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 2018DIVISION:
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 3Mathews 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, citedCOUNSEL:
S W Trewavas for the applicant
B J Power for the respondentSOLICITORS:
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…
Continue reading Lasker v Holeszko
Sign in free to access the full text
- AGLC
- Lasker v Holeszko [2019] QCA 163
- Case
- [2019] QCA 163
- Decision Date
CaseChat Overview and Summary
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
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.