Richmond v Delahaye (Ruling)

[2020] VCC 702

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

APPEALS AND POST-SENTENCE APPLICATIONS LIST

Case No. AP-18-2741

ERIC RICHMOND	Appellant
v
GARY DELAHAYE	Respondent

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JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Melbourne
DATE OF HEARING:	29 May 2020
DATE OF RULING:	29 May 2020
CASE MAY BE CITED AS:	Richmond v Delahaye (Ruling)
MEDIUM NEUTRAL CITATION:	[2020] VCC 702

RULING
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Subject:  PERSONAL SAFETY INTERVENTION ORDER

Catchwords:             Appeal struck out for non-attendance – whether order striking out appeal should be set aside and appeal reinstated

Legislation Cited:     Personal Safety Intervention Orders Act 2010
Judgment:                Application to reinstate appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Application determined on the papers	-
For the Respondent	-

HIS HONOUR:

1       On 8 November 2018, through the agency of a police officer, Senior Constable Alicia Phillips, the respondent to this appeal, Mr Delahaye, was granted a Personal Safety Intervention Order by the Dandenong Magistrates’ Court, against the appellant, Mr Richmond, pursuant to the provisions of the Personal Safety Intervention Orders Act 2010 (“the Act”).

2       The Order commenced on that date, to expire on 2 April 2020.  Mr Richmond has appealed that order.

3       The appeal came on for hearing before his Honour Judge Wraight in this Court on 16 October 2019.  On that date, the appellant sent an email to the Court which said the following:

“Good morning

RE:    Appeal of Hans Eric RICHMOND – AP-18-2741

I refer to the above matter and attached my medical certificates in relation to my recent/ongoing sudden falls as I again had a fall this morning and it[’]s difficult to stand/walk.

I am seeking this honourable court to adjourn today’s hearing to Monday 21 October 2019, both matters be heard same time as same nature and same witness (Gary De La Haye).”

(sic)

4       Attached to the email were four documents:

(a)a letter from Monash Health, dated 30 September 2019, confirming that Mr Richmond had an appointment with the Soft Tissue Injury Clinic at Monash Health on 11 October 2019;

(b)a certificate of attendance from Monash Health, dated 11 October 2019, confirming that Mr Richmond had attended at the Monash Health Soft Tissue Clinic on 11 October 2019 and that he required crutches to prevent falls;

(c)a letter from Monash Health Neurology, dated 4 October 2019, stating that Mr Richmond had been placed on the Neurology Outpatient List;

(d) a Capital Radiology referral and/or request(s) for diagnostic imaging dated 4 October 2019 for Mr Richmond to undergo an MRI scan of the brain, noting in the clinical notes section, “unexplained headaches with reccurent falls he has had tremores and shakings which is getting worse in the last one year” (sic).

5       Having heard submissions on behalf of Mr Delahaye, his Honour Judge Wraight struck out the appeal as Mr Richmond did not attend.  According to submissions now filed on behalf of Mr Delahaye, his Honour struck out the appeal on the basis that the medical material did not indicate Mr Richmond was unfit to attend Court on 16 October 2019.  Those submissions also noted that there had been previous adjournments at the behest of Mr Richmond and an indication from the Court on a previous occasion that no further adjournments would be granted.

6       By application dated 27 December 2019, Mr Richmond seeks an order setting aside the Order striking out his appeal.  The “Reasons for Application” record the following:

“I had severe mobility issues from knee injuries incurred from falls.  The mobility issues I suffer flare up from time to time and vary in severity.  On 16/10/2019 I could not attend because of this.  I have already supplied evidence and I can supply again if required.”

7       The submissions on behalf of Mr Delahaye say the application to reinstate the appeal should be dismissed, for the following reasons:

(a)there is no power under the Act to reinstate an appeal once it is struck out;

(b)even if there was power, the appellant has failed to provide any sufficient reason as to why he failed to attend at the hearing date;

(c)     in any event, the Order expired on 2 April 2020.

8 I do not find it necessary to determine whether a court has power to reinstate an appeal from an order under the Act. The reasons provided by Mr Richmond for his failure to attend at the hearing of the appeal on 16 October 2019, and the reasons he has provided in support of this application, are totally inadequate. There is no medical report to advise the nature and extent of any illness or condition Mr Richmond was suffering from at the time, nor anything to suggest he was incapable of attending Court on the day of the appeal.

9       Absent any proper explanation for his failure to attend, the application to reinstate should be dismissed.

10      Further, the Order expired on 2 April 2020, and is no longer in existence.  To reinstate the appeal would be without purpose and fruitless.

11      The application to reinstate the appeal should be refused.

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