Clampett v Magistrate Cornack

[2013] QCA 2

SUPREME COURT OF QUEENSLAND

CITATION:

Clampett v Magistrate Cornack & Anor [2013] QCA 2

PARTIES:

LEONARD WILLIAM CLAMPETT
(applicant)
v
MAGISTRATE CORNACK
(first respondent)
THE COMMISSIONER OF THE QUEENSLAND POLICE SERVICE
(second respondent)

FILE NO/S:

Appeal No 6353 of 2012
SC No 8490 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time/General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

1 February 2013

DELIVERED AT:

Brisbane

HEARING DATE:

10 December 2012

JUDGES:

Margaret McMurdo P and Fraser JA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Application for leave to appeal refused.

2.    Application filed 21 November 2012 dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – EXISTENCE OF OTHER REVIEW OR APPEAL RIGHTS – where the Magistrates Court found the applicant guilty of speeding – where the applicant sought review of the decision of the first respondent pursuant to the Judicial Review Act 1991 (Qld) – where it was ordered that the second respondent be joined as it was seen to be the proper respondent – where the second respondent made application to have the application for judicial review struck out – where the primary judge found that the applicant knew of the applicant’s right of appeal pursuant to s 222 Justices Act 1886 (Qld) but deliberately chose to institute the application for review – whether leave to appeal ought to be granted – whether an extension of time in which to bring that appeal be granted

Justices Act 1886 (Qld), s 222

Glennan v Commissioner of Taxation (2003) 77 ALJR 1195; (2003) 198 ALR 250; [2003] HCA 31, applied
Re Skyring’s Application (No 2) (1985) 59 ALJR 561, applied

COUNSEL:

The applicant appeared on his own behalf
R G Marsh (sol) for the first respondent
S A McLeod for the second respondent

SOLICITORS:

The applicant appeared on his own behalf
Crown Law for the first respondent
Queensland Police Service Solicitors for the second respondent

1. MARGARET McMURDO P: I agree with Boddice J’s reasons for refusing leave to appeal.

1. FRASER JA: I agree with the reasons for judgment of Boddice J and the order proposed by his Honour.

1. BODDICE J: By application filed 18 July 2012, the applicant seeks leave to appeal a decision of the primary judge, delivered on 4 May 2012, dismissing the applicant’s application to judicially review a finding by the first respondent that the applicant was guilty of an offence of speeding.  The applicant also seeks an extension of time within which to bring that appeal.  The applicant sought further orders by application filed 21 November 2012.

Background

1. On 2 September 2011, the first respondent found the applicant guilty of an offence of speeding.  The applicant had been detected by a speed camera travelling at 73 kilometres per hour in a 60 kilometre per hour zone.  He was convicted and fined $200, and ordered to pay $76.90 court costs.  The applicant was also ordered to pay the prosecution’s out of pocket expenses for an expert witness, fixed at $3,500. 

1. The expert witness’s evidence was called in response to the applicant’s challenge to the speeding offence, which relied on an assertion that the evidence produced by the speed camera failed to comply with the National Measurement Act 1960 (Cth). The first respondent found the speed camera complied with that Act.

Application for review

1. On 22 September 2011, the applicant sought to review the decision of the first respondent, pursuant to the Judicial Review Act 1991 (Qld). That application was initially to be heard in the Trial Division on 10 October 2011 but was adjourned to allow service of the second respondent. On 9 January 2012, an order was made joining the second respondent as he was seen to be the proper respondent.

1. The second respondent subsequently made application to strike out the application for judicial review.  The primary judge upheld that application. 

1. The primary judge noted that the applicant had an unrestricted right to appeal the first respondent's decision, including as to costs, pursuant to s 222 of the Justices Act 1886 (Qld). The primary judge found that the applicant knew of that right of appeal but deliberately chose to institute the application for review.

1. As adequate provision was made by s 222 for the applicant to appeal the first respondent’s decision, the primary judge ordered that the application for review be dismissed. In so doing, the primary judge found that none of the reasons advanced by the applicant for having instituted the application for review, rather than exercising his right of appeal pursuant to s 222, amounted to good reason.

Application for leave

1. The applicant’s application for leave to appeal relies on an assertion that the primary judge “missed the point completely” as to the reason for the applicant’s approach.  The applicant contends the approach adopted by the applicant was proper and appropriate because the first respondent “failed utterly” to acknowledge the applicant’s primary basis to challenging the alleged offence, namely, that there was no compliance with the National Measurement Act 1960 (Cth).

1. The applicant’s grounds of appeal are without substance. The primary judge carefully considered the applicant’s reasons for pursuing judicial review, and concluded that those reasons did not provide any sound basis for the applicant failing to pursue what was the appropriate avenue to challenge the first respondent’s decision, namely, an appeal pursuant to s 222 of the Justices Act 1886 (Qld).

1. The applicant has not demonstrated any error of law on behalf of the primary judge in reaching that conclusion. As the primary judge found, the applicant was well aware of his right to appeal under s 222. The applicant chose not to exercise that right.

1. In his submissions, the applicant contended he was unable to file a s 222 appeal as an order of a District Court judge prevented him from doing so. This submission related to an order made on 4 April 2008, in unrelated proceedings. The order precluded the applicant from filing any further order in the District Court of Queensland until he had paid some outstanding costs.

1. As was noted by the primary judge, the applicant’s contention in this respect involves an assertion by the applicant of the unconstitutionality of Australian currency as legal tender.  Such a contention is devoid of merit.[1]

   [1]See, generally, Re Skyring’s Application (No 2) (1985) 59 ALJR 561.

1. Whilst a contention involving the interpretation of a constitutional question would normally require the issuing of notices pursuant to s 78B of the Constitution, such notices are unnecessary where the contention raised is plainly unarguable.[2] As the applicant’s contentions as to the unconstitutionality of legal tender are unarguable, they do not involve a matter arising under the Constitution.

   [2]Glennan v Commissioner of Taxation (2003) 198 ALR 250, citing with approval the observations of Toohey J in Re Finlayson: ex parte Finlayson (1997) 72 ALJR 73 at 74.

Conclusions

1. The primary judge correctly held that the applicant's application for review ought to be dismissed.  There is no basis upon which the applicant's proposed appeal could succeed.  There is also no basis for the making of the orders sought in the application filed 21 November 2012.

1. The applicant contends he ought to be given leave to appeal as the issues raised on this appeal have an overriding importance for the administration of justice.  However, the issues raised on the appeal relate to a failure by an applicant to exercise an available right of appeal, knowing full well of the availability of that process.  There is no general issue of importance for the administration of justice.

1. Further, any appeal is doomed to fail.  In those circumstances, there is no reason leave to appeal ought to be granted. 

1. I would refuse leave to appeal.  I would also dismiss the application filed 21 November 2012.