Von Schulz v Durrant [2000] QCA 235

[1] THE COURT: Pursuant to s 118 of the District Court Act 1967, the applicant seeks leave to appeal from a decision of the District Court and a consequential extension of time within which to appeal. The respondent has agreed that the argument on the application may be taken as the argument on the hearing of the appeal.

[2] On 11 May 1999, the applicant was convicted in the Magistrates Court at Brisbane of a parking offence. To some extent, the conviction depended upon adverse findings of credibility made by the magistrate. The applicant was fined $60 and ordered to pay costs. On 10 June 1999, he served a notice of appeal to the District Court on the respondent and on the clerk of the Court under s 222(2)(a)(i) of the Justices Act 1886. The notice of appeal suggests that the applicant sought leave to adduce new evidence in the District Court.[1] The respondent entered an appearance in that Court the following day in accordance with the District Court practice.[2]

[3] Under s 222(2)(a)(ii), the applicant had until 17 June to enter into a recognisance before a Justice of the Peace in respect of the appeal. He conceded before us that he did not do so. He claimed that this was because he did not know of the need to do so. There are grounds for doubting that assertion, but as the matter has not been explored on oath in this Court, no finding should be made. The Practice Direction made provision for outlines of argument to be served by each party on the other. The applicant delivered an outline to the respondent on 14 July and the respondent reciprocated on 10 August 1999. The Practice Direction also made provision for a compulsory conference between the parties with a view to identifying (among other things) the matters in issue in the appeal.[3] That conference took place on 17 September. The applicant attended at the respondent's office. The question of the recognisance was not raised. The applicant was not legally represented then and is not now.

[4] On 8 November 1999, notice of hearing was posted to the applicant pursuant to s 222(2)(c) of the Justices Act 1886, setting the hearing for 29 November. It seems that at about that time, the respondent may have been alerted to the fact that there was no evidence of any recognisance. The applicant claims he was too ill to attend the hearing. He obtained letters from medical practitioners and on 23 November sent them to the District Court and, he says, to the respondent. He did not attend the court on 29 November but on his behalf, his wife applied for an adjournment. For reasons which are not adequately explained in the material before us, the hearing was adjourned to 2nd December.

[5] On that day when the matter came on, Mrs Von Schulz again appeared for the applicant. The respondent was represented by a person from the Brisbane City Legal Practice. The respondent submitted that the appeal should be struck out for failure to enter into the recognisance and informed the judge that the respondent was not willing to waive that requirement. Mrs Von Schulz, whose first language was not English, sought an adjournment and asked the judge to read the medical reports. He did not do so, commenting, "Reading this material won't help me." With commendable patience, he explained the requirement for a recognisance to Mrs Von Schulz. He said that the respondent was not prepared to waive the requirement and that consequently the appeal had to be struck out. He so ordered. That is the order the subject of the present application.

[6] The Justices Act 1886 relevantly provides as follows:

"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 District Court judge.

(2) Every such appeal shall be made under and subject to the following rules and conditions-

(i) within 1 calendar month after the decision serve on the person concerned in upholding such decision and on the clerk of the court at the place where the decision was given a notice of appeal in the approved form stating the grounds of the appeal and where the appellant wants the appeal to be heard and decided under the District Courts Act 1967; and

(ii) within 7 days after service of the notice on the other party and the clerk of the court, enter into a recognisance before a justice for the amount and with the sureties (if any) the justice may require, to appear on the hearing of the appeal and to abide the decision of the judge and pay the costs the judge may order;

(b) the clerk of the court must immediately send a copy of the notice of appeal and the complaint, depositions and other proceedings before the justices to the registrar of the court stated in the notice;

(c) the said registrar shall give to the appellant and to the person concerned in upholding such decision 10 days notice of the day on which the appeal is to be heard;

(d) subject to subsection (2D), if the appellant is in custody under the order appealed against - any justice may order the appellant's release upon the appellant entering into the recognisance and the appeal shall not operate as a stay of execution unless and until the appellant enters into such recognisance;

(e) except where the sole ground of appeal is that the fine penalty forfeiture or punishment is excessive or inadequate, as the case may be - no appeal shall lie under this section where the defendant pleaded guilty or admitted the truth of the complaint.

223.(1) An appeal under section 222 is by way of rehearing on the evidence ("original evidence") given in the proceeding before the justices.

(2) However, a District Court may give leave to adduce fresh, additional or substituted evidence ("new evidence") if the court is satisfied there are special grounds for giving leave.

(3) If the court gives leave under subsection (2), the appeal is-

(a) by way of rehearing on the original evidence; and

224. The judge may at any time adjourn the hearing of the appeal for such time and upon such terms and conditions as the judge may think fit.

224A.(1) An appellant is entitled to be present on the hearing of the appellant's appeal, unless it is on a ground involving a question of law alone.

(2) Subsection (1) applies even if the appellant is in custody.

(3) On an appeal, or application for leave to appeal, on a ground involving a question of law alone, and on any proceeding preliminary or incidental to an appeal, the appellant is entitled to be present only with the leave of a District Court.

229.(1) If any appellant makes default in prosecuting the appeal without delay or in taking any necessary steps in the presentation thereof any other party may apply to a judge in chambers by summons served on such appellant for an order discharging the notice of appeal and the judge shall make such order as shall be just with regard to the subject matter of the application and to costs."

[7] For the purposes of this application, we shall assume that the proceeding below was one incidental to an appeal within the meaning of s 224A, notwithstanding that the appeal itself had been listed for hearing. No argument was addressed to us on this section. We also assume that an application to strike out an appeal to the District Court may be made orally notwithstanding the terms of s 229(1).

[8] At first glance, the course which proceedings took below is a little surprising. Ordinarily, one would have expected the judge to have begun by inquiring whether there were any circumstances which warranted the grant of special leave allowing Mrs Von Schulz to appear for her husband.[4] This question was not addressed. It may well be that the learned District Court judge was aware of the application which the respondent intended to make and decided to proceed as if Mrs Von Schulz had been granted special leave. He certainly recognised her presence and the transcript records her appearance for the applicant. However he did not consider her application for an adjournment of the proceedings. There is no indication in the transcript that he took this course because he was unwilling to hear her on the applicant's behalf. On the contrary, it seems fairly clear that His Honour felt no need to decide questions of appearance or adjournment because he formed the view that it was inevitable that the appeal should be struck out; and that nothing which could be said on behalf of the applicant could, as a matter of law, affect that outcome. He said, "I think the law is quite clear. I've had a look at it myself. There is no doubt that it's mandatory [to strike out the appeal] unless it's waived by the respondent."

[9] Although the judge did not cite the cases to which he had referred, he probably had in mind three long-standing decisions of the District Court.[5] Those decisions went so far as to hold that in the absence of waiver, compliance with the conditions set out in s 222(2) was essential to the existence of jurisdiction under the section; though noncompliance might be waived. They therefore supported the view which His Honour expressed. Assuming their correctness, His Honour had to consider two questions: whether the applicant had entered into the necessary recognisance within the time prescribed by s 222(2)(a)(ii); and if not, whether the respondent had waived his omission to do so. Both of these issues raised questions of fact. Unfortunately, His Honour did not hear evidence on the respondent's application. He simply assumed that she was correct in her assertions. In taking that course, he fell into error.

[10] Counsel for the respondent informed this Court that the respondent had in fact prepared an affidavit to prove the absence of a recognisance almost a week before the hearing day below. However it had been neither filed nor served. Apparently it was not placed before His Honour. It may well be that once the question of the recognisance was raised by the respondent, the onus lay upon the applicant to prove compliance with or waiver of the statute.[6] However even if he had been able to do so, he was in no position to meet such a challenge on 2nd December 1999. By permitting the application to be made orally instead of on notice under s 229(1), and by not dealing with the application for an adjournment, the judge denied the applicant the opportunity to meet the challenge.

[11] In the light of the applicant's concession before us that he had not entered into the necessary recognisance, it is clear that an adjournment could not have helped him prove that he had. If that were the only point, there would be no purpose in granting him leave to appeal. But that was not the only way in which he might have met the challenge. On the contrary, he might have led evidence that the respondent had waived his omission.

[12] The respondent was an officer of the Brisbane City Council. Through its officers, the Council is doubtless a regular litigant in respect of parking offences. One would expect that its officers and solicitors would be quite familiar with the provisions of s 222. Upon the commencement of the Uniform Civil Procedure Rules, the respondent came under an obligation to proceed in an expeditious way.[7] The time for the recognisance had expired on 17 June 1999; thereafter, the applicant was in default under the section. The respondent did not raise the question of the recognisance in its outline of argument delivered on 10 August 1999, nor did counsel raise it at the conference between the parties held pursuant to the Practice Direction for the purpose (among others) of identifying the issues in the appeal. It is unlikely that she or her experienced solicitors were ignorant of the requirement. Had the adjournment been granted, evidence of these omissions might have been placed before the judge. In our judgment, it would have been open to (though not mandatory for) him on such evidence to hold that the respondent had waived the omission.

[13] One must not be unduly critical of the respondent. The procedure provided by s 222 is archaic and long overdue for reform. It allows an appellant to enter into a recognisance before any Justice of the Peace, but there is no requirement for proof of the recognisance to be filed or served. Ordinarily, a respondent's only means of knowledge of compliance or otherwise will be to ask the appellant. Failure to ask would not in all circumstances amount to waiver; but it may do so in some circumstances. The applicant was entitled to place the question of waiver before the judge. It was not inevitable that the proceedings would be struck out. The application for an adjournment should, therefore, have been considered.

[14] The applicant was also entitled to argue, if he wished to do so, that the decisions relied upon by the judge were distinguishable. Those decisions pose significant theoretical problems - it is not easy to see how a party can confer jurisdiction on the District Court by waiver. It may be that such an argument could be advanced successfully only in this Court, since the decisions are based on a case in the Full Court, Reg. v The Judge of the District Court at Brisbane and Davies; ex parte Allen.[8] That case should be considered in its historical context. For nearly 40 years up to 1959, appeals under s 222 were brought to a Supreme Court judge. When District Courts were re-established in that year, this jurisdiction was transferred to that Court. Ex parte Allen is the first reported instance of an attempt in this Court to challenge a decision of the new court under s 222 (other than by way of case stated under s 227). At that time, s 222(1) provided that the determination of the judge "shall be final between the parties to the appeal". On long-standing authority, "final" in that section meant that the judgment was (subject to s 227) the final and unalterable judgment of State courts on the matter, and was unappealable even by leave.[9] This meant that the only manner in which the decision could be challenged in the Supreme Court was by way of prerogative writ. In these circumstances, it is not surprising that the Court held that the factors referred to in s 222(2) were relevant to jurisdiction.

[15] In 1997, s 222 was amended to delete the provision that the determination of the judge should be final.[10] At the same time, a restriction[11] on the grant of leave to appeal from the District Court was deleted.[12] As a result of these changes, it is now arguable that noncompliance with the requirements of s 222(2) within the time allowed for compliance does not, even if the noncompliance is not waived, deprive the District Court of power to hear the matter. It is also worth noting that the theoretical problems referred to above were not considered by the Court in Ex parte Allen.

[16] It would be premature to decide this question in the present application. There are several reasons why this is so. First, it may be unnecessary, particularly if the applicant proves that the respondent waived his noncompliance. The determination of the issue of waiver may necessitate the taking and assessment of evidence and is best done in the District Court. Second, the applicant has not to date entered into the recognisance which the section requires. It is by no means clear that he is willing to do so. He sought to explain his failure to enter into a recognisance prior to his appeal coming on for hearing in the District Court by asserting ignorance of the requirement. At a proper hearing, he may or may not be believed. Also, he may prove unwilling to enter into a recognisance. Third, the point was not properly argued before us.

[17] The decision below was made on 2nd December 1999. The present application was not made until 25 February 2000. Strictly speaking, no time is prescribed for such applications, but the practice is to regard them as timely if made within the time limited for an appeal as of right, that is, 28 days.[13] On that basis, the applicant has been guilty of nearly two months delay, and delay is a relevant factor in considering whether an application should be granted. The delay is partly explained by a misconceived attempt on the part of the applicant to apply for a rehearing in the District Court. No prejudice is asserted by the respondent; the applicant is unrepresented; and an appeal should succeed. In these circumstances, the delay is not such as to warrant refusal of leave.

[18] The application should be granted; the time for filing a notice of appeal in this Court should be extended to 27 March 2000 (the date when the applicant filed a notice of appeal); the appeal should be allowed; the order of the District Court made on 2nd December 1999 in matter 2362/99 should be set aside; and it should be ordered that the matter continue in the District Court in accordance with law.

[1] See Justices Act 1886, s 223.

[2] Practice Direction 4/97, para 11 requires this to be done. That practice direction is referred to in the judgment of this Court in Gamble v Davidson, [1998] QCA 154; CA No 111 of 1998, 19 June 1998.

[4] See District Court Act 1967, s 52.

[5] Forsyth v O'Connor (1970) 66 QJPR 38; Scottorn v Howard (1971) 66 QJPR 34; Carey v Armstrong (1972) 66 QJPR 136.

[6] See Reg. v The Judge of the District Court at Brisbane and Davies; ex parte Allen [1969] Qd R 114.

[7] Rule 5 (3). This assumes that the Rules govern appeals under s 222, but that appears to be the District Court practice.

[8] [1969] Qd R 114.

[9] White v White (No 2) [1923] St R Qd 69; Exon v White [1976] Qd R 126; and see Stinson v The Pharmacy Board of Queensland [1995] 1 Qd R 567.

[10] Courts Reform Amendment Act 1997, s 62(1).

[11] Involvement of some important question of law or justice.

[12] Courts Reform Amendment Act 1997, s 47.

[13] R v Lewis [1998] QCA 247; [1999] 2 Qd R 636; R v Tait [1998] QCA 304; [1999] 2 Qd R 667.