SUPREME COURT OF QUEENSLAND
CITATION:
Gerhardt v McNeil [2016] QCA 207
PARTIES:
GERHARDT, Trevor William
(applicant)
v
McNEIL, Lea-Ann
(respondent)FILE NO/S:
CA No 126 of 2016
DC No 4256 of 2014DIVISION:
Court of Appeal
PROCEEDING:
Application for Extension of Time s 118 DCA (Criminal)
ORIGINATING COURT:
District Court at Brisbane – [2015] QDC 270DELIVERED ON:
23 August 2016
DELIVERED AT:
Brisbane
HEARING DATE:
12 August 2016
JUDGES:
Fraser and Gotterson and Philip McMurdo JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
1. Extend time within which to apply for leave to appeal against the judgment of the District Court given on 3 November 2015 until 13 May 2016.
2. Grant leave to appeal against that judgment.
3. Allow the appeal and set aside the orders made in the District Court.
4. Set aside the convictions of the applicant in the Magistrates Court on 1 October 2014 and any further order made against the present applicant in that proceeding.
5. Order the respondent to pay the applicant’s costs of this application and of the proceeding in the District Court.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where in October 2014 the applicant was convicted and fined for two contraventions of s 83(1)(b) of the Building Act 1975 (Qld) (“Building Act”) in the Magistrates Court – where a subsequent appeal to the District Court was dismissed in November 2015 – where in April 2016 the court delivered reasons in an unrelated matter, to which the applicant was a party, construing s 83(1)(b) Building Act in a different manner to that adopted in the courts below – where in May 2016 the court delivered reasons in another proceeding, arising from the same factual scenario giving rise to the subject convictions, finding that the applicant did not contravene s 83(1)(b) Building Act – where the court’s judgments demonstrate the applicant did not contravene s 83(1)(b) Building Act but his convictions remain on the record of the courts below – where the applicant applies for an extension of time within which to apply for leave to appeal against the judgment of the District Court – where the respondent contends that, notwithstanding the judgments of this court, the applicant has not satisfactorily explained his delay in seeking leave and, in any event, the principle of finality dictates that the convictions should remain undisturbed – whether the application should be allowed
Building Act 1975 (Qld), s 83, s 83(1)(b)
Brisbane City Council v Gerhardt (2016) 214 LGERA 83; [2016] QCA 76, cited
Gerhardt v Queensland Building and Construction Commission[2016] QCA 136, cited
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, considered
Montero v The Queen (2013) 234 A Crim R 532; [2013] NSWCCA 214, cited
R v Unger [1977] 2 NSWLR 990, citedCOUNSEL:
P…
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- AGLC
- Gerhardt v McNeil [2016] QCA 207
- Case
- [2016] QCA 207
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the applicant's application for an extension of time to appeal should be granted, despite the delay, and whether the principle of finality should prevent the appeal from proceeding. The court also had to consider whether the subsequent judgments in other cases meant that the applicant had not actually breached the Building Act, and whether this should affect the outcome of the appeal.
The court found that the applicant had not sufficiently explained the delay in seeking leave to appeal, but that the principle of finality should not prevent the appeal from proceeding in this case. The court noted that the subsequent judgments in other cases demonstrated that the applicant had not breached the Building Act, and that this should affect the outcome of the appeal. The court found that the applicant was entitled to an extension of time to appeal, and that the appeal should be allowed. The court set aside the orders made in the District Court, and the convictions in the Magistrates Court. The respondent was ordered to pay the applicant's costs of the application and the proceeding in the District Court.
The court ordered that the time within which to apply for leave to appeal against the judgment of the District Court be extended until 13 May 2016, and that leave to appeal be granted. The appeal was allowed, and the orders made in the District Court were set aside. The convictions in the Magistrates Court were also set aside, and the respondent was ordered to pay the applicant's costs.
Orders
Orders of the court
1. Extend time within which to apply for leave to appeal against the judgment of the District Court given on 3 November 2015 until 13 May 2016.
2. Grant leave to appeal against that judgment.
3. Allow the appeal and set aside the orders made in the District Court.
4. Set aside the convictions of the applicant in the Magistrates Court on 1 October 2014 and any further order made against the present applicant in that proceeding.
5. Order the respondent to pay the applicant’s costs of this application and of the proceeding in the District Court.
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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