Takalubegash v Bishop
[2013] ACTSC 273
•5 December 2013
| Medium Neutral Citation | Mehrdad Takalubegash v Leigh Bishop [2013] ACTSC 273 (5 December 2013) |
| Hearing Dates | 5 December 2013 |
| Decision Date | 5 December 2013 |
| Before | Murrell CJ |
| Decision | See para [9] – [10] |
| Catchwords | APPEAL – in general and right of appeal – leave to appeal out of time – new point sought to be raised on appeal – delay mostly unexplained |
| Legislation Cited | Road Transport (General) Act 1999 (ACT), s 44(9) |
| Cases Cited | Nikro v O’Sullivan [2013] ACTSC 129 |
| Category | Criminal appeal from the Magistrates Court of the Australian Capital Territory |
| Parties | Kamy Saeedi Law (Applicant) |
| Director of Public Prosecutions for the ACT (Respondent) | |
| Representation | Mr J Maher (Applicant) |
| Mr K Lee (Respondent) | |
| File Number(s) | SCA 100 of 2013 |
The applicant seeks an adjournment of an application for leave to appeal out of time against a conviction and sentence imposed by Magistrate Campbell in the ACT Magistrates Court on 7 June 2012. The conviction and sentence related to an alleged offence on 4 November 2011 of driving with licence suspended.
In the Magistrates Court, the applicant pleaded guilty to the offence. He did not seek to argue that there was any invalidity attaching to the process of suspension. The Magistrates Court sentenced him to a 12 months good behaviour order. He allegedly breached that order by committing a raft of driving offences which are currently before the Magistrates Court.
The application for leave to appeal has been prompted by another matter that raises an identical issue, that is, whether a suspension confirmation issued under s 44(9) of the Road Transport (General) Act 1999 (ACT) is invalid in that it does not specify a suspension date as required by s 44(9)(a) but rather states that “this notice is to confirm that your ACT driver licence number 303474 was suspended (as per the previously sent notice of suspension)” The same issue came before the Supreme Court in the matter of Nikro v O’Sullivan [2013] ACTSC 129. In that matter, Nield AJ found against the applicant, citing with approval the decision of Chief Magistrate Walker in Stone v French [2013] ACT MC 4. The decision of Nield AJ was handed down on 4 July 2013. The applicant then became aware that the unsuccessful driver in the Nikro case was considering, or had lodged, an appeal to the ACT Court of Appeal.
Between early July and mid October, the applicant was awaiting developments. On 16 October 2013, the applicant’s solicitors issued a subpoena to the Road Transport Authority for the production of correspondence relating to the suspension of the applicant’s licence with a view to determining whether he might be in a position to raise an invalidity argument such as that raised in the matter of Nikro.
Having received those documents, the current application was lodged on 27 November 2013, more than 16 months outside the time prescribed for the lodging of an appeal against the decision of the Magistrates Court.
There stand against the applicant several decisions, most relevantly the decision of Nield AJ in Nikro.
The factors to be considered in relation to the application for extension of time are whether the delay is adequately explained, whether it was justified, and whether the appeal has reasonable prospects. These considerations are also critical to the application for adjournment, because there is no point in adjourning the application unless the application itself has reasonable prospects of success.
It is clear to me that the applicant conducted the original proceedings without regard to the issue that he now seeks to raise. He took no action to pursue an appeal or even consider it until he breached (or allegedly breached) the good behaviour order imposed by the Magistrates Court. He only investigated the prospects of appealing the original suspension decision when he committed further alleged offences. There has been a delay of more than 16 months, only a small part of which is explained in an acceptable way.
There is no utility in adjourning the application to await the outcome of the appeal in the matter of Nikro v O’Sullivan. The adjournment application is refused.
For the reasons that I have already indicated, the application for leave to appeal out of time is also refused.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Chief Justice Murrell.
Associate:
Date: 23 December 2013
0