Laurent v City of Greater Geraldton

[2017] WASCA 106

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   LAURENT -v- CITY OF GREATER GERALDTON [2017] WASCA 106

CORAM:   MAZZA JA

MITCHELL JA
HALL J

HEARD:   6 JUNE 2017

DELIVERED          :   6 JUNE 2017

PUBLISHED           :  6 JUNE 2017

FILE NO/S:   CACR 45 of 2016

BETWEEN:   GERALD JEAN-NOEL LAURENT

Appellant

AND

CITY OF GREATER GERALDTON
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :CORBOY J

Citation  :LAURENT -v- CITY OF GREATER GERALDTON [2016] WASC 48

File No  :SJA 1155 of 2013

Catchwords:

Practice and procedure - Application to extend time in which to comply with springing order - Turns on own facts

Legislation:

Building Act 2011 (WA)
Criminal Appeals Act 2004 (WA)
Supreme Court (Court of Appeal) Rules 2005 (WA)

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     Mr D P Gillett

Solicitors:

Appellant:     In person

Respondent:     McLeods Barristers & Solicitors

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

Laurent v City of Greater Geraldton [2016] WASC 48

Wharton v The Queen (No 2) [2015] WASCA 176

Wright v McMurchy [2012] WASCA 257

REASONS OF THE COURT:   

(This judgment was delivered extemporaneously on 6 June 2017 and has been edited from the court's record.)

1. On 17 November 2011, the respondent issued a notice requiring the appellant to pull down a fence which he had constructed without obtaining a building licence.  The appellant applied to the State Administrative Tribunal for review of the notice.  The Tribunal dismissed the review application on 10 December 2012. 

2. The respondent commenced a prosecution of the appellant in February 2013. The respondent alleged that the appellant had committed an offence against s 115 of the Building Act 2011 (WA). Section 115 provides that a person who is served with a copy of a building order must not without reasonable excuse fail to comply with the order. It was alleged that, between 25 December 2012 and 23 January 2013, the appellant failed, without reasonable excuse, to comply with a building order, constituted by the notice of 17 November 2011 with which he had been served.

3. The appellant was convicted of this offence after trial in the Magistrates Court.  The appellant appealed against his conviction to the General Division of the Supreme Court.  His appeal was heard on various dates between March 2014 and September 2015.  On 17 February 2016, the primary judge delivered comprehensive reasons for refusing leave to appeal on all grounds and dismissing the appeal to the General Division:  Laurent v City of Greater Geraldton [2016] WASC 48.

4. On 9 March 2016, the appellant filed an appeal notice in this court against the primary judge's orders.  By 21 June 2016, the appellant had not filed his Appellant's Case as required by the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules). On that day, Mazza JA relevantly ordered that the time for the appellant to file and serve his Appellant's Case be extended to 4.00 pm on 14 September 2016, failing which the appeal would be dismissed. That springing order was made pursuant to r 43(2)(g)(ii) of the Rules.

5. The appellant did not file his Appellant's Case by 14 September 2016, with the consequence that his appeal to this court was dismissed pursuant to the springing order. 

6. On 20 September 2016, the appellant filed an application in an appeal seeking, in effect, a further extension of time within which to file his Appellant's Case.  The effect of such an extension of time would be to restore the appeal, notwithstanding that the time for compliance with the springing order has passed:  see Wharton v The Queen (No 2) [2015] WASCA 176 [48] ‑ [51]. An affidavit filed in support of that application indicates that the appellant attempted to file a document of 69 pages on 14 September 2016, but the document was rejected for filing as it was defective in various respects.

7. The appellant subsequently made a number of applications to adduce additional evidence in the appeal.

8. The appellant was given ample opportunity to file his Appellant's Case and failed to do so before 14 September 2016, with the consequence that the appeal was dismissed.  It was his responsibility, and not that of the Court of Appeal registry, to prepare a document which complied with the Rules.

9. Section 16(2) of the Criminal Appeals Act 2004 (WA) provides for a right of appeal to this court from the primary judge's decision. Section 9 and s 18 of the Criminal Appeals Act provide that the leave of this court is required for each ground of appeal to this court, and that this court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding.

10. The appeal to this court is by way of rehearing:  see r 25 of the Rules.  The Criminal Appeals Act does not prescribe the grounds on which an aggrieved party may appeal to this court under s 16 of that Act.  However, the appellate power is to be exercised only once an error by the primary court or a miscarriage of justice is demonstrated:  Wright v McMurchy [2012] WASCA 257 [28], [97]. Where error is asserted, the grounds of appeal in an appeal under div 3 of pt 2 of the Act must identify an error by the single judge whose decision is under appeal: Wright [96].

11. A document filed on 20 December 2016 contains the appellant's 10 proposed grounds of appeal (running over 16 pages) and submissions.  The document does not comply with the Rules, in particular the requirement for a succinct statement of the grounds, and concise particulars of them.  Much of that material is incoherent.  Nothing in the document filed on 20 December 2016, in the additional evidence which the appellant seeks to adduce in this appeal or in the appellant's oral submissions provides any reason to doubt the correctness of the primary judge's decision.  The appeal to the General Division was properly dismissed for the reasons given by the primary judge.  None of the proposed grounds of appeal to this court have any reasonable prospect of success.

12. In these circumstances, there is nothing to be gained by extending the time for the filing of the Appellant's Case.  In all the circumstances, it is in the interests of justice that the appellant's application in an appeal, filed on 20 September 2016, be dismissed.  The consequence of the dismissal of the application in the appeal is that the appeal to this court remains dismissed, pursuant to the springing order.  The applications to adduce further evidence are therefore redundant, and should be dismissed.