Paulger v Hall [2002] QCA 353

APPEAL - GENERAL PRINCIPLES - IN GENERAL AND RIGHT OF APPEAL - WHEN APPEAL LIES - APPEAL TO DISTRICT COURT - S 222 JUSTICES ACT 1886 - where applicant/appellant seeks leave from decision of District Court allowing respondent's appeal from magistrate under s 222 Justices Act (Qld) 1886 - where magistrate refused amendment of charges and dismissed complaints - whether District Court judge had power to entertain appeal under s 222 - whether appeal lies under s 222 from a ruling made on an incidental application during the hearing of the complaint. APPEAL - GENERAL PRINCIPLES - IN GENERAL AND RIGHT OF APPEAL - WHEN APPEAL LIES - APPEAL TO DISTRICT COURT - S 222 JUSTICES ACT 1886 - whether District Court judge was in a position to assess whether a variance existed between the complaints and the evidence adduced - whether District Court judge had heard all the evidence APPEAL - GENERAL PRINCIPLES - IN GENERAL AND RIGHT OF APPEAL - WHEN APPEAL LIES - APPEAL TO DISTRICT COURT - S 222 JUSTICES ACT 1886 - whether amendment to complaint correctly refused at first instance - whether applicant/appellant prejudiced by proposed amendment because the cross-examination of witnesses had been conducted on the basis of the charges and particulars provided APPEAL - GENERAL PRINCIPLES - IN GENERAL AND RIGHT OF APPEAL - WHEN APPEAL LIES - APPEAL TO DISTRICT COURT - S 222 JUSTICES ACT 1886 - whether further hearing of the matter correctly adjourned to the District Court - whether judge had concluded hearing the appeal and set down the matters for separate hearing in the District Court; or whether he had merely adjourned the hearing of the appeal proposing to permit the calling of additional evidence at the further hearing Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, cited

Ex parte Bignell (1915) 32 WN (NSW) 91, cited

Felix v Smerdon (1944) 19 ALJR 30, considered

Fox v Chiu; ex parte Chiu [1978] Qd R 88, considered

Gerlach v Clifton Bricks Pty Ltd (2002) 76 ALJR 828, considered

Hackwill v Kay [1960] VicRp 98; [1960] VR 632, considered

Hayes v Wilson; Ex parte Hayes [1984] 2 Qd R 114, considered

Hill v Pinnock & Ors (1879) 1 QLJ (Supp) 45, 50, considered

Mitchell v Myers [1955] WALawRp 6; (1955) 57 WALR 49, considered

O'Beirne v Ramke; Ex parte Ramke, OSC No 8 of 1966, unreported, 24 June 1966, applied

Owen v Cannavan & Anor [1995] QCA 324; CA No 199 of 1994, 4 August 1995, considered

Parameter v Proctor (1948) 66 WN (NSW) 48, cited

Pioneer Industries v Baker [1997] Qd R 514, cited

R v His Honour Judge Dodds and Stipendiary Magistrate at Emerald; Ex parte Smith and Graham [1990] 2 Qd R 80, considered

R v Jacobs [1992] 2 Qd R 541, cited

Ramton v Cassin (1995) 38 NSWLR 88, cited

Schneider v Curtis [1967] Qd R 300, considered

Scott v Mulhall (1947) 64 WN (NSW) 15, cited

Turner v Randall; Ex parte Randall [1998] 1 Qd R 726, considered

Animals Protection Act 1925 (Qld), s 3, s 4(1)(a), s 4(1)(ba), s 4(2B), s 17, s 17(1)(a), s 17(1)(b), s 17(1)(c), s 17(1)(d), s 17(1)(e)

Justice Act 1886 (Qld), s 48, s 48(c), s 222, s 223

J A Griffin QC, with M T O'Sullivan, for the respondent

Butler, McDermott & Egan for the applicant/appellant