Greenwood v Irving
[2019] ACTCA 12
•8 May 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Greenwood v Irving |
Citation: | [2019] ACTCA 12 |
Hearing Date: | 8 May 2019 |
DecisionDate: | 8 May 2019 |
Before: | Mossop, Loukas-Karlsson and Bromwich JJ |
Decision: | Appeal dismissed. |
Catchwords: | APPEAL – CRIMINAL LAW – In General and Right of Appeal – whether conspiracy between Court and Director of Public Prosecutions to pervert the course of justice – whether failure to take into account relevant considerations – whether erroneous findings – circumstances of significant delay – appeal dismissed |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 5191 Magistrates Court Act 1930 (ACT) s 216 Road Transport (Alcohol and Drugs) Act 1977 (ACT) s 41 |
Cases Cited: | Greenwood v Irving [2018] ACTSC 310 |
Parties: | L Greenwood (Appellant) A Irving (Respondent) |
Representation: | Counsel J Keys (Appellant) A Williamson (Respondent) |
| Solicitors No representation (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 65 of 2018 |
Decision under appeal: | Court: Supreme Court of the ACT Before: McWilliam AsJ Date of Decision: 7 November 2018 Case Title: Greenwood v Irving Citation: [2018] ACTSC 310 Court File Number: SCA 40 of 2011 |
THE COURT:
On 18 April 2011, the appellant, Mr Luke Greenwood, was convicted in the Magistrates Court of the Australian Capital Territory on two traffic offences of driving through a red light and drink driving by reason of driving with a low range prescribed concentration of alcohol. He was fined, ordered to pay court costs and two levies and had his driver’s licence disqualified for four months.
The drink driving conviction was based upon an evidentiary certificate under s 41 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the Act), which recorded a breath analysis result of 0.051g of alcohol per 100ml of blood. The test was administered at 11.12pm on 8 May 2010. Just under two hours later, in the early hours of 9 May 2010, a blood test revealed that Mr Greenwood’s blood alcohol level had gone down to 0.04g of alcohol per 100ml of blood.
Two days after his conviction, on 20 April 2011, Mr Greenwood filed an appeal against his convictions in this Court. That had the effect of staying the enforcement of the orders made by the magistrate: see s 216, Magistrates Court Act 1930 (ACT). Mr Greenwood subsequently paid the fines, levies and court costs, even though he was not required to do so. His licence disqualification did not take effect. As detailed below, the appeal was never heard.
On 31 August 2018, the respondent filed an application under r 5191 of the Court Procedures Rules 2006 (ACT), seeking an order that the appeal be dismissed for want of prosecution. That rule provides as follows:
5191 – Appeals to Supreme Court – want of prosecution of appeal
(1) In this rule:
appeal means—
(a) an application for further time to apply for leave to appeal under this part; or
(b) an appeal or application for leave to appeal (or leave to appeal out of time) under this part.
appellant means—
(a) a person applying for further time to apply for leave to appeal under this part; or
(b) an applicant for leave to appeal (or leave to appeal out of time) under this part; or
(c) a person appealing under this part.
(2) This rule applies if an appellant—
(a) has not done anything required to be done under these rules during a period of 3 months after the day the requirement arises; or
(b) otherwise has not prosecuted the appellant’s appeal with appropriate effort during a period of 3 months after the day the last step in the proceeding was taken.
(3) The Supreme Court may—
(a) order that the appeal be dismissed for want of prosecution and confirm the order appealed from; or
(b) on its own initiative, set a time for the doing of a thing required to be done in relation to the appeal and—
(i)at the same time order that, if the appellant does not do the thing within the time, the appeal will be dismissed for want of prosecution and the order appealed from confirmed; or
(ii)if the appellant does not do the thing within the time— order that the appeal be dismissed for want of prosecution and confirm the order appealed from; or
(c) make any other order the Supreme Court considers just.
(4) A respondent may apply to the Supreme Court to require the appellant to show cause why the appeal should not be dismissed for want of prosecution.
NotePt 6.2 (Applications in proceedings) applies to an application under this subrule.
(5) On the hearing of the application, the Supreme Court may make an order mentioned in subrule (3).
…
The procedural history giving rise to the dismissal application before McWilliam AsJ was summarised in Greenwood v Irving [2018] ACTSC 310 by her Honour as follows at [5]-[9]:
The record of this Court reveals that on 23 June 2011, the appellant’s counsel and a representative for the respondent appeared before the Deputy Registrar. The matter was set down for an index hearing on 28 July 2011.
On 27 July 2011, the appellant’s counsel attempted to contact the Court via email, seeking an adjournment of the listing the following day, due to health reasons. It appears that the email was misdirected at first and was ultimately only received by the Deputy Registrar after the listing hearing on 28 July 2011.
However, the miscommunication did not have any significant consequence as the listing was indeed adjourned to 18 August 2011. Although there is no evidence that the respondent notified the appellant of the adjourned date, similarly no steps were taken by the appellant or his counsel to communicate with either the respondent or the Court so as to ascertain the future conduct of the matter.
On 18 August 2011, the appellant again did not appear. On that occasion, the matter was stood out of the list and it was noted that the respondent intended to file an application to strike out the appeal for a want of prosecution. However, the respondent did not then file any application and no party took any step in the proceedings for the following seven years.
On 9 July 2018, the Court contacted the Australia Capital Territory Director of Public Prosecutions (DPP), regarding a number of outstanding appeal proceedings which had not been prosecuted to completion, discontinued or otherwise dismissed for many years. As a result of that correspondence, the DPP filed the present application in [the] proceeding.
The applicable principles were set out by McWilliam AsJ as follows at [19]-[20]:
In Snaidero v Crampton and O'Sullivan [2014] ACTSC 262 at [18]-[20], Refshauge J discussed the principles applicable to the dismissal of an action for want of prosecution. His Honour referred to Blunden v The Commonwealth [2014] ACTSC 123 at [37]; Commonwealth v Australasian Correctional Services Pty Ltd [2013] ACTSC 37 at [36]- [39]; and to the Full Court of the Supreme Court of Victoria’s judgment in Muto v Faul [1980] VR 26 at 31.
Relevant (although neither mandatory nor exhaustive) considerations include:
(a)how long ago the events, the subject of the proceedings, occurred and any delay before the litigation was commenced;
(b) what prospects of success the appellant has on the appeal;
(c) whether there has been disobedience to court orders;
(d) whether the appeal has been characterised by periods of delay;
(e) the degree of responsibility of the appellant for the delay;
(f)whether the litigation between the parties would be concluded by dismissing the proceedings;
(g) whether the respondent would suffer prejudice if the appeal were not struck out;
(h)what preparation the respondent had done towards the hearing of the appeal; and
(i) whether there was a satisfactory explanation for the delay.
The dismissal application was heard by McWilliam AsJ on 28 September 2018 and on 19 October 2018. On 7 November 2018, her Honour granted the application, dismissed the appeal for want of prosecution and confirmed the magistrate’s orders. In doing so, her Honour was prepared to accept that the appeal had reasonable prospects of success. However, despite that finding, her Honour found that the application should succeed, largely due to the extreme delay, but also because of other relevant surrounding circumstances, including Mr Greenwood’s belief that he had abandoned his appeal.
On 8 November 2018, Mr Greenwood appealed against those orders to this Court. The grounds in the notice of appeal are as follows:
(a)The Court and the Director of Public Prosecutions conspired to pervert the course of justice in relation to the proper determination of appeal SCA 40 of 2011.
(i)The Appellant filed a Notice of Appeal on 26 April 2011; and the Respondent filed a Notice of Intention to Respond on 12 May 2011.
(ii)At an appeal index settlement hearing on 18 August 2011 about which the Appellant was not notified, it was agreed by the Court and the Director of Public Prosecutions that the appeal be “stood out of the list for Res to file application to strike out for want of prosecution [with] liberty to restore to list on 7 days notice” […]; the Appellant was not notified of the orders made on 18 August 2011, and was thereby denied due process.
[(iii)]On 9 July 2018, the Court contacted the Director of Public Prosecutions and advised that this appeal remained outstanding, and in response the Director of Public Prosecutions inspected the Court file and copied all relevant documentation […];
[(iv)]On 31 August 2018, the Director of Public Prosecutions filed an Application in [the] proceeding, made under Rule 5191 of the Court Procedures Rules, in accordance with the agreement made on 18 August 2011 [see (ii) above].
[(v)]Associate Judge McWilliam’s decision defeats the appeal and confirms the Magistrates Court orders made on 18 April 2011, despite accepting “that the appeal has reasonable prospects of success” [28].
(b)Associate Judge McWilliam erred in finding that “the extreme delay in determining the appeal [was] brought about primarily by the failure of the appellant to prosecute it” [46(a)].
(c)Associate Judge McWilliam failed to properly consider the Appellant’s reasons why the appeal should not have been dismissed for want of prosecution in accordance with r.5191(4) [of the] Court Procedures Rules, and whether sub-section (4) was satisfied.
As a threshold issue, Mr Greenwood in his written submissions takes issue with the validity of the application for dismissal for want of prosecution. However, that is not the subject of the notice of appeal and goes nowhere. It is, in any event, misconceived.
Paragraph (a) of the notice of appeal must fail. While the circumstances in which communications took place between the Court and the Director of Public Prosecutions and not Mr Greenwood at certain points were perhaps not ideal, nothing turns on that. It is not, and cannot be, any perversion of the course of justice for such a process to result in an application being brought in this Court, served on Mr Greenwood, and heard, with Mr Greenwood being legally represented.
Further, to the extent that Mr Greenwood relies upon the correctness of the assumption by McWilliam AsJ that the appeal had reasonable prospects of success, that assumption may be unduly generous. In any event, the basis for that assumption is unclear, but does not need to be considered further.
Paragraph (b) of the notice of appeal must also fail. It has not been demonstrated that McWilliam AsJ erred in finding, at [46(a)] of her Honour’s reasons, or elsewhere, that the extreme delay in prosecuting the appeal was brought about primarily by the failure of Mr Greenwood to prosecute it.
Paragraph (c) of the appeal must also fail because it has not been demonstrated that McWilliam AsJ failed to consider Mr Greenwood’s reasons why the appeal should not have been dismissed for want of prosecution. To the contrary, her Honour canvassed the salient reasons in some detail and with some care. Mr Greenwood was given a large degree of latitude in opposing an application that manifestly should have succeeded, and did.
Order
As all the grounds of appeal must fail, the appeal must be dismissed.
| I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 14 May 2019 |
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