Court of Appeal (Qld)|2002-09-13|Before: McMurdo P, Mackenzie and Holmes JJSeparate reasons, for judgment of each member of the court, each concurring as to the orders, made.
McMurdo P, Mackenzie and Holmes JJSeparate reasons, for judgment of each member of the court, each concurring as to the orders, made.
Catchwords
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
Source
Original judgment source is linked above.
Catchwords
APPEAL – GENERAL PRINCIPLES – IN GENERAL AND RIGHT OF APPEAL– WHEN APPEAL LIES – APPEAL TO DISTRICT COURT– S 222JUSTICES ACT 1886 – where applicant/appellant seeks leave fromdecision of District Court allowing respondent’s appeal from magistrateunder s 222 Justices Act (Qld) 1886 – where magistrate refusedamendment of charges and dismissed complaints – whether District Courtjudge hadpower to entertain appeal under s 222 – whether appeal liesunder s 222 from a ruling made on an incidental application during the hearingof the complaint.APPEAL – GENERAL PRINCIPLES – IN GENERAL AND RIGHT OF APPEAL– WHEN APPEAL LIES – APPEAL TO DISTRICT COURT– S 222JUSTICES ACT 1886 – whether District Court judge was in a positionto assess whether a variance existed between the complaints and the evidenceadduced – whether District Court judge had heard all the evidenceAPPEAL – 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
OSC No 8 of 1966, unreported, 24 June 1966, appliedOwen v Cannavan &
Anor [1995] QCA 324
CA No 199 of 1994, 4 August 1995,
consideredParameter v Proctor (1948) 66 WN (NSW) 48,
citedPioneer Industries v Baker [1997] Qd R 514, citedR v His
Honour Judge Dodds and Stipendiary Magistrate at Emerald
Ex parte Smith and
Graham [1990] 2 Qd R 80, consideredR v Jacobs [1992] 2 Qd R 541,
citedRamton v Cassin (1995) 38 NSWLR 88, citedSchneider v
Curtis [1967] Qd R 300, consideredScott v Mulhall (1947) 64 WN
(NSW) 15, citedTurner v Randall
Ex parte Randall [1998] 1 Qd R 726,
consideredAnimals 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
Judgment (23 paragraphs)
[1]
APPEAL - GENERAL PRINCIPLES - IN GENERAL AND RIGHT OF APPEAL - WHEN APPEAL LIES - APPEAL TO DISTRICT COURT - S 222 JUSTICES ACT1886 - where applicant/appellant seeks leave from decision of District Court allowing respondent's appeal from magistrate under s 222Justices 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 ACT1886 - 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 ACT1886 - 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 ACT1886 - 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