Johnstone v Karydis

[2006] QDC 132

[2006] QDC 132

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 960 of 2006

GRAHAM PAUL JOHNSTONE	Plaintiff
and
SPIROS KARYDIS	Defendant

BRISBANE

..DATE 24/04/2006

ORDER

CATCHWORDS: Justices Act 1886 s 224(1)(a) - time extended for appealing against a sentence for speeding including a fine and licence suspension of 6 months which (arguably contrary to the Magistrate's intention) would be given effect cumulatively upon a statutory suspension of 6 months

HIS HONOUR: All the Court is asked to do today is extend the time for appeal under section 224 (1)(a) of the Justices Act. The respondent, represented by Mr Hungerford-Symes is not opposing that.

The circumstances are novel in my experience but I am told by counsel are not unusual.  The would-be appellant has been convicted of speeding, being more than 40 kilometres per hour in excess of the relevant limit.  He claimed extenuating circumstances in the form of being a driver engaged in rushing a medical practitioner to his ailing grandmother as his counsel informs me.  One would assume that the Magistrate intended to take a lenient rather than a harsh attitude.

The difficulty arises because an order was made over and above a fine at the modest level of $700 for suspension of licence for six months.  That suspension corresponds with an automatic one under the Transport Operations Road Use Management Driver Licensing Regulation 1999.  The effect of the Magistrate's pronouncing an order for suspension, given the way things are currently administered, the Court is told, is that there is a second, cumulative six-month suspension.  The sentencing Magistrate may well not have intended that.  Not only does the appellant face what may be a longer suspension period than the Magistrate intended, he is also deprived of the possibility which would be there if he had only the standard six-month suspension of applying for a work licence with appropriate restrictions.

In all the circumstances I think the Court ought to exercise whatever discretion it may have to permit the appeal to be brought and advance the hearing date.  It is cutting things somewhat fine to fix the hearing for the 8th of May this year, but there is no hearing date available after that until the 22nd.  Either day may be problematic depending on what is already listed.  I do not know that.  It is important that there be an early hearing date to preserve the value of the appeal.

The Court's orders today will be that the time for lodging of an appeal be extended under section 224 of the Justices Act until today. Is that the extension you want or is the appeal already lodged?

MR DI CARLO:  The appeal's already lodged, your Honour.

HIS HONOUR:  Well, if I extend it until today...

MR HUNGERFORD-SYMES:   Your Honour has two alternatives: your Honour can either do it until today or till the 31st of March 2006 which is the date‑‑‑‑‑

HIS HONOUR:  All right, I will extend until 31st of March 2006 which was the actual filing date, the time for filing of the appeal.  I will order that the appellant's outline be filed and served by the 28th of April 2006 and the respondent's outline by the 5th of May 2006.  I will list the appeal for hearing on the 8th of May 2006 if that can be achieved.  I will note that the difficulty Mr Hungerford-Symes apprehends is in the preparation of transcript.  It may be that the unavailability of a transcript brings everything unstuck.  There is a suggestion on the other side that in lieu of a transcript the Court system may provide a tape which the appellant's legal representatives will have transcribed.  They will make their work with a copy of the tape for clarification purposes available to the respondent.  Thank you, gentlemen.

MR HUNGERFORD-SYMES:  Your Honour, could I just beg the Court's indulgence.  Could you indicate what date the respondent was to respond by.  Was it the‑‑‑‑‑

HIS HONOUR:  5th of May.

MR HUNGERFORD-SYMES:  Thank you.

HIS HONOUR:  Well, that's the Friday.  It's just to have them both in.

MR HUNGERFORD-SYMES:  Yes.

MR DI CARLO:  Your Honour had indicated you might give - for what it was worth, I think your Honour's words were - give a direction that the transcript be prepared‑‑‑‑‑

HIS HONOUR:  Sorry, for what it is worth, I will direct that preparation of the transcript be expedited.

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NOTE:  Mr Di Carlo sent the following subsequent e-mail communication:

"Dear Associate

This morning I appeared before His Honour in respect of an application to extend time under s 224 Justices Act. Once leaving the Court, upon reflection, it came to me that I may have unintentionally misled His Honour in respect of some facts I put up. In response to a question from His Honour, "Was the doctor in the car with him?", I indicated yes. I later wondered whether my recollection was accurate and hence I contacted the Appellant to clarify this. In fact the doctor was not in the car with him, and the correct facts are as follows. The appellant, who lives at 15 Peatmoss Street, Sunnybank Hills, was a guest of the medical practitioner, a specialist, at the doctor's address of 5 Hope Street, Auchenflower. A call was received around midnight on the night of the incident and the appellant was told that his grandmother was very short of breath and very weak. He was aware that she was approximately 85 years of age, having been born in 1920 and that her recent health had been such that she only weighed around 37 kilograms. She was very frail. The doctor and the appellant drove off to attend upon her at 25 Craigview Street, Macgregor. Apparently as Macgregor is close to where the Appellant lives, the doctor drove his own car and followed the Appellant so that the Appellant would not have to drive back to Auchenflower to drop him off. The Appellant drove off with the doctor behind. He was in a panic as he was very close to his grandmother. Apparently a letter from the doctor was tendered to the Learned Magistrate. Therefore I unintentionally mislead His Honour by stating that the doctor was in the car with him. He was not, the doctor was following the Appellant in his own car. I apologise for this mistake and I will forward a copy of this email to my Learned Friend at the Crown so that he is not misinformed.

I also discovered another inaccuracy upon checking my file.  I had thought that I had been speaking to what I referred to as the Director at the Transport Department.  In fact his title is not Director, it is Business Manager - Policy, Transport Department.  My impression was that he is the Manager directly in charge of this area."