Kosteska v Phillips

Case [2011] QCA 266


SUPREME COURT OF QUEENSLAND

CITATION:

Kosteska v Phillips; Kosteska v Commissioner of Police [2011] QCA 266

PARTIES:

KOSTESKA, Lille
(applicant)
v
PHILLIPS, Ian
(respondent)

KOSTESKA, Lille
(applicant)
v
COMMISSIONER OF POLICE
(respondent)

FILE NO/S:

CA No 63 of 2011
CA No 64 of 2011
CA No 96 of 2011
DC No 911 of 2011
DC No 1063 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Applications for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

4 October 2011

DELIVERED AT:

Brisbane

HEARING DATE:

23 September 2011

JUDGES:

Margaret McMurdo P, Fraser and White JJA
Separate reasons for judgment of each member of the Court,

each concurring as to the orders made

ORDERS:

In each of CA No 63 of 2011, CA No 64 of 2011 and CA No 96 of 2011 the application for leave to appeal is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where the applicant seeks leave to appeal from two interlocutory orders of the District Court and a further order dismissing an appeal from a finding in the Magistrates Court that the applicant was guilty of unlawful possession of cannabis – where applicant sought leave to appeal on a number of grounds including that the Court of Appeal was not a lawfully established court – where the applicant had not served notices to Attorneys-General under s 78B Judiciary Act 1903 (Cth) notifying them that the matter involved issues arising under the Constitution – whether the Court can determine the applications where the applicant has not served s 78B notices – whether leave to appeal should be granted

District Court of Queensland Act 1967 (Qld), s 118(3)
Drugs Misuse Act 1986 (Qld), s 118
Judiciary Act 1903 (Cth), s 78B
Justices Act 1886 (Qld), s 222
Vexatious Litigants Act 1981 (Qld) (repealed)
Vexatious Proceedings Act 2005 (Qld), s 10, s 16

Cameron v Peter D Beattie (in his capacity as Premier) & Ors [2001] QCA 392, cited
Clampett v Kerslake (Electoral Commissioner of Queensland)
[2009] QCA 104, cited
Coulter v Ryan
[2007] 2 Qd R 302; [2006] QCA 567, cited
Glennan v Commissioner of Taxation (2003) 198 ALR 250; [2003] HCA 31, cited
R v Gorton [2001] QCA 43, cited
Re Cusack (1985) 60 ALJR 302, cited
Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73, considered
Re Skyring
(1994) 68 ALJR 618, considered
Re Skyring
[1999] QCA 460, cited
Re Skyring's Application (No 2) (1985) 59 ALJR 561, cited
Sharples v Arnison [2002] 2 Qd R 444; [2001] QCA 518, cited
Skyring v Australia & New Zealand Banking Group [1993] QCA 118, cited
Skyring v Australia & New Zealand Banking Group Ltd
[1994] QCA 143, cited
Skyring v Australia & New Zealand Banking Group Ltd [1995] QCA 376, cited
Skyring v Commonwealth Commissioner of Taxation [1993] QCA 119

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Details
AGLC
Kosteska v Phillips [2011] QCA 266
Case
[2011] QCA 266
Decision Date

CaseChat Overview and Summary

In the matter of Kosteska v Phillips, the applicant sought leave to appeal from two interlocutory orders made by the District Court of Queensland, as well as a decision by that court dismissing an appeal from a finding by the Magistrates Court that the applicant was guilty of unlawful possession of cannabis. The primary legal issue before the Court was whether the Court of Appeal could determine the applications for leave to appeal when the applicant had failed to serve notices on the Attorneys-General as required by section 78B of the Judiciary Act 1903 (Cth). This statutory provision mandates that parties notify the Attorneys-General when a matter involves issues arising under the Constitution, thereby ensuring that appropriate constitutional considerations are addressed.

The Court found that the statutory requirement of section 78B was a jurisdictional prerequisite that had to be met for the Court of Appeal to entertain the applications. Since the applicant had not served the requisite notices, the Court was not empowered to grant the applicant's applications for leave to appeal. The Court held that failing to comply with the statutory notice requirement constituted a significant procedural impediment that could not be overlooked. The Court emphasised the importance of adhering to legislative mandates designed to ensure that constitutional matters are properly managed and considered.

Consequently, the Court refused the applications for leave to appeal in each of the cases listed as CA No 63 of 2011, CA No 64 of 2011, and CA No 96 of 2011. The Court's decision underscored the necessity for strict compliance with statutory obligations, particularly when constitutional issues are involved, and highlighted the Court's limited jurisdiction to proceed with appeals that do not meet these requirements.

Orders

Orders of the court

In each of CA No 63 of 2011, CA No 64 of 2011 and CA No 96 of 2011 the application for leave to appeal is refused.

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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