Dart v Singer - [2010] QCA 124

SUPREME COURT OF QUEENSLAND

CITATION:

Dart & Anor v Singer [2010] QCA 124

PARTIES:

DART, Frederick William
(first applicant/cross-respondent)
v
SINGER, Clifford
(respondent/cross-applicant)

HAJRIDIN, Megan Ann
(second applicant/cross-respondent)
v
SINGER, Clifford
(respondent/cross-applicant)

FILE NO/S:

CA No 21 of 2010
CA No 22 of 2010
CA No 112 of 2010
CA No 113 of 2010
DC No 452 of 2008
DC No 453 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

27 May 2010

DELIVERED AT:

Brisbane

HEARING DATE:

27 May 2010

JUDGES:

McMurdo P, Cullinane J and McMeekin J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Appeal numbers 21/22 of 2010:

1.    Applicant's application for adjournment refused.

2.    Applications 21 and 22 of 2010 are dismissed by consent.

3.    Applicant to pay Respondent’s costs of those applications on standard basis to be assessed if not agreed.

4.    Respondent to make submissions regarding costs of stay, limited to 2 pages and consistent with the Practice Direction, filed and served within 7 days. Appellants Dart and Hajridin may make submissions regarding costs of stay, limited to 2 pages and consistent with the Practice Direction, to be filed and served within 7 days of receipt of Respondent's submissions.

Appeal numbers 112/113 of 2010:

1.    Application for leave to cross appeal refused.

2.    Respondent, Clifford Singer, is to pay Applicants, Dart and Hajridin’s costs of cross-application on the standard basis to be assessed if not agreed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – respondents filed an application for extension of time to apply for leave to cross appeal – application was four months out of time – respondent emphasised RSPCA's charitable status and financial position – whether respondent able to demonstrate prospects of success – whether it is in the interests of justice to grant an extension of time

PROCEDURE – COSTS – COSTS OF APPEAL – appeals dismissed by consent – applicant withdrew application day before appeal hearing – matter remained listed as respondents consent was required and respondent had filed an application for extension of time to seek leave to cross-appeal – whether standard costs following the event should be applied

Animal Care and Protection Act 2001 (Qld)

Dart & Anor v Singer [2010] QCA 75, cited

COUNSEL:

The first applicant appeared for himself and the co-applicant
R G Fryberg for the respondent

SOLICITORS:

The first applicant appeared for himself and the co-applicant
Roberts Nehmer McKee Lawyers for the respondent

THE PRESIDENT: The applicants, Frederick William Dart and Megan Ann Hajridin, in their applications, CA numbers 21 and 22 of 2010, pleaded guilty to a number of charges brought against them under the Animal Care and Protection Act 2001 (Qld). Orders were made against them in the Magistrates Court on 12 December 2008, including an order that…

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 [2010] QCA 124
Case: [2010] QCA 124
Decision Date: 27 May 2010

CaseChat Overview and Summary

The respondents, represented by the Royal Society for the Prevention of Cruelty to Animals (RSPCA), sought an extension of time to file a cross-appeal in the matter of Dart v Singer. The primary appeal involved the applicants, Dart and Hajridin, and the respondents, Clifford Singer and the RSPCA. The applicants had been convicted of animal cruelty, and the RSPCA, as a concerned party, had intervened in the appeal. The legal issues before the court centred on whether the RSPCA could be granted an extension of time to file a cross-appeal despite being significantly late and whether it was in the interests of justice to allow such an extension. Additionally, the court had to determine the appropriate costs to be awarded given that the appeals had been dismissed by consent and the applicant had withdrawn their application just before the appeal hearing.

The court examined the RSPCA's application for an extension of time, which was four months late. The RSPCA emphasised its charitable status and financial position to argue that it should be granted the extension. The court assessed whether the RSPCA could demonstrate a reasonable prospect of success on the cross-appeal and whether granting the extension would be in the interests of justice. The court noted that the RSPCA had not provided any compelling reasons for the delay and that the late filing could potentially prejudice the applicants. The court concluded that the application for an extension of time should be refused, as it was not in the interests of justice to permit such a significant delay.

The court also addressed the issue of costs, given that the appeals had been dismissed by consent. The applicants had withdrawn their application the day before the appeal hearing, but the matter remained listed as the respondents' consent was required, and an application for an extension of time to seek leave to cross-appeal had been filed. The court determined that standard costs following the event should be applied. The applicants were ordered to pay the respondents' costs of the appeals, and the respondents were directed to pay the applicants' costs of the cross-application. The court also provided specific instructions regarding the submission of costs related to the stay of the proceedings.

The court's final orders included the refusal of the RSPCA's application for an adjournment and the dismissal of the appeals by consent. The applicants were ordered to pay the respondents' costs of the appeals, while the respondents were to pay the applicants' costs of the cross-application. Additionally, the court instructed both parties to submit their costs related to the stay of the proceedings, adhering to specific guidelines regarding the length and content of these submissions.

Orders

Orders of the court

Appeal numbers 21/22 of 2010:

1. Applicant's application for adjournment refused.

2. Applications 21 and 22 of 2010 are dismissed by consent.

3. Applicant to pay Respondent’s costs of those applications on standard basis to be assessed if not agreed.

4. Respondent to make submissions regarding costs of stay, limited to 2 pages and consistent with the Practice Direction, filed and served within 7 days. Appellants Dart and Hajridin may make submissions regarding costs of stay, limited to 2 pages and consistent with the Practice Direction, to be filed and served within 7 days of receipt of Respondent's submissions.

Appeal numbers 112/113 of 2010:

1. Application for leave to cross appeal refused.

2. Respondent, Clifford Singer, is to pay Applicants, Dart and Hajridin’s costs of cross-application on the standard basis to be assessed if not agreed.

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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CITATION:	Dart & Anor v Singer [2010] QCA 124
PARTIES:	DART, Frederick William (first applicant/cross-respondent) v SINGER, Clifford (respondent/cross-applicant) HAJRIDIN, Megan Ann (second applicant/cross-respondent) v SINGER, Clifford (respondent/cross-applicant)
FILE NO/S:	CA No 21 of 2010 CA No 22 of 2010 CA No 112 of 2010 CA No 113 of 2010 DC No 452 of 2008 DC No 453 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension of Time s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	27 May 2010
DELIVERED AT:	Brisbane
HEARING DATE:	27 May 2010
JUDGES:	McMurdo P, Cullinane J and McMeekin J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Appeal numbers 21/22 of 2010: 1. Applicant's application for adjournment refused. 2. Applications 21 and 22 of 2010 are dismissed by consent. 3. Applicant to pay Respondent’s costs of those applications on standard basis to be assessed if not agreed. 4. Respondent to make submissions regarding costs of stay, limited to 2 pages and consistent with the Practice Direction, filed and served within 7 days. Appellants Dart and Hajridin may make submissions regarding costs of stay, limited to 2 pages and consistent with the Practice Direction, to be filed and served within 7 days of receipt of Respondent's submissions. Appeal numbers 112/113 of 2010: 1. Application for leave to cross appeal refused. 2. Respondent, Clifford Singer, is to pay Applicants, Dart and Hajridin’s costs of cross-application on the standard basis to be assessed if not agreed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – respondents filed an application for extension of time to apply for leave to cross appeal – application was four months out of time – respondent emphasised RSPCA's charitable status and financial position – whether respondent able to demonstrate prospects of success – whether it is in the interests of justice to grant an extension of time PROCEDURE – COSTS – COSTS OF APPEAL – appeals dismissed by consent – applicant withdrew application day before appeal hearing – matter remained listed as respondents consent was required and respondent had filed an application for extension of time to seek leave to cross-appeal – whether standard costs following the event should be applied Animal Care and Protection Act 2001 (Qld) Dart & Anor v Singer [2010] QCA 75, cited
COUNSEL:	The first applicant appeared for himself and the co-applicant R G Fryberg for the respondent
SOLICITORS:	The first applicant appeared for himself and the co-applicant Roberts Nehmer McKee Lawyers for the respondent