Lewis v Australian Capital Territory - [2018] ACTCA 49

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, 2^nd 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:

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.

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…

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.

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Details

Case: [2018] ACTCA 49
Decision Date: 21 November 2018

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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