Plati v The Sheriff
[2016] WADC 4
•15 JANUARY 2016
PLATI -v- THE SHERIFF [2016] WADC 4
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 4 | |
| 19/01/2016 | |||
| Case No: | APP:49/2015 | 15 JANUARY 2016 | |
| Coram: | STEVENSON DCJ | 15/01/16 | |
| PERTH | |||
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | MARIA PLATI THE SHERIFF COMMISSIONER OF POLICE |
Catchwords: | Appeal Magistrates Court Application to set aside enforcement warrant Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) s 101AA Nature of proceedings Correct respondent Leave to appeal No error of exercise of judicial discretion to dismiss by reason of second nonattendance of applicant |
Legislation: | Fines, Penalties and Infringement Notices Act 1994 (WA) Magistrates Court (Civil Proceedings) Act 2004 (WA) |
Case References: | Plati v Sheriff's Office [2014] WADC 126 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
THE SHERIFF
First respondent
COMMISSIONER OF POLICE
Second respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : CHIEF MAGISTRATE S HEATH
Citation : ACE 1457 of 2014, ACE 1460 of 2014, ACE 1462 of 2014
Catchwords:
Appeal - Magistrates Court - Application to set aside enforcement warrant - Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) s 101AA - Nature of proceedings - Correct respondent - Leave to appeal - No error of exercise of judicial discretion to dismiss by reason of second nonattendance of applicant
Legislation:
Fines, Penalties and Infringement Notices Act 1994 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Result:
Appeal dismissed
Representation:
Counsel:
Appellant : In person
First respondent : Ms J C O'Meara
Second respondent : No appearance
Solicitors:
Appellant : Not applicable
First respondent : State Solicitor for Western Australia
Second respondent : Not applicable
Case(s) referred to in judgment(s):
Plati v Sheriff's Office [2014] WADC 126
1 STEVENSON DCJ: [This judgment was delivered extemporaneously on 15 January 2016 and has been edited from the transcript.]
2 These reasons for decision incorporate and are informed by the submissions and discussions with counsel in the course of the afternoon. This appeal relates to three separate applications by the appellant commenced in the Perth Magistrates Court to cancel or set aside enforcement warrants issued against her as a result of infringement notices she received in 2011.
3 The applications, more particularly, are 1457 of 2014 which is concerned with enforcement warrant 11/2271526 involving an infringement notice issued to the appellant on 28 April 2011. The second application is 1460 of 2014 which was an application in the Perth Magistrates Court to set aside enforcement warrant number 11/2285390 which concerned an infringement notice issued to the appellant on 29 April 2011. The third application with which this appeal is concerned arises out of the appellant's application in the Magistrates Court, 1462 of 2014, involving enforcement warrant 11/2338343, which in turn arose out of an infringement notice issued to the appellant on 6 May 2011.
4 Initially there was also a fourth application, 1461 of 2014, which was commenced by the appellant in the Perth Magistrates Court to set aside another enforcement warrant arising out of another infringement notice at about the same time. This application has been dealt with as a result of an earlier appeal to this court which I will refer to in a moment.
5 Each infringement notice concerns alleged speeding by the appellant (which she does not appear to dispute, but which she now seeks to defend on the basis that the cause of her exceeding the speed limit, on each separate occasion, was 'duress').
6 On any view, the instigating factors are now well dated and that is explained by the lengthy history in relation to this appeal and the appeal which preceded it concerning all four applications.
7 By way of background, the appellant commenced the four applications by the appropriate proceedings in the Perth Magistrates Court and they were first heard on 31 January 2014 by his Honour Magistrate Heaney. The applications were to set aside the enforcement warrants as mentioned and made pursuant to s 101AA of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) (the Act). That section sets out the provisions whereby a Magistrates Court may, in the statutory circumstances as prescribed, set aside or cancel an enforcement warrant issued under pt 3 of the Act.
8 On the first hearing the applications were adjourned to 28 February 2014. On that date the matters came before his Honour Magistrate Heaney and were adjourned again, at the request on this occasion of the appellant in order to obtain private legal advice.
9 The matter was next heard in the Magistrates Court on 28 March 2014 by his Honour Magistrate Young. On that occasion counsel appeared for the appellant and the matter was adjourned for the appellant to file affidavits in support of the applications.
10 The matter next was heard in the Perth Magistrates Court by his Honour Chief Magistrate Heath on 17 April 2014. The matter was called on, it would appear from the record, at about 3.05 pm. After hearing the parties his Honour dismissed the applications at about 3.17 pm.
11 The dismissal of the applications caused the appellant to commence an appeal in this court which was eventually heard by his Honour Judge Bowden on 12 September 2014. That appeal is the subject of a published decision: Plati v Sheriff's Office [2014] WADC 126. The judgment sets out the relevant statutory provisions.
12 In that judgment Judge Bowden upheld the appeal by the appellant in respect to applications 1457, 1460 and 1462 and ordered that they be remitted to the Perth Magistrates Court to be re-heard according to law.
13 As to 1461, his Honour dismissed the appeal on the facts, in essence, because the appellant herself had admitted that she had received the relevant infringement notice. If my memory serves me correct, that infringement notice was in fact handed to her by a police officer at the time, whereas the other three were the result of the operation of a multi-nova camera. And that of course being a factual finding would be fatal to the success of the application because the requirement which empowers the Magistrates Court to set aside that particular enforcement warrant set out in s 101AA(7) would not have been satisfied.
14 The three applications referred to were subsequently returned to be heard in the Perth Magistrates Court. On the first hearing date, again before his Honour Chief Magistrate Heath on 3 March 2015, the appellant did not appear and the transcript indicates that at about 11.23am the matter was adjourned by his Honour to a further hearing date, namely 16 March 2015. It appears from the record that the respondent was represented on that day, although the transcript does not indicate the name of counsel, but I understand it was Ms O'Meara.
15 In affidavits filed in support of this appeal the appellant has explained that, coincidentally, on 3 March 2015 she commenced at some point during the day to attempt to contact the Perth Magistrates Court to ascertain when the matter was to be heard. The detail in that regard is set out in her affidavits and I understand she did eventually, during the course of the day, present herself to the Perth Magistrates Court but by then the matter had been adjourned, as mentioned, to 16 March 2015.
16 The matter on that date was listed to be heard, as the applications were on every other occasion, from 10.00 am on the relevant date in the court as part of a list. On 16 March 2015, the record indicates that at about 10.20 am the applications were called on before his Honour Chief Magistrate Heath for hearing. Unfortunately again on this occasion there was no appearance by the appellant and there is no evidence that she made any attempt to communicate with the court as to when she proposed to attend the court that day for the hearing.
17 Accordingly, Chief Magistrate Heath was faced with the position that this was the second occasion that the applications had been listed to be heard in his court and a second consecutive occasion when the appellant had not attended.
18 There does not appear to be anything on the court file that would indicate that the court was to expect the appellant to arrive on that day. In those circumstances, his Honour Chief Magistrate Heath made an order dismissing each of the three applications to set aside the enforcement of warrants.
19 The transcript does indicate that at some point in time on 16 March 2015 the appellant did appear and I understand that the respondent's representative was also present, having returned. The court was informed that both parties were present and at ts 2 on that date, his Honour, having been advised of that fact, indicated to the parties through the JSO (a court orderly):
Too late. Sorry. The judgment has been entered. They will have to go and apply to get it set aside.
20 The JSO is recorded on transcript as having indicated that that is what she had advised them. His Honour went on to say:
Sorry, the matter is complete. They weren't here at the time. They will have to explain why by way of an application to set aside.
21 That appears to be a conversation with the JSO, the orderly assisting the chief magistrate, in the disposition of the list and the work of the court on the day.
22 I interpose that I understand the Magistrates Court now has a system whereby when matters are dealt with the court electronically records the result or outcome in the system. To what extent it is possible to recall matters under the new administrative computerised system is unknown. But, as a matter of law, and as a matter of practice for those who are legal practitioners, the event had passed and the order had been formally made dismissing each of the three applications.
23 That being the case, his Honour was, with all due respect, correct in indicating that it would be necessary for the appellant to commence some other proceeding to seek to retract or overturn the exercise of judicial discretion, in the circumstances that had arisen, to dismiss the applications.
24 There is, of course, a procedure in the rules which applies in relation to such applications. That procedure is well understood by the courts and those who appear in them and it is, of course, important that there be finality not only for the parties, but also for the administration of justice and the orderly disposition of the work of the court of proceedings.
25 As a result of these dictates, as mentioned, consideration then needs to be given by the affected party of how to proceed. In this case, by reason of what his Honour said to the parties through the JSO, the appellant lodged applications in the Perth Magistrates Court to set aside what was described as 'the default judgments', which was, more particularly (and more correctly), the dismissal of the applications to set aside the enforcement warrants.
26 The applications to set aside the default judgments in that sense were also heard by Chief Magistrate Heath on 8 June 2015. The transcript shows that the hearing of the applications to set aside the default judgments, in effect to overturn the dismissal orders made on 16 March 2015, commenced at about 11.34 am on 8 June 2015.
27 The appellant appeared on her own behalf and Ms O'Meara appeared on behalf of the respondent. The appellant explained to the court the circumstances on 16 March 2015, which are further explained in the affidavit material and, in particular, in the appeal notice in this court, as to the circumstances which led to her eventually arriving at the court, as she said at ts 8, at 7 minutes after 11.00 in the morning.
28 It is, of course, an undisputed fact that she knew the applications were listed to be heard at 10.00 am in a list with other matters. Her delay is in part explained by a failure of a taxi which, on her own evidence, she first booked by telephone at 10.18 am that morning to come. In any event, she eventually did arrive at the court at the time indicated on 16 March 2015. She assumed, even on this occasion, notwithstanding what had happened on the previous occasion that she could attend court at a time of her choosing and be heard. This approach does not admit to any consideration of the other party's position, who, I was told, on each occasion attended at 10.00 am ready to proceed.
29 In submissions to the Chief Magistrate, the appellant explained her course of action when she did arrive at the court and that she felt 'disrespected' on being informed that the applications had been dismissed and that she did not understand why given that on other occasions other matters had been recalled whilst she had been present in the court. That submission was further expounded by the appellant in the course of the appeal today to explain her modus operandi and why she did not attend court at 10.00 am on 16 March 2015.
30 At ts 11 on 8 June 2015 the appellant underscored in her submissions that she wanted to challenge the infringement notices and the reason she wanted to set aside the enforcement warrants with respect to the infringement notices was based on her contention that she had produced enough evidence to demonstrate on a balance of probability that her mail had been stolen and that she had not received any of the several notifications in respect of each of the infringement notices over a period of time with respect to them individually or at all.
31 Chief Magistrate Heath, in his reasons for decision, said as follows:
These are applications to set aside dismissals, decisions reached in the absence of the applicant. The respondent has raised three grounds in opposing the application, firstly that there is no reasonable explanation as to why the application hasn't been brought in the 21-day time limit, that there is no reasonable explanation as to the late arrival and, finally, that the application doesn't address the merits of the substantive application to suspend enforcement.
32 His Honour went on to say:
Having considered the matters I am satisfied by the arguments of the respondent whilst I would have been prepared to otherwise allow the application brought outside the 21-day time limit, although there's not good reason, I'm told that it was caused by waiting for documents that were to be attached although they seem only to have arrived at a very much later stage and not the part of the initial affidavit.
But the crucial factor in my view is that there doesn't seem to be any reasonable explanation for the late arrival on the day when the application was dismissed in the absence.
33 His Honour went on to say:
The evidence on the applicant's own affidavit is that a taxi was not booked until after the date when she was due in court, having arrived after 11 o'clock for a matter listed at 10.
There doesn't seem to be any reasonable explanation as to why she did not report to the court room in which the matter was listed but rather went then to obtain legal advice from the duty lawyer when that was clearly a matter for which the duty lawyer could not give advice and which presumably resulted in it then being sent forward.
34 His Honour went on to say:
And I accept the respondent's argument that there is no addressing of the merits of the matter, but again that by itself may have been sufficient to allow a further adjournment of all of these matter [sic – matters], but as I say in particular the absence of reasonable explanation for the late arrival, means that each of these applications to set aside is dismissed.
35 On that basis, the application to set aside the dismissal of the applications on 16 March 2015 was also dismissed on 8 June 2015.
36 For the record, the application to set aside the decision of 16 March 2015 was filed 25 days after that decision. The appeal notice in these proceedings in this court was filed on 30 June 2015. It also was not filed within the 21-day period, from 8 June 2015, being one day out of time under the rules.
37 Accordingly, whichever decision is sought to be the subject of the appeal in either case, the appellant requires leave to appeal. That raises the question of whether or not leave to appeal should be granted and the relevant considerations in that regard.
38 In this regard, it is plain that the three primary considerations are, first, a consideration of the explanation for the delay by the appellant in commencing the relevant proceedings.
39 Secondly, a consideration of the prospects or merits of the substantive application, there being plainly no utility in reinstating proceedings which have no reasonable prospect of success.
40 Thirdly, whether there is any irreparable prejudice to the respondent.
41 So far as leave to appeal is concerned, it is common ground, and quite properly accepted by the respondent, that there is no relevant prejudice by reason of the late filing of the appeal notice. Or, if the appeal is more properly an appeal from the decision of 16 March 2015, the longer period in relation to that appeals period.
42 So far as the history of this appeal in this court is concerned, having been lodged on 30 June 2015, the respondent at that timed described as the 'sheriff's office' filed a notice of intention on 13 July 2015 and continues to be represented by the same counsel.
43 The matter was first heard in this court on 21 July 2015. On that occasion the appeal was listed to be heard on 24 August 2015 and programming orders were made by the registrar for the filing of submissions. The respondent complied with those programming orders and filed submissions, in particular dated 19 August 2015.
44 On the hearing of the appeal before her Honour Judge Stewart on 24 August 2015, it was adjourned to a further date by reason of matters which had arisen including an issue concerning the nature of the jurisdiction of the Magistrates Court in determining the commencing applications to set aside the enforcement of warrants.
45 Her Honour also made orders for the parties to file submissions to facilitate the hearing of the appeal. The appeal was next listed to be heard by a judge of this court on 2 November 2015.
46 That date was vacated administratively by her Honour Judge Davis at the request of the appellant. The matter was brought back before her Honour Judge Davis on 19 November 2015 in order to progress the hearing of the appeal. On that day also Judge Davis made an order requiring the appellant to file and serve submissions in response to the respondent's submissions dated 11 September 2015, which raised jurisdictional issues. In oral submissions, somewhat paradoxically, the appellant said the judge told her she did not have to comply with order if she did not want to.
47 Finally, on 7 January 2016 the respondent filed a further outline of submissions with respect to the correct identification of the proper respondent to the applications to set aside the enforcement warrants and therefore this appeal.
48 Judge Davis set the appeal down for a third time to be heard by this court today.
49 By reason of the background to these proceedings to which I have referred, as I said at the outset, these proceedings have had a long and chequered history and, in my view, it is appropriate to give judgment today in relation to the appeal and that can be on the basis of the information and submissions before the court.
50 I am going to deal, firstly, with the issue of the correct identification of the respondent. In the course of submissions, I dealt with this issue and have made orders that the respondent be amended to read, 'The sheriff' and the sheriff will be the first respondent.
51 The second order made was that the Commissioner of Police be joined as the second respondent to the appeal. Ms O'Meara has confirmed to the court that the appeal can proceed to a hearing and determination on the basis that she has instructions from both respondents in this matter. Therefore, this is a matter of procedure and does not cause any impediment to the disposition of the appeal today.
52 Without going into detail, I agree with the written outline of submissions by the respondent dated 7 January 2016 to the effect that the proper respondent is 'the relevant prosecuting authority' which, in this case, it is common ground is the Commissioner of Police.
53 With respect to this issue, the appellant does not agree with the position I have taken. But, in my view, without setting out in detail the relevant provisions of the relevant legislation, the prosecuting authority who issued the infringement notice (which in turn gave rise to the enforcement warrant to be implemented by the sheriff) is an interested person, as opposed to the sheriff which is merely a conduit for the enforcement procedures, and should be joined to the proceedings.
54 It may be, in a given case that it is necessary to join the sheriff's office. In my view, that is not, as a matter of course, necessary. The legislation provides for service of notice of the applications to set aside the enforcement warrants five days before the hearing on the sheriff's office, or at least the sheriff, so that they are on notice of the proceedings and take no further action.
55 In my view, that is all that is required. The party which has an interest is, of course, the party responsible for the infringement notice which it is sought to enforce and to recover the penalty arising from that notice. In this case, that party is, in fact, the Commissioner of Police.
56 The next issue which arises is the nature of the jurisdiction of the Magistrates Court in dealing with an application to set aside an enforcement warrant under s 101AA of the Act.
57 In this regard submissions have been filed by the respondents dated 11 September 2015. In respect of this matter it is common ground and accepted by the appellant that the Magistrates Court is exercising its civil jurisdiction by reason of the statutory conferral of jurisdiction on the Magistrates Court by s 101AA of the Act and, in particular, because that conferral, or at least the Act itself, does not specify that the jurisdiction being conferred is on the Magistrates Court as a court of 'summary jurisdiction': s 8, Magistrates Court (Civil Proceedings) Act 2004 (WA).
58 It is also common ground and, as I understand it, not in dispute by the appellant that Chief Magistrate Heath on 8 June 2015, in any event, had an inferred power to set aside the dismissal orders made on 16 March 2015 as part of the inherent powers of the court to manage the court's business and to administer justice. This is particularly so if there has been a failure to accord procedural fairness or natural justice to the affected party which has resulted in the dismissal orders being made.
59 Immediately I would add that this is not the case here. On the facts, which are not controverted, the dismissal orders on 16 March 2015 were made on the basis that the appellant did not appear when the matter was called on, having been listed to be heard at some point after 10.00am on that day. This is in contradistinction to a circumstance where the party did not know that the matter was listed at 10.00am on the relevant day.
60 Such a circumstance is, accepting the appellant's evidence at its highest, that which existed on 3 March 2015 when the matter was also listed before Chief Magistrate Heath and there was no appearance of the appellant when the matter was called on by the court that day. The appellant explained her lack of appearance when the matter was called at about 11.23 am on that day on the basis that she had not received any notice from the court and had no express knowledge that the three applications were to be heard by the Magistrates Court on that day.
61 It is not clear what inquiries she made after his Honour Judge Bowden handed down his decision on the earlier appeal on 12 September 2014 as to when her applications would be re-heard in the Magistrates Court. Accepting her evidence at its highest, it was purely a coincidence that she attempted to make telephone inquiries of the Magistrate Court on 3 March 2015, the same day that the three applications were in fact listed to be re-heard.
62 That of course does not inform the exercise of the judicial discretion by the court on 16 March 2015. The position as understood by the court on that occasion was that it was a second occasion that the three applications had been listed to be re-heard, and a second occasion on which there was no appearance by the appellant when the matters were called.
63 The Magistrates Court is a busy court, plainly. Like every court many of its matters are administered according to lists. Parties are informed of a time that they are required to be at the court. Obviously when there is a list not everybody can be called at the same time. I accept that there is a procedure for informing the court orderly on arrival of attendance. Generally matters are called to facilitate the orderly disposition of the courts work on the basis of the parties being present.
64 Sometimes lists are called in a particular order. That might be determined by the seniority of legal counsel appearing. Sometimes it might be called in the order of the date of the initiating application.
65 In any event, parties are required to attend and to make themselves available at the appointed time; in this case 10.00 am on 16 March 2015. Parties can also contact the court, and do frequently, to inform the court that there is a difficulty with attendance at 10.00 am. Courts can usually accommodate such requests.
66 Arrangements can be made for the matter to be stood down in circumstances where it is not ready to proceed on the basis that it may be recalled later in the day. That of course involves another exercise of discretion on the part of the court.
67 The position of course here is that by reason of the non-attendance of the appellant on 16 March 2015, when her matter was called, the applications have not been heard on their merits.
68 The basis upon which this court may determine appeals from the Magistrates Court and this court's powers on the hearing of the appeal is set out in s 43 of the Magistrates Court (Civil Proceedings) Act 2004.
69 The court has the power to strike out any appeal if there is no reasonable basis for it or it does not have a reasonable prospect of succeeding, or that it has a reasonable prospect of succeeding no miscarriage of justice would occur by striking it out, or it is frivolous, vexatious, scandalous or improper.
70 I do not propose to exercise the court's power in any of those regards in dealing with this appeal. (Arguably, this power could be invoked given the basis upon which the appellant seeks to contest the infringement notices).
71 Section 43(7) sets out the powers of this court on appeal which include the power to confirm, vary or set aside all or a part of the lower court's judgment or give any judgment and make any order that the Magistrates Court could have given or made, order a new hearing in or trial of a case to be held in the Magistrates Court and other orders necessary as a result of such orders.
72 In his reasons for decision published, based on his extempore judgment, his Honour Judge Bowden, at [4], [5] and [6], set out the law that the appeal in this court is by way of a reconsideration of the evidence before the Magistrates Court and that the court must decide the appeal on the material and evidence that was before the Magistrates Court unless it gives leave for any other evidence to be admitted. The position is, as a result, that appeals can only be allowed if the court is satisfied that there is an error on the part of the primary court.
73 In this case, the relevant error is the exercise of the judicial discretion by Chief Magistrate Heath to dismiss the applications on 16 March 2015 by reason of the non-attendance of the appellant in the circumstances with respect to the proceedings in that court as they existed at the time, including in particular that it was a second occasion, that the appellant had not appeared on the hearing of the applications.
74 The appellant, in her appeal notice and affidavit material, submissions and material provided for the hearing on 8 June 2015 in the Magistrates Court, has purported to explain the reason why she did not attend at 10.00 am on 16 March 2015. This can be summarised on the basis that, based on her previous experience, matters had not been dealt with until the afternoon, even though they were listed to commence from 10.00 am.
75 She also, based on that experience and her observations whilst in court, observed matters were recalled, from time to time, and assumed that, presumably, it was a rolling list and a simple matter to simply recall a matter which had been dealt with at an earlier stage in the day.
76 Those matters which were recalled may have been recalled for good and proper reason as opposed to simply a request for that matter to be called based on arrival at the court. The only inference that can be drawn from the failure of the appellant to attend at 10.00 am on 16 March 2015 was that it was for her own convenience that she was not prepared to attend, be present and available for the court to hear her applications when they were called upon.
77 She did have express knowledge that the applications were listed to be heard from 10.00 am and she knew that they would be called at some point in time from 10.00 am on that day. She also had knowledge that, as mentioned previously, the matters had been adjourned on 3 March 2015 by reason of her non-attendance. She was lucky on that occasion but not on the second time.
78 On the first occasion the court could have exercised its power to dismiss the applications but chose not to do so to give the appellant an opportunity to be heard. It is therefore understandable that when the matter was called for a second time that the judicial officer determined to exercise his discretion and power to dismiss the applications.
79 As mentioned, it is accepted and common ground that the court had the power to exercise the power which it purported to exercise. The onus is on the appellant to demonstrate that the exercise of that judicial discretion carried with it, in some way, an error. It is not apparent on a full consideration of all the circumstances, and the history of the matter, that the exercise of the discretion was in any way attended with any error. It was open to Chief Magistrate Heath to exercise his judicial discretion in the way that he did.
80 Considering the merits of the applications to set aside the enforcement warrants themselves, bearing in mind there has not been a formal hearing which may or may not involve the appellant giving evidence on oath as opposed to the matter being determined by reference to the affidavit evidentiary material, I would make this observation; that I would not be satisfied that the burden of proof on the appellant, with respect to the applications to set aside the enforcement warrants, is met accepting the material contained in the various affidavits filed by the appellant to explain the alleged reasons why she received none of the several notices required to be sent to her in respect of each of the three separate infringement notices over a lengthy period of time. The evidence, in my view, falls short in that regard.
81 In summary, in my view, for the reasons I have expressed, the appeal must be dismissed. I am not persuaded that the exercise of the judicial discretion, whether it be by the inherent power of the court or otherwise below, is in some way attended with some error.
82 It is important that the administration of justice be conducted efficiently. It does involve (vast) public resources. Parties who commence proceedings are expected to comply with the procedures involved with respect to their proceedings including, if necessary, attending court at the appointed time for matters to be heard and determined.
83 If the appeal was to be upheld on the facts and circumstances in this particular matter it would simply be sending a message to parties in proceedings that they should feel free to attend the court whenever they chose to attend the court on the day in question.
84 Plainly, that would cause chaos and disrupt the efficient administration of justice and administration of lists by courts. I accept that it is inconvenient for parties to be kept waiting and the Magistrates Court might be asked if the lists are of such length to create two lists, one for 10.00 am and one for 2.15 pm. But the fact of the matter is this decision was made on a second occasion when there was no appearance by the party and the applications were dismissed accordingly.
85 So far as leave to appeal is concerned, whether it be from either decision, the delay is not of such a great period, particularly when regard is had to the lack of any prejudice to the respondents.
86 In my view, the appeal must be dismissed for these reasons and the following orders made:
1. The name of the present respondent be changed from the 'Sheriff's Office' to 'The Sheriff' and become the first respondent to the appeal.
2. The Commissioner of Police be joined as the second respondent to the appeal.
3. Leave to appeal be refused and the appeal be dismissed.
4. The appellant pay the respondent's costs of the appeal to be taxed unless otherwise agreed.
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