Wittensleger v The State of Western Australia

[2015] HCATrans 304

[2015] HCATrans 304

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P5 of 2015

B e t w e e n -

ARDEN RODRICK WITTENSLEGER

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Application for reinstatement

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 24 NOVEMBER 2015, AT 9.30 AM

Copyright in the High Court of Australia

HER HONOUR:   In this matter the applicant seeks an order for reinstatement of his application for special leave. It was deemed abandoned from 4.00 pm on 2 March 2015 pursuant to rule 41.10.4.1 of the High Court Rules 2004 (Cth) (“the Rules”) because of his failure to file his written case within 28 days after filing his application for special leave as required by rule 41.10.3.

The applicant was convicted after a trial in the District Court of Western Australia of 86 counts of fraud contrary to section 409(1)(c) of the Criminal Code (WA). The applicant was sentenced to four years imprisonment on each of the counts of which he was convicted. The sentences on counts 1 and 2 were made cumulative and the sentences on all other counts were ordered to be concurrent. The total effective sentence was one of eight years imprisonment.

The applicant sought leave to appeal against conviction and sentence in the Court of Appeal of the Supreme Court of Western Australia.  The charges were described by the Court of Appeal in these terms:

They alleged that on various dates between 14 May 2009 and 13 July 2010 the [applicant], with intent to defraud by deceit or fraudulent means, gained a benefit namely a quantity of money for the proprietor of Nirranda Pty Ltd trading as James Brae & Brodrick.  The money was alleged to have been obtained from a finance company.  The ‘proprietor’ who obtained the benefit was, in effect, the [applicant].  The total money obtained was approximately $6.5 million.

The applicant sought special leave to appeal to this Court from the orders of the Court of Appeal refusing the applicant’s application for leave to appeal against conviction, dismissing the applicant’s appeal against conviction, refusing the applicant’s application for leave to appeal against sentence and dismissing the applicant’s appeal against sentence. As I have noted earlier, the application for special leave is deemed abandoned by operation of the Rules.

On 12 October 2015, the applicant filed a summons seeking reinstatement of his application for special leave to appeal.  The summons was supported by an affidavit sworn by the applicant on 10 September 2015 in which the applicant set out his knowledge and understanding that he had a solicitor acting for him in relation to that application.  The affidavit stated that it was not until the applicant was notified by this Court on 13 May 2015 that the application for special leave to appeal was deemed abandoned that he realised he was not formally represented.

The discretion to extend the time for doing an act under the Rules is for the purpose of enabling the Court to do justice between the parties – see Gallo v Dawson (1990) 64 ALJR 458 at 459. The exercise of that discretion to reinstate an application that has been abandoned is informed by the length of, and any explanation for, the delay leading to the abandonment and by the current state of readiness of the application for substantive determination. It is also informed by the prospects of the applicant’s success. In particular, time will not be extended unless the proposed application has some prospect of success.

Against that background, it is convenient to consider the merits of the proposed application for special leave to appeal. The applicant’s special leave application advances no arguable ground of appeal against the decision of the Court of Appeal. The applicant in his ground for special leave complains that the Court of Appeal erred in law in holding that although an officer of the finance company with whom he dealt was aware of all the facts leading to the finance applications he submitted, since the officer lacked the authority from the finance company to approve such applications the irresistible conclusion was that the applications were intended by the applicant to deceive the finance company or were the fraudulent means whereby the applicant obtained finance so the applicant was found guilty of fraud contrary to section 409(1)(c) of the Criminal Code (WA).

No error in the decision of the Court of Appeal is identified in that single ground for special leave. An appeal to this Court would enjoy no prospect of success. The applicant’s explanation of why he did not file his written case within the time specified by the Rules is less than satisfactory. Indeed, the applicant has still not filed a written case. In all of those circumstances, reinstatement would be futile and will be refused. The summons should be dismissed.

AT 9.35 AM THE MATTER WAS CONCLUDED