SZENK v MIMA

[2007] HCATrans 337

[2007] HCATrans 337

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M129 of 2004

B e t w e e n -

DONNA MARIE PARSONS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 16 AUGUST 2007, AT 9.32 AM

Copyright in the High Court of Australia

HER HONOUR: This is an application for reinstatement of the applicant’s application for special leave to appeal. The applicant also applies for the certificate of deemed abandonment dated 21 February 2005 to be set aside, for an extension of time under rule 4.06 of the High Court Rules 2004 (Cth) so that she can comply with Part 41 of those Rules, and for the summons to be determined on the papers.

On 22 June 2004 the applicant filed an application for special leave to appeal against the whole of the judgment of the Court of Appeal of Victoria dated 26 May 2004 dismissing the applicant’s application for leave to appeal against conviction.

On 20 February 2002 a jury found the applicant guilty of the murder of her husband.  On 13 May 2002 the applicant was sentenced to a term of imprisonment of 23 years, with a non‑parole period of 18 years.

The applicant was represented at trial and before the Court of Appeal.  Following the decision of the Court of Appeal she was unable to retain legal representation for her application for special leave to this Court, although the firm of solicitors which had represented her in the Court of Appeal filed the application for special leave on her behalf.  In her affidavit, the applicant states that the Darebin Community Legal Centre was endeavouring to obtain the services of counsel to assist in the preparation of her application for special leave to appeal.  However, it appears from a letter written by Donna Williamson of the Darebin Community Legal Centre on 16 February 2006 that the applicant was confused as to the precise limits of the services the legal centre could provide to her.

The applicant also states in her affidavit that she had been told by representatives of the Darebin Community Legal Centre that her application for special leave to appeal had been dismissed, when in fact it had been abandoned.  Donna Williamson, in her letter dated 16 February 2006, disputed this, stating that she had advised the applicant that her application had been abandoned, and that she had also explained what that meant.

The applicant wrote to the Registrar on 23 November 2005 asking for clarification as to whether her application had been dismissed or abandoned.  There ensued a course of correspondence between the applicant and the Registrar regarding the legal status of her application and what she would need to do to make this application.  I note that it is nearly 21 months since the applicant wrote to the Registrar.

I accept that the various delays, both those leading up to the deemed abandonment of the applicant’s application for special leave to appeal and the delays since she first wrote to the Registrar for clarification, have largely been due to circumstances beyond the applicant’s control.  They have partly been caused by the applicant’s unsuccessful attempts to obtain legal representation.

The respondent opposes this application.  It refers to Jackamarra v Krakouer (1998) 195 CLR 516 and to Van der Meer v The Queen (1988) 82 ALR 10. From these cases, it is clear that in general, a court has a wide discretion to deal with an application for an extension of time, especially where the time limit has been imposed by rules of court, as here. In particular, it was held in Jackamarra that a fairly liberal approach should be taken.  The important considerations are the length of the delay, the reasons for it and the prejudice the respondent will suffer if the extension of time is granted.  The merits of the case should not generally be taken into account at the stage of an application for an extension of time; the exception to this principle is where an extension of time would be “futile” because the applicant’s case must ultimately fail.

While the delay in this case is substantial, the reasons for delay were outside the control of the applicant, and included a lack of understanding of the process on her part.  The respondent opposes the application and has filed an affidavit in support particularising the lack of progress with the application for special leave.  Balancing the various relevant factors, I would grant the applicant’s application to reinstate her application for special leave to appeal and to set aside the certificate of deemed abandonment dated 21 February 2005.

The applicant has also applied for an extension of time under rule 4.02 of the High Court Rules 2004 (Cth). I would grant an extension. However, given the previous delays particularised by the respondent and the difficulties to which these will give rise, it will be necessary for the applicant to adhere to time limits set by the Rules. As the applicant is unrepresented, the matter will fall to be dealt with under rule 41.10 of the High Court Rules. Under rule 41.10.3(c), the applicant’s draft notice of appeal and written case must normally be filed within 28 days of the filing of her application. I order that the applicant file her draft notice of appeal and written case by 4.00 pm on Friday, 14 September 2007.

I publish that ruling.

AT 9.37 AM THE MATTER WAS CONCLUDED