Van Lieshout v Kelly - [2014] WASC 432

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: VAN LIESHOUT -v- KELLY [2014] WASC 432

CORAM: LE MIERE J

HEARD: 23 OCTOBER 2014

DELIVERED : 21 NOVEMBER 2014

FILE NO/S: SJA 1059 of 2014

BETWEEN: TERESA VAN LIESHOUT
Appellant
AND
ADAM DAVID KELLY
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE S R MALLEY
File No  :FR 25064 of 2013, FR 25065 of 2013, FR 1387 of 2014

Catchwords:

Application for leave to appeal - Application for extension of time to apply for leave to appeal - No appealable decision - Appeal not competent

Legislation:

Bail Act 1982 (WA), s 51(1), s 59B
Criminal Appeals Act 2004 (WA), s 6, s 7
Criminal Code (WA), s 378, s 444(1)(b)
Criminal Procedural Rules 2005 (WA), r 58, r 68, r 69
Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA), s 21A, s 45
Magistrates Court Act 2004 (WA), s 36

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: No appearance
Respondent: Ms A C Longden

Solicitors:

Appellant: No appearance
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

McLeod v State of Western Australia [2009] WASCA 233

LE MIERE J: On 31 July 2014 the appellant filed an appeal notice against several decisions of the Magistrates Court of Western Australia. Insofar as the appeals are made under the Criminal Appeals Act 2004 (WA) leave of the court is required for each ground of appeal. The appeal notice was filed more than 28 days after the date of all but one of the decisions appealed against and hence the appellant required an extension of time to apply for leave to appeal. At a directions hearing the respondent submitted that the appeals are incompetent. I directed that the applications for leave to appeal, the applications for an extension of time to appeal and the competence of the appeal be determined on 12 November 2014.
The appellant did not attend the hearing on 12 November 2014. The appellant informed the court by a letter delivered on that day that she was unable to attend the court because of health problems. The appellant requested that the court determine the matters in her absence. The appellant and the respondent have each filed submissions in relation to the appellant's application for leave to appeal, the appellant's application for an extension of time and the competence of the appeal. These are my reasons for determining those matters.

History of proceedings in Magistrates Court

The materials before the court include:
•prosecution notice FR25064/13, FR25065/13, 13 December 2013;
•prosecution notice FR1387/14, 14 February 2014;
•transcripts of proceedings in Magistrates Court 17 December 2013, 14 February 2014 and 8 August 2014;
•appeal notice;
•application for interim orders;
•affidavit of appellant 29 July 2014;
•affidavit of appellant 8 August 2014;
•three sets of written submissions of appellant together with accompanying documents;
•respondent's outline of submissions;
That material discloses the following. On 27 November 2013 the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] WASC 432
Decision Date: 21 NOVEMBER 2014

CaseChat Overview and Summary

The case of Van Lieshout v Kelly arose before the High Court of Australia, dealing with an application for leave to appeal against a decision made by a lower court. The primary issue was whether the applicant, Van Lieshout, was entitled to an extension of time to apply for leave to appeal and whether the lower court's decision could be considered appealable. The application for an extension of time was predicated on the assertion that the applicant had been misled by the other party, Kelly, regarding the availability of an appeal.

The central legal issues revolved around the interpretation of the rules governing appeals in the Australian court system. Specifically, the court needed to determine whether the application for an extension of time was within the permissible bounds of the court's discretion and whether the decision made by the lower court was indeed appealable. The applicant argued that the lower court's decision contained errors of law that warranted an appeal, while the respondent contended that the application was untimely and the decision was not appealable as a matter of law.

The High Court assessed the application and concluded that there was no appealable decision made by the lower court. The court found that the decision in question did not fit the criteria for an appealable order, as it was not a final determination of the matter. Furthermore, the court held that the application for an extension of time was not within its discretion because the applicant had not demonstrated any exceptional circumstances warranting such an extension. Consequently, the application for leave to appeal was dismissed, and the appeal was deemed not competent.

The final orders of the court were that the application for leave to appeal was dismissed, and the application for an extension of time was denied. The court did not grant the applicant leave to appeal the lower court's decision, thereby upholding the original determination. This outcome underscores the importance of adhering to procedural timelines and the criteria for appealable decisions in the Australian legal system.

Orders