Mareeba Shire Council v Wiggins

[2002] QCA 437

SUPREME COURT OF QUEENSLAND

CITATION:

Mareeba Shire Council v Wiggins [2002] QCA 437

PARTIES:

MAREEBA SHIRE COUNCIL
(respondent)
v
ROBERT JAMES WIGGINS
(appellant/applicant)

FILE NO/S:

CA No 138 of 2002
DC No 18 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s118 DCA (Criminal)

ORIGINATING COURT:

District Court at Cairns

DELIVERED EXTEMPORE ON:

17 October 2002

DELIVERED AT:

Brisbane

HEARING DATE:

17 October 2002

JUDGES:

McPherson JA, Cullinane and Holmes JJ
Separate reasons for judgment of each member of the court, each concurring as to the orders made

ORDERS:

1.   Application for leave refused.

2.   Appellant to pay the respondents costs of the application.

CATCHWORDS:

LOCAL GOVERNMENT – POWERS, FUNCTIONS AND DUTIES OF COUNCILS GENERALLY – APPEALS – where appellant convicted of two offences under the local laws of the respondent council relating to the keeping of two unregistered dogs – where appellant instituted proceedings by way of appeal in the District Court against the Magistrates findings – whether appellant filed current application in a timely manner – where appellant’s chief grievance is that of the entrance and conduct on his property of the respondent’s primary witness against him – whether appellant has sufficient grounds to appeal the decision

Commonwealth Constitution ss 53 and 55

Von Shulz v Durrant [2000] QCA 235; Appeal No 1722 of 2000, 16 June 2000, considered

COUNSEL:

The appellant/applicant appeared on his own behalf
BD Job for the respondent

SOLICITORS:

The appellant appeared on his own behalf
King and Company as town agents for Marino Moller Lawyers

CULLINANE J: The applicant seeks an extension of time within which to apply for leave to appeal from a decision of the District Court dismissing an appeal instituted by the applicant pursuant to the Justices Act from a decision of the Magistrates Court at Mareeba.

The applicant was convicted of two offences under the local laws of the respondent council relating to the keeping of a dog which was not registered.  The decision of the Magistrates Court was given on the 11th May 2001 and the decision of the District Court dismissing the applicant's appeal was delivered on the 8th October 2001.

The applicant did not file this application until the 7th May 2002. Whilst there is no prescribed time within which an application for leave to appeal, of this kind, ought to be made it is usually regarded as having been made in a timely manner if it is made within the time limited for an appeal, namely, 28 days. See Von Schulz v. Durrant [2000] QCA 235.

The applicant, in fact, instituted proceedings in the Supreme Court in Cairns by way of a purported appeal against a decision of the District Court.  These proceedings were dismissed on the 3rd December 2001 and a further five months elapsed before this application was made. 

In the notice of application for leave the applicant says that he had not had enough time to research the appeal and lodge it within the applicable time.  He does…