Nathan v Burness [2010] FCA 718

Nathan v Burness [2010] FCA 718

Bail was granted because exceptional circumstances existed: Mr Nathan had been sentenced to only one month imprisonment, had already served more than 18 days, no appeal date had been set, he required legal assistance and time to prepare, and there was a real chance that the appeal would be rendered nugatory or substantially so if bail were refused. The appeal was not frivolous, and there was no material suggesting bad character, danger to the community, or a real risk of absconding.

Jurisdiction
Australia
Judgment Date
05 July 2010
Procedural Posture
Bail Application in an Appeal From a Contempt Sentence / Interlocutory Application Pending Hearing and Determination of the Appeal
Outcome
Bail granted; operation of the imprisonment order suspended pending the hearing and determination of the appeal; referral for pro bono legal assistance; costs reserved.
Legal Topics
['bail Pending Appeal' 'contempt in the Face of the Court' 'bankruptcy Examination Summons' 'stay or Suspension of Order Pending Appeal' 'pro Bono Referral']
['practice and Procedure' 'bankruptcy' 'contempt' 'bail'] ['bail Pending Appeal' 'contempt in the Face of the Court' 'bankruptcy Examination Summons' 'stay or Suspension of Order Pending Appeal' 'pro Bono Referral']

Case Brief

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Procedural Posture

Bail Application in an Appeal From a Contempt Sentence / Interlocutory Application Pending Hearing and Determination of the Appeal

Legal Issues

  1. 1 ["Whether bail should be granted pending the hearing and determination of Mr Nathan's appeal from a one month sentence of imprisonment for contempt." 'Whether special or exceptional circumstances existed for bail pending appeal.' 'Whether the shortness of the sentence and the likelihood that the appeal would be rendered nugatory supported bail.' 'Whether the appeal was frivolous, including questions about whether Mr Nathan was properly made aware that he was charged with contempt and whether the conduct could constitute contempt in the face of the court.']

Ratio Decidendi

Bail was granted because exceptional circumstances existed: Mr Nathan had been sentenced to only one month imprisonment, had already served more than 18 days, no appeal date had been set, he required legal assistance and time to prepare, and there was a real chance that the appeal would be rendered nugatory or substantially so if bail were refused. The appeal was not frivolous, and there was no material suggesting bad character, danger to the community, or a real risk of absconding.

Court Disposition

Bail granted; operation of the imprisonment order suspended pending the hearing and determination of the appeal; referral for pro bono legal assistance; costs reserved.

Orders

  • ['On the appellant giving undertakings not to apply for any passport, not to leave Victoria without prior written approval of the District Registrar, to report to Keilor Downs Police Station each Wednesday and Saturday between 8am and 9pm with photographic identification, and to reside at 160 Gordon Street,...