit from Mr Charlton who prosecuted on behalf of the respondent and affidavits sworn by the appellants were also tendered. It is not in dispute that the appellants had been attempting to obtain legal assistance at about the time of the earlier adjournments. On the occasion of the third application for an adjournment on 24th June, 1992 the magistrate informed the appellants that the hearing would be adjourned until 24th July, 1992 and that no further adjournments would be allowed. However on 24th July they claimed they had a solicitor acting for them and he was not present. The matter was then listed for trial on 9th October, 1992. Shortly after this adjournment the respondent's solicitor wrote to Mr Armour, the solicitor he understood was acting for the appellants, advising him that the matter had been listed for hearing. However on 30th July, 1992 Mr Charlton received a telephone message from Mr Armour's office advising that he would be overseas until the end of August. On 2nd October Mr Charlton contacted Mr Armour who said that he had not heard from the appellants or the Legal Services Commission and was not acting for the appellants at that stage. 4. On 9th October the matter was called on at 11.00 am. The male appellant stated in his affidavit that he was in court, but only by chance because he was unaware that the matter was being called on and had been told of this that morning by a court official. The learned magistrate indicated he would not grant an adjournment to another day and, according to Mr Charlton's affidavit, the magistrate said he would adjourn the matter until about 11.40 am. The male appellant disputes this and states in his affidavit that the magistrate said he would wait until the appellants returned. However that may be it is clear that the magistrate either directed or permitted the male appellant to go and get his wife. The appellants live approximately 12 miles from the court and when they returned to the court the magistrate told them that they had been convicted in their absence. Mr Charlton states in his affidavit that the matter had been called on again at 12.15 pm and when the appellants were not there the magistrate proceeded to hear the charge. He said the appellants arrived after 12.30 pm. The magistrate was then in the course of imposing penalties and he refused to hear the appellants on the merits. 5. In deciding whether to set aside convictions recorded ex parte the court is exercising a wide discretion and other decisions are of limited use only. (Maider v Dancis (1985) 39 SASR 136). Matters such as the reasons for non-attendance, the merits of any proposed defence and the interests of the other party may be relevant, in varying degrees, in a particular case. 6. However the present case was not one of simple non-attendance on the day of the hearing. The male appellant was present and if the learned magistrate had decided that the case should commence immediately there is little doubt that the male appellant would have stayed there. But instead he was provided with the opportunity of returning to his home to secure the attendance of his wife. I can understand the frustration of the learned magistrate, particularly after the earlier adjournments, but in my view he acted too hastily in proceeding with the hearing at the time at which he did. I am also of the view that he erred in not re-opening the hearing into guilt after the appellants arrived. In the light of the events which took place on the morning of the hearing and the further consideration that the appellants were unrepresented I am of the view that the interests of justice required that they be heard once they were in the court and the magistrate was still dealing with their case, albeit at the penalty stage. 7. I said that I would return to the application to extend the time to appeal. The male appellant stated that after the convictions were recorded he spoke to a woman in the court office who told him that he had 28 days in which to lodge an appeal. He said he spoke to Mr Armour some time later and then returned to the court office and was told that the time for lodging the appeal was 14 days. There is a clear possibility that this advice was given by the official on the understanding that an application to set aside the convictions pursuant to s.76a of the Justices Act, 1921 (now the Summary Procedure Act) was contemplated. In any event the male appellant thought the matter was then out of time and did not proceed with the application to appeal until some time later when he was advised that he could still apply to this court for leave to appeal. The notices were lodged on 8th March, 1993. 8. Although the notices were lodged well out of time I am satisfied with the reasons for the delay and when these reasons are considered along with the circumstances of the ex parte hearing I think the discretion to extend time should be exercised in favour of the appellants. 9. The application for extension of time within which to appeal will be granted, the appeal will be allowed, the convictions and other orders of the Magistrates' Court will be set aside and I direct that there be a new trial of the charges against each appellant.