Ketchell v Wynch - [2001] QDC 93

REVISED COPIES ISSUED

State Reporting Bureau

Date: 30 / 5 / 01

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE C F WALL QC

No D113 of 2001

GLENN ROBERT KETCHELL Appellant

and

GARY EDWARD DONALD WYNCH First Respondent

and

OFFICIAL TRUSTEE Second Respondent

TOWNSVILLE

..DATE 29/05/2001

JUDGMENT

HIS HONOUR: This is an application by the first respondent to strike out the appeal of the appellant as incompetent for being beyond the jurisdiction of the District Court to hear.

On 8 March 2001 at Townsville the first respondent, pursuant to section 9 of the Crimes Act (Commonwealth), seized a prime mover truck belonging to the appellant and an attached refrigerated trailer thought to belong to the appellant but in fact belonging to Esanda Finance Corporation Limited. Esanda was given leave to appear on the appeal, but took no part in argument on the application.

The first respondent seized the vehicles either because they were, or he had reasonable ground to believe they were, forfeited under section 116(1)(e) of the Excise Act (Commonwealth) because they were involved in unlawfully conveying tobacco leaf. The vehicles are, according to the appellant, valued at about $265,000.

As required by section 9 the first respondent "took" the vehicles before the Magistrates Court at Townsville, a court of summary jurisdiction. He did this by filing an application in the Magistrates Court on 13 March 2001, asking for an order that they be condemned. The application was opposed by the appellant. It was heard by a Magistrate and on 15 March 2001 the Magistrate ordered that the vehicles be condemned, being satisfied that they were forfeited. This order was made notwithstanding that there was no evidence that the owners of the vehicles knew they were being used for the unlawful conveyance of tobacco leaf. In addition, Esanda Finance Corporation Limited, the owner of the refrigerated trailer, was not given notice of the proceedings in the Magistrates Court. Presumably, this was because the appellant thought, incorrectly, that he was the owner of the trailer. See section 9(2A) of the Crimes Act.

The Crimes Act contains no provisions dealing with how such property is to be taken to a court of summary jurisdiction, hence the application which was made. The Commonwealth must accept the organisation and procedures of the relevant State Court as it finds them. See McMahon v. State of Queensland, unreported, Court of Appeal 24 November 2000, [2000] QCA 483. The application was an originating application under Rule 11 of the Uniform Civil Procedure Rules and that was, it was agreed, the correct way to proceed. The matter was accordingly a civil proceeding, see Uniform Civil Procedure Rules, Rule 3.

The first respondent submits that there is no right to appeal to the District Court from the order made by the Magistrate. No right of appeal is given by the Crimes Act. The first respondent submits that the only appellate option open to the owners is to appeal, by leave, to the High Court of Australia under…

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 Ketchell v Wynch

Details

AGLC: Ketchell v Wynch [2001] QDC 93
Case: [2001] QDC 93
Decision Date: 29/05/2001

CaseChat Overview and Summary

In the District Court of Queensland, Glenn Robert Ketchell sought to appeal a decision of the Townsville Magistrates Court that his prime mover truck and attached refrigerated trailer were forfeited under section 116(1)(e) of the Excise Act (Commonwealth) due to their involvement in unlawfully conveying tobacco leaf. The first respondent, Gary Edward Donald Wynch, applied to strike out the appeal on the grounds that it was beyond the jurisdiction of the District Court. The Official Trustee was also a party to the proceedings.

The central legal issue was whether the District Court had jurisdiction to hear an appeal from the Magistrates Court in this matter. The appellant argued that the Magistrates Court made an order in an "action" as referred to in section 45(1)(a) of the Magistrates Courts Act 1921, which allows for an appeal to the District Court if the amount involved is more than $5,000. The first respondent submitted that the appeal could only be made by leave to the High Court under section 73(ii) of the Commonwealth Constitution. The court had to determine whether the Magistrates Court order was made in an "action" under the Magistrates Courts Act, or whether it was a different kind of proceeding.

The court found that the Magistrates Court order was not made in an "action" as defined in section 4 of the Magistrates Courts Act, and therefore no right of appeal to the District Court existed. The court noted that section 45(1)(a) of the Magistrates Courts Act limits appeals to judgments or orders made in actions, and that other legislation conferring jurisdiction on the Magistrates Court does not necessarily confer a right of appeal. The court held that the Uniform Civil Procedure Rules referred to proceedings rather than actions, and that the Magistrates Courts Act had not kept pace with these rules. The court also rejected the appellant's argument that the word "action" should be interpreted in its widest sense as meaning a proceeding. The appeal was therefore deemed incompetent and was struck out. The court also declined to order the appellant to pay the first respondent's costs, as the Official Trustee would benefit from the proceeds of the sale of the vehicles.

Orders