Thomas, Rowland William v Ducret, Alan Raymond & Anor [1983] FCA 115

NEW SOUTH WALES DISTRICT REGISTRY ) ) No. G67 of 1983 )

Before me are two applications, one an application for leave to appeal out of time, and another for an order that the execution or further execution of certain orders made by the Court be stayed. The facts which provide the essential background of the matter are not without their

The applicant was proceeded against by an informant

for breaches of the provisions of s.59(2) of the Trade

Practices Act 1974. The matter was heard by Smithers J. and

judgment delivered on 11 February 1981. Nine charges in all

were involved, and the applicant was fined a total sum of $35,000. His Honour ordered the applicant to pay the fine in each case within twenty-one days after service on him of a notice given by the Registrar under s.106(1)(c)(d) of the Magistrates (Summary Proceedings) Act 1975 (Victoria). His Honour's order in each of the nine cases continued, "Should the defendant default in the payment of such fine the defendant be imprisoned for six months". He then gave directions as to the manner in which the notice might be

For reasons given in his Honour's judgment, his Honour considered that certain provisions of the Victorian legislation dealing with the consequences of the non-payment of flnes 1n summary proceedings in that State applied by

reason of the operation of s.i8A of the Crimes Act 1914.

I should have mentioned that the cases were initiated in the Victorian Registry of the Court and were

The applicant appealed against his Honour's decision but the appeal was dismissed on 30 July 1981 by reason of the fa1lure of the applicant to comply with certain directions of the Court as to the prosecution of the appeal. Steps were then taken to enforce his Honour's orders. This

led to an application by the applicant made to his Honour in

Melbourne for leave to pay the amounts of the fines by instalments. His Honour granted the application upon certain terms and conditions which appear in his order of 29 September 1981. The applicant did not comply with one or more of the conditions of that order, and on 20 October 1981 Smithers J. made orders in each of the cases which are all (except as to

'(1) The defendant be imprisoned for a period of 6 months for being in default of payment of the fine of . . . which the defendant was adjudged to forfeit and pay by order of the court made i1 February 1981.

imprisonment of the defendant be issued forthwith 1n the form annexed hereto."

Warrants were issued directed to the Sheriff of the Court and commanded her to take the applicant into custody 1f he did not pay the amount of the fine in each case. The Sheriff was required to take the applicant to Her Majesty's Prison, Pentridge, Victoria, and the warrant directed the

Superintendent of that prison to take the applicant into his

The applicant was eventually apprehended un Sydney and apparently wished to serve his sentence in a prison in Sydney rather than in Melbourne. On 18 January 1982 his

Honour varied each of his orders by directing the Sheriff to

deliver the defendant to Her Majesty's Prison, Long Bay,

New South Wales, in substitution for the reference contained in the warrant that he be delivered to Her Majesty's Prison, Pentridge. A consequential variation so as to direct the Superintendent of Her Majesty's Prison, Long Bay to receive

or about 18 January 1982 and, subject to one comparatively

short period of release, when habeas corpus proceedings were before the Supreme Court of New South Wales, he has

The view was taken by Smithers J., and rightly taken 1n the submission of counsel for the respondent to this application, that the periods of six months imprisonment for which each of his Honour's orders provided were cumulative and will result in the applicant serving a total period of imprisonment of four and a half years unless he, in the meantime, pays all or some of the fines and subject, of course, to what may be the situation in relation to the

ordinary periods of remission to which prisoners are entitled.

The application which the applicant makes for leave to appeal 1s an application for leave to appeal from the orders made by Smithers J. on 20 October 1981 and 18 January

1982. He does not seek leave to appeal, nor any other relief

in respect of the original judgment of Smithers J. delivered on 11 February 1981. There would be extreme difficulty in his doing so in the light of the judgments of the High Court in Bailey v. Marinoff (1971) 125 C.L.R. 529 and Gamser v. The Nominal Defendant (1977) 136 C.L.R. 145. No doubt it 1s for that reason that the applicant has sought special leave to appeal to the High Court in respect of that judgment.

His application in that behalf 1s pending but is unlikely to

The application which the applicant makes for a stay of proceedings 1s made to enable his release from prison while the appeal which he wishes to institute in this Court 1s heard. That application will not arise for consideration unless I am of the opinion that I should grant leave to him

The rule pursuant to which he seeks such leave 1s Rule 15(2) of Order 52 of the Rules of this Court. Rule 15(1)(b) provides, in effect, that a notice of appeal shall be filed and served, in a case where it 1s not filed and served within twenty-one days, within such further time as is allowed by the Court or a Judge upon application made by motion upon notice issued within the period of twenty-one days referred to in the last preceding paragraph. That rule

has to be read subject to Rule 15(2) which provides that

notwithstanding anything in the preceding sub-rule the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal. I am not therefore prevented from granting the relief sought by the fact that no application pursuant to the rule was made until the

times provided for in Rule 15(1) had long since expired.

But I must be satisfied, if the application 1s to succeed, that there are the special reasons which are referred to in Rule 15(2). It has been submitted by counsel for the respondent that I should refuse leave because it 1s plain that nothing that his Honour did in the orders made by him on 20 October 1981 and 18 January 1982 was otherwise than a carrying out of the judgment which he had entered on

11 February 1981. In order to have any chance of succeeding, the applicant must, so counsel for the respondent submitted, be able to challenge that initial judgment. For reasons earlier given, that is not something which it 1s open to the applicant to do in this Court. For the reasons given in the cases to which I have referred it may be difficult enough

However, it seems to me - having considered what are said to be the proposed grounds of appeal against the two orders, particularly that of 20 October 1981 - that the applicant may have some arguable matters to put before an

appellate court in relation to those orders not dependent

upon his being able to challenge the original judgment of 11 February 1981. I do not wish this afternoon to enter upon an exhaustive review of matters which it may be open to him to argue. It 1s sufficient if I be satisfied that he has one or more arguable points - arguable in the sense

Upon the basis of what has been said to me by counsel for the applicant, I think there are questions, bearing in mind the provisions of the Victorian legislation upon which the whole process has been based, as to whether the procedure provided for in that legislation has been carried through. That would be enough to base an argument, upon which the appellant will rely, that his Honour had no jurisdiction to 1ssue the warrants which were issued in the

Then, there is apparently a question as to whether his Honour's view that the periods of imprisonment should be treated as cumulative is correct. In other words, there is a question as to whether the terms of imprisonment should not have been regarded as imposed concurrently. That again involves a question of the construction of the Victorian legislation. If the argument were correct, the applicant was

entitled to be released from prison on 17 July last.

There 1s also a question of whether 1t was lawful, notwithstanding that 1t was the applicant who apparently wished to be imprisoned in Sydney rather than in Melbourne, for it to be ordered that the imprisonment be in New South

There are other grounds upon which reliance is placed, which I think will be difficult for the applicant to rely upon because they do go back to the matters which his Honour decided in a final way in his original judgment of 11 February 1981. But, for the reasons I have given, I am of opinion that there are bases upon which his Honour's orders of 20 October 1981 and 18 January 1982 may be challenged. Of course, I express no view at all upon whether that challenge 1s likely to be successful. I have not heard full argument on the matter and 1t would be inappropriate, in any event, if I had formed even a prima facie view, for me to express it. His Honour has given a considered judgment, not only in this case but in at least one other, and I have been informed this afternoon - although I have not been referred to the case - that another Judge of this Court has adopted a similar course to that adopted by Smithers J. I make it clear that all I am saying 1s that the points to which I have referred are, 1n my view, arguable points. The appeals, 1f they are allowed to be

I should then return to the question of whether, within the meaning of Rule 15(2) of Order 52, I am satisfied that special reasons exist. I have found this question a most difficult one. I have wondered whether I should not decline myself to exercise jurisdiction in the matter, but to direct that this application come before a Full Court. On the other hand, the case is one which does involve the liberty of the subject, and it does involve some aspects of the importation into the processes of this Court of the Victorian legislation to which I have referred. I think, aS 1S mentioned in the application, this matter does raise some questions of public and general importance, questions upon which it 1s desirable that there be expressed a view

I realize that the application for leave to appeal is long out of time, but upon the whole of the circumstances of the case I think I should be satisfied that special reasons do exist, and I propose to take that view. Upon that basis I propose, pursuant to Rule 15, to give the applicant leave to file and serve a notice of appeal in respect of the orders of 20 October 1981 and 18 January 1982, provided that notice of appeal is filed and served on or before 21 January next. The appeal 1s to be prosecuted in

accordance with the rules but of course 1f the applicant

makes default at all in the prosecution of it it 1s not unlikely that the appeal will be dismissed for want of

I come then to the question of the stay of proceedings. The application 1s made pursuant to Rule 17 of Order 52 of the Rules but, as has been pointed out to me by counsel for the respondent, I need to consider, along with that rule, the provisions of Rule 35, providing for the grant of bail. Rule 35(3) provides that the Court or a Judge may, upon such terms as 1t thinks fit, admit an appellant to bail pending the hearing of his appeal or his application for leave to appeal. There cannot be any question that this 1S a criminal proceeding. No argument to the contrary was presented, and I really think it is a matter where what 1s involved is not so much a stay of proceedings, the warrants having been executed, as a question of whether or not I should admit the applicant to

Reference has been made in the course of the argument to s.68 of the Judiciary Act 1903 and to the question of whether that does not operate to pick up the Baill Act 1978 (N.S.W.). If 1t does, the further question arises as to whether the case 1s governed at all by the

provisions of s.32 of that Act or whether, the case being

one where bail 1s sought pending an appeal, the only

I have been referred to no case by either counsel 1n which 1t has been suggested by any Judge of the Supreme Court of New South Wales that s.32 provides otherwise than for the considerations which apply when bail is sought pending a trial as distinct from pending an appeal. In those circumstances I do not think I should take any view other than that the case 1s governed by what was said by Mason J.

in Hayes v. The Queen (1974) 48 A.L.J.R. 455. In other words,

bail will be granted pending a hearing of an appeal in an

The question 1S whether this 1S an exceptional case. Counsel for the applicant submitted that 1t was. He relied principally upon the circumstance that this was not a case where the punishment imposed was originally a term of imprisonment, 1t was a series of fines. Thus he said this

case was different to cases such as Hayes' case where

imprisonment was the only punishment and the question arose whether pending an appeal the prisoner should be granted ball and thus for the time being at least released from his confinement. Imprisonment in this case was only imposed because the applicant was unable or unwilling to pay the fines which had been imposed upon him by Smithers J. in his

I myself in the absence of authority would have taken the view that there was much force in such a submission. But the same submission was put to Murphy J. in the High Court when an application for bail came before him pending the hearing of the application for special leave. After referring to Hayes' case (supra.) his Honour

"In this case the original sentences were fines only and the imprisonment imposed was in default and the applicant, amongst other grounds, seeks to challenge the authority to impose imprisonment in default. However, bail should still be granted only if the case 1s exceptional. Having considered all the circumstances, including the basis upon which Smithers J. imposed imprisonment in default - see Wilde v. Pagonis 9 February 1981 unreported

• I am not satisfied that this 1s an exceptional case. The application is refused."

His Honour had before him, so I believe, all the material which I have before me. I am not aware that I have any further material than he had, subject, of course, to the fact that these are fresh applications and in that sense involve different considerations from that which was before Murphy J. Furthermore, a further period of time has elapsed, although not a great period, since Vurphy J.'s

In my view his Honour's clear expression of opinion that this case stands in no different situation because 1t 18 a fine case and not an imprisonment case binds me. It would be quite wrong for me not to follow it. I should therefore take the view that the case 1s one

governed by Hayes' case and that I ought not to grant bail

Having reviewed the whole of its circumstances I have reached the conclusion that 1t 1S not such a case. That is in line also with the views of Murphy J., albeit that he there was expressing his conclusion in a discretionary exercise. Quite apart from my own views it would seem to me that to depart from his view even on a discretionary matter expressed so recently as 3 December and in the same case would lead to an undesirable unevenness

ba1l which 1s sought and consequently the stay of proceedings.

I order that the applicant have leave to file and serve a notice of appeal against the orders of Smithers J. made on 20 October 1981 and 18 January 1982 provided the notice of appeal is filed and served on or before 21 January

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The application filed in this matter on 14 April last 1s just another step in this prolonged 11tigation which has involved the applicant Rowland William Thomas in serving a period of imprisonment in the Long Bay Penitentiary. He has been in gaol, subject to one short period of release, since 18 January 1982. He has thus served a period of

imprisonment which exceeds a year and three months.

Some of the history of the matter is set out in a judgment delivered by me last year in matter No. G244 of 1982. I do not repeat that history here. Insofar as I dealt with the application for a stay of proceedings made in that matter, I was persuaded by what had been said by Murphy J. in the High Court when a similar application had been made to him. In short, I decided that, although the applicant was imprisoned because of non-payment of fines

imposed under the Trade Practices Act, the rule in Hayes'

case applied, and that I should not grant bail, which I equated to a stay of proceedings, unless it was shown that

demonstrating that it was exceptional. However, further

evidence has been given today, and of course a period of some four months or a little longer has elapsed since my

Another supervening event is the payment on behalf of the applicant of a sum of $2,000. This was appropriated or at least to be appropriated to the payment of the penalties which had been imposed in respect of the prosecu- tions brought in matters VG94, 97 and 100. Unfortunately for the applicant at the time of the payment the period of imprisonment he was serving or was to serve in respect of number 94 had been served, with the result that an appropriation of an amount towards the penalty imposed in that case would be of no assistance to him. However, the payments in respect of numbers 97 and 100 are in a different category. Prima facie they appear to me to have effectively reduced the total period of four and a half years imprisonment which, subject to remissions the applicant

might have expected to serve, to three and a half years.

Today there has been some evidence, although not nearly enough to make the position clear, and some reference to legislation, again not sufficient to make the position clear, with a view to demonstrating to me that the applicant has in fact now served, 1f not the total period of i1mprison-

ment that he would be required to serve, taking into account

the payment and remissions, then a very substantial portion

I have reached the conclusion that there is substance in what 1s put to me. I express no final view about the matter because it 1S complex and one could not be satisfied about it unless one had a great deal more evidence and engaged in a much more detailed review of the legislation than I have engaged in this afternoon. Nevertheless, 1t would appear to me that at the moment the period of imprisonment to be served totals three years and six months, having taken into account the two matters in respect of which the penalties have been paid. If one applies Regulation 110 of the Regulations made pursuant to the Prisons Act 1952 in the State of New South Wales, one must reduce the period of three years and six months by at least one year and two months, that is a third. There is warrant for saying that it perhaps should be reduced by one year and six months. If one adopts the former course, the total period which 1s involved reduces to two years and

However, further reductions would need to be made to take account of the operation of Regulation 111 to which I have been referred. The remissions to which the

applicant may be entitled under this regulation may be as

great as nine months or a little more. They may be less, I cannot tell. But if they were nine months and his total period of imprisonment otherwise after the operation of . Regulation 110 is two years and four months, that reduces his total period to one year and seven months. If that were right he would be entitled to release in any event

on or about 18 August next, that 1s to say in a little

I was informed that there is or 1s likely to be a further remission period given to prisoners as a result of the Royal visit, but doubt was expressed as to whether it

I think on balance - and I say this tentatively and by no means on the basis of any final conclusion - that 1f the applicant's appeals fail, so that he 1s bound to serve the term of imprisonment resulting from his non-payment of the fines, he will probably need to serve a further period, the length of which I cannot indicate but 1t may be of the order of some months. I doubt whether it will amount to twelve months. The points which his appeal to the High Court and the Full Court of this Court raise are, in my view, not without difficulty. So much is conceded by counsel for the first respondent who has informed me that

1t 1s not intended to oppose the application for special

leave to appeal which the applicant has made to the High Court and that, 1ndeed, other cases are, to a degree at

It seems to me that the account that I have given of the various matters which I should consider in determining whether this 1S or 1S not an exceptional case indicates that it plainly 1s and that, whilst not departing

at all from my previous view that Hayes' case does apply

in the applicant's case, I should grant bail pending the hearing of the appeal. The grant of bail will be conditional upon his entering into a recognizance with one Surety in

the sum of $10,000 by which he will be bound to yield

himself up to lawful custody in the event that that 1s the consequence of the order of any of the courts to which he

I order that further proceedings on the warrants issued 1n each of the matters VG numbers 92, 94, 96, 97, 99, 100, 101, 103 and 104 of 1980 be stayed upon the applicant entering into a recognizance with one surety in the sum of $10,000 to return himself to his former or to

any other lawful custody should that be so required as a

consequence of an order of the High Court of Australia or of the Full Court of this Court upon the applications for