Owen v Cannavan & Anor [1995] QCA 324

Court of Appeal (Qld)|1995-08-04|Before: Davies J, Pincus J, Moynihan J, Mr P, Before Davies J, Williams J

Judgment delivered the Fourth day of August, 1995

On 1 December 1993 the applicant failed in an application to have a Stipendiary Magistrate remit summary proceedings commenced against him from the Magistrates Court at Brisbane to the Magistrates Court at Gympie. The applicant appealed to a District Court Judge pursuant to S.222 of The Justices Act 1886 on 16 December 1993. The matter came before a District Court Judge on 19 March 1994. The applicant did not appear. The circumstances of his non-appearance are controversial but as will emerge, it is unnecessary to resolve the controversy for the purposes of this appeal. The appeal was dealt with in the applicant's absence and dismissed as incompetent, that is, as not being within S.222.

On 27 June 1994 the applicant brought an application for review seeking "a prerogative order pursuant to S.43(1) of The Judicial Review Act 1991 on the grounds of a denial of natural justice on the basis he had not been notified. He also sought an investigation to establish "how the appeal could be dismissed on 18 February before it was heard on 9 March and to address any impropriety."

The application for judicial review was out of time and was incompetent in that the respondent was not the decision-maker. On 18 July 1994 orders were made joining the second respondent permitting the applicant to pursue an application for an extension of time. The applications came before a Judge of the Trial Division on 27 September 1994. The applicant's application for a judicial review was refused and the applicant was ordered to pay the first respondent's costs. The court, as had the learned judge of District Courts, applied Schneider -v- Curtis [1967] Qd. R. 300 as determining the matter was not within S. 222. The applicant now appeals to this court against that decision.

The applicant argued his own case before this court and below. The second defendant appeared by counsel to abide the order of the court and to resist any order for costs. In the course of argument the applicant indicated that he did not seek any such order against the second respondent.

Having regard to the course of proceedings below, counsel for the first respondent accepted that the outcome of the appeal should turn on whether Schneider was correctly decided and applied. That being so, it is unnecessary to consider a number of issues which might otherwise appear to arise on the material before this court. It is, however, desirable to mention that the disparity in date between notification of outcome and hearing of the proceedings before the learned District Court Judge complained of by the applicant is in all likelihood explicable as a typographical error. In any event the issue is immaterial to the basis upon which the appeal is to be determined.

S.222 of The Justices Act relevantly provides:-

222.(1) When any person feels aggrieved as complainant, defendant, or otherwise by any order made by any justices or justice in a summary manner upon a complaint for an offence or breach of duty such person may appeal as hereinafter provided to a Judge of District Courts whose determination shall be final between the parties to the appeal.

(1A) However, in the case of a defendant who feels aggrieved by a summary conviction of an offence or by an order made by justices on the breach of a statutory duty an appeal under this section shall not lie unless --

(a) the fine, penalty, or forfeiture exceeds the sum or value of $10 or the imprisonment adjudged exceeds 1 month; or

(b) such person has upon application made within 28 days after the decision obtained the leave of a Judge to appeal under this section.

It should be mentioned that the complaint has not been dealt with by a

Stipendiary Magistrate apart from the refusal to transfer it to Gympie for hearing.

The definition of "order" in S.4 of The Justices Act is also material:-

"order" includes any order, adjudication, grant or refusal of any application, and any determination of whatsoever kind made by a Magistrates Court, and any refusal by a Magistrates Court to hear and determine any complaint or to entertain any application made to it, but does not include any order made by justices committing a defendant for trial for an indictable offence, or dismissing a charge of an indictable offence or granting or refusing to grant bail and, in the last mentioned case, whether or not the justices are sitting as a Magistrates Court or to hear an examination of witnesses in relation to an indictable offence;

The Full Court in Schneider, after reviewing the authorities, concluded that an appeal under S.222 of The Justices Act lay only from an order disposing of a complaint, for example, by dismissing it or entering a conviction and imposing a penalty and did not lie from an order made during the course of the proceedings.

It had been submitted in Schneider at the close of the complainant's case that the respondent had no case to answer. The magistrate ruled to the contrary and the proceedings were adjourned for the respondent to appeal pursuant to S.222. The Full Court had regard to the definition of "order" in S.4 and to the terms of S.222. As a matter of construction it confined the application of S.222 to an order "made upon complaint" and held that the section did not give a right of appeal from a decision or ruling made on an incidental application during the hearing of the complaint, even if that decision or ruling came within the definition of "order" because there was no order made "upon a complaint", that concept being held to be referable to the determination of a complaint. The court referred, in support of its construction, to the prospect of the constant interruption of proceedings so interlocutory orders could be the subject of appeal. It should be mentioned that S.209 is of wider application, Schneider at p.306 but that is irrelevant here.

The applicant sought to distinguish Schneider on the basis that the Stipendiary Magistrate's order of which he complained was made antecedent to the commencement of a hearing and not during its course. That, however, misapprehends the foundations of the decision in Schneider which have been dealt with earlier.

No basis has been shown for regarding Schneider as other than an authoritative decision correctly applied with the consequence that the proceedings brought by the applicant have no prospect of success. The appeal should be dismissed with costs.

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