Grant Matthew Bluett v Luke Marsh

The Court of Appeal of the Australian Capital Territory heard an appeal by Grant Matthew Bluett against an order made by Higgins CJ. This order had set aside earlier orders by Burns J, which had dismissed Mr Marsh’s appeal against his conviction and sentence for common assault and obstructing a Territory public official. Mr Marsh had failed to attend the hearing of his appeal before Burns J, leading to its dismissal.

The central legal issue before the Court of Appeal was the interpretation of Rule 5140 of the Court Procedures Rules 2006 (ACT), specifically whether Rule 5140(3) provided a basis for setting aside an order made under Rule 5140(1)(c) (dismissal of an appeal due to the appellant's absence). The Crown argued that Rule 5140(3) only applied to orders made under Rule 5140(1)(d) (proceeding with a hearing in the absence of a party), and not to dismissals under Rule 5140(1)(c).

Justice North found that Rule 5140(3) did apply to dismissals under Rule 5140(1)(c), reasoning that the purpose of the rules was to prevent a party from being prejudiced by their absence alone, particularly when circumstances beyond their control prevented attendance. He also noted that Burns J's consideration of appeal materials suggested the hearing might have proceeded under Rule 5140(1)(d) in any event. In contrast, Acting Justice Nield disagreed, interpreting Rule 5140(3) as applying only to hearings that proceeded on the merits under Rule 5140(1)(d), not to dismissals under Rule 5140(1)(c). He considered the orders of both Penfold J and the Chief Justice to have been made without jurisdiction.

The appeal was dismissed.