Koelmeyer v. Department Of Transport
[2008] QDC 202
•1 February 2008
DISTRICT COURT OF QUEENSLAND
CITATION: Koelmeyer v. Department Of Transport [2008] QDC 202 PARTIES: FREDERIC NEVILLE KOELMEYER
Applicant
v
DEPARTMENT OF TRANSPORT
RespondentFILE NO/S: 66 of 2007 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court Beenleigh DELIVERED ON: 1 February 2008 DELIVERED AT: District Court Beenleigh HEARING DATES: 30 April 2007 (application for re-hearing)
18 December 2006JUDGE: Dearden DCJ ORDER: 1. The Notice of Appeal is amended to include an appeal against the conviction and fines imposed by the learned Magistrate at Beenleigh on 18 December 2006 in respect of each of charges 1, 2, 3 and 4 (as set out in Complaint and Summons sworn 19 July 2006).
2. Appeal granted.
3. Learned Magistrate's decision refusing application for re-hearing (on 30 April 2007) set aside.
4. Orders of the learned Magistrate for conviction and fine of $600 and costs of Court of $67.90, in default 12 days' imprisonment (re charges 1, 2 and 3) and order for conviction and fine of $300, in default six days' imprisonment (charge 4) set aside.
5. Proceedings remitted to the Magistrate's Court to proceed further according to law.
CATCHWORDS: AMEND APPEAL, APPLICATION FOR RE-HEARING, HEARING NOTICE NOT RECEIVED, APPELLANT MUST BE ADVISED OF ORDERS MADE UNDER JUSTICES ACT (QLD) 1886 IF NOT IN ATTENDANCE WHEN MADE LEGISLATION: Justices Act(Qld) 1886 ss 142(6), 142A, 142A(10), (10A), 142A(12), 150, 222. COUNSEL: Self represented applicant
E. Williams (Department of Transport) for the respondentSOLICITORS: Self represented applicant
David Lambert (Department of Transport) Lawyers for the respondent
HIS HONOUR: This is an appeal under Justices Act s.222 in respect of the decision of the learned Magistrate at Beenleigh refusing the appellant's application for a re-hearing. For reasons which will become obvious at the conclusion of these reasons for judgment, I also intend in dealing with this matter to amend the notice of appeal filed in this matter on 21 May 2007 to reflect an appeal against the conviction and fines imposed on 18 December 2006 in respect of charges 1 to 4 (i.e. the substantive matters before the Magistrates Court and subject of the original appeal in this Court.)
Background
The appellant was charged by complainant summons with four charges, namely:
Using an unregistered vehicle.
using a vehicle with a number plate issued to another vehicle.
using a vehicle with a registration label issued to another vehicle; and
driving an uninsured vehicle.
All offences are alleged to have occurred on 1 November 2005 at Browns Plains Road, Browns Plains, Queensland in the Magistrates Court district of Beenleigh.
The Complaint and Summons was returnable before the Beenleigh Magistrates Court on 6 October 2006. The appellant wrote to the Court and advised he was not able to attend on that date, that he was pleading "not guilty," and sought a hearing date. On 6 October 2006, a Notice of Adjournment issued advising of a hearing on 18 December 2006. The appellant asserts that he did not receive that notice (see Notice of Appeal ground 1 and Outline of Submissions of appellant para 1). The appellant claims he was advised of the hearing date by a man "claiming to represent the Department of Transport" on "the day prior to the alleged hearing" (Outline of Submissions of appellant para 2.)
A "statement of witness" of David Lambert, (Annexure C to the Respondent's Outline of Submissions) states (and I paraphrase) that he contacted the appellant on Wednesday 13 December 2006 and was told by the appellant that he (the appellant) was unaware of the hearing on 18 December 2006. The appellant (on Mr Lambert's version) advised Mr Lambert he would be interstate from 16 December 2006 until 10 January 2007 and would be unable to attend the hearing. Mr Lambert advised the appellant to contact the Court, and as a professional courtesy, Mr Lambert himself sent a fax to the Court advising it of his conversation with the appellant and the appellant's proposed absence interstate. I note for the record that a copy of Mr Lambert's fax outlining essentially the factual matrix which I have just recited is in fact contained on the Court file.
The appellant sent a letter to the Magistrates Court at Beenleigh dated 13 December 2006 which shows a date stamp (presumably the date on which it was received) from the Magistrates Court at Beenleigh of 18 December 2006. This letter advised of the appellant's non-availability on 18 December 2006 and sought a hearing date after 20 January 2007. The proceedings which then occurred in the Beenleigh Magistrates Court were not recorded or transcribed, but Mr Lambert again has helpfully outlined, in summary, those proceedings in the paragraphs contained at the conclusion of page 2 of his statement which is Annexure C to the Respondent's Outline of Submissions. "I attended the Beenleigh Magistrates Court on Monday 18 December 2006 for the 9.30 a.m. session. I called Mr Koelmeyer's name three times on at least two separate occasions prior to the Court's commencement and also the depositions clerk called his name over the public address system. Mr Koelmeyer was not present within the Court or outside its precincts in the hallway.
I informed the presiding Magistrate, Mr Webber, of my contacting Mr Koelmeyer and the subject of our discussions. Mr Webber appeared to search the relevant Court's file and could not locate any correspondence or message from Mr Koelmeyer.
Mr Webber allowed for the matter to be determined ex parte after the provisions of section 142A of the Justices Act 1886. Mr Koelmeyer was fined a total of $900 plus the cost of $67.90."
As I have indicated, there was no transcript available of the appearance on 18 December 2006. The Court file notes Mr Lambert's appearance on behalf of the respondent, and notes the appellant's non-appearance. The appellant was convicted and fined $600 and ordered to pay $67.90 costs of Court in respect of charges 1, 2 and 3 (dealt with together), in default 12 days' imprisonment, and convicted and fined $300 on charge 4, in default six days' imprisonment. It can be inferred that the appellant's letter requesting an adjournment did not reach the file before the learned Magistrate made his decision and dealt with the matter ex parte.
The appellant made a written request for a re-hearing dated 24 April 2007, attaching two letters from the State Penalties Enforcement Registry (SPER) dated 2 April 2007 and 12 April 2007. A letter from SPER dated 2 April 2007 contained a handwritten reply to SPER from the appellant dated 5 April 2007. Relevantly, the appellant claimed to have received no advice in respect of the outcome of the Magistrates Court hearing on 18 December 2006 until receiving the SPER letter of 2 April 2007.
In a letter dated 1 May 2007 (a copy of which is contained on the Magistrates Court file) the appellant was advised of the learned Magistrate's decision in respect of his application for a re-opening. That decision of the learned Magistrate, which was made on 30 April 2007 stated, "I decline to extend the period under s.142(6). Application for re-hearing is refused." There is no transcript of that re-hearing proceeding available, it having been dealt with in chambers.
There is, I should note, no record on the Magistrates Court file of the appellant being advised of the outcome of the hearing on 18 December 2006. This is in direct breach of the provisions of ss.142A(10) and (10A) of the Justices Act 1886, namely: -
"(10) The clerk of the Court shall forthwith upon the determination of the matter of a complaint pursuant to this section send by post to the defendant at the defendant's address last known to the clerk an advice of the minute or memorandum of the conviction or order made and signed under section 150.
(10A) The advice shall set forth a statement to the affect of the provisions of subsections (11) to (12B)."
Section 150 of the Justices Act provides -
"(1)This section applies if Justices convict or make an order against a person
(2)The Justices must make a minute or memorandum on the conviction or order and sign it.
(3) If neither the person, nor the person's lawyer or agent is present when the conviction is pronounced or the order is made, the clerk of the Court must give written notice of the conviction or order by post to the person at the person's last address known to the clerk.
(4)A minute or memorandum made under this section does not form part of the warrant of commitment or execution.
(5) If subsection (3) applies, a warrant of commitment or execution must not issue for at least 28 days from the day of the conviction or order, unless the adjudicating Justices otherwise direct."
Justices Act s.142A(12) provides that "upon the determination of the matter of a complaint in accordance with the provisions of this section, the Court at the place of determination, upon application made in that behalf by the clerk of the Court or by the complainant or by the defendant or the defendant's lawyer within 28 days after such determination may, for such reason as it thinks proper, grant a re-hearing of the complaint upon such terms and subject to the payment of such costs as it thinks fit."
In my view there has been a failure by the Magistrates Court to comply with the provisions of s.142A in that the Clerk of the Court did not "forthwith" (or in fact, at all) send the appellant an advice or minute of conviction as required by ss.142A and 150 of the Justices Act. In my view, there was therefore no final "determination" of the proceedings which took place on 18 December 2006. There is a further difficulty in that the learned Magistrate purported to decide the application for re-hearing under Justices Act s.142(6), rather than under Justices Act s.142A(12), i.e. the learned Magistrate exercised an incorrect head of jurisdiction or power in dealing with the application for re-hearing.
I consider that the appropriate orders to deal with the appeal filed in this Court are as follows:
The Notice of Appeal is amended to include an appeal against the conviction and fines imposed by the learned Magistrate at Beenleigh on 18 December 2006 in respect of each of charges 1, 2, 3 and 4 (as set out in Complaint and Summons sworn 19 July 2006.)
Appeal granted.
Learned Magistrate's decision refusing application for re-hearing (on 30 April 2007) set aside.
Orders of the learned Magistrate for conviction and fine of $600 and costs of Court of $67.90, in default 12 days' imprisonment (re charges 1, 2 and 3) and order for conviction and fine of $300, in default six days' imprisonment (charge 4) set aside.
Proceedings remitted to the Magistrate's Court to proceed further according to law.
I note for the record that the matter should not, in my view, proceed before the learned Magistrate who dealt with the original hearing and the application for re-opening. That is obviously a matter for allocation by the coordinating Magistrate at Beenleigh, but I would ask that this note be brought to his or her attention.
The appellant is unrepresented so there is no basis on which to award costs, as I understand it.
MS WILLIAMS: Yes, your Honour. As I said, I amended the outline of‑‑‑‑‑
HIS HONOUR: Yours similarly. Mr Koelmeyer, do you understand the effect of what I have just done?
APPELLANT: Yes, I do.
HIS HONOUR: Okay. I have set aside the decision on the re-hearing. I have set aside the original convictions and fines. The matter must now go back to the Magistrates Court to be dealt with and you can make your own decisions whether you wish to have it set for hearing or not. A notice, I assume, will be sent out to you advising firstly of a mention date, in other words a day in which you can appear in Court and ask the Court for a suitable hearing date. I know you have been through a bit of a business with that, but you do need to make sure that you appear on the next occasion, whatever that is.
What I suggest you do is perhaps contact the Court early next week and find out when they are proposing to re-list the matter for a mention so that you can appear on that date and no doubt someone from Ms Williams department will also appear and then a suitable hearing date can be set or sentence date, depending on what you choose to do. But it will be a date on which you will have the opportunity to appear. Okay? Thank you both for that.
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