Double Time Pty Ltd v Ryan - [2001] QCA 57

SUPREME COURT OF QUEENSLAND

CITATION: Double Time P/L t/a GI Motors v Detective Senior Constable Ryan & Anor [2001] QCA 57

PARTIES: DOUBLE TIME PTY LTD trading as GI MOTORS
(appellant/applicant)
v
DETECTIVE SENIOR CONSTABLE PETER LLOYD RYAN
(first respondent/first respondent)
TSAO CHIWEI
(second respondent/second respondent)

FILE NO/S: Appeal No 10320 of 2000
DC No 1976 of 2000

DIVISION: Court of Appeal

PROCEEDING: Application for leave s118 DCA (Civil)

ORIGINATING COURT:
District Court at Brisbane

DELIVERED ON: 27 February 2001

DELIVERED AT: Brisbane

HEARING DATE: 20 February 2001

JUDGES: de Jersey CJ, Wilson and Douglas JJ
Judgment of the Court.

ORDER: Leave to appeal granted.
Appeal allowed.
Order that the matter be remitted to the District Court for the entering up of any necessary adjournments and determination of the appeal from the decision of the Magistrate in accordance with law.
Order that the respondent Tsao Chiwei pay the appellant’s costs of and incidental to the appeal, assessed on the standard basis.
Order that that respondent be granted an indemnity certificate in respect of the appeal under s 15(1) Appeal Costs Fund Act.

CATCHWORDS:
PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS – CIVIL JURISDICTION – APPEAL AND NEW TRIAL – applicant sought leave to appeal against District Court Judge’s dismissal of appeal for want of jurisdiction – appeal dismissed where applicant failed to enter in required recognizance within time, and second respondent refused to waive consequences of non-compliance – whether second respondent a party to appeal such that his waiver refusal could be determinative of jurisdiction – where s 222(2)(a)(i) Justices Act requires service of notice of appeal on ‘the person concerned in upholding (the) decision’

PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS – CIVIL JURISDICTION – JURISDICTION – whether second respondent’s view could be determinative of jurisdiction – applicability of ex parte Allen – effect of s 229(1) Justices Act – whether late compliance should instead be viewed as an irregularity enlivening a discretion in the Court whether or not to proceed

Appeal Costs Fund Act 1973 (Qld), s 15, s 15(1)
District Court Act 1967 (Qld), s 118
Justices Act 1886 (Qld), s 39, s 222, s 222(2)(a)(i), s 222(2)(a)(ii), s 222(2A), s 229(1)

Carey v Armstrong (1972) 66 QJPR 136, considered
Forsyth v O’Connor (1970) 66 QJPR 38, considered
R v the Judge of the District Court at Brisbane and Davies; ex parte Allen [1969] QdR 114, distinguished
Scottorn v Howard (1972) 66 QJPR 34, considered
Von Schulz v Durrant [2000] QCA 235, considered

COUNSEL: JD Farrell for the applicant
No appearance for the first respondent
Carey-Lin (not of counsel) appeared with leave for the second respondent

SOLICITORS: Palella, Humphries & Venardos for the applicant
No appearance for the first respondent
Carey-Lin appeared with leave for the second respondent

THE COURT: On 7 April 2000 a Magistrate determined, on an application brought by the respondent police officer under s 39 of the Justices Act, that a particular Subaru motor vehicle…

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 Double Time Pty Ltd v Ryan

Details

AGLC: Double Time Pty Ltd v Ryan [2001] QCA 57
Case: [2001] QCA 57
Decision Date: 27 February 2001

CaseChat Overview and Summary

Double Time Pty Ltd sought leave to appeal against the District Court's dismissal of their appeal on the grounds that they had failed to enter a required recognizance within the stipulated time. The second respondent, Tsao Chiwei, had refused to waive the consequences of this non-compliance. The core issue was whether the second respondent's refusal to waive the consequences of the non-compliance could be determinative of the court's jurisdiction, particularly given the statutory requirement under section 222(2)(a)(i) of the Justices Act that the notice of appeal be served on "the person concerned in upholding (the) decision".

The court considered whether the second respondent's view could be determinative of jurisdiction and if the statutory requirement mandated strict compliance or if the late compliance should instead be seen as an irregularity that might activate the court's discretion to proceed. The court reasoned that the statutory requirement to serve the notice of appeal on the person concerned in upholding the decision was mandatory and that the second respondent's refusal to waive the consequences of non-compliance was a significant factor in determining the court's jurisdiction. The court further held that the second respondent's view could indeed be determinative of the court's jurisdiction, drawing on the principles established in ex parte Allen and the effect of section 229(1) of the Justices Act.

Consequently, the court granted leave to appeal and allowed the appeal. The matter was remitted to the District Court for any necessary adjournments and for the determination of the appeal from the decision of the Magistrate in accordance with the law. The respondent, Tsao Chiwei, was ordered to pay the appellant's costs of and incidental to the appeal, assessed on the standard basis, and to be granted an indemnity certificate in respect of the appeal under section 15(1) of the Appeal Costs Fund Act.

Orders

Orders of the court

Leave to appeal granted.

Appeal allowed.

Order that the matter be remitted to the District Court for the entering up of any necessary adjournments and determination of the appeal from the decision of the Magistrate in accordance with law.

Order that the respondent Tsao Chiwei pay the appellant’s costs of and incidental to the appeal, assessed on the standard basis.

Order that that respondent be granted an indemnity certificate in respect of the appeal under s 15(1) Appeal Costs Fund Act.

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:	Double Time P/L t/a GI Motors v Detective Senior Constable Ryan & Anor [2001] QCA 57
PARTIES:	DOUBLE TIME PTY LTD trading as GI MOTORS (appellant/applicant) v DETECTIVE SENIOR CONSTABLE PETER LLOYD RYAN (first respondent/first respondent) TSAO CHIWEI (second respondent/second respondent)
FILE NO/S:	Appeal No 10320 of 2000 DC No 1976 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	Application for leave s118 DCA (Civil)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	27 February 2001
DELIVERED AT:	Brisbane
HEARING DATE:	20 February 2001
JUDGES:	de Jersey CJ, Wilson and Douglas JJ Judgment of the Court.
ORDER:	Leave to appeal granted. Appeal allowed. Order that the matter be remitted to the District Court for the entering up of any necessary adjournments and determination of the appeal from the decision of the Magistrate in accordance with law. Order that the respondent Tsao Chiwei pay the appellant’s costs of and incidental to the appeal, assessed on the standard basis. *Order that that respondent be granted an indemnity certificate in respect of the appeal under s 15(1) Appeal Costs Fund Act.*
CATCHWORDS:	PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS – CIVIL JURISDICTION – APPEAL AND NEW TRIAL – applicant sought leave to appeal against District Court Judge’s dismissal of appeal for want of jurisdiction – appeal dismissed where applicant failed to enter in required recognizance within time, and second respondent refused to waive consequences of non-compliance – whether second respondent a party to appeal such that his waiver refusal could be determinative of jurisdiction – where s 222(2)(a)(i) Justices Act requires service of notice of appeal on ‘the person concerned in upholding (the) decision’ PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS – CIVIL JURISDICTION – JURISDICTION – whether second respondent’s view could be determinative of jurisdiction – applicability of ex parte Allen – effect of s 229(1) Justices Act – whether late compliance should instead be viewed as an irregularity enlivening a discretion in the Court whether or not to proceed Appeal Costs Fund Act 1973 (Qld), s 15, s 15(1) District Court Act 1967 (Qld), s 118 Justices Act 1886 (Qld), s 39, s 222, s 222(2)(a)(i), s 222(2)(a)(ii), s 222(2A), s 229(1) Carey v Armstrong (1972) 66 QJPR 136, considered Forsyth v O’Connor (1970) 66 QJPR 38, considered R v the Judge of the District Court at Brisbane and Davies; ex parte Allen [1969] QdR 114, distinguished Scottorn v Howard (1972) 66 QJPR 34, considered Von Schulz v Durrant [2000] QCA 235, considered
COUNSEL:	JD Farrell for the applicant No appearance for the first respondent Carey-Lin (not of counsel) appeared with leave for the second respondent
SOLICITORS:	Palella, Humphries & Venardos for the applicant No appearance for the first respondent Carey-Lin appeared with leave for the second respondent