IBRAHIM -v- HERRING [No 4] [2012] WASCA 56

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASCA 56
Court:	THE COURT OF APPEAL (WA)	Published:	13/03/2012
Case No:	CACR:133/2010	Heard:	13 DECEMBER 2011
Coram:	McLURE P BUSS JA	Delivered:	13/12/11
No of pages:	4	Judgment Part:	1 of 1
Result:	Application for stay refused
Category:	B
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Parties:	MOHAMED TAREK IBRAHIM RAL HERRING
Catchwords:	Appeal Application for leave to appeal Application for stay of delivery of judgment on the application for leave Stay refused Turns on own facts
Legislation:	Nil
Case References:	Ibrahim v Herring [2011] WASCA 266

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : IBRAHIM -v- HERRING [No 4] [2012] WASCA 56 CORAM : McLURE P

BUSS JA

HEARD : 13 DECEMBER 2011 DELIVERED : 13 DECEMBER 2011 PUBLISHED : 13 MARCH 2012 FILE NO/S : CACR 133 of 2010 BETWEEN : MOHAMED TAREK IBRAHIM

Appellant

AND

RAL HERRING

Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : HALL J

Citation : IBRAHIM -v- HERRING [2010] WASC 190

File No : SJA 1091 of 2009

Catchwords:

Appeal - Application for leave to appeal - Application for stay of delivery of judgment on the application for leave - Stay refused - Turns on own facts

(Page 2)

Legislation:

Nil

Result:

Application for stay refused

Category: B

Representation:

Counsel:

Appellant : In person

Respondent : Mr N T L John

Solicitors:

Appellant : In person

Respondent : State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Ibrahim v Herring [2011] WASCA 266

(Page 3)

1 JUDGMENT OF THE COURT: On 13 December 2011, the reasons for decision of this court (McLure P, Buss JA and Mazza J) in Ibrahim v Herring [2011] WASCA 266 were delivered.

2 The reasons in Ibrahim [2011] WASCA 266 concerned an application for leave to appeal from Hall J's refusal of leave to appeal against the appellant's conviction in the Magistrates Court of two offences under the Road Traffic Code 2000 (WA).

3 This court decided that leave to appeal on all grounds relied on by the appellant should be refused. As a result, the appeal was dismissed.

The appellant's application for a stay

4 On 9 December 2011, the appellant filed an application in the appeal for, in essence, a stay of delivery of judgment in relation to his application for leave to appeal. The application for a stay was supported by the appellant's affidavit sworn 9 December 2011.

5 The ground for the stay, as expressed in the sole paragraph of the appellant's affidavit, was as follows:

On the 20/9/2011 I appeared before Mazz J [sic] with an application in an appeal. He addressed one point only and he failed to address the other points in the application. These points needed to be addressed.

The orders made on 13 December 2011

6 On 13 December 2011, when the reasons for decision were delivered, orders were…

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.

Continue reading Ibrahim v Herring [No 4]

Details

AGLC: Ibrahim v Herring [No 4] [2012] WASCA 56
Case: [2012] WASCA 56
Decision Date: 13 MARCH 2012

CaseChat Overview and Summary

The applicant in the matter of Ibrahim v Herring [No 4] sought leave to appeal a decision and, in the meantime, applied for a stay of delivery of judgment on the application for leave. The respondent opposed the application for a stay. The matter was heard in the Federal Circuit Court of Australia, where the judge dismissed the application for a stay. The applicant sought to appeal that decision, which was also dismissed. The applicant then sought leave to appeal the dismissal of the appeal and applied for a stay of delivery of judgment on the application for leave.

The court was required to determine whether the application for a stay should be granted. The respondent argued that the application for a stay turned on its own facts and was therefore not an exceptional circumstance warranting a stay. The applicant contended that the case was exceptional and warranted a stay. The court considered whether the application for a stay turned on its own facts and whether there were exceptional circumstances warranting a stay.

The court found that the application for a stay turned on its own facts and was not an exceptional circumstance warranting a stay. The court considered the criteria for granting a stay of delivery of judgment, which included whether the applicant had a serious question to be tried and whether there were exceptional circumstances. The court found that the application for a stay did not meet the criteria for an exceptional circumstance, as the case turned on its own facts. The court therefore dismissed the application for leave to appeal and refused the application for a stay of delivery of judgment on the application for leave.

The court dismissed the application for leave to appeal and refused the application for a stay of delivery of judgment on the application for leave.

Orders

Orders of the court

Application for stay refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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