Starcowski v Police No. Scgrg-00-331

[2000] SASC 350

STARCZOWSKI v POLICE       
[2000] SASC 350

Magistrates Appeal  (Civil)
Gray J          

Background

1 On 3 June 1999, an ex parte domestic violence order (“the ex parte order”) was made against Mr Starczowski (“the applicant”) pursuant to s 4(1) of The Domestic Violence Act 1994 (SA) (“the Act”). On 10 March 2000, Mr Patrick SM confirmed the ex parte order (“the confirming order”) and concluded his reasons by saying:

“...I see no reason to conclude that the terms fashioned on 3 June 1999 are inappropriate, unreasonable or requiring of amendment.”

The Appeal

2      Mr Starckowski has sought an extension of time in which to appeal against the confirming order.  The proposed challenge involves an attack on the ex parte order, on various events occurring before trial and on the confirming order.  Before addressing the proposed grounds of appeal it is necessary to discuss the background facts, certain findings of the magistrate, and the legislative scheme.

Background Facts

3      Katerina Starczowski (“Ms Starczowski”) met the applicant in Adelaide in 1992.  She came to live in Australia in November 1995 and they married in February 1996.  They lived with the applicant’s parents until December 1998.  Differences arose early in the marriage.  The relationship deteriorated in January 1999 when the Starczowskis moved into a unit at St Peters.  The magistrate made findings as follows:

“... I am satisfied, on the balance of probabilities, that following the defendant’s return from Sydney in February 1999, he threatened Ms Starczowski, by using words which suggested that he would kill her and that she would be afraid of her own shadow, which proceeded beyond the point which might by any standard be viewed as routine disagreement within marriage.  These words were uttered in circumstances which were conveyed and understood as threats and not mere thoughtless words uttered out of frustration or for the purpose merely of conveying emphasis.  There was genuine and intentional hostility in the use of the words in question.  Although the stated effect on the victim can never be conclusive, nevertheless in my view it was significant that Ms Starczowski experienced and continues to experience fear that the defendant would carry out one or more of the threats into effect.  I conclude that the fear of personal injury experienced by Ms Starczowski was real and reasonable.  The defendant’s subsequent actions and the words used by him in the circumstances identified in the narrative part of this judgment, clearly emphasise the justification for Ms Starczowski to apprehend reasonably that personal injury probably would result.  Her apprehension of fear was significant and reasonably based. ...

Also on the balance of probabilities, I conclude that the defendant has committed domestic violence in the form of personal injury to Katerina Starczowski. The first such event took place on 18 March 1999, or thereabouts, when he struck her to the head and face two or three times whilst she was sitting on the bed in her bedroom and again at the end of April or early May 1999 in the lounge room of their St Peters residence. I conclude that the defendant struck Ms Starczowski more than once on her head with his fist. Again, I conclude that on 17 May 1999, the defendant caused personal injury to Katerina Starczowski in the bedroom when he pushed her, resulting in her hitting her head on the wall. The application of force by the defendant on 18 May 1999 at Adelaide University was without the consent of Ms Starczowski and was intentional and falls within the purview of s. 4(2)(a) of the Domestic Violence Act.

Also on the balance of probabilities, I am satisfied that on two or more occasions, the defendant has kept Katerina Starczowski under surveillance. On a number of occasions, the defendant has made contact with persons in circumstances which I am satisfied evince an intention to ascertain details of her whereabouts. ...  I am satisfied on the balance of probabilities that on 3 October 1999, in a position in the vicinity of 44 Alexandra Avenue Rose Park, the Thomas Place and Grant Avenue, Rose Park intersections, the defendant kept Ms Starczowski under surveillance.  The surveillance took place in circumstances where shortly afterwards, the defendant, in a vehicle borrowed from a crash repair firm, was seen to follow the Gemini vehicle being driven by Ms Starczowski and to stop behind it in near proximity on more than one occasion and resume a journey which exactly followed the route of the Gemini vehicle until it reached the vicinity of Norwood Police Station.  I am satisfied that the defendant has embarked upon a process of keeping Ms Starczowski under surveillance.”

Findings as to Credit

4      The magistrate made careful findings as to credit.  He preferred the evidence of the complainant’s witnesses, Ms Starczowski and her mother, Mrs Sydor, to that of the applicant.  In regard to Ms Starczowski he said:

“On the balance of probabilities, and taking fully into account the fact that an interpreter was employed for the purpose of translating Ms Starczowski’s evidence into English, I concluded that the evidence of this witness was that of a forthcoming and candid witness directly involved in events which commenced to deteriorate on or soon after 8 February 1996 but in particular on or shortly after 6 January 1999.  I did not conclude that this witness gave evidence which palpably dramatised or exaggerated the events which occurred during the period of cohabitation between the parties. Moreover, I did not conclude that similarities between the subject matter and content of the evidence given by this witness and her mother Ms Sydor, was suggestive of a rehearsed version of events calculated to achieve a particular outcome.  In short, I concluded that the evidence of Ms Starczowski was capable of supporting the weight which had to be placed upon it.”

5      In regard to Mrs Sydor he concluded:

“In making these observations, it becomes necessary for me to add that in dealing with the evidence of Nadya Sydor I have also taken into consideration that the fact that the use of interpreters also was required.  Moreover, Ms Sydor, on occasions, obviously experienced difficulty controlling her emotions and to a minor degree I concluded that her objectivity suffered to a slight degree on odd occasions.  Nevertheless, I concluded that fundamentally the evidence she gave was cogent and that weight could be placed upon it in relation to relevant topics.  Irrelevant topics occupied a good deal more time during this eleven day trial than was necessary and continued today.”

6      With respect to the applicant, the magistrate came to the following conclusions:

“In all the circumstances, I conclude that the complainant has proved on the balance of probabilities that there continues to be a reasonable apprehension that the defendant may, unless restrained, commit domestic violence and that the making of the order is appropriate in the circumstances. This conclusion is not displaced upon considering the evidence of the defendant. On numerous occasions, including this morning, I concluded that the evidence he gave was less than candid and that he was less than forthcoming. On occasions it patently demonstrated a lack of freshness; indeed, it was thoroughly rehearsed. The defendant’s attempts to understate instances of substantial disagreement and more serious discord with his wife, down to routine level, were unbelievable. Moreover, in cross-examination concerning the events of 3 October 1999 on more than one occasion, I could not believe him on his oath. He gave fatuous and conflicting versions of a number of significant events and attempted to make a virtue of coincidence which everyday experience would demonstrate as being improbable at the very least. The defendant’s palpable embarrassment when confronted with earlier inconsistent versions of these significant events reinforced the conclusion that the prosecution witnesses could be believed on their oath and the defendant could not. His demeanour throughout these processes served only to emphasise inescapable conclusion. I am moreover, not satisfied that he has the claimed need for access to library facilities, to use a general expression, which can only be provided by or through the University of Adelaide. In view of the conclusions I have reached his presence at the University of Adelaide and its environs would pose a risk to Ms Starczowski of further domestic violence being committed. In arriving at that conclusion I am mindful of the terms of s. 6(1)(a)(d)(e)(f)(g). As ss.(2) requires however the s.6(1)(a) factor is of primary importance.”

The Legislative Scheme

7 Section 4 of the Act provides:

“(1).. On a complaint under this Act, the Court may make a domestic violence restraining order against the defendant if -

(a). there is a reasonable apprehension that the defendant may, unless restrained, commit domestic violence; and

(b). the Court is satisfied that the making of the order is appropriate in the circumstances.

(2)... For the purposes of this Act, a defendant commits domestic violence -

(a). if the defendant causes personal injury to a member of the defendant’s family; or

(b). ...

or

(c).. if on two or more separate occasions -

(i).... the defendant follows a family member; or

(ii)... the defendant loiters outside the place of residence of a family member or some other place frequented by a family member; or

(iii). the defendant enters or interferes with property occupied by, or in the possession of, a family member; or

(iv).. ...

(v)... the defendant keeps a family member under surveillance; or

(vi).. the defendant engages in other conduct,

so as to reasonably arouse in a family member apprehension or fear of personal injury or damage to property or any significant apprehension or fear.”

8      A “domestic violence restraining order” is defined in s 3 as -

“... an order under section 4 and includes a firearms order that is supplementary to that order”.

9 Section 5 grants the court wide powers with which to determine the terms of domestic violence restraining orders. Section 6 identifies factors that the court must have regard to when determining whether or not to make an order and in considering the terms of such an order.

10     Section 9(2) provides for the making of an ex parte domestic violence restraining order and is as follows:

“A domestic violence restraining order may be made in the absence of the defendant and despite the fact that the defendant was not summoned to appear at the hearing of the complaint, but in that case, the Court must summon the defendant to appear before the Court to show cause why the order should not be confirmed.”

The Order of 3 June 1999

11     The ex parte order was in the following terms:

“DOMESTIC VIOLENCE RESTRAINING ORDER

On the evidence before me I am satisfied that there is a reasonable apprehension that the deft may, unless restrained, commit domestic violence, and I am satisfied that the making of a domestic violence restraining order is appropriate in the circumstances. I take into account factors set out in s.6 of the Domestic Violence Act 1994.

I make the domestic violence restraint order in the following terms:

The defendant is restrained until further order from:-

1...... Approaching, contacting (directly or indirectly) except that the defendant may contact Katerina Starczowski through lawyers for the purpose of any property settlements, molesting, assaulting, threatening or otherwise interfering with the peace and comfort of Katerina  Starczowski.

2.Being in, upon or in the vicinity of any premises in which the said Katerina Starczowski may from time to time reside.

3...... Being in, upon or in the vicinity of any place of employment or study of the said Katerina Starczowski.

4.Damaging or threatening to damage any real or personal property to the said Katerina Starczowski.

This order is not to affect the provisions of any order of the Family Court of Australia to the contrary or any direction of the said Court in respect to counselling of the parties herein.

FIREARMS ORDER

2.     If the deft has a licence or permit to be in possession of a firearm;

(a). ORDER that the licence or permit be suspended until the court determines whether to confirm the restraining order

(b) If the court determines not to confirm the restraining order, this order of suspension will lapse.

3.     (a)  ORDER that the deft be disqualified from holding or obtaining a

......... licence or permit to be in possession of a firearm

(b) If the restraining order is not confirmed by the court this order of  disqualification will lapse.”

.........

12     Order 3 of the ex parte order was varied on Mr Starczowski’s applications of 15 September 1999 and 7 December 1999.  On both occasions the purpose of the variation was to allow the applicant to attend the University of Adelaide for discrete periods.

Proposed Grounds of Appeal

13     The applicant sought to advance 37 grounds of appeal.  The same document also presented an outline of argument.  The proposed grounds were confused with the outline.  During the course of submissions, counsel abandoned a number of grounds.  Others were grouped together as particulars of a single challenge.  I have addressed the proposed grounds as they were finally advanced.

Order 3 June 1999 - A Partial Nullity

14     It was submitted that the ex parte order was in part a nullity.  The challenge was limited to the words “in the vicinity of” in orders 2 and 3.  It was said that this aspect of each order was too vague to be enforceable. No complaint was made of these words when the applicant sought and obtained the variation orders.  There was no suggestion that the orders were causing any difficulty, embarrassment or prejudice. In my view, even if this submission were made out, it would not have the effect of rendering those parts of the ex parte order a nullity.  Rather, it may render them unenforceable.  There is power in any event, for the court to vary the orders.

15     It was separately argued that the ex parte order was a nullity as there had not been full and frank disclosure by Ms Starczowski of the nature and extent of her studies at the University of Adelaide.  Even if this complaint could be made out on factual grounds, it would not render the ex parte order a nullity.  At most, it would be a possible basis from which the court could vary the order  or decline to confirm it.  In any event, the allegation that there was not full and frank disclosure is not made out.  

Order Served - Not a True Copy

16     It was submitted that the purported copy of the order served on the applicant was not a true copy of the ex parte order.  It was said that as the order served did not precisely follow the terms of the ex parte order the confirming order was a nullity.  It was accepted that the applicant suffered no prejudice from these alleged discrepancies.  The order served was as follows:

“On the 3rd day of June 1999, the Court being satisfied that there is a reasonable apprehension that you may, unless restrained:

Commit domestic violence.

AND having heard the matter in your absence ordered that you be restrained in the following terms:-

1...... From approaching, contacting (directly or indirectly), except that the defendant may contact Katerina Starczowski through lawyers for the purpose of any property settlements, molesting, assaulting, threatening or otherwise interfering with the peace and comfort of Katerina Starczowski.

2.From being in, upon or in the vicinity of any premises in which the said Katerina Starczowski may from time to time reside.

3...... From being in, upon or in the vicinity of any place of employment or study of the said Katerina Starczowski.

4.From damaging or threatening to damage any real or personal property belonging to the said Katerina Starczowski.

5...... This order is not to affect the provisions of any order of the Family Court of Australia to the contrary or any direction of the said Court in respect to counselling of the parties herein.

6.AND FURTHER, pursuant to Section 10 of the Domestic Violence Act, the following FIREARMS ORDERS which, being supplementary to the Domestic Violence Restraining Order, were made and will continue in force until the Domestic Violence Restraining Order lapses or is revoked or until further order .1 lapse (sic).

7...... If the defendant has a licence or permit to be in possession of a firearm: (a) ORDER that the licence or permit be suspended until the court determines whether to confirm the restraining order.  (b) If the court determines not to confirm the restraining order, this order of suspension will lapse.

8...... (a) ORDER that the defendant be disqualified from holding or obtaining a licence or permit to be in possession of a firearm.  (b) If the restraining order is not confirmed by the court this order of disqualification will lapse.”

17     The complaint centred on paragraph 6 which did not appear in the ex parte order.  It was also claimed that it was not apparent that orders 1 and 5 had been made until further order. 

18     In my view, these differences are not substantive. Mr Starczowski suffered no prejudice. He attended at court as required, he was represented and no complaint was made to the magistrate.  He was able to apply for and obtain variations to the order.  He was able to present his case on the application to confirm the order.  There is no substance to this proposed ground of appeal.

The Form of the Order

19     It was submitted that when acceding to the first application to vary the ex parte order, the court discharged the entire ex parte order and supplanted it with a new order of 15 September 1999.  The submission was repeated with respect to the second variation.  As a result, it was contended that the order to be confirmed was the order of 7 December 1999 and not the ex parte order.

20 Section 11 deals with the service of varied orders and relevantly provides:

“(2). If a domestic violence restraining order ... is varied before being confirmed ... the order in its amended form must be served on the defendant personally and until so served -

(a)    the variation is not binding on the defendant; but

(b)... the order as in force prior to the variation continues to be binding on the defendant.”

21 The variation order on each occasion followed the same form and order 3 on each occasion was the subject of variation. The applicant was served with the order in its amended form. The terms of s11 of the Act were complied with. There is no substance to this proposed ground of appeal.

Admission of Evidence

22     During the course of the trial, a dispute arose as to the reception of evidence from Ms Starczowski and Mrs Sydor.  The evidence related to an incident occurring after 3 June 1999 which  Ms Starczowski described as ongoing conduct by her husband which fuelled her apprehension of domestic violence.

23     Counsel for the applicant conceded that the evidence was admissable but argued that as a matter of discretion, it should have been excluded.  It was submitted that the conduct led to criminal proceedings and as such was  prejudicial to the applicant.

24     The ruling of admissibility was within the magistrate's discretion.  No ground has been advanced identifying why his discretion miscarried.  The fact that later conduct of the applicant was sufficiently serious to warrant criminal charges does not establish a basis for asserting that the exercise of discretion miscarried. 

Findings as to Credit

25     Counsel for the applicant then complained about the magistrate’s findings as to credit.  A number of these complaints related to his fact finding process.  They included allegations that the magistrate had not adequately addressed the evidence when making his findings on credit.  Separately, it was suggested that the applicant’s evidence was not given proper weight and Ms Starczowski’s evidence was unfairly assessed. 

26     As was said by Brennan, Gaudron and McHugh JJ in Devries v Australian National Railways Commission[1]:

“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. (See Brunskill (1985), 59 ALJR 842; 62 ALR 53; Jones v Hyde (1989), 63 ALJR 349; 85 ALR 23; Abalos v Australian Postal Commission (1990), 171 CLR 167.) If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ (SS Hontestroom v SS Sagaporack, [1927] AC 37, at p.47) or has acted on evidence which was ‘inconsistent with facts incrontrovertibly established by the evidence’ or which was ‘glaringly improbable’ (Brunskill (1985), 59 ALJR, at p 844; 62 ALR at p.57).”

[1] (1992-1993) 177 CLR 472 at 479

27     This passage was recently approved by Gaudron, Gummow and Hayne JJ in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq)[2].

[2] (1999) 73 ALJR 306

28     In my view, the findings of credit were open to the magistrate.  The basis of challenge to those findings was not clearly articulated.  In the course of argument, counsel for the applicant did not refer to passages of transcript to support his submissions.  At one time, it was suggested that a schedule of transcript references would be provided but this was not forthcoming.

29     The paragraph earlier cited from the magistrate’s reasons set out the detailed basis on which the applicant’s evidence was rejected.  These findings were open on the evidence.  There is no substance to the proposed challenges.

The Surveillance Finding

30     Further proposed grounds related to findings which concerned an incident of surveillance.  It was submitted that the findings made by the magistrate would better fit with a conclusion that Mr Starczowski was following his wife rather than undertaking surveillance.  Such a re-characterisation would not affect the substance of the matter as such conduct may amount to domestic violence.  In any event, I am satisfied that the magistrate’s findings were open on the evidence.  No basis of challenge has been made out.

Onus of Proof

31     Section 17 provides:

......... "In proceedings under this Act other than for an offence, the Court is to decide questions of fact on the balance of probabilities.”

32     As to onus, the magistrate said (at para 21):

“At the hearing for the confirmation of an interim domestic violence restraining order, the defendant bears an evidential burden of showing cause why the order should not be confirmed.  However, the final onus rests on the complainant to prove on the balance of probabilities that the circumstances warrant a confirmation of the order.  See Schmidt v SA Police (1995) 182 LSJS 350. In other words, the complainant must prove on the balance of probabilities that there continues to be a reasonable apprehension that the defendant may, unless restrained, commit domestic violence and that the making of the order is appropriate in the circumstances. See s.4(1) of the Act.”

33     In Schmidt v SA Police[3] Bollen J said at (359):

“...s9(2)(a) of the Domestic Violence Act speaks of the summoning of ‘the defendant to appear before the Court to show cause why the order should not be confirmed’. Those words are capable of giving the impression that Parliament has cast a final onus on the defendant. I cannot think that that is what Parliament intended. The idea that a person faced with the penalty of an adverse order is called upon to prove that the order should not be made is inimical to basic ideas of proof and, indeed, of justice. It would require very clear words in a statute to bring about any ‘reversing’ of the onus of proof. What then does s9(2)(a) mean? I think it means that an evidentiary onus is cast upon the defendant. When he answers the summons he may not stand mute or, at least, may not usefully do so. He must offer some fact or reason or argument capable of showing cause why the order should not be confirmed. That must then be weighed with the evidence of or called by the complainant. At the end the question for the Court must be ‘has the complainant proved on the balance of probabilities that the original order should be confirmed?’”

[3] (1995) 182 LSJS 350

34     Counsel for the applicant accepted that Schmidt v SA Police was correctly decided.  In my view, given this concession, this proposed ground is untenable. 

35     Questions of fact are to be decided on the balance of probabilities. Once the facts are established on this basis, the magistrate must determine whether there is a reasonable apprehension of violence.  No basis has been made out which suggests that the magistrate erred in regard to this issue. 

Factors to be Considered

36 It was suggested that the magistrate did not have proper regard to the matters contained in subsection 6(1)(f) and (g) of the Act. Those subsections are as follows:

“6.(1). In considering whether or not to make a domestic violence restraining order and in considering the terms of a domestic violence restraining order, the Court must have regard to the following:

...

(f).. any other legal proceedings between the defendant and a family member;

(g). any other matter that, in the circumstances of the case, the Court considers relevant.”

37     The magistrate expressly had regard to these subsections.  The applicant did not identify or establish any matter that has been overlooked by the magistrate.  This proposed ground of appeal is without substance. 

The Duration of the Order

38     Section 12 addresses variations of domestic violence restraining orders and provides:

“(1). The Court may vary or revoke a domestic violence restraining order on application -

...

(c)... by the defendant.

(1a). An application for variation or revocation of a domestic violence restraining order may only be made by the defendant with the leave of the Court and leave is only to be granted if the Court is satisfied there has been a substantial change in the relevant circumstances since the order was made or last varied.

...

(3)... The Court must, before varying or revoking a domestic violence restraining order under this section -

(a)... allow all parties a reasonable opportunity to be heard on the matter; and

(b)... have regard to the same factors that the Court is required to have regard to in considering whether or not to make a domestic violence restraining order and in considering the terms of a domestic violence restraining order (see section 6).”

39     It was submitted that the magistrate erred in failing to consider the duration of the domestic violence restraining order.  The ex parte order was expressed to be until further order.  The magistrate considered that the confirming order should continue until further order.  The facts, as found, justified the order.  The court retained the power to further vary or discharge the order.

40     It was further submitted that the applicant did not have an opportunity to be heard as to the duration of the order.  No factual basis was advanced to justify this proposed ground. In any event, the applicant was represented throughout the hearing and there was adequate opportunity to address this and any other issue raised.  There is no substance to this proposed ground of appeal.

Application to Extend Time

41     In Police v Warren[4] I reviewed the rules that guide a court in considering an application to extend time.  I then said:

[4]      Judgment No. 2000 SASC 285

“The following rules guide the court in considering an application to extend time:

(1).... The discretion exists for the sole purpose of doing justice between the parties.[5]

[5]               Hughes v National Trustees Executors & Agency Co of Australasia [1978] VR 257; Gallo v Dawson (1990) 93 ALR 479

(2)Some material must be advanced upon which the court can exercise its discretion.[6]

[6]      Ratnam v Cumarasamy (1964) 3 All ER 933 at 935

(3)There is an obligation to explain with frankness and candour the reason for delay.[7].

[7]      Hall v The Nominal Defendant (1967-68) 117 CLR 423 at 435

(4).... The longer the delay the more exceptional or substantial the explanation required.[8]

[8]               R v Foster (1996) 187 LSJS 135; R v Balchin (1974) 9 SASR 64;  R v Armstrong (1983-84) 35 SASR 356

(5).... If  no sufficient grounds of appeal are disclosed an extension will not be granted[9].

[9]      R v Trotter  (1979) 22 SASR 64

(6).... The court is not obliged to consider the merits in detail.[10].

[10]     Jackamarra v Krakouer (1998-99) 195 CLR 516

(7)The court will consider whether any substantial grounds exists for apprehending a miscarriage of justice.[11]

[11]     Gikas v Police (1999) 202 LSJS 301 at 306

(8)........ Absent satisfactory explanation about delay an applicant is still entitled to an extension if otherwise there will be a miscarriage of justice.[12]

The above rules are subservient to the overriding principle that the court should grant of extension of time to avoid a miscarriage of justice.   As Kirby J said in Jackamarra v Krakouer[13] at [66]:

‘Procedural discretions, such as those in question here, are typically expressed in very wide language.  (Boomalli Ltd v Hake [1985] WAR 7 at 9.) In the exercise of such discretions, courts should not be trammelled by a rigid set of rules, whether called guidelines or principles, which would impede the application of rules of court with the flexibility needed to do justice in the particular case. (In re Coles and Ravenshear [1907] 1 KB 1 at 4; Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 412.)  This is why it is impossible to lay down fixed and binding rules for the exercise of discretions to enlarge time.  Of necessity, each case must depend upon its own particular circumstances (Christie v Harvey and Hayward (1900) 2 WALR 146 at 148; Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 at 947; [1985] 2 All ER 517 at 521; Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 167.)’

... Nevertheless, it is useful to keep in mind a number of considerations which have commonly been taken into account.”

[12]     Gikas v Police (1999) 202 LSJS 301 at 306

[13] (1998-99) 195 CLR 516 at 539

42     The judgment against which leave was sought was delivered 10 March 2000.  The time for the lodging of the appeal was 14 days[14] and expired on 25 March 2000.  The application for an extension of time was made on 6 April 2000.

[14]     Supreme Court Rule 96C.02

43     In his initiating process, the applicant answered the question “is an extension of time sought", by saying “yes - pending the sentencing remarks of Mr Patrick SM being printer (sic) and provided”.

44 Rule 3.04(d) of the Supreme Court Rules 1987 permits the court to extend the time in which an appeal can be lodged. This is a discretionary power and the applicant must justify the exercise of the court’s discretion.

45     This matter came before the court on 6 July 2000.   The applicant was directed to file an outline of argument and a draft notice of appeal. The respondent filed an outline of submission before receiving documentation from the applicant.  The respondent’s outline raised opposition to an extension of time and called for an affidavit to be filed to support the application.  The applicant had by 3 August 2000 delivered a document entitled “Proposed Grounds of Appeal”.  The document failed to address the issue of an extension of time.  No affidavit in support of the application was filed.  When the matter came on for argument on 3 August 2000 counsel for the applicant said:

“Something that was drawn to my attention by my friend which I had not appreciated was the Notice of Appeal was filed out of time.  It was filed, as I am instructed, on 6 April and therefore out of time, to the extent that the time for filing expired on 24 March.  As a consequence of that, my client, who is present, has prepared an affidavit.  It’s not sworn at this stage, but I can undertake to swear and file it.”

46     As I consider that the proposed grounds of appeal lack any substance I decline to grant an extension of time.  Were an extension allowed I would dismiss the appeal.  Had I considered any of the grounds to be of substance I would have given the applicant a further opportunity to file an affidavit explaining his delay.  However, as I am not of this view, that is unnecessary. 

47     The application for an extension of time is dismissed.  I will hear the parties as to costs.

JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT

1 (1992-1993) 177 CLR 472 at 479

2 (1999) 73 ALJR 306

3 (1995) 182 LSJS 350

4      Judgment No. 2000 SASC 285

5Hughes v National Trustees Executors & Agency Co of Australasia [1978] VR 257; Gallo v Dawson (1990) 93 ALR 479

6      Ratnam v Cumarasamy (1964) 3 All ER 933 at 935

7      Hall v The Nominal Defendant (1967-68) 117 CLR 423 at 435

8R v Foster (1996) 187 LSJS 135; R v Balchin (1974) 9 SASR 64;  R v Armstrong (1983-84) 35 SASR 356

9      R v Trotter  (1979) 22 SASR 64

10     Jackamarra v Krakouer (1998-99) 195 CLR 516

11     Gikas v Police (1999) 202 LSJS 301 at 306

12     Gikas v Police (1999) 202 LSJS 301 at 306

13 (1998-99) 195 CLR 516 at 539

14     Supreme Court Rule 96C.02