Dart v Singer - [2012] QDC 61

DISTRICT COURT OF QUEENSLAND

CITATION:

Dart v Singer [2012] QDC 61

PARTIES:

SYDNEY RONALD DART
(Appellant)

v

CLIFFORD SINGER
(Respondent)

FILE NO:

D645/11 and D646/11

DIVISION:

Appeals

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

17 April 2012

DELIVERED AT:

Townsville

HEARING DATE:

13 April 2012

JUDGE:

Durward SC, DCJ

ORDER:

1. Application refused

2. Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – PRACTICE & PROCEDURE – APPEALS TO DISTRICT COURT – Whether appeal competent – Whether oral application for leave to extend time within which to appeal should be granted – Where no admissible evidence of reasons for not filing within time – Whether discretion enlivened

CRIMINAL LAW – PRACTICE & PROCEDURE – APPEALS TO DISTRICT COURT – Whether ground of refusal of Magistrate to award costs at the acquittal appealable

CASES:

R v Tait [1999] 2 Qd R 667; Owen v Edwards [2006] QCA 526; Smith v Ash [2011] 2 Qd R 175.

LEGISLATION:

Justices Act 1886 (Qld) ss 222, 228.

COUNSEL:

Mr S Dart appeared unrepresented

Mr A Morris QC for the Respondent

SOLICITORS:

Roberts Nehmer McKee for the Respondent

Sydney Ronald Dart purported to appeal against two matters arising from a Magistrates Court hearing which involved himself, his son Frederick William Dart (“Frederick Dart”) and the latter's partner, Megan Ann Hajridin (“Hajridin”), together referred to as the “others”.

I dismissed the appeal of Sydney Ronald Dart ("Sydney Dart"), gave brief reasons and reserved these more detailed reasons.

Background

The others were convicted in the Magistrates Court at Townsville on 4 December 2008 on 131 offences under the Animal Care & Protection Act 2001. They were sentenced on 12 December 2008. So far as is relevant to the current proceeding, they were restrained from purchasing or otherwise acquiring or taking possession of any dog or rat for trade or commerce for a period of two years. The proceedings the subject of the appeals which Sydney Dart purported to join, arose out of breaches of duty of care and the possession of a seized animal under the Animal Care & Protection Act 2001. Sydney Dart was charged conjointly with the other two with regard to five breaches of duty of care and one charge of possession of a seized animal.

On 19 November 2008, Frederick Dart attempted to lease his property at Calcium, southwest of Townsville, to Sydney Dart, with his partner and him remaining tenants at the property. There was also a purported transfer of Hajridin's business "TopDogzDownUnder" to Sydney Dart. Those ‘agreements’ were the sole basis upon which Sydney Dart was joined as a party to the commission of the offences by the others.

The Magistrates Court hearings

The hearings were heard on dates in January and April 2011 and a judgment was delivered on 7 November 2011. The Magistrate found that the agreements were brought into existence and executed by the three appellants in an attempt to circumvent the effect of the orders made in the Magistrates Court on 12 December 2008.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dart v Singer

Details

AGLC: Dart v Singer [2012] QDC 61
Case: [2012] QDC 61
Decision Date: 17 April 2012

CaseChat Overview and Summary

In Dart v Singer, the applicant, Mr. Dart, sought an extension of time to appeal a decision made in the Magistrates’ Court of Victoria. The dispute centred around Mr. Dart’s failure to file his appeal within the prescribed timeframe and the subsequent refusal of the Magistrate to award costs at the appeal stage. The application for leave to appeal out of time was brought before the District Court of Victoria.

The court was required to determine two primary issues. First, whether the appeal was competent given the late filing and, second, whether the court should grant an oral application for leave to extend the time within which to appeal. Additionally, the court had to consider whether the ground of refusal of the Magistrate to award costs at the acquittal was appealable. The crux of the matter lay in the sufficiency of the reasons provided by Mr. Dart for his delay in filing the appeal and the applicability of the discretion to extend time under the relevant legislation.

The District Court found that there was no admissible evidence to substantiate Mr. Dart's reasons for not filing his appeal within the stipulated period. Consequently, the court held that the discretion to extend the time for filing the appeal was not enlivened. Furthermore, the court ruled that the ground of refusal of the Magistrate to award costs at the appeal stage was not appealable. As a result, the application for leave to appeal out of time was refused, and the appeal was dismissed.

The orders of the court were straightforward. The application for leave to extend the time within which to appeal was refused. Additionally, the appeal was dismissed, with no further orders made in relation to the matter.

Orders

Orders of the court

1. Application refused

2. Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Dart v Singer [2012] QDC 61
PARTIES:	SYDNEY RONALD DART (Appellant) v CLIFFORD SINGER (Respondent)
FILE NO:	D645/11 and D646/11
DIVISION:	Appeals
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	17 April 2012
DELIVERED AT:	Townsville
HEARING DATE:	13 April 2012
JUDGE:	Durward SC, DCJ
ORDER:	1. Application refused 2. Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – PRACTICE & PROCEDURE – APPEALS TO DISTRICT COURT – Whether appeal competent – Whether oral application for leave to extend time within which to appeal should be granted – Where no admissible evidence of reasons for not filing within time – Whether discretion enlivened CRIMINAL LAW – PRACTICE & PROCEDURE – APPEALS TO DISTRICT COURT – Whether ground of refusal of Magistrate to award costs at the acquittal appealable
CASES:	R v Tait [1999] 2 Qd R 667; Owen v Edwards [2006] QCA 526; Smith v Ash [2011] 2 Qd R 175.
LEGISLATION:	Justices Act 1886 (Qld) ss 222, 228.
COUNSEL:	Mr S Dart appeared unrepresented Mr A Morris QC for the Respondent
SOLICITORS:	Roberts Nehmer McKee for the Respondent