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Kosteska v Phillips

Kosteska v Phillips

Case [2011] QCA 266 4 October 2011

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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Vexatious Litigants Act 1981 (Qld) (repealed)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

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 Kosteska v Phillips

Details

AGLC: Kosteska v Phillips [2011] QCA 266
Case: [2011] QCA 266
Decision Date: 4 October 2011

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Kosteska v Phillips [2011] QCA 266

Most Recent Citation

Kosteska v Magistrate Manthey & Anor [2013] QCA 105

Cases citing this decision · 7 of 7 shown

R v Sweet
[2021] QDC 216 Para 1

…oup [2013] QCA 118 and [1994] QCA 143, Sharples v Arnison [2002] 2 Qd R 444, Clampett v Hill & Ors [2007] QCA 394, Kosteska v Phillips [2011] QCA 266 and Kosteska v Magistrate Manthey and Anor [2013] QCA 105. [6] Bradley v The Crown [2020] QCA 252.…
AJM v Director, Magistrates Court of Queensland
[2021] QChC 32 Para 22

…t upon orders finally disposing of a complaint.[2] [2] See also Owen v Cannavan [1995] QCA 324; Coulter v Ryan [2007] 2 Qd R 302; Kosteska v Phillips [2011] QCA 266; Matthews v Commissioner of Police [2011] QCA 368.…
Lynch v Commissioner of Police
[2019] QDC 99 Para 1

…trict Court for a magistrate’s decision setting down a matter for trial was incompetent because of the principles contained in Coulter v Ryan . [19][2011] QCA 266 at [4]-[6].…
Markan v Bar Association of Queensland
[2015] QCA 128 Para 3

…Police .[19] In truth, he has not raised any constitutional issue which could engage s 78B. [17](1997) 72 ALJR 73, 74. [18](2003) 198 ALR 250. [19][2011] QCA 266 [14] – [15].…
Pettet v Van der Merwe
[2014] QDC 163 Para 1

…to do so. Any application to remove in my opinion would have been doomed to fail. To use the expression used in Kosteska v Commissioner of Police [2011] QCA 266, in relation to section 78B(1) of the Judiciary Act , “the contention raised is plainly unarguable”.…
Kosteska v Magistrate Manthey
[2013] QCA 105 Para 1

…00] QCA 451. [9][2002] 2 Qd R 444. [10][2002] FCA 1125. [11][1995] QCA 376. [12](1985) 59 ALJR 561. [13](1985) 60 ALJR 302. [14][2007] QCA 394. [15][2011] QCA 266.…
Skyring v Registrar Bancroft QCAT
[2012] QSC 80 Para 1

…Services Commissioner conducted an investigation. On 12 December 2011 the Legal Services Commissioner wrote to Mr Skyring, stating the following: [1][2011] QCA 266.…

View all 7 citing cases →

Cases cited in this decision · 13 of 13 shown

Clampett v Kerslake (Electoral Commissioner of Queensland)
[2009] QCA 104 Para 1

…eter D Beattie (in his capacity as Premier) & Ors; [9] but cf Clampett v Kerslake (Electoral Commissioner of Queensland). [10] [9][2001] QCA 392. [10][2009] QCA 104.…
Coulter v Ryan
[2006] QCA 567 Para 1

…he District Court was premature; so much was clear from Coulter v Ryan .[1] For those reasons, his Honour dismissed the appeal. [1][2007] 2 Qd R 302; [2006] QCA 567.…
Till v Johns
[2004] QCA 451 Para 1

…13](1985) 59 ALJR 561. [14](1985) 60 ALJR 302. [15](1994) 68 ALJR 618. [16]Above, 619. [17]2010, Federation Press, pp 367-368. [18][2001] QCA 43. [19][2004] QCA 451.…
Glennan v Commissioner of Taxation
[2003] HCA 31

…09] 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,…
Sharples v Arnison
[2001] QCA 518 Para 1

…itutionality of the Drugs Misuse Act on other bases have also failed: see, for example, R v Gorton [18] and Till v Johns. [19] [11][2002] 2 Qd R 444; [2001] QCA 518. [12][1995] QCA 376. [13](1985) 59 ALJR 561. [14](1985) 60 ALJR 302. [15](1994) 68 ALJR 618. [16]Above, 619. [17]2010, Federation Press, pp 367-368.…
Cameron v Beattie
[2001] QCA 392 Para 1

…Act and Cameron v Peter D Beattie (in his capacity as Premier) & Ors; [9] but cf Clampett v Kerslake (Electoral Commissioner of Queensland). [10] [9][2001] QCA 392. [10][2009] QCA 104.…
R v Gorton
[2001] QCA 43 Para 1

…2][1995] QCA 376. [13](1985) 59 ALJR 561. [14](1985) 60 ALJR 302. [15](1994) 68 ALJR 618. [16]Above, 619. [17]2010, Federation Press, pp 367-368. [18][2001] QCA 43. [19][2004] QCA 451.…
Skyring v Lohe
[2000] QCA 451 Para 1

…tate and her financial difficulties about which she addressed this Court. [5][1993] QCA 119. [6][1993] QCA 118; [1994] QCA 143. [7][1999] QCA 460. [8][2000] QCA 451.…
Re Skyring
[1999] QCA 460 Para 1

…ious and confused state and her financial difficulties about which she addressed this Court. [5][1993] QCA 119. [6][1993] QCA 118; [1994] QCA 143. [7][1999] QCA 460. [8][2000] QCA 451.…
Skyring v Australia & New Zealand Banking Group Ltd
[1995] QCA 376 Para 1

…Drugs Misuse Act on other bases have also failed: see, for example, R v Gorton [18] and Till v Johns. [19] [11][2002] 2 Qd R 444; [2001] QCA 518. [12][1995] QCA 376. [13](1985) 59 ALJR 561. [14](1985) 60 ALJR 302. [15](1994) 68 ALJR 618. [16]Above, 619. [17]2010, Federation Press, pp 367-368. [18][2001] QCA 43. […
Skyring v Australia & New Zealand Banking Group Ltd
[1994] QCA 143 Para 1

…as added to her anxious and confused state and her financial difficulties about which she addressed this Court. [5][1993] QCA 119. [6][1993] QCA 118; [1994] QCA 143. [7][1999] QCA 460. [8][2000] QCA 451.…
Skyring v Commonwealth Commissioner of Taxation
[1993] QCA 119 Para 1

…his "assistance" to the applicant has added to her anxious and confused state and her financial difficulties about which she addressed this Court. [5][1993] QCA 119. [6][1993] QCA 118; [1994] QCA 143. [7][1999] QCA 460. [8][2000] QCA 451.…
Skyring v Australia & New Zealand Banking Group
[1993] QCA 118 Para 1

…the applicant has added to her anxious and confused state and her financial difficulties about which she addressed this Court. [5][1993] QCA 119. [6][1993] QCA 118; [1994] QCA 143. [7][1999] QCA 460. [8][2000] QCA 451.…

Legislation cited in this decision · 6

District Court of Queensland Act 1967 (Qld)
118(3) 2 mentions (from Para 1)
Drugs Misuse Act 1986 (Qld)
118 2 mentions (from Para 1)
Judiciary Act 1903 (Cth)
78B 2 mentions (from Para 1)
Justices Act 1886 (Qld)
222 2 mentions (from Para 1)
Vexatious Proceedings Act 2005 (Qld)
10 2 mentions (from Para 1)
Vexatious Litigants Act 1981 (Qld)
1 mention (from Para 1)

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