Bryson v Queensland Police Service

[2013] QDC 67

[2013] QDC 67

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE ROBIN QC

No 541 of 2012

JOHN HENRY BRYSON	Appellant
and
QUEENSLAND POLICE SERVICE	Respondent

SOUTHPORT

..DATE 02/04/2013

ORDER

CATCHWORDS

Justices Act 1886 s222, 229- Appellant failed to file outline of argument required by the practice direction - on Registrar’s reference, respondent made returnable an application to strike out for want of prosecution - respondent placed before court appellant’s recent communications indicating desire to prosecute the appeal and the date when his outline could be filed - directions made for future steps and for a hearing date to which respondent’s application was adjourned, with liberty to apply to bring it on sooner.

HIS HONOUR: This appeal under s222 of the Justices Act 1886 is mentioned today at the instance of the Registrar, the appellant not having complied with the practice direction, which required the filing of the written outline of his argument. He is a barrister appealing against a conviction for drink driving.

The respondent has filed on the 27th of February this year, and made returnable today, an application under s229 to strike out the appeal for want of prosecution, which is the only means open of getting the appeal disposed of, as the Justices Act provides a code relevant in this regard, which supplants the possibilities in the Uniform Civil Procedure Rules for disposing of appeals not being properly prosecuted.

Mr Johnson, for the respondent, has placed before the court two letters in the form of emails to him from the appellant, dated the 28th and 29th of March 2013.  He protests ignorance of the practice direction and indicates that having regard to other obligations, he would be able to prepare and serve his outline of argument on or before the 23rd of April.

It appears to me the court has little option but to indulge Mr Bryson.  He's shown an interest in prosecuting the appeal and to strike it out, for want of prosecution, would seem unduly harsh in the circumstances.

The orders made today will be to extend, to the 23rd of April 2013, the time for the appellant's outline of argument to be filed and served.  I fix the 19th of June 2013 for hearing of the appeal and adjourn to that date the respondent's application to strike it out for want of prosecution.  I do not want determination of the appeal compromised by problems of the appellants availability.  Hence the length notice of hearing date Costs are reserved.

It might be mentioned that Mr Bryson, whose communications reveal that he possesses the skills of a lawyer, presents some justification for his inability to be at court today in terms of the high level of airfares which the airlines command in this holiday period.  He would have to come from Sydney.

Cover everything?

MR JOHNSON:  Yes, your Honour.  Just in the event that the outline is not forthcoming by the 23rd of April, should the matter be mentioned shortly thereafter for the‑‑‑‑‑

HIS HONOUR:  Look, is there any point?  I've given you the 19th of June.

MR JOHNSON:  Yes.  Just to strike it out.  It's for striking it out if he fails to comply that's all, your Honour.

HIS HONOUR:  Well, I give you liberty to apply.

MR JOHNSON:  Thank you.  Yes.   

HIS HONOUR:  I've said I've adjourned to that date, defendant's application to strike out for want of prosecution, with liberty to the respondent to bring it on earlier, if so advised.

MR JOHNSON:  Thank you, your Honour.

HIS HONOUR:  This is a case where you'd need the outline of argument, it seems to me because, he's raising technical points about the adequacy of the testing instruments and the like - whereas in the previous matter I think what the delinquent appellant is getting at is not so complicated that you couldn't grasp, but more or less on the run.

MR JOHNSON: It’s just a brief discussion on the word, "possession", I think, your Honour.

HIS HONOUR:  Well, and what happens if you don't give evidence, although that remark shouldn't be taken too literally, it was his right, of course.  Thanks, Mr Johnson.

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