Grant Matthew Bluett v Luke Marsh

[2012] ACTCA 34

GRANT MATTHEW BLUETT v LUKE MARSH
[2012] ACTCA 34 (1 August 2012)

APPEAL – In general and right of appeal ­– Appeal from interlocutory decision – Interpretation of Court Procedures Rules 2006 (ACT) r 5140

Court Procedures Rules 2006 (ACT) rr, 6, 5140

Marsh v Bluett [2012] ACTSC 32

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

ACTCA No. 4 of 2012
SCA No. 92 of 2011               

Judge:             Refshauge ACJ, North J, Nield AJ
Court of Appeal of the Australian Capital Territory

Date:              1 August 2012

IN THE SUPREME COURT OF THE     )
  )          ACTCA No. 4 of 2012
AUSTRALIAN CAPITAL TERRITORY           )
  )          SCA No. 92 of 2011
COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:GRANT MATTHEW BLUETT

Appellant

AND:LUKE MARSH

Respondent

ORDER

Judges:  Refshauge ACJ, North J, Nield AJ
Date:  1 August 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

IN THE SUPREME COURT OF THE     )
  )          ACTCA No. 4 of 2012
AUSTRALIAN CAPITAL TERRITORY           )
  )          SCA No. 92 of 2011
COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:GRANT MATTHEW BLUETT

Appellant

AND:LUKE MARSH

Respondent

Judges:  Refshauge ACJ
Date:  1 August 2012
Place:  Canberra

REASONS FOR JUDGMENT

REFSHAUGE ACJ:

1. I agree with the decision and the reasons of Justice North. 

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of his Honour, Acting Chief Justice Refshauge.

Associate:

Date:                20 August 2012

IN THE SUPREME COURT OF THE     )
  )          ACTCA No. 4 of 2012
AUSTRALIAN CAPITAL TERRITORY           )
  )          SCA No. 92 of 2011
COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:GRANT MATTHEW BLUETT

Appellant

AND:LUKE MARSH

Respondent

Judge:  North J
Date:  1 August 2012
Place:  Canberra

REASONS FOR JUDGMENT

NORTH J:

1. Before the Court is an appeal against an order made by Higgins CJ to set aside orders made by Burns J dismissing Mr Marsh’s appeal.  The matter arose in the following way. 

2. On 20 September 2011, Mr Marsh was convicted of four offences, namely, three offences of common assault and one of obstructing a Territory public official.  He was sentenced in the Magistrates Court to 15 months’ imprisonment with a nine month non-parole period. 

3. On 28 September 2011, he filed a notice of appeal against that conviction and sentence.  On 5 December 2011 Mr Marsh did not attend on the hearing of the appeal.  Burns J dismissed the appeal on that day.  On 16 December 2011 Mr Marsh filed a notice of appeal to the Court of Appeal against the judgment of Burns J. 

4. On 11 January 2012, Mr Marsh applied for bail. Penfold J on this occasion raised the possibility that the circumstances in which Mr Marsh failed to attend the hearing of his appeal might justify the setting aside of the orders made by Burns J. Her Honour specifically adverted to r 5140(3) of the Court Procedures Rules 2006 (ACT) as the basis of such application.

5. Then on 29 February 2012, Mr Marsh, having instituted an application such as Penfold J suggested, appeared before Penfold J on that application.  Penfold J refused the application on the basis that she did not accept that Mr Marsh had made out a proper explanation for his non‑attendance at the hearing of the appeal (Marsh v Bluett [2012] ACTSC 32).

6. On 7 March 2012, a further application was made by Mr Marsh to set aside the orders of Burns J.  This application came before the Chief Justice.  His Honour allowed the application and set aside the orders of Burns J.  Then on 8 March 2012, the Crown filed a notice of appeal against the orders made by the Chief Justice.  That is the matter presently before the Court.

7. As the orders made by the Chief Justice were interlocutory in nature, leave to appeal was required. After hearing argument about the requirements necessary for the grant of leave, the Court granted leave on a restricted basis, namely, limited to the question of the construction of r 5140 of the Court Procedures Rules 2006. 

1. Rule 5140 relevantly provides: 

   (1)If a party is not present when the appeal is called on for hearing, the Supreme Court may—

   (a)order that the hearing not proceed unless a hearing date is again set for the appeal or the other steps directed by the court are taken; or

   (b)adjourn the hearing; or

   (c)if the absent party is an appellant or cross-appellant—dismiss the appeal or cross-appeal; or

   (d)proceed with the hearing, either generally or in relation to the order sought in the appeal; or

   (e)for an appeal against a conviction or sentence mentioned in the Magistrates Court Act 1930, section 208 (Appeals to which div 3.10.2 applies), and the absent party is the appellant who is on bail and is not represented by a legal practitioner—make another order the court considers appropriate or issue a warrant for the appellant’s arrest.

   (2)The Supreme Court may make an order, or do anything else, mentioned in subrule (1) on application by a party to the appeal or on its own initiative.

   NotePt 6.2 (Applications in proceedings) applies to an application under this rule.

   (3)If the hearing proceeds in the absence of the party and an order is made, the Supreme Court may, on application by the party—

   (a)amend or set aside the order; and

   (b)give directions for the further conduct of the appeal.

2. The argument of the Crown on the limited issue for which leave was granted was that r 5140(3) did not provide a basis for an application to set aside the order of Burns J. This argument was based on the proposition that Burns J had relied on r 5140(1)(c) to dismiss Mr Marsh’s appeal. The Crown argued on the clear wording of r 5140(3), that the power to set aside an order made in the absence of a party, does not apply to an order made pursuant to r 5140(1)(c). Rather, sub-r (3), it was said, conferred a power on the Court to set aside judgments entered ex parte within the terms of

   
   

   r 5140(1)(d), This argument depended essentially on the similarity of the language used in subr (1)(d) with the opening words of sub-r (3) “where a hearing proceeds” (emphasis added). That language, which does not appear in subr (1)(c) was said by Mr J White, who appeared on behalf of the Crown, to link the power in sub-r (3) only to r 5140(1)(d) and to exclude it from r 5140(1)(c).

3. When Burns J dismissed the appeal on 5 December he said the following at [1]–[2] of his Honour’s ex tempore judgment:

I note that there has been no appearance by the appellant with respect to this appeal.  I further note that virtually nothing has been done by the appellant to progress this appeal since he lodged his Notice of Appeal.  I have had regard to the Notice of Appeal and also to the material that was provided from the Magistrates Court, including the pre-sentence report and a number of letters.  I have also had regard to the statement of facts and the transcript of proceedings before the learned Magistrate.

In the absence of the appellant it is quite clear that the appeal must be dismissed and that is the order that I make.  I may say that I am comforted in making that order by reference to the material to which I have referred, which suggests to me that there were very little prospects of success on the appeal.

1. It is evident from the paragraphs extracted above that Burns J considered the notice of appeal and the material provided to the Magistrates Court, including the pre-sentence report and a number of letters.  He also said that he had regard to the statement of facts and the transcript of proceedings before the Magistrate.  The consideration of such material arguably goes beyond the type of proceeding contemplated in

   
   

   r 5140(1)(c). A proceeding under r 5140(1)(c) could be said to simply contemplate the calling of the matter, the noting of the absence of the appellant and the immediate dismissal by reason of that fact alone. Because his Honour expressed the fact that he had regard to certain material including the transcript before the Magistrate, it is arguable that he proceeded with the hearing within the terms of r 5140(1)(d). If that be the case, then the construction issue does not arise. In my view, the appeal could be resolved on that basis.

2. However, were his Honour to have proceeded under r 5140(1)(c), the construction issue arises as to whether the Chief Justice had power to set aside the order. In my view, sub-r (3) does apply to the circumstances set out in r 5140(1)(c). Whilst it is true that there is a similarity in language between subr-r (1)(d) and (3), the absence of that similar language in sub-r (1)(c) does not, in my view, alter the concept captured by all three sub-rules that a party against whom an ex parte order is made should not be prejudiced by reason of his or her absence alone. It would be curious if a party whose appeal was dismissed under sub-r (1)(c) because a car accident or some medical condition had prevented that party from appearing could be precluded from a right to have the Court reconsider that result. The only reason the result transpired was through circumstances completely outside his or her control. Such circumstances seem to be contemplated by a combination of sub-rr 5140(1)(c) and (3).

3. Consequently, on proper construction of r 5140, the power conferred by sub-r (3) applies in circumstances where sub-r (1)(c) is engaged.

4. Mr Crispin, who appeared on behalf of the respondent took little time to contest the construction of sub-rr 5140(1)(c) and (d) and (3) propounded by the Crown. Rather, he relied upon the terms of r 6(1) as the answer to the appeal. Rule 6(1) provides:

   The court may, by order, dispense with the application of a provision of these rules to a particular proceeding, before or after the provision applies and on any conditions it considers appropriate.

1. On the construction which I prefer, this argument does not arise and need not be addressed.

   I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice North.

   Associate:

   Date:                 20 August 2012

IN THE SUPREME COURT OF THE     )
  )          ACTCA No. 4 of 2012
AUSTRALIAN CAPITAL TERRITORY           )
  )          SCA No. 92 of 2011
COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:GRANT BLUETT

Appellant

AND:LUKE MARSH

Respondent

Judge:  Nield AJ
Date:  1 August 2012
Place:  Canberra

REASONS FOR JUDGMENT

NIELD AJ:

1. I gratefully adopt the facts as stated by my brother North J.  I regret to say, however, that I do not agree with his interpretation of the rule. 

2. I interpret Court Procedures Rules 2006 (ACT) r 5140(1)(c) to mean that dismissal of an appeal in the absence of an appellant is not a hearing on the merits and is final. I interpret sub-r (1)(d) to mean that the hearing of the appeal proceeds on the merits, notwithstanding the absence of a party.

3. I interpret sub-r (3) to apply only to a hearing on the merits in the absence of a party, that is, to sub-r (1)(d), not sub-r (1)(c).  I appreciate that this interpretation may result in an appellant losing the hearing of an appeal on the merits, but this injustice, if it is an injustice, could be easily overcome by an amendment to either sub-r (1)(c) or

   
   

   sub-r (3) or both of them. 

4. I consider from what he said that Burns J acted pursuant to sub-r (1)(c), not

   
   

   sub-r (1)(d).  I consider that his comments upon the material in the appeal papers to be obiter and not to amount to a hearing on the merits. 

5. I consider that the orders of both Penfold J and the Chief Justice to have been made without jurisdiction and should therefore be set aside.  I consider that the Chief Justice did not invoke Court Procedures Rules r 6 because nothing suggests that he invoked that rule and he did not make an order as required by that rule.

   I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.

   Associate:

   Date:                  20 August 2012

Counsel for the Crown:  Mr J White
Solicitor for the Crown:  ACT Director of Public Prosecutions
Counsel for the accused:  Mr T Crispin
Solicitor for the accused:  Craig Lynch and Associates
Date of hearing:  1 August 2012
Date of judgment:  1 August 2012