Whittlesea City Council v Baltovski - [2021] VSC 784

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 03087

WHITTLESEA CITY COUNCIL	Appellant
v
PETER BALTOVSKI	First Respondent
THE MAGISTRATES’ COURT OF VICTORIA SITTING AT HEIDELBERG	Second Respondent

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	17 November 2021
DATE OF RULING:	29 November 2021
CASE MAY BE CITED AS:	Whittlesea City Council v Baltovski & Anor
MEDIUM NEUTRAL CITATION:	[2021] VSC 784

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APPEAL – Appeal from Magistrates’ Court – Statutory requirement to bring an appeal within 28 days after the day on which the order complained of was made – Leave of Supreme Court required to appeal outside 28 day time limit – Requirement to show that the failure to commence appeal within 28 days was due to ‘exceptional circumstances’ – Whether exceptional circumstances need to be present within 28 days or beyond – Leave to appeal refused - Criminal Procedure Act 2009 (Vic) s 272.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr B Stafford, solicitor	Elliott Stafford & Associates
For the First Respondent	Mr D M Robinson	Madgwicks Lawyers

TABLE OF CONTENTS

Evidence............................................................................................................................................... 1

Background......................................................................................................................................... 1

Whittlesea City Council’s submissions......................................................................................... 7

Mr Baltovski’s submissions............................................................................................................. 8

Analysis.............................................................................................................................................. 12

Conclusion......................................................................................................................................... 19

HER HONOUR:

The respondent, Peter Baltovski, is accused by the appellant, Whittlesea City Council, of erecting a building without a planning permit. The charges were issued more than 12 months after the building was erected. A Judicial Registrar found that the charges against Mr Baltovski were out of time. After some delay, Whittlesea City Council sought review of that determination by a Magistrate. The reviewing Magistrate upheld the determination. Unfortunately, the parties were not notified for some months of the orders made by the Magistrate. A further period of approximately two months then elapsed before Whittlesea City Council filed a notice of appeal in this Court. This ruling determines whether or not Whittlesea City Council should be given leave to appeal out of time.

The application for leave to appeal out of time is dismissed. Consequently, the proceeding must be dismissed.

Evidence

Whittlesea City Council relies on the affidavit of Das Angelakos, officer of the Whittlesea City Council, sworn on 16 July 2021 (‘Angelakos affidavit’).

Mr Baltovksi relies on the affidavit of his solicitor, Debra Anne Dunn, sworn on 9 November 2021 (‘Dunn affidavit’).

During the course of the hearing, Whittlesea City Council was given leave to file a further affidavit deposing as to whether there were attempts to file the notice of appeal prior to the date it was actually filed, and exhibiting any material evidencing that. Whittlesea City Council took up that opportunity, and filed an affidavit deposed by Bernadette Mary Elliott, principal of the law firm representing Whittlesea City Council (‘Elliott affidavit’). The Court read the affidavit, although Whittlesea City Council does not rely on it.

Background

On 25 September 2018, charges relating to alleged offences pursuant to s 125 of the Planning and Environment Act 1987 were filed…

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: [2021] VSC 784
Decision Date: 29 November 2021

CaseChat Overview and Summary

The case of Whittlesea City Council versus Baltovski was heard in the Supreme Court of Victoria. The matter was an appeal from a decision made in the Magistrates’ Court of Victoria, where Baltovski was found guilty of contravening a noise by-law. The Whittlesea City Council sought to appeal the decision, but they did not lodge the appeal within the 28-day statutory time limit, as prescribed by section 272 of the Criminal Procedure Act 2009 (Vic). Consequently, the Council applied for leave to appeal outside the 28-day time limit, arguing that exceptional circumstances prevented them from doing so within the requisite period.

The central legal issue before the court was whether the requirement for 'exceptional circumstances' to justify an extension of the time limit for lodging an appeal must be present within the 28-day period or if it could be established beyond that timeframe. The court had to consider the interpretation of the statutory language and the nature of the circumstances that might warrant an extension of the appeal period.

In delivering the judgment, the Supreme Court held that for leave to appeal outside the 28-day time limit to be granted, the exceptional circumstances must be present within the 28-day period. The court found that the Council's explanation for the delay did not meet the statutory criteria as it did not demonstrate that the exceptional circumstances were present during the 28-day period. Therefore, the court refused the application for leave to appeal, and the original decision of the Magistrates' Court remained unaltered.

In summary, the Supreme Court determined that the Council's application for leave to appeal outside the statutory 28-day time limit was not valid because the exceptional circumstances alleged did not exist within the required period. The court's decision upheld the strict compliance with statutory timelines for appeals, affirming the importance of timely legal action.

Orders