Lasker v Holeszko - [2019] QCA 163

SUPREME COURT OF QUEENSLAND

CITATION:

Lasker v Holeszko [2019] QCA 163

PARTIES:

LASKER, Benjamin Jon
(applicant)
v
CHRISTOPHER JOHN HOLESZKO
(respondent)

FILE NO/S:

CA No 332 of 2018
DC No 3347 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Brisbane – Unreported, 7 November 2018 (Richards DCJ)

DELIVERED ON:

23 August 2019

DELIVERED AT:

Brisbane

HEARING DATE:

29 July 2019

JUDGES:

Gotterson and Philippides JJA and Bradley J

ORDERS:

1. The application for leave to appeal is refused.

2. The applicant is to pay the respondent’s costs of the application, to be assessed on the standard basis.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM MAGISTRATES COURT – BY LEAVE OF COURT – FROM DISTRICT COURT – BY LEAVE OF COURT – where the applicant was charged with four offences against the Sustainable Planning Act 2009 (Qld), with the matter proceeding to a hearing before the magistrates court – where the magistrate, after delivering reasons, including findings that the applicant should be found guilty in respect of each of the four charges, and making orders to that effect by consent, adjourned the matter to a later date for the determination of penalty and costs – where the applicant lodged a notice of appeal in the District Court under s 222 of the Justices Act 1886 (Qld), prior to the penalty and costs hearing, seeking that the “convictions” imposed by the magistrate be quashed – where the respondent successfully applied to have the s 222 notice of appeal struck out, on the basis that a right of appeal did not exist until after penalty and costs had been decided and the complaint was “disposed of with final orders” – whether the orders made by the magistrate gave rise to a right of appeal under s 222 – whether the learned District Court judge erred in striking out the s 222 notice of appeal – whether leave ought to be granted to the applicant to appeal against the decision of the learned District Court judge

District Court of Queensland Act 1967 (Qld), s 118
Justices Act 1886 (Qld), s 146, s 222, s 225
Penalties and Sentences Act 1992 (Qld), s 3

Mathews v Commissioner of Police[2015] QCA 284, applied
Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46, cited
Paulger v Hall [2003] 2 Qd R 294; [2002] QCA 353, applied
R v Harris (1797) 7 TR 238, considered
R v Norfolk Justices; Ex parte Director of Public Prosecutions [1950] 2 KB 558, cited
Schneider v Curtis [1967] Qd R 300, applied
Walsh v Giumelli [1975] WAR 114, cited

COUNSEL:

S W Trewavas for the applicant
B J Power for the respondent

SOLICITORS:

Marland Law for the applicant
Legal Unit, Department of Natural Resources, Mines and Energy for the respondent

GOTTERSON JA: I agree with the orders proposed by Bradley J and with the reasons…

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 Lasker v Holeszko

Details

AGLC: Lasker v Holeszko [2019] QCA 163
Case: [2019] QCA 163
Decision Date: 23 August 2019

CaseChat Overview and Summary

The applicant, Lasker, was charged with four offences against the Sustainable Planning Act 2009 (Qld) and the matter proceeded to a hearing before the Magistrates Court. The magistrate found the applicant guilty on all charges and adjourned the matter to a later date for the determination of penalty and costs. Lasker lodged a notice of appeal in the District Court under s 222 of the Justices Act 1886 (Qld) prior to the penalty and costs hearing, seeking that the convictions imposed by the magistrate be quashed. The respondent successfully applied to have the s 222 notice of appeal struck out, on the basis that a right of appeal did not exist until after penalty and costs had been decided and the complaint was "disposed of with final orders".

The legal issues before the court were whether the orders made by the magistrate gave rise to a right of appeal under s 222 and whether the learned District Court judge erred in striking out the s 222 notice of appeal. The court considered the authority of Schneider, which was accepted as holding that the right of appeal is given only from an order "disposing of the complaint itself". The court concluded that the orders made by the magistrate were interlocutory and did not finally dispose of the complaint. Therefore, a right of appeal did not exist until after penalty and costs had been decided. The court found that the learned District Court judge did not err in striking out the s 222 notice of appeal.

The application for leave to appeal was refused and the applicant was ordered to pay the respondent's costs of the application, to be assessed on the standard basis.

Orders

Orders of the court

1. The application for leave to appeal is refused.

2. The applicant is to pay the respondent’s costs of the application, to be assessed on the standard basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The decision in Schneider was considered by this court in Paulger v Hall.[12] There, it was accepted as authority for the proposition that the right of appeal is given only from an order “disposing of the complaint itself.”[13] This court concluded that a party was entitled to bring an appeal under s 222 from the dismissal of his complaints.[14] The same analysis was accepted in Mathews v Commissioner of Police, where the right of appeal was found to be limited to “orders that finally dispose of a complaint.”[15][12][2003] 2 Qd R 294.[13]at 300 [26].[14]at 301 [28].[15][2015] QCA 284 at [17].The decision of the magistrate on 16 August 2018 The subject of the applicant’s s 222 appeal is the sealed document dated 16 August 2018 noted at [15] above. It has a number of aspects. It begins as a record of the hearing at 2.00 pm that day, listing the persons who appeared for each of the parties, their respective instructors, and that the defendant did not appear in person, being “Excused”. It then records that “Decision and reasons for decision are published in relation to the substantive four charges before the court.” Next, under the words, “IT IS THE ORDERS OF THE COURT THAT”, the three “Court Orders” found in the magistrate’s published reasons are set out: see paragraph [11] above. These are followed by a final section introduced by the words “Pursuant to section 83A(5) of the Justices Act 1886 (Qld) I make the following directions”. Here four directions are found. Directions (i) and (ii) provide for the parties to file and serve “all written material” a party “intends to rely upon at the sentencing hearing” and (iii) provides that “The sentencing hearing of the defendant be otherwise adjourned” to the date agreed by the parties. Direction (iv) requires the registrar of the Caboolture Magistrates Court to “send a copy of these directions to the legal representatives of both parties.” The document is signed by the magistrate and sealed by the court. It was common ground at the hearing in this court that no s 222 appeal could be brought from an interlocutory order. The first of the provisions under the “Order” heading is plainly interlocutory, amending the particulars of each charge. So is the third, providing for the court to “hear further … in relation to the question of penalty and costs to be imposed on the defendant”. The four directions included in the order are also plainly interlocutory in nature. The applicant’s case here turns on the effect of the second paragraph of the “Orders”. At the hearing of the appeal, it was contended that by this “Order” the magistrate determined “the matter” of the complaint in accordance with s 146(1)(a) of the Justices Act. Where both parties appear before the court on a complaint and summons alleging a simple offence, the magistrate may hear and determine the complaint.[16] The defendant must be asked how he or she pleads.[17][16]Justices Act, s 144.[17]s 145(1). If the defendant pleads guilty, the court convicts the defendant or makes an order against the defendant or deals with the defendant in a manner authorised by law: s 145(4).

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Lasker v Holeszko [2019] QCA 163
PARTIES:	LASKER, Benjamin Jon (applicant) v CHRISTOPHER JOHN HOLESZKO (respondent)
FILE NO/S:	CA No 332 of 2018 DC No 3347 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Brisbane – Unreported, 7 November 2018 (Richards DCJ)
DELIVERED ON:	23 August 2019
DELIVERED AT:	Brisbane
HEARING DATE:	29 July 2019
JUDGES:	Gotterson and Philippides JJA and Bradley J
ORDERS:	1. The application for leave to appeal is refused. 2. The applicant is to pay the respondent’s costs of the application, to be assessed on the standard basis.
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM MAGISTRATES COURT – BY LEAVE OF COURT – FROM DISTRICT COURT – BY LEAVE OF COURT – where the applicant was charged with four offences against the Sustainable Planning Act 2009 (Qld), with the matter proceeding to a hearing before the magistrates court – where the magistrate, after delivering reasons, including findings that the applicant should be found guilty in respect of each of the four charges, and making orders to that effect by consent, adjourned the matter to a later date for the determination of penalty and costs – where the applicant lodged a notice of appeal in the District Court under s 222 of the Justices Act 1886 (Qld), prior to the penalty and costs hearing, seeking that the “convictions” imposed by the magistrate be quashed – where the respondent successfully applied to have the s 222 notice of appeal struck out, on the basis that a right of appeal did not exist until after penalty and costs had been decided and the complaint was “disposed of with final orders” – whether the orders made by the magistrate gave rise to a right of appeal under s 222 – whether the learned District Court judge erred in striking out the s 222 notice of appeal – whether leave ought to be granted to the applicant to appeal against the decision of the learned District Court judge District Court of Queensland Act 1967 (Qld), s 118 Justices Act 1886 (Qld), s 146, s 222, s 225 Penalties and Sentences Act 1992 (Qld), s 3 Mathews v Commissioner of Police[2015] QCA 284, applied Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46, cited Paulger v Hall [2003] 2 Qd R 294; [2002] QCA 353, applied R v Harris (1797) 7 TR 238, considered R v Norfolk Justices; Ex parte Director of Public Prosecutions [1950] 2 KB 558, cited Schneider v Curtis [1967] Qd R 300, applied Walsh v Giumelli [1975] WAR 114, cited
COUNSEL:	S W Trewavas for the applicant B J Power for the respondent
SOLICITORS:	Marland Law for the applicant Legal Unit, Department of Natural Resources, Mines and Energy for the respondent