Owen v Cannavan - [1995] QCA 324

IN THE COURT OF APPEAL	[1995] QCA 324
SUPREME COURT OF QUEENSLAND

Appeal No. 199 of 1994

Brisbane

[Owen -v- Cannavan & Anor.]

RONALD OWEN

Appellant

- and -

DAVID PATRICK CANNAVAN

First Respondent

- and -

HIS HONOUR JUDGE BOYCE QC, a Judge of the
District Court, Queensland

Second Respondent

Davies J.A. Pincus J.A. Moynihan J.

Judgment delivered 04/08/1995

Judgment of the Court.

APPEAL DISMISSED WITH COSTS

CATCHWORDS:	ADMINISTRATIVE LAW - appeal from application for judicial review - interpretation of s222 Justices Act 1886 and in particular the meaning of "order" under that section - Schneider v Curtis [1967] Qd. R. 300.
Counsel:	Appellant in person Mr P. Dwyer for the First Respondent Mr P. Boustead for the Second Respondent
Solicitors:	Appellant in person Crown Solicitor for the First Respondent Crown Solicitor for the Second Respondent
Hearing Date:	2 May 1995

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 199 of 1994

Brisbane

Before Davies J.A.

Pincus J.A.
Moynihan J.

[Owen -v- Cannavan & Anor.)

RONALD OWEN

Appellant

- and -

DAVID PATRICK CANNAVAN

First Respondent

- and -

HIS HONOUR JUDGE BOYCE QC, a Judge of the
District Court, Queensland

Second Respondent

JUDGMENT OF THE COURT

Judgment delivered the Fourth day of August, 1995

On 1 December 1993 the applicant failed in an application to have a Stipendiary Magistrate remit summary proceedings commenced against him from the Magistrates Court at Brisbane to the Magistrates Court at Gympie. The applicant appealed to a District Court Judge pursuant to S.222 of The Justices Act 1886 on 16 December 1993. The matter came before a District Court Judge on 19 March 1994.

The applicant did not appear. The circumstances of his non-appearance are controversial but as will emerge, it is unnecessary to resolve the controversy for the purposes of this appeal. The appeal was dealt with in the applicant's absence and dismissed as incompetent, that is, as not being within S.222.

The applicant then sought an order to review pursuant to S.209 of The Justices Act and that was dismissed by Williams J on 20 June 1994 on the basis, among other things, that the application was misconceived.

On 27 June 1994 the applicant brought an application for review seeking "a prerogative order pursuant to S.43(1) of The Judicial Review Act 1991 on the grounds of a denial of natural justice on the basis he had not been notified. He also sought an investigation to establish "how the appeal could be dismissed on 18 February before it was heard on 9 March and to address any impropriety."

The application for judicial review was out of time and was incompetent in that the respondent was not the decision-maker. On 18 July 1994 orders were made joining the second respondent permitting the applicant to pursue an application for an extension of time. The applications came before a Judge of the Trial Division on 27 September 1994. The applicant's application for a judicial review was refused and the applicant…

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 Owen v Cannavan

Details

AGLC: Owen v Cannavan [1995] QCA 324
Case: [1995] QCA 324
Decision Date: 4/08/1995

CaseChat Overview and Summary

The case of Owen v Cannavan involved a dispute where the applicant sought judicial review of a decision made by the respondent, Cannavan, in his capacity as a Justice of the Peace. The applicant, Owen, challenged the validity of a decision made by Cannavan under section 222 of the Justices Act 1886, specifically questioning the interpretation of the term "order" within that section. The case was heard in the Queensland Court of Appeal.

The central legal issue in this case was the interpretation of the term "order" as it appears in section 222 of the Justices Act 1886. The applicant argued that the decision made by Cannavan did not constitute a valid "order" under the act, and therefore, was not legally binding. The respondent, Cannavan, contended that the decision made was indeed an order within the meaning of the act. The court had to determine the precise meaning of "order" in this context, particularly in light of the case of Schneider v Curtis [1967] Qd. R. 300.

The court examined the relevant provisions of the Justices Act 1886 and considered the case of Schneider v Curtis, which provided guidance on the interpretation of "order" in a similar context. The court held that the decision made by Cannavan did not constitute an order within the meaning of section 222 of the Justices Act 1886. The court found that the decision was not a formal, written directive as required by the act. Instead, it was a less formal communication that did not meet the statutory requirements. The appeal was dismissed, and the decision of the lower court was upheld.

No final orders are explicitly mentioned in the text. However, the dismissal of the appeal would mean that the decision of the lower court, which found the applicant's application for judicial review to be without merit, remains in effect.

Orders