Appellant v Respondent

2 By virtue of s 272(7) of the Criminal Procedure Act 2009 (the Act) an appeal commenced after the end of the period of 28 days after the day on which the order complained of was made is deemed to be an application for leave to appeal.

3 The appellant appeals against that part of the order made by the Magistrate that is imposed on him (as a condition of him being relicensed to drive a motor vehicle) an alcohol interlock condition for six months.

4 On 25 August 2006 the appellant received an infringement notice for driving a motor vehicle with a concentration of alcohol in his breath at the relevant time of more than 0.10 but less than 0.11 per 210 litres of exhaled air, namely a reading of 0.105. This was a contravention of s 49(1)(f) of the Road Safety Act 1986 (RSA). The infringement notice provided that the appellant's licence was disqualified for a period of 10 months. This is the period prescribed in Schedule 1 of the RSA and applicable pursuant to s 89C of the RSA. The appellant served the disqualification period and on 11 July 2008 applied to the Magistrates' Court at Frankston for his licence to be reinstated under s 50 of the RSA.

5 Magistrate Betts made an order granting the appellant's application but imposed a condition on that approval that the appellant install an alcohol interlock device, in purported reliance on s 50AAA of the RSA and said, according to the appellant, that the imposition of such a condition was mandatory.

6 The appellant complains that the Magistrate erred in his application of s 50AAA of the RSA because:

(a) At the time the infringement notice was issued to the appellant, s 50AAA provided that an alcohol interlock condition was only directed to be imposed on a mandatory basis where, if it was a first offence, the breath or blood alcohol concentration reading exceeded 0.15;

(b) The RSA was later amended to provide that an alcohol interlock condition was mandatory if the blood alcohol concentration reading was between 0.07 and 0.15 and the offender was aged less than 26 years at the time of the offence, by reason of the inclusion of s 50AAA(2)(A);

(c) That amendment came into effect on 1 January 2007; and

(d) Section 103(L)(2) of the RSA provides that the amended legislation only applies to offences committed after the amendments came into force.

7 It is therefore the appellant's appeal on a question of law, if leave is granted, that at the time of the appellant's application the Magistrate had no power to impose an alcohol interlock condition upon the appellant's application to have his licence reinstated.

8 There appears from the materials advanced on behalf of the appellant to be a basis for the proposed appeal, in that it appears that at the relevant time the provisions of s 50AAA of the RSA did not require, nor authorise, the Court to impose as a condition of his reinstated licence a requirement for an interlock device. At the least, I will proceed to consider the matter on the footing that that was the case.

9 Section 272(8) of the Act provides:

The Supreme Court may grant leave under sub-s (7) and the appellant may proceed with the appeal if the Supreme Court -

(a) is of the opinion that the failure to commence the appeal within the period referred to in sub-s (3) was due to exceptional circumstances;

(b) is satisfied that the case of any other party to the appeal would not be materially prejudiced because of the delay.

10 The affidavit of the appellant in support of the application sets out the following circumstances, which are contended by the appellant to be exceptional:

(a) The issue of the infringement notice, the disqualification of the appellant's licence for a period of 10 months and the application on 11 July 2008 for permission to be relicensed to drive a motor vehicle, as referred to above;

(b) He was not represented before Magistrate Betts, did not know the law in relation to the issue of a driver's licence and whether alcohol interlock device was required to be fitted. He merely accepted what the Magistrate said was correct;

(c) Shortly after the order was made by the Magistrate, the appellant had an alcohol interlock device fitted to his vehicle, a Nissan Patrol, by an auto electrician from Narre Warren Auto Electrics;

(d) In about February 2009, the appellant had an auto electrician from that firm attend at his residence and remove the alcohol interlock device. He contends that the period in which he was required to have the alcohol interlock device had expired;

(e) On 6 August 2013, the appellant was pulled over whilst driving by a police officer named Constable James Nelson. The Constable informed the appellant that he had been pulled over for a random driver's licence check. Constable Nelson informed the appellant that according to the driver's licence check undertaken by the Constable, the appellant was required to have an alcohol interlock device fitted to his car. He was told that he needed to have the device lawfully removed with the Court's permission, a fact that the appellant did not appreciate. The appellant says he cannot recall exactly what happened after his conversation as he was nervous and anxious, but he does remember that he was allowed to go on his way;

(f) On about 7 August 2013, the appellant sought legal advice from the Goodman Group Lawyers, who presently represent him in the application for leave to appeal. Due to work commitments, he was not able to have a full consultation with the solicitor at Goodman Group Lawyers until 20 August 2013. He was then provided with initial advice that the original order made by Magistrate Betts imposing the interlock condition may be contrary to law, as the RSA (as in force at the time of the offence) did not direct (or even allow on a discretionary basis) the imposition of an alcohol interlock condition when a person is applying to the Magistrates' Court to be relicensed. He was told that the solicitor concerned would need to obtain further specialist advice from a senior practitioner and legal counsel who is experienced in appellate matters;

(g) The appellant then received a letter dated 7 October 2013 from Constable Nelson. That letter provided:

You were intercepted on 6 August 2013 on McClelland Drive.

RCV checks confirmed your driver licence had an interlock condition still current. You stated that you had been to Court to have the interlock removed and would bring to [sic] documentation to the Frankston Police Station. This has not happened.

Can you please confirm if you still have any documentation from the Court indicating that you can have the interlock removed?

If not, can you confirm what Court you attended and an approximate date?

Can you please call me on [a certain telephone number] ASAP so we can sort this out before it ends up in Court.

(h) The appellant swears that he is informed by the solicitor concerned, and believes, that he attempted to telephone Constable Nelson on 22 October 2013 but was told that he was on leave. The appellant is also told by his solicitor, and believes, that the solicitor emailed Constable Nelson on 25 October 2013 stating that the appellant intended to appeal the original decision of the Magistrate regarding the interlock device. The appellant produces a copy of the email;

(i) The appellant was also told by his solicitor, and believes, that Constable Nelson telephoned the solicitor on 31 October 2013 and told him that Constable Nelson had not read the email and had authorised the brief of evidence, thus expecting the appellant would be charged;

(j) The appellant then received a charge and summons by which he was charged with breaching a condition of his licence, namely driving without an interlock device fitted. The matter was listed for mention at the Frankston Magistrates' Court on 6 January 2014. On 3 January 2014 his solicitor contacted the Frankston Magistrates' Court by email and the matter was adjourned administratively until 3 February 2014 for further mention;

(k) On 9 January 2014, the solicitor briefed Mr James McIntyre, a senior lawyer at Goodman Group Lawyers and a former member of the Victorian Bar, for advice as to the prospects of appealing the original order. That advice was received on 10 January 2014 that he should issue a notice of appeal in the Supreme Court;

(l) On 3 February 2014, the solicitor appeared at the further mention of his prosecution at the Frankston Magistrates' Court and after mentioning the intention to appeal the original order, the matter was adjourned until 17 March 2014;

(m) The appellant was not in a position to put his solicitors in funds to prepare and lodge the notice of appeal until 19 February 2014. The notice of appeal was prepared and filed on 6 March 2014. It has taken time for the appellant to raise the money in order to be represented in the Magistrates' Court on the charge and summons and, at the same time, fund his lawyers to prepare the appeal and the application for leave; and

(n) The appellant swears that he was not aware that the alcohol interlock condition was even an issue until he was intercepted by Constable Nelson in August 2013. He immediately sought legal advice. His lawyers have been busy researching the issue for him as well as dealing with the charge. He has therefore only been in a position to lodge the notice of appeal in respect of the licence condition at the time he did.

11 For these reasons, the appellant maintains that the delay in bringing the appeal is due to exceptional circumstances and that he should be permitted to bring the appeal out of time under s 272(8) of the Act. He also maintains that the respondent, the Magistrates' Court, will not be prejudiced by the delay.

12 In the Shire of Carnarvon v Klein Corporation Pty Ltd,[1] J Forrest J analysed the authorities relevant to an application under s 109(5) of the Magistrates' Court Act 1989, which is for present purposes materially the same as s 272(8) of the Act. His Honour concluded that the authorities stand for the following principles:[2]

(a) The granting of an extension of time is not automatic. Upon the expiry of the time for lodgement of the appeal, a respondent has a vested right to retain the judgment unless the application is granted;[3]

(b) The onus lies on the applicant to satisfy the test of exceptional circumstances;

(c) Although "exceptional" is defined as meaning "unusual, special, out of the ordinary course" in the Oxford English dictionary, in the context of the Act, the circumstances must be such that they can be said to "rarely occur" and "perhaps be outside reasonable anticipation or expectation";[4]

(d) The enquiry is confined to the circumstances relevant to the applicant's failure to appeal within time and whether they may be characterised as exceptional;[5]

(e) As part of that enquiry, a court will examine the conduct of the applicant (and his or her agents) in the prosecution of the appeal and the explanation for failing to lodge the notice within time; and

(f) The enquiry in determining whether exceptional circumstances exist as required by s 109(5)[s 272(8)] is not a consideration of all matters germane to the appeal.[6]

13 The use by the legislature of the expression "exceptional circumstances" has been held to indicate an intention to place a considerable bar in the way of an applicant before leave will be granted. The use of the word "exceptional" poses a more significant hurdle than the word "special", which is found in r 56.02 of the Supreme Court (General Civil Procedure) Rules 2005. It is also to be contrasted with other extension of time provisions where a court is required to consider a set of criteria in determining any particular application, for example under ss 23A and 27L of the Limitation of Actions Act 1958. The word "exceptional" conveys circumstances which rarely occur, or are outside reasonable expectation or anticipation: see Burlock v Wellington Street Investments Pty Ltd.[7]

14 In Shire of Carnarvon v Klein,[8] his Honour referred to the observations of McHugh J in Gallo v Dawson,[9] concerning the principles referable to an application to extend time for leave to appeal to the High Court from a decision made in the original jurisdiction of that Court. Although the High Court Rules did not impose a test of "exceptional circumstances", the comments of his Honour were noted by J Forrest J as illuminating:[10]

The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice, upon the applicant. In order to determine whether the rules will work an injustice it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has 'a vested right to retain the judgment' unless the application is granted. It follows that, before the applicant can succeed in this application there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. (Authorities omitted).

15 It is also clear that the principle in paragraph 12 (d), namely that the enquiry is confined to the circumstances relevant to the applicant's failure to appeal within time and whether they may be characterised as exceptional, means that the merit of the appeal itself is not material, at least where there is an arguable ground.

16 In this regard, J Forrest J in Shire of Carnarvon v Klein[11] quoted from the decision of McDonald J in Schwerin v Equal Opportunity Board and Ors:[12]

That which must be first established is that the failure to institute the appeal within the period referred to in subs (2)(a) of s 109 of the Magistrates' Court Act 'was due to exceptional circumstances'. It is not sufficient that the plaintiff establishes there exists exceptional circumstances generally with respect to the subject matter of the appeal, or the appeal itself, but, rather, that which must be established is that the failure to institute the appeal within the statutory period was due to exceptional circumstances. (emphasis added)

17 In Hughes v Morgan & Anor,[13] Beach J accepted what McDonald J said in Schwerin and went further, it seems to me, saying:

One does not look to the merits of the appeal itself when determining whether to grant leave to a litigant to appeal out of time. The sub-section requires one to look at the circumstances giving rise to the litigant's failure to appeal within time. If those circumstances can properly be categorised as exceptional then leave to appeal out of time will be granted. If they cannot, then leave will be refused. (emphasis added)

18 The approach of Beach J in Hughes shows that the merit of the appeal is not, in fact, irrelevant where it is revealed that there is clearly no merit in the appeal. But assuming some merit in the appeal, it is also clear that the identification of merit is not a factor relevant to the exercise of the discretion to extend time.

19 Mr McIntyre, solicitor, submitted on behalf of the appellant that the exceptional circumstances are to be found in the following factors:

(a) The appellant had no legal representation at any time until August 2013;

(b) When making application to the Magistrates' Court for the reinstatement of his driver's licence, he accepted the statement by the learned Magistrate that he was required by the legislation to impose as a condition of his license that his vehicle be installed with an alcohol interlock device;

(c) He made no enquiries about that requirement, merely proceeding to have the interlock device installed;

(d) After the period of six months prescribed by the Magistrate, he approached the auto electrician concerned (who was assumed to be an approved alcohol interlock supplier, or a person or body authorised by such a supplier) who removed the device. That auto electrician, if a suitably authorised person, should have known of the requirement to have the permission of the Court for the removal of the device and of the condition on the licence, and should have informed the appellant of those requirements;

(e) This is not a case where the appellant has sat on his rights. It is a case where he did not know his rights and that is in itself an exceptional circumstance;

(f) Since he found out that there was still a condition on his licence (in August 2013) the delay has been brought about by his financial circumstances, and his inability to provide funds to his solicitor to prosecute the appeal; and

(g) The prejudice that he will suffer if a conviction is recorded against him for breach of his licence condition or even if there is no conviction but a finding of guilt, will be a blot or stain on his record which ought not to have occurred. The original order of the Magistrate imposing the interlock condition was not authorised and should not have been made. That is the source of all the trouble.

20 In substance, the facts revealed by the appellant in his application for leave disclosed that the real justification for the appeal against the imposition of the licence condition is the threat of conviction for driving a motor vehicle in breach of a condition of his driver's licence.

21 It is of some note in the context of the determination of whether the circumstances disclosed by the appellant are outside reasonable expectation or anticipation, that for a condition to be imposed on a licence, there needs to be, as there was in this case, an order of the Court. What would the reasonable person expect to be needed to be done in order to remove that condition?

22 In my view the reasonable person would expect to have to return to the Court, or at the very least enquire with the local police or the Roads Corporation (VicRoads), as to what is to be done, in order to remove both the interlock device and the condition on the licence. But there is no evidence of anything of this kind taking place.

23 Moreover, the evidence given by the appellant in his affidavit (at paragraph 10) as to the conversation that took place between him and Constable Nelson at the time that he was pulled over at McClelland Drive, Langwarrin, went, according to the affidavit, as follows:

Constable Nelson: You are required to have an alcohol interlock device fitted to your car.

Me: I completed my six month period back in early 2009.

Constable Nelson: You need to prove that the alcohol interlock device was lawfully removed, with the Court's permission.

Me: I did not know I needed the Court's permission to remove the device, and I do not have any evidence that it has been removed lawfully.

Constable Nelson: If you cannot prove to me that the interlock device has been lawfully removed, you will be charged with an offence of driving without an interlock device.

24 By contrast, as I have quoted above at 10(g), the letter that Constable Nelson wrote to the appellant on 7 O[14]ober 2013,14 states that:

You stated that you had been to Court to have the interlock removed and would bring the documentation to the Frankston Police Station.

25 The solicitor for the appellant explained from the Bar table that the Constable misunderstood the appellant's reference to having attended the Court to have his licence reinstated as a reference to attendance at Court to have the interlock device removed. That may be so, but the appellant has put before the Court conflicting evidence as to what occurred at the time in August 2013 when he was pulled over by Constable Nelson.

26 Whether or not the disconformity between the two versions of the conversation is due to a misunderstanding or because of some untruth the appellant told the Constable at the time is not capable of being resolved by me in an application of this kind without a contradictor and cross-examination. But it does insert an element of doubt in my mind as to what was said to the Constable at the time. If it were as the Constable records in his letter, then the appellant knew more about the matter of removing the device than he now says he does.

27 A combination of the following matters seems to me to point quite strongly against there being the requisite exceptional circumstances in this case:

(a) Although the appellant had no reason to think that the Magistrate was wrong to impose the condition, he sought no advice and merely complied with it. He took no step to question the order of the Magistrate nor did he take any step to understand for himself the circumstances and requirements for the removal of the interlock device when it came to be removed;

(b) It is not outside reasonable expectation or anticipation that a person upon whom a licence condition of this kind is imposed, should appreciate that to remove the condition you would need to again attend the Court or take some other action in addition to physically removing the device. No enquiries were apparently made by the appellant;

(c) For the period from August 2013 to the time of the making of the application on 6 March 2014 (a period of over five months) the only explanation for the failure on the part of the appellant to make his application is his inability to raise the funds so as to enable his solicitors to make the application. It would be an extraordinary thing if a lack of funds were an exceptional circumstance warranting the grant of leave to appeal out of time;

(d) Although a part of the so-called exceptional circumstances are that the appellant was ignorant of his rights both in respect of the condition imposed by the Magistrate and the requirements for the removal of the condition and the interlock device, it amounts in my view to using his ignorance of the law as a basis to get the leave he seeks. In my view, ignorance of the law in this regard is not exceptional nor is it unusual. The provisions of the RSA are complicated and constantly changing, at least they were in the period under review. For the appellant to use this ignorance as a basis for raising exceptional circumstances seems to me to be outside what the legislature contemplated by exceptional circumstances;

(e) In the area of the law relating to driving offences of this kind, it is notorious that the legislation imposes both strict liability and is harsh, especially when it comes to driving under the influence of alcohol. To proceed, as the appellant has done, without making appropriate enquiries as to the applicable law, even by making enquiries at the local Police Station or Magistrates' Court, has the result that a considerable part of the delay is purely a product of his inaction as much as his ignorance of the law;

(f) The fact that a conviction for, or a finding that he is guilty of, the offence of driving without an interlock device when it was a condition of his licence, will be a stain on his record is a product of his own action and, particularly, inaction;

(g) The period of delay since 11 July 2008 is inordinate. Were leave to be granted the appeal would concern a matter before the court on 11 July 2008, almost 7 years ago. The matter the subject of the appeal has been performed by the appellant, although his failure to comply with s 50AAB may mean that to remove the condition he must again have an interlock device fitted for another period of 6 months; and

(h) It seems to me that to deny leave will not work a substantial injustice, upon the appellant, beyond the injustice of a conviction for an offence he might have avoided had he taken the precautions a reasonable person in his position ought to have taken, either to get advice as to the power of the Court to impose the condition, or to ensure that the device was removed in accordance with the applicable provisions of the RSA.

28 For these reasons leave to appeal under s 272 of the Criminal Procedure Act 2009 is refused and the appeal will be dismissed.

[1] [2008] VSC 24.

[2] See Burlock v Wellington Street Investments Pty Ltd [2009] VSC 565, [27].

[3] Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458; See also Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, 553-4.

[4] Owen v Stevens (Unreported 3 May 1991, Hedigan J); R v Steggall [2005] VSCA 278, [12].

[5] Hughes v Morgan [1998] VSC 147, [18].

[6] Schwerin v Equal Opportunity Board [1994] VicRp 60; (1994) 2 VR 279, 287.

[7] [2009] VSC 565, [30].

[8] [2008] VSC 24.

[9] [1990] HCA 30; (1990) 64 ALJR 458.

[10] [2008] VSC 24, [29].

[11] [2008] VSC 24, [40].

[12] [1994] VicRp 60; (1994) 2 VR 279, 287.

[13] (1998) VSC 147, [18].

[14] Exhibit LAK-3 to the affidavit of Luke Alfred Kalb sworn 17 March 2014.