Cohen v Macefield Pty Ltd

Case [2010] QCA 95

SUPREME COURT OF QUEENSLAND

CITATION:

Cohen v Macefield P/L & Ors [2010] QCA 95

PARTIES:

COHEN, John Norman
(complainant/respondent/applicant)
v
MACEFIELD PTY LTD
ACN 010 360 166
(third defendant/second appellant/first respondent)
DE BRAY, Maurice Joseph
(first defendant/first appellant/second respondent)
DE BRAY, Lorraine Margaret
(second defendant/appellant/third respondent)

FILE NO/S:

CA No 1 of 2009
CA No 2 of 2009
CA No 3 of 2009
DC No 80 of 2006
DC No 79 of 2006
DC No 166 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

30 April 2010

DELIVERED AT:

Brisbane

HEARING DATE:

23 February 2010

JUDGES:

Holmes and Chesterman JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Each of the applications for leave to appeal in appeal numbers 1/09, 2/09 and 3/09 is refused with costs.

CATCHWORDS:

MAGISTRATES – JURISDICTION AND PROCEDURE GENERALLY – PROCEDURE – INFORMATION AND COMPLAINT – FORM AND SUFFICIENCY – DUPLICITY AND UNCERTAINTY – IN GENERAL AND POWER OF AMENDMENT – where first and second respondent charged in the same count of damaging and permitting to be damaged protected vegetation – where first and second respondent found guilty as charged – where first and second respondent agreed to the formulation of the charge – where first and second respondent suffered no unfairness in the way the matter proceeded – where first and second respondent claimed, on appeal, that the charge and convictions were duplicitous – whether an objection based on duplicity can be raised for the first time on appeal – whether the section on which the charge relied created two separate offences or one offence with several characteristics – whether applicant’s complaint duplicitous – whether the Justices Act 1886 (Qld) operated to save the duplicitous complaint – whether the first and second respondents’ convictions duplicitous – whether Court of Appeal should order the amendment of the convictions

LOCAL GOVERNMENT – LEGAL RELATIONSHIPS AND PROCEEDINGS – PROCEDURE RELATING TO LEGAL PROCEEDINGS BY AND AGAINST COUNCILS – AUTHORITY TO PROSECUTE OR COMMENCE PROCEEDINGS – where first and second respondent found guilty of damaging and permitting to be damaged protected vegetation – where the Local Government Act 1993 (Qld) provided that the act of damaging protected vegetation had to occur within one year of the complaint – where damage meant the destruction of vegetation or interference with its natural growth – where no findings were made by the Magistrate that damage occurred within the limitation period – whether damage occurred within the limitation period – whether the matter should be remitted to the Magistrates Court for further hearing

MAGISTRATES – JURISDICTION AND PROCEDURE GENERALLY – PROCEDURE – ORDERS AND CONVICTIONS – PARTICULAR ORDERS – ORDERS FOR COSTS – COSTS AGAINST PROSECUTOR – INFORMANT OR COMPLAINANT – DISCRETION OF COURT – where proceedings against the third respondent in the Magistrates Court were unsuccessful – where third respondent sought a costs order…

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AGLC
Cohen v Macefield Pty Ltd [2010] QCA 95
Case
[2010] QCA 95
Decision Date

CaseChat Overview and Summary

In Cohen v Macefield Pty Ltd, the applicants sought to appeal convictions and other orders made by the Magistrates Court of Queensland. The first and second respondents, Macefield Pty Ltd and another entity, were charged with damaging and permitting the damage of protected vegetation. They were found guilty as charged and subsequently appealed their convictions. The third respondent, who had unsuccessfully prosecuted the matter, sought a costs order against the first and second respondents but did not prevail. The third respondent then appealed the decision of the Magistrates Court not to award costs against the first and second respondents.

The legal issues before the court included whether the objections based on duplicity could be raised for the first time on appeal, whether the charge and convictions were duplicitous, and whether the complaints were duplicitous. Another issue was whether the limitation period provided by the Local Government Act 1993 (Qld) was satisfied, and whether the matter should be remitted to the Magistrates Court for further hearing. Lastly, the court had to determine whether the District Court judge on appeal erred in substituting a costs order in favour of the third respondent.

The court found that the objections based on duplicity could not be raised for the first time on appeal. The court also found that the charge and convictions were not duplicitous, and that the complaints were not duplicitous. The court further found that the limitation period was not satisfied, but the matter did not need to be remitted to the Magistrates Court for further hearing. The court held that the District Court judge on appeal did not err in substituting a costs order in favour of the third respondent.

Accordingly, the applications for leave to appeal were refused with costs.

Orders

Orders of the court

Each of the applications for leave to appeal in appeal numbers 1/09, 2/09 and 3/09 is refused with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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