Matthew George Edward Green v Simon James Tongs
[2005] ACTCA 21
•10 May 2005
MATTHEW GEORGE EDWARD GREEN v SIMON JAMES TONGS [2005] ACTCA 21 (10 May 2005)
EX TEMPORE JUDGMENT
No. ACTCA 6 - 2005
No. SCA 42 of 2004
Judges: Crispin P, Gray and Tamberlin JJ
Court of Appeal of the Australian Capital Territory
Date: 10 May 2005
IN THE SUPREME COURT OF THE ) No. ACTCA 6 - 2005
) No. SCA 42 of 2004
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:MATTHEW GEORGE EDWARD GREEN
Appellant/Respondent
AND:SIMON JAMES TONGS
Respondent/Applicant
ORDER
Judges: Crispin P, Gray and Tamberlin JJ
Date: 10 May 2005
Place: Canberra
THE COURT ORDERS THAT:
the appeal be struck out with costs.
IN THE SUPREME COURT OF THE ) No. ACTCA 6 - 2005
) No. SCA 42 of 2004
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:MATTHEW GEORGE EDWARD GREEN
Appellant/Respondent
AND:SIMON JAMES TONGS
Respondent/Applicant
Judges: Crispin P, Gray and Tamberlin JJ
Date: 10 May 2005
Place: Canberra
REASONS FOR JUDGMENT
CRISPIN P:
This is an application for an order that the notice of appeal be struck out as incompetent. The point simply stated is that, whilst the appeal was filed within the 21 day period stipulated in O 86, r 22 of the Supreme Court Rules 1937 (ACT), it was not served within that period.
Mr Sabharwal, who appears on behalf of the respondent in the appeal, has submitted that in those circumstances it should not be taken as to have been instituted and should be struck out as incompetent. Mr Sabharwal has drawn our attention to a number of authorities, dealing with similar situations. In particular, in the matter of Ian Roy Bishop [1981] 4 A Crim R 464, a Full Court of the Federal Court of Australia dealt with a situation in which the appeal instituted by the Crown had been filed within 21 days after the date when the judgment appealed from had been pronounced, but the notice of appeal had not been served upon the appellant until a date outside that period. In the course of his judgment, Deane J, referred to the earlier judgement of Collins CJ in Morres v Papuan Rubber and Trading Co Ltd (1914) 14 SR (NSW) 141 at p 141. The Chief Justice said:
. . . when a party, who has neglected to observe those requirements which the rules place him under for the protection of the other side, comes before the indulgence of the Court to ask that the proceedings shall continue notwithstanding that default, he has to satisfy the Court that justice requires that that default of his shall be overlooked, and he must satisfy the Court that there is some reasonable kind of explanation or excuse for his neglect of the rules.
Deane J went on to say, at p 466:
In a system which permits Crown appeals against sentence a convicted person who has been sentenced knows that until the time for filing and serving a notice of appeal has expired he must regard himself as remaining in jeopardy as to his freedom beyond the sentence or sentences imposed. If the time for filing and serving a notice of appeal expires, without a notice of appeal being served upon him, he is, in the absence of special circumstances, entitled to regard that period of double jeopardy as closed. In the special circumstances of an appeal against sentence, it would, in my view, be wrong and unjust after that period had expired without a notice of appeal being served to accede to an application by the Crown to extend the period of time in which service could properly be effected, unless there were evidence disclosing an acceptable explanation of the failure to serve within time and unless special circumstances were established to justify the grant of the indulgence sought by the Crown.
There are other authorities that have been referred to in arguments, some of which have been cited in the later case of the Victorian Court of Appeal in the Director of Public Prosecutions v Craive and Director of Public Prosecutions v Coad VSCA 92 (unreported 15 June 2001). In particular, Phillips J cited the observation of Gowans J in an earlier case of R v Darby (as recorded in R v O’Keefe [1979] VR 5) that the statutory prescription of a time limit for giving notice “is intended to secure finality and compliance is intended and required in the ordinary case”.
Having regard to the importance which the authorities have rightly placed on a notice of an appeal, Mr Sabharwal submits that the relevant provisions of the Supreme Court Rules should be construed, not only as making compliance with the time limited by O 86 r 22 mandatory, but as giving rise to the consequence that a notice of an appeal which has not complied with that rule should be taken to be incompetent.
On the other hand Mr Refshauge SC, who appears for the appellant, submits that the question of competency should be determined solely by reference to O 86 r 18. That rule states, broadly; “The appeal is begun by filing a notice of appeal”. Mr Refshauge submits that, for the purpose of competency, it is irrelevant when the appeal is served and, indeed, maintained that it could be instituted 10 years after the event and still be competent.
I would not construe r 18 as having such a consequence. It seems to me that r 18 merely governs the manner in which an appeal shall be instituted, rather than whether such an appeal is competent. Rule 22 provides, inter alia, that the notice of appeal must be filed and served, in the normal case, within 21 days after the day judgment appealed from was given. However, that rule is qualified by sub-rule 2 that provides that the Court of Appeal, may at any time, give leave to file and serve a notice of appeal for special reasons.
In my view an appeal that does not comply with O 86 r 22, by being instituted by a notice filed and served within that period, must be regarded as incompetent and should be struck out.
Mr Refshauge, however, has submitted that if the court were to come to that view he would seek leave to apply for leave under sub-rule (2). There is presently no application, other than an oral indication that Mr Refshauge would wish to make that application and there is nothing in the evidence presently before us that would, in my view, justify such a course. Nor in my opinion, would it be appropriate to adjourn the proceedings at this stage in order to permit further evidence to be put on for that purpose.
For these reasons I would uphold the motion and order that the appeal be struck out as incompetent.
I certify that the preceding ten (10) paragraphs are a true copy of the Reasons for Judgment herein of his Honour, President Crispin.
Associate:
Date: 31 May 2005
IN THE SUPREME COURT OF THE ) No. ACTCA 6 - 2005
) No. SCA 42 of 2004
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:MATTHEW GEORGE EDWARD GREEN
Appellant/Respondent
AND:SIMON JAMES TONGS
Respondent/Applicant
Judges: Crispin P, Gray and Tamberlin JJ
Date: 10 May 2005
Place: Canberra
REASONS FOR JUDGMENT
GRAY J:
I Agree. I point out that Order 86, rule 25(3), places the burden of establishing the competency of the appeal upon the appellant. That burden, it seems to me, has not been discharged in this matter. For the reasons given by the President, I agree that the appeal should be struck out.
I certify that the preceding paragraph numbered eleven (11) is a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.
Associate:
Date: 31 May 2005
IN THE SUPREME COURT OF THE ) No. ACTCA 6 - 2005
) No. SCA 42 of 2004
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:MATTHEW GEORGE EDWARD GREEN
Appellant/Respondent
AND:SIMON JAMES TONGS
Respondent/Applicant
Judges: Crispin P, Gray and Tamberlin JJ
Date: 10 May 2005
Place: Canberra
REASONS FOR JUDGMENT
TAMBERLIN J:
I also agree that the appeal must be struck out.
My reasons turn principally on the construction of order 86 rule 22, which requires that a Notice of Appeal must be filed and served within a specified time but that the Court may, at any time, give leave to file and serve a Notice of Appeal for special reasons.
The wording of this rule indicates to me that the requirement for competency is a composite one, that is, not only must the appeal be filed, but it must also be served, within the specified time. If this does not occur, then the appeal can be classified as incompetent within the meaning of order 86 rule 25.
It is significant, as Gray J has pointed out, that the burden of establishing the competency of the appeal is on the appellant. In the present case, I am not persuaded that this burden has been made out.
The authorities referred to by the presiding Judge indicate that, although not the sole factor to be taken into account, the lack of any explanation of a satisfactory nature regarding the delay is an important factor to consider in a criminal case. Of course, there are other factors to take into account such as the importance of the issue which is sought to be raised on the appeal. However, in the present case the correspondence indicates that an opportunity has been given to the appellant, by reason of a letter of 23 March 2005 seeking reasons for the delay, to explain the reasons for the delay. The response given by the appellant was simply that it appeared as though the Notice of Appeal had been inadvertently served outside the time specified in the Supreme Court Rules 1937 (ACT) (“the Rules”) and that urgent consideration was being given as to how this should be addressed.
In this case, the Court is faced with an appeal in respect of which there has been non‑compliance with the Rules. It is a case of a criminal nature that has the effect of placing the respondent at increased and additional risk, which is contrary to accepted principles and which is a weighty factor to take into account.
In these circumstances, I am persuaded that this appeal is incompetent.
So far as the question of waiver is concerned, this is not just a question of simply lodging a Notice of Appeal or entering a Notice of Appearance. One must be able to imply from that act, a consent or an indication that the party intended in some way, by that act, to waive the requirements of the Rules. And, in my view, in the circumstances of this case, that is not an intent which can reasonably be inferred from the mere filing of a Notice of Appearance in respect of which no protest or condition was expressed at the time.
Accordingly, for these reasons, I agree that the appeal must be struck out with costs.
I certify that the preceding paragraphs numbered twelve to twenty (12-20) are a true copy of the Reasons for Judgment herein of his Honour, Justice Tamberlin.
Associate:
Date: 31 May 2005
Counsel for the Appellant/Respondent: Mr R Refshauge SC
Solicitor for the Appellant/Respondent: ACT Director of Public Prosecutions
Counsel for the Respondent/Applicant: Mr J Sabharwal
Solicitor for the Respondent/ Applicant: Hill & Rummery
Date of hearing: 10 May 2005
Date of judgment: 10 May 2005
Key Legal Topics
Areas of Law
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Civil Procedure
Legal Concepts
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Appeal
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Costs
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