Whittlesea City Council v Baltovski & Anor [2021] VSC 784

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

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

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

5 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.

6 On 25 September 2018, charges relating to alleged offences pursuant to s 125 of the Planning and Environment Act 1987 were filed against "Pando Baltovski", who is described in the charge sheet as female.[1] The offences were alleged to have occurred on or before 21 May 2018, and related to the alleged construction of a building without a permit issued by Whittlesea City Council. It appears that the charge sheet wrongly described the accused. There is no reference to a Ms Baltovski in the materials before me. The charges were defended by Mr Baltovski.

7 The charges were listed for a hearing in the Heidelberg Magistrates' Court before a Judicial Registrar. Mr Baltovski submitted, amongst other things, that unless the charges were properly characterised as 'continuing offences', they had been brought out of time and he had no case to answer. Whittlesea City Council submitted, amongst other things, that the charges were continuing offences.[2]

8 The Judicial Registrar considered the issue of whether the charges were 'continuing offences' or 'once and only offences'. On 1 August 2019, the Judicial Registrar provided reasons for finding that the offences ought to be considered as 'once and only offences', not 'continuing offences'.[3] The orders made by the Judicial Registrar are not in evidence.

9 On 5 September 2019, Whittlesea City Council applied for review of the determination of the Judicial Registrar, pursuant to s 16K(3)(a) of the Magistrates' Court Act 1989 ('Magistrates' Court Act').[4] Rule 16(2) of the Magistrates' Court (Judicial Registrars) Rules 2015 ('Magistrates' Court Rules') requires that an application for review and accompanying affidavit be filed within 14 days after the day on which the determination was made. Whittlesea City Council filed its application for review more than a month after the Judicial Registrar's decision. Whittlesea City Council's application refers to review of an order made by the Judicial Registrar dismissing the proceeding. Whittlesea City Council also applied for an extension of time to apply for the review, pursuant to r 16(3) of the Magistrates' Court Rules.[5]

10 An affidavit deposed on behalf of Whittlesea City Council by a solicitor, Sam Turner, sworn on 28 August 2019, refers to the question in dispute being "whether the accused, and persons in a similar position, who escape detection for 12 months also escape punishment and are allowed to keep there [sic] illegal structures that are contrary to law".[6] Paragraph 5 of that affidavit states: "The Council is a bureaucracy and it was not possible to obtain authorisation to make this application within the 14 days under the rules."[7]

11 The parties agreed that the application for review would be determined by a Magistrate 'on the papers'.[8] They subsequently each filed written submissions.[9]

12 On 17 February 2021, the Magistrate made orders dismissing the proceeding.[10] The orders state:

ISSUED OUT OF TIME NO CASE TO ANSWER

COSTS RESERVED

LIBERTY TO APPLY - CAN BE DONE ON THE PAPERS IF THE PARTIES AGREE

13 On Monday 31 May 2021, the solicitors for Whittlesea City Council, Elliott Stafford & Associates, wrote to the Heidelberg Magistrates' Court, enquiring as to when the parties could expect to receive a decision. Approximately half an hour later, the Heidelberg Magistrates' Court emailed the parties, attaching the orders made by the Magistrate. It is common ground that the parties were not notified of the Magistrate's decision until they received this email from the Heidelberg Magistrates' Court on 31 May 2021.[11]

14 Four days later, namely on Friday 4 June 2021, Elliott Stafford & Associates sent an email to the Heidelberg Magistrates' Court, seeking a copy of the Magistrate's reasons.[12] The Heidelberg Magistrates' Court Registry responded to the email approximately 20 minutes later, informing Elliott Stafford & Associates that there was no further information that could be provided, and that the reasons were outlined in the orders made on 31 May 2021.[13] The Registry indicated that a special mention could be listed, if Whittlesea City Council wished to raise the matter with the Magistrate.

15 Another 19 days elapsed before Elliott Stafford & Associates responded to the email from the Heidelberg Magistrates' Court at 5.34pm on 23 June 2021. The email sent by Elliott Stafford & Associates stated that the Notice of Order Made did not contain reasons and queried whether there were reasons attached that had not been provided. Further, the email stated:

I do not think it is appropriate to discuss with His Honour either in his reasons for his decision as we are bound by them or if there are no further reasons given, we have our remedies. All I need to do is to identify what the reasons are it is then for me to decide the course to be taken. (underline added).[14]

16 The Heidelberg Magistrates' Court responded promptly by email on the following day, namely 24 June 2021. The Registry informed Elliott Stafford & Associates that the "Order itself are the reasons I refer to" and that the "Magistrate does not record any further reasons other than what is outlined in the Notice of Order".[15]

17 On 23 July 2021, 29 days after the Heidelberg Magistrates' Court email of 24 June 2021, Whittlesea City Council filed a notice of appeal and the Angelakos affidavit in this Court. Pausing there, the Elliott affidavit evidences that Elliott Stafford & Associates registered with this Court's electronic filing system, RedCrest, on that day. There is no evidence that there was any attempt to file on RedCrest prior to that day.

18 Whittlesea City Council's notice of appeal is against the judgment given and final orders made by the Heidelberg Magistrates' Court on 31 May 2021. The notice of appeal states that Whittlesea City Council is appealing 'the whole of all the orders' made by the Magistrate, on the basis of two questions of law.[16]

19 By summons filed on 23 September 2021, Whittlesea City Council sought directions, and leave to appeal if deemed necessary. The directions hearing was listed on 13 October 2021.

20 More than two months after filing the notice of appeal, and approximately one week after filing the summons, Elliott Stafford & Associates took steps to notify Mr Baltovski's solicitors, Madgwicks Lawyers. By email sent on 29 September 2021 at 4.33pm, they provided documents regarding this proceeding to Madgwicks Lawyers.[17] The email indicated that the documents were being provided "as a courtesy", and that the documents had also been sent to Mr Baltovski.[18] There is no evidence that Elliott Stafford & Associates undertook the sensible and courteous step of ascertaining, soon after filing the notice of appeal, whether Madgwicks Lawyers, who had acted for Mr Baltovski in the Magistrates' Court proceeding, had instructions to accept service.

21 By email on 4 October 2021, Madgwicks Lawyers replied to the email, objecting to "the lack of notice given regarding the application, particularly given how long ago it was prepared".[19] Madgwicks Lawyers also indicated that they would contact counsel regarding his availability to appear.[20] I infer from that response that Elliott Stafford & Associates had served, under cover of their email of 29 September 2021, the notice of appeal, the Angelakos affidavit, and summons.

22 By email dated 4 October 2021 at 2.18pm, Elliott Stafford & Associates replied to the email. Their reply included the following: "The documents were originally rejected by red crest [sic], we say in error, hence the delay".[21] As discussed above, this is not true in respect of the notice of appeal. It could only relate to attempts to file documents after the solicitor was registered on RedCrest.

23 On 13 October 2021, Judicial Registrar Keith made orders listing Whittlesea City Council's application for leave to appeal out of time.

24 On 27 October 2021, Madgwicks Lawyers wrote by email to Elliott Stafford & Associates, noting that no additional affidavits had been provided and requesting service forthwith.[22]

25 The following day, on 28 October 2021, Elliott Stafford & Associates responded, stating that they did not propose to file further material.[23] The email included the following:

In addition to the Angelakos affidavit there is that Red Crest [sic] log which speaks for itself and emails with Red Crest [sic] registry which are on the court system.

26 On 28 October 2021, Madgwicks Lawyers wrote by email again to Elliott Stafford & Associates.[24] The email included the following:

...we again request that you provide us with a copy of all material on which the Appellant intends to rely, including any correspondence with the registry that we weren't included in and anything which your firm or the Appellant has obtained from "the court system", forthwith, and by no later than close of business tomorrow.

Strictly speaking, these materials should have been put in affidavit and served by 22 October 2021.

Given time constraints, please provide the material requested and relied upon promptly, informally by letter if need be and we will let you know once it is received if we require the Appellant to go on affidavit.At first instance we need to see what material the Appellant relies upon which is required to be given to us by the Appellant. If it is not appropriate for us to do so, we won't take issue about formalities so long as you promptly give us a copy of whatever the Appellant is relying on, in one way or another.

If you fail to provide the materials requested above, this email and prior email correspondence will be produced to the court objecting to the Appellant relying on any materials not provided to us and also on the issue of costs if an adjournment is required as a result of the Appellant's failure to provide to us in a timely manner the material upon which it seeks to rely.

27 There has been no judgment, only a recording of an order provided by the Heidelberg Magistrates' Court. The order made by the Magistrate is irregular and does not trigger s 272(3) of the Criminal Procedure Act 2009 ('CP Act'). It is not a valid order. It binds third parties, but not the parties themselves. There cannot be a valid order without a judgment. An order is consequential to judgment. Judgment is delivered either by announcing it orally in court, or publishing it in writing to the parties. In this proceeding, it appears that neither has happened. The record of the decision was discovered only after Elliott Stafford & Associates contacted the Heidelberg Magistrates' Court. Nothing has triggered the 28 day time limit in s 272(3) of the CP Act.

28 It is conceded that the Magistrate's order is the subject of Whittlesea City Council's notice of appeal. It was vexing as to whether to bring the appeal, or make an application for review pursuant to the Administrative Law Act 1978. It is now conceded that review could not be sought under that Act. It highlights why one should not rush into issuing an appeal. How the issue is brought before the Court is not as important as determining the substantive issue.

29 Section 272(8) of the CP Act provides that a court may grant an appellant leave to proceed with the appeal on two grounds: (a) and (b). Section 272(8)(a) refers to exceptional circumstances which caused the failure to commence the appeal within 28 days after the order was made. It is a gatekeeper provision. Once it is established that there are exceptional circumstances for the 28 days after the order was made, it does not matter when the notice of appeal is filed, even if it is 10 years late. The Court's rules and procedures will deal with it then. If the proceeding is filed late, it will be struck out. It is not necessary to have a further gate after the 28 days. It would create uncertainty. Section 272(8)(a) of the CP Act is clear and unambiguous. It relates to the 28 days after the order was made.

30 If it is decided that a court can make orders without delivering a judgment first, then the fact that a court does not provide a judgment or reasons when requested, is an exceptional circumstance. Leave should be granted as a matter of course, being required by the rules of natural justice and procedural fairness.

31 Whittlesea City Council has not delayed the matter, given the difficulty created by the failure of the Heidelberg Magistrates' Court to provide reasons. It was not until 24 June 2021 that its solicitors became aware that reasons were not forthcoming.

32 It is clear that Whittlesea City Council has been attempting to commence the appeal. In the first stage, it had to establish if a judgment had been delivered, and what the decision and reasons were: this did not happen until 24 June 2021, when it was made clear that no reasons had been given. The second stage was negotiating the RedCrest system.

33 On 23 July 2021, the notice of appeal was submitted to RedCrest. The period from 24 June 2021 to 23 July 2021 is 29 days. At best, the delay is one day. The period between receiving the Heidelberg Magistrates' Court orders on 31 May 2021 and emailing that Court on 4 June 2021 is not a delay. The email was sent the same working week. It was not until 24 June 2021 that the Heidelberg Magistrates' Court said there were no reasons.

34 Leave to appeal is required under s 272 of the CP Act, as the appeal was filed five months after the order was made by the Magistrate.[25] The time period for filing the appeal is 28 days after the orders.

35 The application for leave turns on the requirement in s 272(8)(a) of the CP Act, being whether the failure to commence the appeal within time was due to exceptional circumstances.

36 Section 272(8)(a) is a threshold requirement for the grant of leave, and the onus is on Whittlesea City Council to identify and provide that exceptional circumstances were the cause of the entirety of the delay, up until the date on which it filed the notice of appeal.

37 There are two matters which would constitute exceptional circumstances in this case such as to justify an initial period of delay. They do not explain or justify the full extent of the delay which occurred.

38 The orders made by the Magistrate were made on 17 February 2021. However, the Heidelberg Magistrates' Court did not notify the parties of its reasons until 31 May 2021, presumably due to an administrative oversight. Whittlesea City Council's failure to commence the appeal before the statutory time limit expired on 17 March 2021, and at least through to 31 May 2021, is clearly due to the exceptional circumstance of not knowing the orders had been made. Genuine confusion arose from the fact that the Magistrate did not provide detailed reasons for their decision in a separate document, but instead recorded a very short form of reasons in the space reserved for special conditions, on the orders themselves.

39 Whittlesea City Council has not put forward any explanation for the hiatus of 53 days between becoming aware of the orders on 31 May 2021 and commencing the appeal. There is no clarification as to the reason why, after becoming aware of the order, Whittlesea City Council waited a week to seek clarification of the order, and then waited several weeks after receiving that initial response from the Magistrates' Court to seek yet further clarification.

40 It was reasonable for Whittlesea City Council to commence the appeal before the end of June 2021. It did not. There were three explanations Whittlesea City Council gave for the delay during oral submissions and in the Elliot affidavit:

The pandemic is not a cause for delay. It cannot be the case that Whittlesea City Council or Elliott Stafford & Associates were unable to operate for a year and a half during the pandemic. They have not pointed to a specific reason as to why the pandemic caused the delay.

The emails to Heidelberg Magistrates' Court, and the response to them, do not constitute a request for reasons. They seek clarification about when the reasons will be provided. There is no explanation at all of why it takes the best part of a month to seek clarification. There is no explanation as to why Whittlesea City Council delayed commencing its appeal during that period. It had the relevant documents that it needed. Its submissions clarify that the appeal was on a discrete ground.

The Elliott affidavit refers to RedCrest as a delay. The explanation is vague. It does not explain the delay. It seems there was no attempt to file the notice of appeal before 19 July 2021. Even if there was, that explains, at the most, a delay period of four days between 19-22 July 2021. So, the delay of 53 days reduces to 49 days. The notice of appeal was filed on 23 July 2021 and bears a signature dated 19 July 2021, which corresponds with the Elliott affidavit as to when the notice of appeal was ready. The notice of appeal is dated 1 July 2021, although not filed until 23 July 2021.

41 The relevant delay is a long one, that is between 31 May 2021 and 23 July 2021. There is no possible basis to grant leave. Whittlesea City Council has not met the threshold for the granting of leave.

42 The requirement to establish exceptional circumstances for the delay does not apply only to the first 28 days after the order is made.[26]

43 There is a residual discretion for the Court. However, it should be refused given the inordinate and unexplained time Whittlesea City Council has taken to file the appeal.

44 Whittlesea City Council's delay in commencing the appeal must be considered in the context of its conduct and the unexceptional circumstances. Whittlesea City Council has consistently treated statutory deadlines as optional.

45 The entire proceeding had its genesis in Whittlesea City Council's failure to bring charges within the 12-month time limit set down by s 7 of the CP Act.

46 Whittlesea City Council filed its application for review of the Judicial Registrar's decision of 1 August 2019 - more than double the time allowed under the Magistrates' Court Rules.

47 Whittlesea City Council failed to serve the application for review on Mr Baltovski until 4 December 2019, three months after it was filed.

48 Whittlesea City Council did not serve on Mr Baltovski the notice of appeal or summons for directions within seven days, as required by the CP Act and the Supreme Court (Criminal Procedure) Rules 2017 ('the Rules').[27] The summons was issued on 23 September 2021, two months after the commencement of the proceeding, and served a week later by post, together with the initiating documents.

49 The considerable bar created by s 272(8) of the CP Act reflects the importance of having an identifiable terminus to legal proceedings and the value of finality in orders when the time for appeal has expired.

50 In response to Whittlesea City Council's submission that the Magistrate's order is not valid: this is a bare assertion, contrary to longstanding principles. An order is an order. Any issues as to the reasons are a completely separate question, and have nothing to do with the application before this Court. An "order is the judicial pronouncement or curial act which creates coercive effect".[28] There is a distinction between orders and reasons. As the High Court stated in R v Ireland: "In a proper use of terms, the only judgment given by a court is the order it makes. The reasons for judgment are not themselves judgments though they may furnish the Court's reason for decision and thus form a precedent".[29]

51 In response to Whittlesea City Council's submissions regarding the Administrative Law Act 1978: the parts relied upon do not apply to the Magistrates' Court. 'Tribunal' is defined in s 2 of the Administrative Law Act 1978 as follows:

tribunal means a person or body of persons who, in arriving at the decision in question, is or are by law required, whether by express direction or not, to act in a judicial manner to the extent of observing one or more of the rules of natural justice, but does not include -

(a) a court of law or a tribunal constituted or presided over by a Judge of the Supreme Court

...

52 The definition of "tribunal" excludes a court of law. Any ambiguity regarding this was resolved in Ta v Thompson & Anor.[30]

53 Whittlesea City Council conceded that its submissions on the application of the Administrative Law Act 1978 were wrong and, accordingly, this issue does not need to be further addressed.

54 The submissions made by Whittlesea City Council regarding the Magistrate's orders not being orders are nonsensical. As discussed above, their own notice of appeal refers to the orders. I accept the submissions made by Mr Baltovski's counsel that orders may be made without reasons, and that there is a difference between orders and reasons.[31] Muhktar AsJ's reasoning in Pole is apposite here:

The next alternative argument was that the order made on 15 December was defective because there were no reasons as a concomitant to the orders. It was submitted that the order became perfected by the giving of reasons on 11 February 2015 and the 30 day time limit therefore ran from that date.

I reject that submission. The order is the order. It was made when it was made. There is no law to which I was taken to say that the order was therefore defective for the absence of reasons. The absence of reasons is a discrete matter.[32]

55 The appeal was filed out of time, and is therefore deemed an application for leave to appeal. Section 272(3) of the CP Act requires an appeal to this Court be commenced within 28 days after the day on which the order being complained of was made. Section 272(7) of the CP Act provides that an appeal commenced after that date is deemed to be an application for leave to appeal.

56 Section 272(8) of the CP Act provides leave to proceed with the appeal may be given if the failure to commence the appeal within 28 days was due to exceptional circumstances, and the Court is satisfied that the other party would not be materially prejudiced.

272 Appeal to Supreme Court on a question of law

(1) A party to a criminal proceeding (other than a committal proceeding) in the Magistrates' Court may appeal to the Supreme Court on a question of law, from a final order of the Magistrates' Court in that proceeding.

(2) If an informant who is a police officer wishes to appeal under subsection (1), the appeal may be brought only by the DPP on behalf of the informant.

(3) An appeal under subsection (1) is commenced by filing a notice of appeal in accordance with the rules of the Supreme Court within 28 days after the day on which the order complained of was made.

(4) A copy of the notice of appeal must be served on the respondent in accordance with subsection (5) within 7 days after the day on which the notice of appeal was filed.

(5) A copy of the notice of appeal must be served -

(a) personally on a respondent who was the accused in accordance with section 391; or

(b) on a respondent who was the informant in accordance with section 392.

(6) An appeal under subsection (1) does not operate as a stay of any order made by the Magistrates' Court unless the Supreme Court otherwise orders.

(7) An appeal commenced after the end of the period referred to in subsection (3) is deemed to be an application for leave to appeal under subsection (1).

(8) 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.

(9) After hearing and determining the appeal, the Supreme Court may make any order that it thinks appropriate, including an order remitting the case for rehearing to the Magistrates' Court with or without any direction in law.

(10) An order made by the Supreme Court on an appeal under subsection (1), other than an order remitting the case for rehearing to the Magistrates' Court, may be enforced as an order of the Supreme Court.

(11) The Supreme Court may provide for a stay of the order or for admitting any person to bail as it considers appropriate.

58 The question here is whether there are any exceptional circumstances within the meaning of s 272(8)(a) of the CP Act. There were no submissions to suggest that there would be material prejudice because of the delay. 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.[33] 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".

59 In Bucic v Arnej Pty Ltd,[34] 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.[35]

60 I note also, the summary of well-established principles and authorities given by Derham AsJ in Miao v Body Corporate SP31235U.[36]

61 The onus is on Whittlesea City Council to establish exceptional circumstances for the whole period, not part of it. I refer to and adopt Muhktar AsJ's reasoning in Pole:

I see the issue in the statute here as very much involving a matter of English expression or comprehension. I look at the phrase '...the failure to institute the appeal within the [30 day] period...was due to exceptional circumstances.' I think undue or unintended attention ought not be given to the word 'within'. As I construe the section, having regard to its evident purpose, the question 'Why didn't you file the appeal within time?' is the same thing as asking 'Why are you late?' Or, more pointedly, to return to my example: 'You had 30 days to appeal, and you took more than 90, so what is your excuse for being late?' It would be an unresponsive answer to say 'There were exceptional circumstances in the first 30 days preventing me from filing an appeal.' It would also be unresponsive to say those circumstances extended to day 60. Equally, it would be untenable to say 'I cannot point to exceptional circumstances within the 30 days, but something exceptional happened after the 30 days.' That latter example explains the decision in Schwerin.

I analyse it this way. This statutory provision is concerned with two matters. The first is an imposition of a time limit to appeal. The second is to allow an appeal to be brought later than 30 days if two tests are met: exceptional circumstances, and no prejudice to the respondent. And as the authorities say, the merits of the appeal are not relevant; that is the exceptional circumstances must relate solely to the explanation for the delay. I would hold just that.

Great care must be taken with the authorities. In Burlock (J) Forrest J stated 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'. I think the enquiry is 'confined' in the sense that the merits of the appeal do not matter, and all that matters is the factual question why the appellant did not file in time. Further, I would not countenance a pedantic construction of 'within time' in that statement. Of course, as part of the continuum of delay, exceptional circumstances would have to be shown in the first 30 days. But I would not accept that the provision intended to stop the enquiry at day 30. On the modern approach to statutory construction (for which I would refer to Cooper Brooks Wollongong Pty Ltd v FCT12 and CIC Insurance Ltd v Bankstown Football Club Ltd), I think such an outcome does not conform to the evident intention to hold the appellant to account for delay in bringing an appeal by the measure of exceptional circumstances. The fairer or more convenient operation of the section is to impose that measure in the 30 days and beyond. In my example, that means the test of exceptional circumstances would also apply from days 31 to the date of the institution of the appeal.[37]

62 I reject Whittlesea City Council's submission that Pole should be distinguished because it applies to civil proceedings, not criminal proceedings. Firstly, the authority is applicable because it interprets the phrase 'exceptional circumstances', and specifically considers whether or not an enquiry as to whether there are such circumstances should be undertaken solely for the appeal period, or, for the whole period of delay. Mukhtar AsJ held it was for the latter period. Secondly, as discussed above, the text of s 109(5) of the Magistrates' Court Act is similar to the text of s 272(8) of the CP Act. Both provisions have the same purpose - outlining the circumstances permitting an appeal to be filed out of time.

63 I adopt the following principles stated by McDonald J in Mako'ochieng v Kirk.[38] Similar to Mukhtar AsJ in Pole, McDonald J considered the whole period of delay when deciding whether to grant leave to proceed with an appeal, pursuant to s 109 of the Magistrates' Court Act:

The requirement under s 109(2) of the Act that an appeal be commenced within 30 days and confined to questions of law constitutes a stringent constraint on the right of a party to appeal. This constraint is reinforced by the mandatory requirement for a party who files outside of the 30 day period to establish exceptional circumstances justifying the delay.

Section 109 embodies a clear statutory objective of ensuring that appeals from the Magistrates' Court are filed promptly. This objective would be rendered worthless if a party who establishes that his/her failure to file a notice of appeal within the prescribed 30 day period was due to exceptional circumstances, was thereafter entitled to file out of time irrespective of the period of further delay and the reason (or lack thereof) for the delay. Notwithstanding the policy underlying s 109, it does not follow that a party will automatically be denied leave to appeal by reason of a failure to file within 30 days of there being no exceptional circumstance preventing the party from filing. Each case turns on its own particular facts.[39]

64 The application of these principles in Mako'ochieng v Kirk by McDonald J is illustrative:

I have accepted that between 17 June 2016 and 15 August 2016 the applicant has established exceptional circumstances which justified his failure to file a notice of appeal. That exceptional circumstance arose from an administrative error within the Melbourne registry of the Magistrates' Court which resulted in the applicant being told that no order had been made against him personally. On 15 August 2016 he was provided with a certified extract of the Court's order which required him to pay the respondent the sum of $10,672.38 and costs of $166,343.05. As at 15 August 2016 there was no operative exceptional circumstance preventing the applicant from filing an appeal. Whether he should be granted leave to do so requires consideration of the period of the delay until the notice of appeal was filed and the reasons for that delay.

The applicant advanced no credible explanation for his failure to file a notice of appeal between 15 August 2016 and 20 September 2016. ...

Neither of the explanations for the applicant's delay in filing his notice of appeal between 15 August 2016 and 20 September 2016 have any merit. ...

The applicant's failure, without reasonable excuse, to file a notice of appeal immediately after 15 August 2016, and to have then delayed for approximately five weeks, weighs heavily against exercising the discretion to grant leave to appeal.

The matters set out above, standing alone, justify a refusal to grant the applicant leave to appeal. However, in addition to those matters, I have concluded that the manner in which the applicant conducted the application for leave to appeal weighs against the exercise of the discretion to grant leave to appeal. First, the submissions which the applicant advanced by way of explanation for delay had the potential to mislead the Court. There was no factual basis for either of the explanations for delay proffered by the applicant. Both explanations were contradicted by the proposed notice of appeal which he attempted to file on 15 July 2016. ...[40]

65 In Mako'ochieng v Kirk, McDonald J dismissed the application for leave to appeal concluding:

The application for leave to appeal is dismissed. The application was filed more than two months outside the prescribed 30 day period, which expired on 18 July 2016. No satisfactory explanation has been placed before the Court to explain the failure to file a notice of appeal immediately after 15 August 2016 when the applicant was provided with a certified copy of the Magistrates' Court order. The manner in which the applicant conducted the application for leave to appeal constitutes a further discretionary consideration which weighs against granting him leave to appeal. Neither of the reasons for the delay in filing his notice of appeal post 15 August 2016 had any factual basis. ...[41]

66 I accept the fact that the parties were unaware that the Magistrate had made the order constitutes an exceptional circumstance. This explains the period up until receipt of the order on 31 May 2021. However, Whittlesea City Council has not established that there are exceptional circumstances for the period beyond that. To the contrary, as described below, it is entirely unexceptional.

67 There are no exceptional circumstances regarding the delay by Elliott Stafford & Associates in sending the email of 4 June 2021, described above, to the Heidelberg Magistrates' Court. There is also no explanation for the 19 day delay, from 4 to 23 June 2021, in seeking further clarification from Heidelberg Magistrates' Court. The email of 23 June 2021 shows that Whittlesea City Council was contemplating an appeal or review of the Magistrate's orders stating "we have our remedies". The further delay after receiving the 24 June 2021 email from Heidelberg Magistrates' Court is confounding.

68 The notice of appeal is dated 1 July 2021, although it was not filed until 23 July 2021. There was no explanation for this date discrepancy. The notice of appeal appears to be signed by Mr Basil Stafford, solicitor. The date of 23 August 2021 appears to be handwritten next to his signature. Giving Mr Stafford the benefit of the doubt, this may be a simple error of confusing months (23 August vs 23 July). There is another date indiscrepancy. Ms Elliott deposes that the notice of appeal and affidavit in support were finalised on or around 19 July 2021. However, the Angelakos affidavit is deposed on 16 July 2021.

69 I am reinforced in my decision to refuse leave to appeal by the following conduct, which weighs against the discretion to grant leave to appeal.

70 Firstly, the submissions made by Elliott Stafford & Associates regarding the filing on RedCrest had the potential to mislead the Court. As described above, the email from Elliott Stafford & Associates sent on 4 October 2021 to Madgwicks Lawyers, stated: "The documents were originally rejected by red crest [sic], we say in error, hence the delay." Paragraph 16 of their written submissions states:

It is clear that the appellant has been attempting to launch this appeal. In the first stage it had to establish if a judgment had been delivered and what the decision was and what the reasons were. This did not happen until 24 June 2021 when it was finally made clear that no reasons had been given. The second stage was negotiating the Red Crest [sic] system.

71 As the Elliott affidavit makes clear, there was no attempt to file before 23 July 2021 as Elliott Stafford & Associates were not registered on RedCrest, save for Probate matters.

72 Secondly, Whittlesea City Council was on notice as to the lack of evidence to support its position. The correspondence from Ms Dunn, the solicitor for Mr Baltovski and clearly an experienced litigation solicitor, is a model of civility and good sense. I refer to Ms Dunn's emails of 27 and 28 October 2021, extracted above. Despite these emails, no further affidavit was forthcoming until the Court made orders during the course of the hearing, and the Elliott affidavit was then filed.

73 Thirdly, the conduct of Whittlesea City Council and its solicitors demonstrates, at best, a lackadaisical approach to statutory timeframes. Section 272(4) of the CP Act requires a copy of the notice of appeal to be served on a respondent within seven days after filing. Whittlesea City Council did not comply with this requirement. Instead, it waited two months before providing the documents to Madgwicks Lawyers (and presumably Mr Baltovski).

74 Rule 3A.05(1) of the Rules requires an appellant to apply on summons for directions and, if necessary, for leave to appeal, within seven days after filing a notice of appeal. Whittlesea City Council did not comply with this requirement. Rather, as discussed above, it filed a summons for directions approximately two months later.

75 Orders will be made dismissing Whittlesea City Council's application for leave to appeal. The effect of these orders is that the proceeding will be dismissed.

[1] Exhibit "DA 1" to the Angelakos affidavit.

[3] Exhibit "DD-1" at page 3, 6-11, to the Dunn affidavit.

[4] Exhibit "DA 3" to the Angelakos affidavit.

[6] Exhibit 'DD-1' to the Dunn affidavit being the affidavit of Sam Turner sworn 28 August 2019, [3].

[8] Exhibit "DA 4" to the Angelakos affidavit.

[9] Exhibits "DA 5", "DA 6" and "DA 7" to the Angelakos affidavit.

[10] Exhibit "DA 8" to the Angelakos affidavit.

[12] Exhibit "DA 9" to the Angelakos affidavit.

[16] Notice of Appeal filed 23 July 2021, 2.

[17] Exhibit 'DD-1' to the Dunn affidavit.

[25] Pole v Jasethuhewage [2015] VSC 186 ('Pole'), [27] and [36].

[27] Sub-sections 272(4) and (5) of the CP Act; Rules 3A.03(2)(b) and 3A.05(1) of the Rules.

[28] Abraham v Johns (No 3) [2010] VSC 461, [26].

[29] R v Ireland [1970] HCA 21; (1970) 126 CLR 321, 330.

[30] [2013] VSCA 344; (2013) 46 VR 10, [59]-[61].

[31] Abraham v Johns (No 3) [2010] VSC 461, [26]; R v Ireland [1970] HCA 21; (1970) 126 CLR 321, 330.

[33] Kalb v Magistrates' Court of Victoria [2014] VSC 137, [12].

[34] [2015] VSC 568.

[35] Ibid, [3]-[4] (citations omitted).

[36] [2013] VSC 380, [23]-[30].

[37] Ibid, [39]-[41] (citations omitted). In _Coulston v State Coroner of Vic_toria [2018] VSC 103, [30] Garde J cited Burlock as authority that the scope of inquiry as to whether there is exceptional circumstances is confined to the reason for late commencement.

[38] [2017] VSC 459.

[39] Ibid, [13]-[14] (citation omitted).

[40] Ibid, [15]-[16], [19]-[21] (citations omitted).