Lewis v Australian Capital Territory

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Lewis v Australian Capital Territory

Citation:

[2018] ACTCA 49

Hearing Date:

31 October 2018

DecisionDate:

21 November 2018

Before:

Burns J

Decision:

See [22]-[23]

Catchwords:

APPEALS - Application for Leave to Appeal Out of Time – periodic detention cancelled – sentence had expired – applicant not given opportunity to attend inquiry – special circumstance – adequate explanation for failure to lodge appeal within time prescribed – significant legal issues raised – whether applicant’s case is weak – availability of vindicatory damages is a live issue – content of right to compensation for unlawful detention – s 18(7) of the Human Rights Act 2004 (ACT)

Legislation Cited:

Court Procedures Rules 2006 (ACT) r 5405

Crimes (Sentencing) Act 2005 (ACT) s 11(2)

Crimes (Sentencing and Restorative Justice) Amendment Act 2016 (ACT)

Crimes (Sentence Administration) Act2005 (ACT) ss 58, 59, 66, 67, 79
Human Rights Act 2004 (ACT) s 18(7)

Cases Cited:

Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) [2015] ACTCA 56

Fernando v the Commonwealth [2014] FCAFC 181; 231 FCR 251
Lewis v Australian Capital Territory [2018] ACTSC 19
Lewis v Australian Capital Territory [2015] ACTSC 167
Lewis v Chief Executive Department of Justice and Community Safety and Sentence Administration Board of the Australian Capital Territory [2013] ACTSC 198
R (Lumba) v Secretary State for the Home Department [2011] UKSC 12; [2012] 1 AC 245
Strano v Australian Capital Territory [2016] ACTSC 4; 11 ACTLR 134
Monaghan v Australian Capital Territory (No 2) [2016] ACTSC 352; 315 FLR 305
Morro v Australian Capital Territory [2009] ACTSC 118; 4 ACTLR 78
Whan v McConaghy (1984) 153 CLR 631

Texts Cited:

The Australian Concise Oxford Dictionary (Oxford University Press, 2nd ed, 1992)

Parties:

Steven James Lewis (Appellant)

The Australian Capital Territory (Respondent)

Representation:

Counsel

Mr J Maconachie QC with Mr S McMahon and Mr P Tierney (Appellant)

Ms H Younan (Respondent)

Solicitors

Ken Cush and Associates (Appellant)

ACT Government Solicitor (Respondent)

File Number:

ACTCA 35 of 2018

Decision under appeal: 

Court/Tribunal:             ACT Supreme Court

Before:  Refshauge J

Date of Decision:         16 February 2018

Case Title:  Lewis v Australian Capital Territory

Citation: [2018] ACTSC 19

BURNS J:

  1. The applicant, Steven James Lewis, was the plaintiff in proceedings before Refshauge J in which he sought damages for false imprisonment at common law, and pursuant to s 18(7) of the Human Rights Act 2004 (ACT) (the HRA). The hearing of the applicant’s claim proceeded before his Honour on 15, 16, and 17 February 2016, after which his Honour reserved his decision. Most regrettably, judgment was not delivered until 16 February 2018, at which time Refshauge J gave judgment for the plaintiff in the sum of $1.00: Lewis v Australian Capital Territory [2018] ACTSC 19.

  1. The applicant did not appeal within the prescribed period of 28 days. On 23 July 2018 he lodged an application for leave to appeal out of time…

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Details
Case
[2018] ACTCA 49
Decision Date

CaseChat Overview and Summary

Lewis sought leave to appeal out of time against the cancellation of his periodic detention. The sentence had already expired, and Lewis had not been afforded an opportunity to attend the inquiry at which the cancellation was ordered. Burns J of the Supreme Court of the Australian Capital Territory considered whether special circumstances existed to permit an out-of-time appeal.

The primary legal issue before the Court was whether Lewis had established "special circumstances" for the purposes of the relevant court rules, justifying an extension of time to lodge his appeal. This involved determining whether there was an adequate explanation for the delay in filing the appeal and whether the appeal itself raised significant legal issues that warranted consideration, notwithstanding the expiry of the sentence.

Burns J found that the failure to provide Lewis with notice of the inquiry and an opportunity to be heard constituted a special circumstance. His Honour also considered that the appeal raised important and arguable questions concerning the content of the right to compensation for unlawful detention under section 18(7) of the *Human Rights Act 2004* (ACT), and whether vindicatory damages were a live issue in such circumstances. These factors weighed in favour of granting leave to appeal.

Leave to appeal was granted.

Orders

Orders of the court

See [22]-[23]

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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