Davies v Department of Transport and Main Roads [2025] QDC 123

(a) The Magistrate erred in proceeding with the hearing on 15 October 2024 in the absence of the appellant and subsequently refusing the application for rehearing, thereby depriving the appellant the opportunity to present his case, resulting in a denial of procedural fairness and natural justice.

(b) The Department of Transport and Main Roads ('TMR') is a trading corporation and has no jurisdiction to prosecute offences under the Transport Operations (Road Use Management - Road Rules) Regulation 2009.

• [5] The respondent submits that the appeal is filed outside the statutory time limit of one month from the date of the decision. The appeal is only out of time because the appellant first sought to have the matter reheard pursuant to s 142A(12). That was the proper approach to take in circumstances where the matter had been determined in the appellant's absence pursuant to s 142A. I order that the time for filing the Notice of Appeal be extended to 7 January 2025.

• [6] The offence date is 29 July 2022. For reasons unrelated to the present appeal, an earlier conviction for this offence in the Magistrates Court was set aside on appeal on 6 March 2024: Davies v Department of Transport and Main Roads [2024] QDC 41.
• [7] On the 26 August 2024, the matter was mentioned in the Magistrates Court at Southport. The appellant informed the court he was pleading not guilty and that he had not yet received the brief of evidence. The legal officer appearing for the Department of Transport indicated that the brief had been sent electronically to the appellant. The matter was listed for a review mention on 23 September 2024 and for a hearing on 15 October 2024. The appellant requested permission to appear by phone at the review mention. He informed the court he was "going into hospital" for his ears. This was planned for the 15th of September, and he would not be back until about the 2nd of October 2024. The Magistrate gave permission for the appellant to appear by phone at the review mention on 23 September 2024.
• [8] At the review mention on 23 September 2024, the appellant was called twice but it appears he did not answer. The Magistrate left a message confirming that the matter was listed for trial on 15 October 2024 at 9am.
• [9] At the hearing on 15 October 2024, the Magistrate placed on the record that the court had received correspondence from the appellant on 14 October 2024. The correspondence was to the effect that the appellant would be absent from the hearing as he was going to be in a dentist chair for most of the week and no doubt would be unable to speak clearly for a few days after; the appellant "made no plea" in respect of the charge. The appellant's name was called three times without response.
• [10] The Magistrate was satisfied that the appellant had notice of the hearing. In the absence of supporting material to support the veracity of his condition, the Magistrate was not prepared to adjourn the hearing. The Magistrate entered a formal plea of not guilty on the appellant's behalf. The legal officer appearing for the Department of Transport tendered the prosecution material, including photographic evidence from a photographic detection device which operates on the Pacific Motorway at Upper Coomera. Based on the evidence, the Magistrate was satisfied beyond reasonable doubt that the appellant was guilty of the offence.
• [11] In the event of the appellant's non-appearance for a simple offence, pursuant to s 142A of the Justices Act 1886, the Magistrate was permitted to deal with and determine the matter of the complaint as fully and effectually to all intents and purposes as if the said facts and particulars had been established by evidence under oath and as if the appellant had personally appeared.
• [12] A person who is convicted of an offence pursuant to the power in s 142A and who wishes to challenge the merits of that conviction is, as a general proposition, required to follow the statutory procedure in subsection (12) and apply for a rehearing, as the appellant correctly did. Pursuant to s142A(12), a court may, for such reason as it thinks proper, grant a rehearing of the complaint upon such terms and subject to the payment of costs as it thinks fit.
• [13] On 12 December 2024, the appellant personally appeared in the Magistrates Court at Southport and sought to reopen the hearing. He relied upon the letter previously sent to the court, which he said indicated he would be in hospital for two weeks on the 14th of October, which was the day before the hearing on the 15th of October. The appellant informed the court that all his teeth were taken out in India. The appointment had been arranged three years prior. With the way things were going with the Trump election, the appellant thought it important to 'get it sorted'. The appellant reserved his right under the Uniform Commercial Code. He informed the court that he was not using his phone; it fell out of the cradle and landed between his feet. He was obviously under the bridge at Coomera at the time but felt it too dangerous to pull over. The appellant sought to rely upon doctrines of commercial and contract law, although conceded this was all a learning process for him as well.
• [14] The learned Magistrate gave the appellant an opportunity to make submissions directed to the evidence, although the appellant did not advance anything further in that direction. In the absence of medical material or corroborative evidence to explain the failure to appear at the hearing, the Magistrate was ultimately not prepared to rehear the matter. The Magistrate considered that the appellant had been afforded procedural fairness and natural justice.
• [15] In Kleinig v The Commissioner of Police [2015] QDC 304, Richards DCJ at [11] considered there was no doubt the legislation permitted a Magistrate to exercise a discretion to proceed under s 142A where appropriate circumstances existed. In every case, the discretion was to be exercised in a judicial manner. The legislation creates an obligation on a judicial officer proceeding ex-parte to explore not only the circumstances of the offence but any matters in mitigation or defence that would normally be raised in a situation where the defendant or a legal representative is present. It follows that careful consideration and full reasons should be given for proceeding in the absence of a defendant and for the decision.

• [16] Section 222(1) of the Justices Act 1886 (Qld) provides for an appeal to a District Court judge if a person feels aggrieved by an order made by a Magistrate in a summary way on a complaint for an offence or breach of duty. Section 223(1) provides that such an appeal is by way of rehearing on the original evidence on the record.
• [17] Pursuant to s 223(2) the court may give leave to adduce fresh, additional or substituted (new) evidence if the court is satisfied there are special grounds for the granting of leave. Section 225 of the Act empowers a judge to confirm, set aside or vary an appealed order, or make any other order considered just.
• [18] The nature of the 'rehearing' provided in these and like provisions has been described in many cases. The rehearing does not involve a completely fresh hearing by the appellate court of all the evidence. The court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits: Fox v Percy (2003) 214 CLR 118 at [22].
• [19] It is well established that on an appeal under s 222 by way of rehearing, the District Court is required to conduct a real review of the trial and of the Magistrate's reasons and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate's view. Nevertheless, to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error: McDonald v Queensland Police Service [2017] QCA 255 per Bowskill JA at [47].
• [20] A court of appeal conducting an appeal by way of rehearing is bound to conduct a real review of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings: Bode v Commissioner of Police [2018] QCA 186 per McMurdo JA at [42].

• [21] Annexed to the Notice of Appeal, is a document addressed to the Magistrates Court (Annexure A). Within that document, the appellant states that he told the court both prior to the trial and on the rehearing application on 12 December 2024 he was in the dentist's chair on 15 October 2024 to 23 October 2024. At the reopening application, he repeated that he was in India. Within Annexure A, the appellant states that Border Force should be contacted to confirm what he said in court.
• [22] I do not consider that the information within Annexure A amounts to new or fresh evidence, it being essentially placed on the record in the Magistrates Court, partly prior to the trial and more fully at the application for a rehearing. Section 142A(12) of the Justices Act does not appear to impose a restraint on the kinds of matters that might be raised in support of an application for a rehearing.
• [23] While the appellant appeals against the conviction which was imposed on 15 October 2024, the application for a rehearing forms part of the record and is relevant to a consideration by this court on the broader complaint that there was a denial of procedural fairness.
• [24] I do not consider that the appellant therefore requires leave to place information before this court which essentially forms part of the record in the Magistrates Court. That is the case even if the fact of his trip to India was only placed on the record during the subsequent application for a rehearing. If I am wrong about that, the appellant is given leave to adduce new evidence.
• [25] On the hearing of the appeal, the appellant conceded he was meant to be in court on 15 October 2024. He submitted though that he had a prior appointment to attend to overseas, which had been booked for three years. He gave the court notice that he would be out of action a few days before he left. It is not entirely clear whether the appellant continues to maintain on this appeal that he was overseas on 15 October 2024, or if the court commitment on that date clashed with the trip in a more general sense.
• [26] Irrespectively, as the matter has been agitated on this appeal, I give leave to the respondent to adduce new evidence from Australian Border Force. Documents in the possession of Australia Border Force indicate that the appellant departed Australia on 16 October 2024 and returned on 1 November 2024. The appellant was therefore present in Australia on the day set for the hearing.

• [27] By Notice of Appeal and Annexure A, the appellant submits that the matter should be re-opened. The appeal should be upheld to allow the appellant to vent his argument in full.

• [28] By ground one, the appellant contends that he was denied procedural fairness and natural justice both at trial and in the subsequent decision to refuse a rehearing.
• [29] The appellant was in Australia on the day set for the hearing. He was aware that he was required to attend on that date, and I infer he simply chose not to. The appellant was present in court when the matter was listed for trial and made no mention at that time that he would be unavailable to attend court on 15 October 2024.
• [30] I find that the learned Magistrate exercised the discretion to proceed under s 142A in a judicial manner. The Magistrate reviewed the material tendered by the prosecution, which proved the appellant was holding a mobile phone in his hand while driving on the Pacific Motorway at Upper Coomera.
• [31] In the absence of further material which properly justified the appellant's non-appearance on dental grounds, the Magistrate was entitled to proceed in his absence. Because the appellant had notice of the trial date, he was not denied procedural fairness. For the same reasons, in my view, the appellant has not demonstrated that the decision to refuse a rehearing was the result of a legal, factual, or discretionary error. In addition, the appellant at that time was afforded an opportunity to direct his submissions to the evidence but did not do so in any meaningful way.
• [32] The appellant claimed then, as he does now, that he was not using his phone but rather was forced to pick it up because it had fallen from its cradle. That fact does not afford an excuse. Section 300(1) of the Road Rules Regulation states that the driver of a vehicle must not use a mobile phone while the vehicle is moving, or is stationary but not parked. Section 300(5) states:

use, in relation to a mobile phone, means hold the phone in the driver's hand, or rest the phone on any part of the driver's body -

(a) whether or not the phone is on or operating; and

(b) whether or not for the purpose of operating the phone or a function of the phone; and

(c) whether or not the phone is partially or wholly supported by another part of the driver's body or another thing.

• [33] Even assuming the truth of the fact that the appellant had retrieved the phone after it fell from its cradle, by dint of the broad definition of 'use' in s 300, he is still guilty of the offence.
• [34] The appellant has not shown that the finding of guilt by the learned Magistrate was the result of some legal, factual, or discretionary error. Upon my independent review of the evidence in the Magistrates Court, I am satisfied beyond reasonable doubt that the appellant is guilty of the offence. On this ground, the appeal is dismissed.

• [35] By ground two, the appellant essentially argues that an Australian Government department, such as the Department of Transport and Main Roads, operates as a trading corporation, lacks jurisdiction, and consequently lacks standing to prosecute offences under the Transport Operations (Road Use Management - Road Rules) Regulation 2009 (Qld).
• [36] A similar argument was agitated by the appellant in the application for a re-hearing on 12 December 2024 and in the prior appeal against conviction in Davies v Department of Transport and Main Roads [2024] QDC 41. In both cases, the legal argument was considered and rejected by each court respectively. On the appeal, Porter DCJ KC held that the legal argument had no prospect of success and cautioned against repetition, stating at [26]:

"First, his legal argument, as articulated in my reasons, and to her Honour, has no prospect of success. To repeat legal arguments which have no prospect of success, can in some cases, be an abuse of the Court's process. The legal argument put forward in this case should not be advanced a second time in his further trial."

• [37] Nor, in my view, should such arguments be advanced a further time, in a similar vein, on any subsequent appeal. Nevertheless, I have independently considered the appellant's legal argument on this appeal. It is wrong at law. It was correctly rejected by the learned Magistrate during the application for a rehearing on 12 December 2024. On this ground, the appeal is dismissed.

• [38] The time for filing the appeal is extended to 7 January 2025.
• [39] The appeal is dismissed.
• [40] There is no order as to costs.