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[2025] VSC 427
General information, not legal advice.
Supreme Court of Victoria
2025-07-16
Watson J
Original judgment source is linked above.
APPEAL - Appeal from Magistrates' Court - Statutory requirement to bring an appeal within 28 days after the day on which final order was made - Leave required for appeal commenced outside 28 day period - Whether applicant has demonstrated failure to commence appeal within 28 days was due to 'exceptional circumstances' - No exceptional circumstances demonstrated - Leave to appeal refused - Criminal Procedure Act 2009 (Vic) s 272.
1 The applicant, Ms Sonia Michelle Enright, seeks leave to appeal on a question of law under s 272 of the Criminal Procedure Act 2009 (Vic) ('the CPA') from final orders made by the Magistrates' Court on 10 December 2024.
2 On that day the learned Magistrate found the charge of refusing to undergo a breath test pursuant to s 49(1)(e) of the Road Safety Act 1986 (Vic) ('the RSA') proved and:
(a) imposed a fine of $800.00 with $93.10 statutory costs without conviction; and
(b) effective from 10 January 2025, cancelled Ms Enright's licence and disqualified her from driving for a period of two years.
3 Section 272(3) of the CPA requires that an appeal be commenced within 28 days after the day on which the order complained of was made. In the case of Ms Enright that meant that, excluding the period from 24 December 2024 to 9 January 2025,[1] her appeal should have been filed by 24 January 2025.
4 In fact Ms Enright filed her notice of appeal on 5 February 2025, 12 days after the time prescribed by s 272(3). Section 272(7) of the CPA provides that an appeal filed after the end of the period prescribed by s 272(3) is deemed to be an application for leave to appeal. Section 272(8) provides as follows:
The Supreme Court may grant leave under subsection (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 subsection (3) was due to exceptional circumstances; and
(b) is satisfied that the case of any other party to the appeal would not be materially prejudiced because of the delay.
5 For the reasons which follow, Ms Enright has failed to demonstrate that her failure to commence her appeal in time was due to exceptional circumstances and leave to appeal should be refused.
6 Section 272(8) of the CPA imposes a stringent requirement for the grant of leave.
7 Exceptional has been variously described as 'unusual, special, out of the ordinary course', something that rarely occurs, 'outside reasonable anticipation or expectation'.[2]
8 In Whittlesea City Council v Baltovski & Anor,[3] Ierodiaconou AsJ said:
Turning first to the meaning of 'exceptional circumstances' in this context. The principles interpreting s 109(5) of the Magistrates' Court Act may be applied analogously here. Section 109(5)(a) of the Magistrates' Court Act uses similar language to s 272(8)(a) of the CP Act, in that it refers to this Court being able to grant leave if it "is of the opinion that the failure to institute the appeal within the period referred to... was due to exceptional circumstances".
In Bucic v Arnej Pty Ltd, Mukhtar AsJ held, and I adopt:
...The requirement of exceptional circumstances has a natural stringency or testing quality about it. It has regard to the apparent public interest in bringing closure on decisions of the State's Magistracy who (like the Victorian Civil and Administrative Tribunal) deal with a high throughput of disputes affecting ordinary people or public affairs, or the lower scale of trade and commerce, all with widespread variety. The right of appeal is limited to a question of law, and the 30 day time limit carries with it the desideratum of finality.
Yet it is not uncommon to have disputes over applications for leave to appeal out of time. And it is remarkable how much judicial attention has had to be given to the meaning or application of s 109(5). Those authorities make it enough to say here: (i) the onus is on the applicant to show 'exceptional circumstances', an expression that is intended to place a considerable bar in the way of an applicant; (ii) 'exceptional circumstances' means circumstances outside reasonable anticipation or expectation; (iii) the Court is not concerned with the merits of the appeal but confines itself to the conduct of the applicant, and any agents acting, and the explanation for failing to lodge the appeal in time; and (iv) evidence must therefore be clear and cogent. That is quite an onus for any applicant.[4]
9 In Miao v Body Corporate SP31235U[5] Derham AsJ considered the analogous provision in s 109(5) of the Magistrates' Court Act:
It has been said, rightly in my view, that the expression "exceptional circumstances" was intended to place a considerable bar in the way of an applicant before leave will be granted.
The words of s 109(5) and the authorities referred to above require that the exceptional circumstances identified are the cause of the failure to institute the appeal within time. This requires an examination of the circumstances between the time of the Magistrates' judgment and the expiry of the ... period. In carrying out this examination and determining whether exceptional circumstances have been demonstrated, a court may, properly, look at events prior to that period to determine whether the actions taken by the applicant during the period satisfy the test.
In an application to extend the time for prosecuting an appeal, particularly where the test requires "exceptional circumstances" to be demonstrated, the proofs must be clear and cogent to enable the Court to be satisfied the onus has been discharged.[6]
10 In support of the application for leave to appeal, Ms Enright filed an affidavit affirmed on 23 February 2025. This affidavit explains in brief the circumstances relating to the charges being laid and the subsequent Magistrates' Court hearings. There is nothing in this affidavit that explains the late filing of the notice of appeal.
11 On 6 March 2025 a Judicial Registrar made orders that Ms Enright file any further affidavits in support of her application for leave on or before 4 April 2025. No further affidavits were filed.
12 In the respondent's submissions dated 30 May 2025, Ms Enright was put on notice that she was required to provide evidence as to the exceptional circumstances that existed to explain the late filing:
However, as a preliminary (and significant) issue, the Applicant has not filed any evidence, nor put on any submissions, demonstrating how (if at all) the Applicant's failure to commence the appeal within 28 days after 10 December 2024 was due to exceptional circumstances. This is a strict requirement of s 272(8) of the Criminal Procedure Act 2009 (Vic) (CPA): the Court may only grant leave to appeal if it is of the opinion that failure (delay) was due to exceptional circumstances. There being no evidence or submissions supporting any such finding, the Respondent contends that the Court should refuse leave and dismiss the Applicant's application for leave to appeal.
13 Ms Enright did not file any submissions, nor did she file any further affidavit material before the hearing of the application for leave was held in this Court on 27 June 2025.
14 At the outset of the hearing, I drew Ms Enright's attention to the lack of evidence as to exceptional circumstances under s 272(8) of the CPA and highlighted the importance of the issue.
(a) she had had two hospital admissions, on 20 December 2024 and 20 January 2025, and that her physical incapacitation meant that she could not complete and file the notice of appeal in time. She could provide medical evidence to show that she was hospitalised several times after the suspension of her licence and that her physical incapacitation prevented her from undertaking administrative tasks;
(b) the Magistrate's orders were 'only activated' on 10 January 2025 which means that she was within the 28 day time limit;
(c) the final hearing before the Magistrate (which was listed as a contest mention) was held before Christmas and court closures hampered Ms Enright's ability to make an application for a rehearing as it needed to be made in person;
(d) time was spent considering whether to seek a rehearing in the Magistrates' Court or make an appeal to the Supreme Court; and
(e) there were exceptional circumstances because:
(i) she had been denied procedural fairness at the hearing before the Magistrate; and
(ii) the loss of the licence had caused her considerable hardship.
16 I gave Ms Enright two weeks from the date of the hearing before me in which to file evidence in support of her application for leave. She did so.
17 In an affidavit affirmed on 7 July 2025, Ms Enright gives evidence regarding her health. Insofar as she expresses medical opinions she seeks to qualify herself as an expert under s 79 of the Evidence Act 2008 (Vic) on the basis of the following education and professional experiences:
• Speech Pathology, La Trobe University 2002 - 2003.
• Medical Imaging, Charles Sturt University 2006 - 2009.
• Diagnostic Medical Imaging Technologist 2010 - 2022.
• Academic, School of Medicine, Deakin University 2018 - 2022.
18 The relevant portion of the affidavit is as follows:
Prior to July 2022, I considered myself to be in excellent physical health. However, my health began to deteriorate following the unlawful removal of my three young children by my former husband and a DFFH employee. Shortly thereafter, Child Protection initiated court proceedings against me to block the anticipated recovery orders I sought to issue against the father who had prevented all contact between the children and their primary carer.
The progression of chronic disease that ensued closely aligns with the timeline of court proceedings, necessitating multiple admissions to Emergency Care. During these visits, I was administered intravenous hydration with either Normal Saline (Sodium Chloride) or Hartmanns solution (containing Lactate, Potassium, Calcium, and Sodium Chloride) on several occasions.
On 21 December 2024, I sought treatment at St John of God Hospital in Ballarat for the worsening of symptoms caused by actions taken by Victoria Police and the outcome they secured in the Magistrate's Court 11 days earlier. This outcome stemmed from a wrongful claim of drink driving and alleged refusal to undergo a breath test during my visit to the police station, where I had sought assistance and protection for ongoing domestic abuse and intentional infliction of emotional distress.
Blood tests confirmed the medical conditions I had previously outlined in an email to Court Services Victoria on 9 December 2024. These conditions included Hashimoto's thyroiditis, hypoxia, lymphadenopathy (immune response), and neutrophilia, all resulting from oxidative stress, shock and chronic emotional and psychological distress. (Exhibit 3 - 6 Pathology results).
I requested IV hydration but was once again denied by a third doctor at St John of God Hospital. Another 3 doctors from St John of God Hospital, Geelong would go on to refuse me basic care on 30 March 2025.
I spent the Christmas period in the recovery position, enduring the devastating effects of spending yet another Christmas without my children and extended family.
On 29 January 2025, I called an ambulance to the Epworth Hospital due to severe respiratory distress and pleuritic chest pain, experiencing the overwhelming sensation often described as "impending doom." I was administered an infusion of Hartmanns Solution, which restored my physical functioning to be able to sit upright.
I started preparing materials for the Supreme Court to appeal the orders issued by the Magistrates' Court on 10 December 2024, aiming to secure an urgent hearing in the Practice Court.
19 The affidavit exhibits two character references which are not relevant to the issue of the late filing. It also exhibits five pathology reports with text inserted at the foot of the report by Ms Enright. Two of the pathology reports relate to tests performed on 10 September 2024 and three relate to tests performed on 21 December 2024.
20 Even taken at its highest, the evidence provided by Ms Enright does not satisfy her onus to prove that her failure to file her appeal on time was due to exceptional circumstances. There is no evidence on which I could conclude that Ms Enright's medical conditions throughout the entire period from 10 December 2024 to 24 January 2025 were such as to prevent her filing her appeal on time.
21 Her affidavit provides evidence regarding attendances at hospital on 21 December 2024 and 29 January 2025. As the time limit for filing her appeal had expired before the admission on 29 January 2025, this leaves one attendance at hospital on 21 December 2024 relevant to the reasons for the delay. There is no further detail in the affidavit regarding whether Ms Enright received any treatment (beyond the administration of pathology tests) and, if so, for what medical issue on that day.
22 Nor does Ms Enright's recitation of medical conditions (for which the only evidence is her self-diagnosis) provide evidence of an inability to prepare and file a document throughout the period between 10 December 2024 and 24 January 2025. Those conditions did not prevent her from preparing the notice of appeal which was eventually filed and they did not prevent her from preparing other materials in support of her appeal.
23 In short, the evidence provided by Ms Enright as to her medical conditions does not demonstrate exceptional circumstances explaining her failure to file the notice of appeal within the 28 day period.
24 With respect to the issue of the Magistrate's order only being activated from 10 January 2025, Ms Enright clarified in later oral submissions that she understood that the Magistrate had delayed taking effect of the licence cancellation in order to allow her time to make an application for appeal or rehearing. I am satisfied that Ms Enright was aware that the 28 day period under s 272 of the CPA started on 10 December 2024. Further, I note that, at the time she filed her notice of appeal Ms Enright specifically sought leave to initiate the appeal outside the 28 day time limit. In these circumstances, whether a misapprehension regarding the time the appeal period started running would constitute exceptional circumstances is not something I have to determine.
25 The submission that court closures impacted on Ms Enright's ability to file a notice in time is without foundation. Apart from public holidays and an outage which affected RedCrest filing between 6 pm Friday 3 January 2025 and 12 pm 5 January 2025, the Court's registry remained open for both electronic and in person filing throughout the entire Christmas - New Year period. In any event, the calculation of the 28 day time limit excludes the period from 24 December 2024 to 9 January 2025.
26 The fact that Ms Enright spent time considering whether to appeal to this Court or seek a re-hearing in the Magistrates' Court does not demonstrate exceptional circumstances. Any denial of procedural fairness before the Magistrate (as to which see below) and the impact of the loss of licence on Ms Enright are not matters which go to an explanation for her failure to appeal on time.
27 In short, Ms Enright has not discharged her burden of establishing that the late filing of her appeal was due to exceptional circumstances.
28 If I had granted leave the respondent submits, and I accept, that the appropriate order would be to uphold the appeal, set aside the Magistrate's orders and remit the matter to the Magistrates' Court. In those circumstances, one might think that the operation of s 272(8) of the CPA was particularly harsh and that the operation of the time limit in s 272(3) is a triumph of form over substance. Whether the operation of s 272(8) is harsh or not, as the authorities cited above make plain, it imposes a significant hurdle for an applicant for leave.
29 However, in this case the apparent harshness of the operation of s 272 of the CPA would have been entirely ameliorated if Ms Enright had accepted an open offer made to her by the respondent.
30 On 6 May 2025 the Victorian Government Solicitor's Office (VGSO) wrote to Ms Enright conceding that she had not been granted procedural fairness at the hearing of 10 December 2024 and proposing that the parties jointly seek orders from the Court:
(a) granting leave to appeal and allowing the appeal;
(b) quashing the orders made 10 December 2024;
(c) remitting the matter to the Magistrates' Court to be heard according to law; and
(d) making no orders as to costs.
31 On 6 May 2025 Ms Enright replied to the VGSO by email rejecting their offer. At the hearing of this matter, I raised with Ms Enright whether she wished to consider further the offer the VGSO had made her. She made clear she did not. In essence, her reasons seemed to be that:
(a) she could not do worse if her appeal ran. I pointed out that she might not get leave to appeal;
(b) she would inevitably be found guilty if the matter was remitted to the Magistrates' Court; and
(c) I should quash the charges.
I endeavoured to explain that there was an inconsistency between the latter two propositions.
32 As it happens then, this matter has fallen to be considered on the basis of whether Ms Enright has satisfied the test for a grant of leave to appeal out of time and she has not.
33 As I note above, had I granted leave, I would not have quashed the charges but rather, remitted the matter to the Magistrates' Court to be heard and determined according to law. In that regard, it is appropriate to set out some of the detail of the history of the charges and the grounds of appeal.
34 Ms Enright attended the Geelong Police Station on 24 May 2024 to request information regarding the identity of police officers who had attended her home on a prior occasion. Whilst there, the police officers interacting with Ms Enright became concerned that Ms Enright had driven to the police station under the influence of alcohol. Constable Taylah Jayne Beard, the Informant, and Senior Constable Christoper Buckley requested that she undertake an evidentiary breath test. Ms Enright initially agreed but after a verbal dispute left the station without having completed the test. She was advised that one of the consequences of a refusal to undergo a breath test would be loss of licence.
35 On 12 June 2024, Constable Beard signed a charge sheet and summons, charging Ms Enright with an offence under s 49(1)(e) of the RSA. Section 49(1)(e) provides that a person is guilty of an offence if they refuse to comply with a requirement made under section 55(1), (2), (2AA), (2A) or (9A) of the RSA.
36 Under the heading 'what is the charge' the charge sheet sets out:
The accused at Geelong on 24th of May 2024 after having been required to furnish a sample of breath pursuant to section 55(2AA) of the Road Safety Act 1986, did refuse to comply with such requirement prior to 3 hours elapsing from the driving of a motor vehicle.
37 Section 55(2AA) of the RSA relates to breath testing for the purpose of drug assessment. Section 55(2) of the RSA is the subsection which deals with a requirement to undertake a breath test for alcohol.
38 A day before the contest mention listed for 10 December 2024, Ms Enright emailed the Court stating that due to medical reasons she would be unable to attend in person and asked to appear remotely. In a later email, Ms Enright indicated that she:
(a) would be contesting the charge at the Summary Hearing next year;
(b) would remain a litigant in person at all hearings;
(c) could assure the Court that all necessary legal advice had been sought and no further time was required to obtain legal advice; and
(d) was ready to proceed with the mention.
39 The request to appear at the hearing remotely was declined and directions were given that attendance in person was required. Ms Enright did not appear on 10 December 2024.
40 During the hearing, the prosecutor sought to amend the reference in the charge from s 52(2AA) to s 52(2) of the RSA as 'AA refers to drug testing, whereas (2) refers to alcohol'. The Magistrate acceded to the application for amendment. The prosecutor then applied for the matter to be heard and determined ex-parte. Magistrate McGarvie granted the application and determined the matter finally.
41 The respondent's concession that Ms Enright was denied procedural fairness in the hearing of 10 December 2024, as set out in its written submissions on this appeal, is based on the following:
43 In her grounds of appeal Ms Enright raised as one of her grounds a denial of procedural fairness. In addition she contended that:
(a) The charge against her incorrectly referred to provisions of the RSA dealing with driving under the influence of drugs;
(b) She had not been served with a full police brief 14 days before the Contest Mention;
(c) There was no refusal to undergo a breath test;
(d) The Informant's decision to ask for a breath test was unnecessary; and
(e) She had been kept at the police station under false pretences.
44 The matters in (c)-(e) were clearly matters of factual contest which would have been inappropriate to resolve on an appeal on a question of law in this Court.
45 As to the question of service of the full brief, the respondent contends that it was permitted by s 84 of the CPA to rely on the preliminary brief which had been served on Ms Enright on 12 June 2024 and that the transcript of the hearing before the Magistrate supported the view that it was in fact the preliminary brief which had been relied upon (the Magistrate having referred to statements by two police officers, being the number in the preliminary brief, rather than statements of three police officers, being the number in the final brief). In any event, short service of the full police brief is a matter properly to be regarded as going to fairness of the hearing, a matter which would have been cured on remittal to the Magistrates' Court.
46 This leaves the question of whether the incorrect reference to s 55(2AA) of the RSA in the charge sheet, together with the lack of procedural fairness in the hearing on 10 December 2024, gives rise to a situation where the charges against Ms Enright should have been quashed.
47 Ms Enright did not articulate her argument in this way, but the question arises whether, given there was a lack of procedural fairness at the 10 December 2024 hearing (as the respondent conceded there was), the order amending the charges should also be quashed. If that order were quashed, a further question might arise whether on remittal the charges could be amended, it now being more than 12 months since they were laid. If the answer to that question were no, then there would be no utility in remittal and, had leave been granted, Ms Enright would have been entitled to have the charges against her quashed without remittal.
48 The respondent says that the amendment order should not be quashed because:
(a) an appeal can only be brought against a final order of the Magistrates' Court under s 272(1) of the CPA;
(b) in her notice of appeal Ms Enright sought no relief against the Magistrate's amendment order; and
(c) there was nothing Ms Enright could have said before the Magistrate which would have led the Magistrate acting reasonably and rationally to refuse the amendment.
49 I accept that an appeal may only be brought against a final order of the Magistrates' Court under s 272(1), it says so expressly. However, that seems to me to be different to a situation where the Court sets aside a final order and for reasons which arise from the setting aside of that order, makes consequential orders or directions as to interlocutory steps which were taken in obtaining the final order. Nor am I persuaded that the absence of a claim for specific relief in relation to the amendment order in the notice of appeal would have precluded a consideration of the issue given Ms Enright squarely raises whether the charge referred to the wrong section of the RSA.
50 I do, however, accept that there was nothing which Ms Enright could have said to the Magistrate on 10 December 2024 that would have led to a Magistrate acting reasonably or rationally to refuse the amendment sought by the prosecutor. The Magistrate had an obligation to consider whether any issue with the charge could be cured by amendment and, if it could be, to permit amendment.[7] Here, the reference to s 55(2AA) of the RSA was clearly capable of amendment, the 12 month time limit had not expired and there was nothing which Ms Enright could have said in opposition to such an amendment which would 'realistically' have made any difference to the Magistrate's decision regarding the amendment.[8]
51 For these reasons, had leave been granted, the appropriate orders would have been to grant the appeal, set aside the orders of 10 December 2024 and remit the matter to the Magistrates' Court to be heard and determined according to law. Had Ms Enright taken up the offer of the VGSO made on 6 May 2025 that is the outcome she would have achieved. She did not, however, take up that offer. As a result, the matter has been determined on the basis of whether her failure to file her notice of appeal within the statutory time limit was due to 'exceptional circumstances'. For the reasons set out above, it was not.
52 The application for leave to appeal should be dismissed.
53 There is no reason to depart from the usual costs order. Ms Enright should pay the respondent's costs of and incidental to the proceeding.
[1] As required by rule 1.09 of the Supreme Court (Criminal Procedure) Rules 2017 (Vic).
[2] R v Steggall [2005] VSCA 278; (2005) 157 A Crim R 402, 406 [12] (Buchanan, Eames and Nettle JJA) (citations omitted).
[6] Ibid [28]-[30] (citations omitted).
[7] Fox v Director of Public Prosecutions [2022] VSCA 38; (2022) 66 VR 223, 243-245 [73]-[74] (Kennedy, Walker, Whelan JJA).
[8] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321, 328-329 [14] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ) (citations omitted).
Enright
Beard [2025] VSC 427
(2022) 66 VR 223
(2024) 280 CLR 321