Minogue v Mele

[1987] TASSC 78

Serial No B8/1987
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Minogue v Mele [1987] TASSC 78; B8/1987

PARTIES:  MINOGUE, TERENCE JOHN
  v
  MELE, VINCENZO CARMINO

FILE NO/S:  LCA 102/1986
DELIVERED ON:  26 March 1987
JUDGMENT OF:  Underwood  J

Judgment Number:  B2/1985
Number of paragraphs:  11

Serial No B 8/1987
List "B"
File No LCA 102/1986

TERENCE JOHN MINOGUE v VINCENZO CARMINO MELE

REASONS FOR JUDGMENT  UNDERWOOD J

26 March 1987

1. On 5 September 1986 a magistrate made an order dismissing a complaint pursuant to the provisions of s.19B of the Crimes Act 1914 (Cwth). The complaint alleged the commission of breaches of s.234(1)(e) of the Customs Act 1901 (Cwth).

1. The complainant sought a review of the order by filing in this court, within the time prescribed by s.107(3) of the Justices Act 1959, a document entitled “Notice to Review”. It provides:

“NOTICE TO REVIEW

TAKE NOTICE that the Supreme Court will be moved on the 13 day of October 1986 at 10.00 o’clock in the forenoon or so soon thereafter as Counsel may be heard on behalf of the applicant for an order that the judgment handed down by Magistrate M A Hannon in the Hobart Court of Petty Sessions on 2nd September 1986 in respect of two Complaints which had been made against the Respondent, being Complaint No 0569786 made by Terence John Minogue under Section 234(1)(e) of the Customs Act, 1901 and Complaint No 1071986 made by Dr. Alan Ross Harradine under Section 67 of the Quarantine Act, 1908, be set aside insofar as it dealt with Complaint No 0569786 on the following grounds:

(a)  that the learned Magistrate erred in law in determining that the Respondent was charged under the said Complaint with one offence of making an untrue statement in a document furnished to a Customs Officer, and not with four such offences.

(b)  that the learned Magistrate erred in law in holding that it was necessary for the Applicant to establish beyond reasonable doubt that the Respondent knew at the time of making the four false statements alleged in the Complaint that those statements were not true.”

1. It will be seen that the “Notice to Review” does not seek to review any order. It seeks, “an order that the judgment . . . . . . be set aside”. Presumably, this is a reference to the written reasons given by the magistrate, for making the order. These reasons contain rulings with respect to the mental element involved in the offences with which the respondent is charged.

1. Following the conclusion of argument with respect to the matters raised by the grounds of appeal, counsel‘s attention was drawn to the competency of the appeal and further submissions were later received.

1. Learned counsel for the appellant conceded that the “Notice to Review” was defective in that it did not seek to review an order as provided by s.107 (1) of the Act. He made application for an order amending the Notice so that it sought, “an order that the order . . . . dismissing complaint No. 0569786 pursuant to s.19B of the Crimes Act 1914 be set aside . . . . . ” He based his application upon 0.31 r.14 of the Rules of Court.

1. I have reached the conclusion that I have no jurisdiction to make that order of amendment. The nature of an appeal under Part XI of the Justices Act 1959 was considered by the Full Court in Maynard v. Rush [1965] Tas. S.R. 233. Burbury C.J. said at 236:

“It is, of course, trite Law that a right of appeal is entirely the creature of the statute creating it. Part XI. of the Justices Act 1959 which followed the general legislative pattern of its predecessor, Part VII. of the Justices Procedure Act 1919, does not stop at creating rights of appeal in general terms and leaving it to Rules of Court to prescribe procedural details. The statute hedges in the rights of appeal it creates by itself prescribing the detail procedural steps to be followed by a person aggrieved by an order of justices who wishes either to challenge their decision by way of motion to review upon some specific error of law or fact or to exercise his right of having his case re–heard de novo before a Supreme Court judge. Judges of this court have been disposed to hold that the provisions of the statute prescribing these procedural steps are not merely directory but are mandatory and that therefore strict compliance with each procedural step is a condition precedent to the existence of the court’s jurisdiction. The court is given no general power to cure procedural irregularities and the result has been that some appellants have been unable to have their appeals dealt with on their merits. The genesis of the view that strict compliance with procedural steps goes to the very existence of a valid appeal under the statute appears to be an unreported decision of Clark J. in Robertson v. Canning in 1945 (referred to in a footnote to Risely v. Gough [1953] Tas. S.R. 78, at p. 79) . This view was adopted by Gibson J. in Risely v. Gough [ 1953 ] Tas. S.R. 78. Other cases illustrative of the same view are Rothwell v. Chaplain [1956] Tas. S.R. 65. (Green J.); Fletcher v. Castrisios [1959] Tas. S.R. 3, (Crawford J.); Rogers v. Fenton [1962] Tas. S.R. 28 (Cox J.) and Kelleher v. Kelleher [1963] Tas. S.R. 50 (Crawford J.): (Cf. Teders v. Miller Full Court 3rd Sept. 1964); 1964 Irr. N. 28.”

1. In Hesselman v. Reid [1973] Tas. S.R. 93 Crawford J., without referring to Maynard v. Rush (supra), reached the same conclusion with respect to a notice which sought to review a magistrate‘s ruling on the admissibility of certain evidence. He said at 95:

“As I have already held in Bayliss v. Johnstone [1965] Tas. S.R. (N.C.) 3 a review to get before this court must be in accordance with the procedure in the Justices Act 1959, Part XI, Div.1; and, if there is to be a review, the notice must state what order is to be reviewed.”

His Honour held that there was no valid motion to review and the court was without jurisdiction.

1. Since those two cases were decided the whole of Part XI of the Justices Act has been repealed and a new part enacted by amending Act No. 108 of 1974. The amendments affected substantial alterations to the law concerning appeals from justices. However, no provision was then made, as suggested by Burbury C.J. in Maynard v. Rush (supra), to give this court the power given to the Court of Criminal 7 Appeal by O.VII  r.11 of the Rules made under the Criminal Code or that given to the Supreme Court by O.80  r.21 of the Rules of Court. See also ss. 165 and 166 of the Justices Act (S.A.), referred to in Tothill v. Marklew [1969] S.A.S.R. 460 and Maider v. Dancis (1986) 39 S.A.S.R. 136.

1. Part XI of the Justices Act is a complete code. It grants rights of appeal. from justices and prescribes the procedure for the institution and conduct of such appeals. In addition, provision is made by s.123, for a limited right of appeal from this court to the Full Court. S.124 gives the judges power to make “general rules and orders to regulate the practice and procedure under this part”. S. 125 gives the court jurisdiction to make orders for costs upon the hearing of appeals from justices. The Justices (Control of the Supreme Court) Rules were made statutory rule No. 866.

1. All of this clearly indicates that contrary to Counsel’s submissions, the Supreme Court Civil Procedure Act and Rules of Court have no application to appeals from justices. S.6(3) of that Act provides that Jurisdiction vested in the court by virtue of any statute (appellate and original) shall be exercisable in accordance with the Act and Rules of Court. The effect and extent of that section is limited by the expression that it is to take effect “except as otherwise provided by any such statutes”. Part XI of the Justices Act clearly otherwise provides.

1. No application for an extension of time to lodge a notice to review has been made and for the reasons given, I conclude that the court is without jurisdiction to embark upon a review of the order made by the magistrate on 5 September 1986.