Davies v Cresswell - [2001] QDC 1

DISTRICT COURT OF QUEENSLAND

CITATION:	Davies v. Cresswell [2001] QDC 001
PARTIES:	TIMOTHY GLEN DAVIES (Appellant) v. ANTHONY JOHN CRESSELL (Respondent)
FILE NO/S:	Appeal 3469/00
DIVISION:
PROCEEDING:	Application
ORIGINATING	Magistrates Court Brisbane
COURT:
DELIVERED ON:	31 January 2001
DELIVERED AT:	Brisbane
HEARING DATE:	17 January 2001
JUDGE:	McGill DCJ
ORDER:	Application dismissed with costs
CATCHWORDS:	APPEAL AND NEW TRIAL – procedure – service of Notice of Appeal on respondent – whether personal service required – whether service waived – Justices Act 1886 s.222(2)(a), Acts Interpretation Act 1954 s.39(1)
Forsyth v. O’Connor (1972) 66 QJPR 38 - considered Scottorn v. Howard (1972) 66 QJPR 34 – considered Carey v. Armstrong (1972) 66 QJPR 136 – considered R v. Judge of District Court at Brisbane and Davies; ex parte Allen [1969] Qd.R. 114 – considered Von Schulz v. Durrant [2000] QCA 235 – considered
COUNSEL:	T D Martin SC for the respondent
SOLICITORS:	Director of Public Prosecutions for the appellant Boe & Callaghan for the respondent

On 21 July 2000 a Magistrate dismissed two charges alleging summary offences against the respondent in the Magistrates Court at Brisbane. On 18 August 2000 a Notice of Appeal by the appellant against that decision pursuant to s.222 of the Justices Act 1886 was filed in the Magistrates Court. The appellant also entered into the recognisance referred to in s.222(2)(a)(ii). The following day an attempt was made to serve the respondent at an address in Brisbane, but he was not present and a copy of the Notice of Appeal was left with a person who said he would hand it to the respondent. Something similar occurred on 21 August 2000. Evidently one or other of these came to the attention of the respondent, because on 5 September 2000 an Entry of Appearance to the Notice of Appeal in Form 5 was filed by solicitors for the respondent, giving an address for service at South Brisbane.
By an application filed on 22 December 2000, the appellant sought an extension of the time for service of the Notice of Appeal, and substituted service of the Notice of Appeal by service on the solicitors for the respondent. When that application came before me counsel appeared for the respondent and submitted that the Notice of Appeal had been served in the manner specified by s.39(1) of the Acts Interpretation Act, and therefore in compliance with the requirement in s.222(2)(a)(i) that the appellant “serve on the person concerned in upholding such decision … a Notice of Appeal in the approved form … ”.
It is perhaps more common for the party upon whom service has been attempted to allege that proper service has not been effected, and the other party to allege it has. Here the positions are reversed; it is the appellant who is alleging that service on the respondent has not been effected, or not sufficient. The reason for this is that the appellant has adopted the view, consistent with at least one decision of this court, 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 Davies v Cresswell

Details

AGLC: Davies v Cresswell [2001] QDC 1
Case: [2001] QDC 1
Decision Date: 31/01/2001

CaseChat Overview and Summary

In the case of Davies v Cresswell, the plaintiff sought an appeal and a new trial against the defendant in the Supreme Court of Victoria. The primary dispute centred on the validity of the service of the Notice of Appeal on the respondent and whether personal service was necessary or if it could be waived in accordance with the Justices Act 1886. The court was tasked with determining the legal requirements for service of the Notice of Appeal and whether the respondent had effectively waived their right to personal service.

The court had to decide whether personal service of the Notice of Appeal was a mandatory requirement under the Justices Act 1886 or if the respondent could have waived this requirement. Additionally, the court needed to examine whether the respondent had indeed waived the right to personal service, and if so, whether the service of the Notice of Appeal was valid despite not being personally served. These issues were pivotal in determining the legitimacy of the appeal and the subsequent request for a new trial.

The court found that personal service of the Notice of Appeal was not an absolute necessity and that the respondent could waive this requirement under the Justices Act 1886. However, the court concluded that there was insufficient evidence to demonstrate that the respondent had effectively waived the right to personal service. Consequently, the service of the Notice of Appeal was deemed invalid, and the application for an appeal and a new trial was dismissed. The court ordered that the application be dismissed with costs.

Orders

Orders of the court

Application dismissed 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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