Jones v. Department of Primary Industries

[2008] QDC 17

[2008] QDC 17

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

MICHELLE JONES	Appellant
and
DEPARTMENT OF PRIMARY INDUSTRIES	Respondent

BRISBANE

..DATE 30/01/2008

ORDER

Catchwords
Uniform Civil Procedure Rules r 775 - appeal dismissed for want of prosecution (failure to file outline of argument required by Practice Direction) - appeal commenced out of time and failing to show any question of law as required by s 205 of the Animal Care and Protection Act 2001.

HIS HONOUR: On the 5th of November 2007 Ms Cull in the Magistrate's Court at Brisbane refused the respondent's (Michelle Jones') appeal under section 199 and following of the Animal Care and Protection Act 2001 relating to the seizure by the department or an officer of it of cats of hers. Although there was no oral evidence presented - Ms Jones elected not to cross-examine any of the witnesses - there was a proper hearing in which Ms Jones had an opportunity to be heard. She had a right, under section 205 of the Act, to appeal to this Court from the decision of the Magistrates Court "only on a question of law". Rule 785 of the UCPR has the effect that the time for appealing is that of 28 days fixed in rule 748(a). The appeal, or more correctly "Notice of Appeal Subject to Leave", was filed on the 20th of December 2007, that is, late. It has some deficiencies, which probably do not matter, such as a mis-statement of the date of Ms Cul's decision as the 3rd of November 2007, but others which do matter such as a total absence of a statement of grounds. All that is inserted in that section of Form 97 being "Animal Care and Protection Act 2001 (205)". It is not entirely clear why Form 97 was adopted rather than Form 96, which is the standard Notice of Appeal. The explanation may be that advanced by Ms Prasad that the appellant accepted she needed leave to appeal because she came to the District Court late.

On the matter's coming on today, the appellant was called at 10.15 a.m. There was no appearance by her. Rule 775, which is applicable here, by virtue of rule 785, authorises the Court to dismiss the appeal for want of prosecution. If chapter and verse be needed in this regard, a perusal of the file establishes that there has been no filing within the time allowed by the practice direction, or at all, of the appellant's outline of argument.

There is no basis whatever appearing for suspecting that any question of law may be involved in the appeal.  I appreciate I am making that comment without hearing from Ms Jones. 

She has been active in the matter in a sense, communicating to the Court in a letter dated 27th of January 2008 that she would not be here today.  The letter indicated that it was written in the precincts of the Court in Brisbane, it describes an intention to travel to Cairns that night.  The letter seeks, or perhaps demands an adjournment until the 28th of March 2008.  Ms Prasad has supplied the Court with a document that became exhibit 1.  It is a handwritten fax sent to officers of the Department yesterday in relation to the "Mention" set down for today adopting the same peremptory approach as the other letter.  It states that due to circumstances:

"I had the need to change the date of the hearing (Mention).  It is changed to 28th of March 2008 at 10.00 a.m.  I was required to inform you by the Court".

I am uncertain whether Ms Jones is under the impression that she is somehow in control of listing.  The Court's order sheet indicates that on the 20th of December 2007 she was successful in persuading the Registrar to waive filing fees, pursuant to Rule 971.

On the 24th of December 2007 she appeared before Judge Noud, but the respondent did not.  He adjourned the matter to the 7th of January 2008 before himself.  Four days before the 7th of January this year, Ms Jones adjourned the matter to the 30th of January 2008 which is today.  There is a note indicating that the initiating document had not been served.  Plainly, it has been served since.

On the 7th of January, in the circumstances, Judge Noud adjourned the matter to a date to be fixed and it has come on today.  I am asked by Ms Prasad to dismiss the appeal, presumably in reliance on Rule 775.  She also has the argument, which at present appears persuasive, that there can be no question of law for this Court to determine.

Dismissal of the appeal would involve no financial hardship to the appellant to the extent that she has been excused from having to pay fees.  The appeal, or the proceeding, was commenced out of time.  If she has any merits it would appear to me open to her to approach the Court again out of time. 

One would expect that the Registry would not accept a document which didn't clearly identify, in grounds of appeal, the question of law which is required.

I think it is appropriate in the circumstances for the Court to dismiss the appeal for want of prosecution.  The appellant has the ordinary right of a person, in whose absence an order is made, to approach the Court to seek to have that order changed if that is what justice calls for.

For the moment it seems to me wrong that the Department should be further troubled in relation to this proceeding.  Out of an abundance of caution I would formally refuse to extend the time for commencement of this appeal.  I make a further order dismissing it.

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