Maybir v Smith

[2007] QDC 193

[2007] QDC 193

DISTRICT COURT
CIVIL JURISDICTION

JUDGE DEARDEN

No 38 of 2005

CALEB ALEXANDER MAYBIR	Appellant
and
GLEN SMITH	Respondent
BEENLEIGH ..DATE 28/05/2007

ORDER
HIS HONOUR: This is an appeal against a conviction by the

1

appellant in respect of one charge of driving at an excess
speed in breach of section 20 of the Transport Operations
(Road Use Management - Road Rules) Regulation 1999. The
allegation is that on 8 July, 2004 at Brighton in the State of

Queensland the appellant was the driver of a motor vehicle	10
detected by police exceeding the speed limit, travelling at 107 kilometers per hour in a 90 kilometer per hour speed zone.
The appellant was dealt with ex parte at the Sandgate
Magistrates Court on 21 February, 2005. The Magistrate was	20
entitled to do so pursuant to section 142A of the Justices
Act. The learned Magistrate considered a letter from the
appellant dated 16 February, 2005 and attached medical
certificates relating to dates in December, 2004. The learned
Magistrate noted on the Court file, "Certificates and reason	30
for fail to appear considered by me. I have considered them inadequate." In the appellant's absence, and relying as the Magistrate was entitled to do on the provisions of 142A of the
Justices Act, in particular in being able to rely on the
particulars set out in the complaint and summons, the	40
Magistrate found him guilty, was fined $150 and ordered to pay $65.60 costs of Court in default three days' imprisonment.
Subsequently, the Court record reveals that an application was
made for reopening, and on the 17th of March, 2005 the	50
Magistrate dealt with this application for reopening, noting on the Court file, "Read the letter of 7/3/05 Rec'd courthouse on 8/3/05. Appl'n for rehearing is refused." In short, the

ORDER

2   60

record reveals that the Magistrate considered an application

1

for reopening to which was attached a number of medical
certificates and was not satisfied that that application
should be granted, given the relevant provisions of section

142A of the Justices Act.

10

The learned Magistrate was of course entitled to deal with the offence ex parte pursuant to the provisions of section 142A of the Justices Act. There is nothing in the Court file to

indicate that the learned Magistrate did not proceed according

to law pursuant to the provisions of that section. The	20
appellant was advised of the Court's decision of 21 February,
2005 and within the relevant time frame sought to have the
proceedings reopened pursuant to section 142A of the Justices
Act. That application, as I have noted, was refused. There
is nothing on the record which in my view indicates that the	30
learned Magistrate erred in refusing that application.
In particular I note that the medical certificates attached to
the application for reopening indicate under the heading,
40

"Fitness for Work/Study" that "in my opinion [i.e. the
opinion of the medical practitioner] this person is/has
been unfit for work/study from 20/2/05 to 20/4/05
inclusive." The medical practitioner providing the
certificate went on to state, "Should refrain from
driving duties. Supervising work only." And having
indicated that the diagnosis was, "Severe contact
dermatitis both hands" with symptoms being "Painful
cracked hands. Bleeding from cracks." Prescribed

"Topical steroids and occlusive dressings" as the	50
relevant treatment regime."

There is nothing to indicate on that medical certificate any unfitness to attend Court on the 21st of February, 2005 when

ORDER

3   60

the Magistrate dealt with this matter ex parte and the

1

notation "supervising work only" in contradiction from the
note that the appellant "should refrain from driving duties"
would on the face of it indicate an ability in the view of the

medical practitioner for the appellant to have attended Court.

10

The provisions of Justice Act 142A, which were usefully
considered, with his usual meticulous attention to detail, by
McGill DCJ in Guy v. McLoughlin and another [2006] QDC 17 were
considered by McGill DCJ when he pointed out at paragraph 11

20

"If the application for rehearing is refused there can be
an appeal against that decision under S222 [of the

Justices Act]".

Making allowance for the fact that the appellant is self

represented and examining the whole of the record which has	30
been placed before the Court, to which I am restricted in
considering this application (see Guy v. McLoughlin and
another [2006] QDC 17 at paragraph 5) it follows in my view
that the learned Magistrate has made no error of law in
proceeding as she did to refuse the application for rehearing.	40
I also form the conclusion, again upon reviewing the record,
that the Magistrate was entitled as she did to find the
defendant guilty of the charge with which he was charged by
complaint and summons, and to order a fine and costs of Court
in the amount which have been noted in these reasons.	50
Proceeding, as I said, on the basis that the appellant is self represented, and treating this appeal as an appeal against the

ORDER

4   60

decision to refuse the reopening application, I see no basis

1

in which the Magistrate has erred in law and therefore I
refuse the appeal. Were it necessary to consider the
substantive merits of an appeal by this appellant in respect
of the learned Magistrates decision to find the defendant

guilty in his absence, I see no basis on which the learned	10
Magistrate has erred in law in respect of that decision, and I would similarly refuse the appeal in respect of the substantive issue.
Accordingly I consider that the learned Magistrate was	20
entitled to find the appellant guilty of speeding as charged pursuant to the complainant summons sworn 4 November, 2004. This appeal is dismissed.
...	30
HIS HONOUR: I order that the appellant pay the costs of the respondent fixed at the sum of $900.

-----	40
50

ORDER

5   60