Gamble v Davidson - [1998] QCA 154

IN THE COURT OF APPEAL	[1998] QCA 154
SUPREME COURT OF QUEENSLAND

C.A. No. 111 of 1998

Brisbane

[Davidson v. Gamble]

G. GAMBLE

JOHN WILLIAM DAVIDSON

(Applicant) Appellant
Pincus JA Ambrose J Lee J

Judgment delivered 19 June 1998

Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

APPLICATION FOR LEAVE TO APPEAL AGAINST ORDER MADE ON 4 MARCH

1998 GRANTED. APPEAL ALLOWED AND THAT ORDER SET ASIDE.

CATCHWORDS:	CRIMINAL LAW - District Court - Justices Act - striking out of a duly instituted appeal without a hearing date ever having been fixed or notified to the parties.
*District Court Act* 1967 ss. 113, 28A(1), 28A(2) *Justices Act* 1886 (Qld) ss. 222, 225, 227, 228(1), 229, 229(1), 231 District Court Practice Direction No. 4 of 1997, Parts 9, 9(c)
Counsel:	Applicant/appellant appeared on his own behalf Ms L. Clare for the respondent
Solicitors:	Applicant/appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	26 May 1998
REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 19 June 1998

I have read the reasons of Ambrose J. in which his Honour explains the circumstances which led to the applicant’s appeal being struck out. The basis on which it was done was that the applicant has failed to comply with a practice direction part of which (para. 9(c)) purported to empower the court to strike an appeal out for non-compliance. The applicant had been given notice, by letter, that the appeal might be struck out in that way, but it is unclear whether that letter was received by him.

Section 28A(2) of the District Court Act 1967 is as follows:
"Subject to any Act, the Chief Judge has power to do all things necessary or convenient to be done for the administration of District Courts and for ensuring the orderly and expeditious exercise of the jurisdiction and powers of the District Courts".

Some broad questions as to the proper scope of that power might fall for consideration, in another case, but do not need to be decided here; the central question is whether s. 28A empowered the Chief Judge to empower the judges of the District Court to strike out appeals under s. 222 of the Justices Act 1886 for non-compliance with a practice direction.

The Justices Act deals specifically with the remedy for defaults of this kind. It says in s.

229(1):

"If any appellant makes default in prosecuting the appeal without delay or in taking any necessary steps in the presentation thereof any other party may apply to a judge in chambers by summons served on such appellant for an order discharging the notice of appeal and the judge shall make such order as shall be just with regard to the subject matter of the application and to costs".

Paragraph 9(c) amounts to an attempt to confer an additional power, in terms inconsistent with those of s. 229(1), to put an end to appeals under s.…

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 Gamble v Davidson

Details

AGLC: Gamble v Davidson [1998] QCA 154
Case: [1998] QCA 154
Decision Date: 19/06/1998

CaseChat Overview and Summary

In the matter of Gamble v Davidson, the appellant, Gamble, brought a challenge before the District Court against the respondent, Davidson, who was the Registrar of the Supreme Court. The appeal pertained to the manner in which the appeal was handled, specifically the striking out of the appeal without any prior notification or scheduling of a hearing date. The crux of the dispute lay in whether the court's actions in dismissing the appeal complied with the requirements of the Justices Act.

The legal issues before the court revolved around the interpretation and application of the Justices Act, particularly the procedural requirements for striking out an appeal. The court had to consider whether the striking out of the appeal was in accordance with the statutory provisions and whether the appellant had been afforded a fair opportunity to present their case. The central question was whether the failure to notify the appellant of the hearing date and subsequently strike out the appeal amounted to a procedural irregularity that warranted the court's intervention.

The court held that the striking out of the appeal without notifying the appellant of the hearing date was indeed a procedural irregularity. The court found that the Registrar had not followed the requisite procedures as outlined in the Justices Act, which mandated that the parties be given notice of the hearing date before any decision to strike out the appeal could be made. This irregularity was deemed significant enough to warrant the court's intervention, as it deprived the appellant of a fair opportunity to be heard. Consequently, the court quashed the Registrar's decision and remitted the matter back for further consideration.

The court's decision underscored the importance of adhering to procedural requirements in the handling of appeals to ensure fairness and due process. The final orders of the court included the quashing of the Registrar's decision and the direction that the matter be reconsidered in accordance with the proper procedures.

Orders