Michael Dewson v Fraser James Macdonald - [2014] ACTCA 39

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Michael Dewson v Fraser James Macdonald
Citation:	[2014] ACTCA 39
Hearing Date(s):	5 February 2014
DecisionDate:	27 August 2014
Before:	Refshauge J
Decision:	The Court orders that leave to appeal be refused.
Category:	Principal Judgment
Catchwords:	APPEAL – GENERAL PRINCIPLES – Leave to appeal out of time
Legislation Cited:	Crimes Act 1900 (ACT), s 26 Court Procedures Rules 2006 (ACT), r 5405
Cases Cited:	Dearman v Dearman (1908) 7 CLR 549 Dewson v Macdonald [2013] ACTSC 112 Dewson v Macdonald [2013] ACTSC 152 Fox v Percy (2003) 214 CLR 118 Maher v Carpenter (2012) 7 ACTLR 216 R v Meyboom (2012) 256 FLR 450
Parties:	Michael Dewson (Appellant) Fraser James Macdonald (Respondent)
Representation:	Counsel Self-represented (Appellant) Mr K Lee (Respondent)
Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number(s):	ACTCA 89 of 2013
Decision under appeal:	Court: ACT Supreme Court Before: Nield AJ Date of Decision: 7 June 2013 Case Title: Michael Dewson v Fraser James Macdonald Citation: [2013] ACTSC 112 Court File Number(s): SCA 22 of 2013

Refshauge J:

On 21 October 20112, Michael Dewson, the applicant, went to the residence where Paul Dove lived. He knocked on the door, which was opened by Matthew Dove, Paul’s brother.

Mr Dewson struck Matthew Dove in the face and was later charged with common assault.

He appeared in the Magistrates Court and pleaded not guilty. After a hearing, he was convicted.

He appealed against the conviction and on 7 June 2013 his appeal was dismissed by Nield AJ.

Mr Dewson has now sought leave to appeal against that dismissal of his appeal.

The application for leave

Under r 5405 of the Court Procedures Rules 2006 (ACT), an appeal must be commenced within twenty-eight days from the date of the decision from which it is sought to appeal.

Mr Dewson’s application, dated 10 December 2013, is, therefore, more than five months out of time.

I have set out in R v Meyboom (2012) 256 FLR 450 the approach that a Court should take in considering whether to grant leave to appeal out of time.

That approach may be summarised as follows:

1. Such applications should only be granted if, having regard to the important value of finality in litigation and the need for time limits to be respected, it is proper to do so.

2. There should be an explanation for the delay, as to which any action other than to appeal that has been taken by the applicant is relevant.

3. The court must consider any prejudice to the respondent in defending the proceedings that is caused by the delay and any such prejudice will tell against the extension.

4. The mere absence of prejudice is not enough to justify the extension of time.

5. The merits of the appeal itself must be taken into account in deciding whether an extension of time should be granted.

6. Nevertheless, the application is to be determined by the…

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 Michael Dewson v Fraser James Macdonald

Details

AGLC: Michael Dewson v Fraser James Macdonald [2014] ACTCA 39
Case: [2014] ACTCA 39
Decision Date: 27 August 2014

CaseChat Overview and Summary

This matter concerned an application for leave to appeal out of time, brought by Michael Dewson against Fraser James Macdonald. The specific nature of the underlying dispute between the parties was not detailed in the provided text. The application was heard by Refshauge J.

The central legal issue before the Court was whether to grant leave to appeal after the prescribed time limit had expired. This required the Court to consider the principles governing such applications, particularly the factors that weigh in favour of or against exercising discretion to permit an out-of-time appeal.

Refshauge J considered the relevant principles for granting leave to appeal out of time. While the specific reasons for refusal were not elaborated in the provided text, the decision to refuse leave indicates that the applicant failed to satisfy the Court that there were sufficient grounds to permit the appeal to proceed beyond the statutory time limit. The Court's discretion in such matters typically involves an assessment of the merits of the proposed appeal, the reasons for the delay, and the potential prejudice to the respondent.

Consequently, the Court ordered that leave to appeal be refused.

Orders

Orders of the court

The Court orders that leave to appeal be 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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