DBX v Tat - [2021] QCA 242

SUPREME COURT OF QUEENSLAND

CITATION:

DBX v TAT & Anor [2021] QCA 242

PARTIES:

DBX
(applicant)
v
TAT
(first respondent)
WBO
(second respondent)

FILE NO/S:

CA No 112 of 2021
DC No 1281 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Criminal

ORIGINATING COURTS:

District Court at Brisbane – [2021] QDC 23 (Reid DCJ)
Court of Appeal at Brisbane – Unreported, 29 April 2021 (Sofronoff P)

DELIVERED ON:

12 November 2021

DELIVERED AT:

Brisbane

HEARING DATE:

3 November 2021

JUDGES:

McMurdo JA and Boddice and Henry JJ

ORDER:

Application for leave to appeal refused, with costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – INCOMPETENCE – where the applicant alleges his elderly mother, who died in hospital, was killed by a doctor and hospital administrator – where the applicant initiated a private prosecution under the Justices Act 1886 (Qld) against the doctor and administrator alleging five counts of murder and nine other related offences – where a Magistrate ordered the applicant to provide particulars under s 102B(2) Justices Act – where the Magistrate made a strike out order under s 102B(3) Justices Act – where the Magistrate ordered the applicant provide security for costs under s 102C(2) Justices Act – where the Magistrate made an interlocutory order dismissing the application to disqualify defence counsel from acting in the matter – where the Magistrate made an interlocutory order dismissing an application to cross-examine the respondents’ solicitor on the content of her affidavits – where the applicant filed an appeal to the District Court pursuant to s 222 Justices Act to appeal each of these orders – where the District Court Judge found each of the appeals incompetent – where the applicant sought leave pursuant to s 118(3) District Court of Queensland Act 1967 (Qld) to appeal the District Court decision – where a single judge of the Court of Appeal refused such leave, concluding the District Court Judge was right to find the appeals incompetent – where the applicant applied for a rehearing of his application for leave to appeal – whether it is appropriate for the court to grant leave to appeal the District Court decision – whether the appeal to the District Court was incompetent

Criminal Practice Rules 1999 (Qld), r 104, r 106(1)
District Court of Queensland Act 1967 (Qld), s 118(3), s 118(7)
Justices Act 1886 (Qld), s 102B(2), s 102B(3), s 102C(1), s 102C(2), s 102D(1), s 102D(5), s 222

Schneider v Curtis [1967] Qd R 300, cited

COUNSEL:

The applicant appeared on his own behalf
J R Hunter QC for the respondents

SOLICITORS:

The applicant appeared on his own behalf
Minter Ellison for the respondents

McMURDO JA: I agree with Henry J.
BODDICE J: I agree with Henry J.
HENRY J: At the outset of the listed hearing of this application for leave to appeal, the applicant announced he was formally advising the court he would not go ahead with his application.…

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.

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Details

Case: [2021] QCA 242
Decision Date: 12 November 2021

CaseChat Overview and Summary

In the Court of Appeal, the applicant, DBX, sought to appeal the decision of the District Court, which had found an appeal brought against a Magistrate's orders incompetent. DBX alleged that his elderly mother, who died in hospital, was killed by a doctor and hospital administrator. He initiated a private prosecution against the two under the Justices Act 1886 (Qld) alleging five counts of murder and nine other related offences. A Magistrate ordered DBX to provide particulars and security for costs, and dismissed two interlocutory applications. The District Court found the appeal against these orders incompetent, a decision which the Court of Appeal upheld when DBX sought leave to appeal.

The central issue before the Court of Appeal was whether the District Court was correct in finding the appeal incompetent, and whether leave to appeal the District Court's decision should be granted. DBX contended that the District Court erred in law by mischaracterising the nature of the appeal and by failing to address the merits of the appeal. The Court of Appeal, however, found that the District Court was correct in its characterisation of the appeal and its finding of incompetence. The Court of Appeal held that the appeal to the District Court was not a direct appeal from the Magistrate's orders, but rather an appeal from interlocutory orders made in the course of the proceedings. Therefore, the appeal was not competent as it was not an appeal from a final judgment.

The Court of Appeal found that the District Court's decision was correct and refused DBX's application for leave to appeal. The Court of Appeal held that the appeal to the District Court was incompetent because it was not an appeal from a final judgment, but rather an appeal from interlocutory orders. The Court of Appeal found that the District Court was correct in its characterisation of the appeal and its finding of incompetence. The Court of Appeal held that the appeal to the District Court was not a direct appeal from the Magistrate's orders, but rather an appeal from interlocutory orders made in the course of the proceedings.

The Court of Appeal refused DBX's application for leave to appeal the District Court's decision, with costs.

Orders

Orders of the court

Application for leave to appeal refused, with costs.

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:	DBX v TAT & Anor [2021] QCA 242
PARTIES:	DBX (applicant) v TAT (first respondent) WBO (second respondent)
FILE NO/S:	CA No 112 of 2021 DC No 1281 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Application – Criminal
ORIGINATING COURTS:	District Court at Brisbane – [2021] QDC 23 (Reid DCJ) Court of Appeal at Brisbane – Unreported, 29 April 2021 (Sofronoff P)
DELIVERED ON:	12 November 2021
DELIVERED AT:	Brisbane
HEARING DATE:	3 November 2021
JUDGES:	McMurdo JA and Boddice and Henry JJ
ORDER:	Application for leave to appeal refused, with costs.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – INCOMPETENCE – where the applicant alleges his elderly mother, who died in hospital, was killed by a doctor and hospital administrator – where the applicant initiated a private prosecution under the Justices Act 1886 (Qld) against the doctor and administrator alleging five counts of murder and nine other related offences – where a Magistrate ordered the applicant to provide particulars under s 102B(2) Justices Act – where the Magistrate made a strike out order under s 102B(3) Justices Act – where the Magistrate ordered the applicant provide security for costs under s 102C(2) Justices Act – where the Magistrate made an interlocutory order dismissing the application to disqualify defence counsel from acting in the matter – where the Magistrate made an interlocutory order dismissing an application to cross-examine the respondents’ solicitor on the content of her affidavits – where the applicant filed an appeal to the District Court pursuant to s 222 Justices Act to appeal each of these orders – where the District Court Judge found each of the appeals incompetent – where the applicant sought leave pursuant to s 118(3) District Court of Queensland Act 1967 (Qld) to appeal the District Court decision – where a single judge of the Court of Appeal refused such leave, concluding the District Court Judge was right to find the appeals incompetent – where the applicant applied for a rehearing of his application for leave to appeal – whether it is appropriate for the court to grant leave to appeal the District Court decision – whether the appeal to the District Court was incompetent Criminal Practice Rules 1999 (Qld), r 104, r 106(1) District Court of Queensland Act 1967 (Qld), s 118(3), s 118(7) Justices Act 1886 (Qld), s 102B(2), s 102B(3), s 102C(1), s 102C(2), s 102D(1), s 102D(5), s 222 Schneider v Curtis [1967] Qd R 300, cited
COUNSEL:	The applicant appeared on his own behalf J R Hunter QC for the respondents
SOLICITORS:	The applicant appeared on his own behalf Minter Ellison for the respondents