Pogadaev v Commissioner of Police

[2015] QCA 25

[2015] QCA 25

COURT OF APPEAL

MARGARET McMURDO P
MORRISON JA
PETER LYONS J

Appeal No 128 of 2014
DC No 4534 of 2012

SERGUEI POGADAEV  Appellant

v

COMMISSIONER OF POLICE  Respondent

Appeal No 129 of 2014
DC No 99 of 2013

ALEXEI POGADAEV  Appellant

v

MATTHEW ELLIS SCOTT  Respondent

Appeal No 130 of 2014
DC No 4533 of 2012

ALEXEI POGADAEV  Appellant

v

BELINDA STEWARD  Respondent

BRISBANE

TUESDAY, 3 MARCH 2015

JUDGMENT

THE PRESIDENT: These matters purported to be cases stated under s 227 Justices Act 1886 (Qld). It is now common ground that the appeals bringing the cases stated were flawed, as there had been no final determination of the appeal to the District Court, so that s 227 had no application. Mr Heaton QC for the appellants orally applied for a declaration that the noncompliance with s 145 Justices Act, which has occurred in each of these cases, of itself, amounts to such a fundamental irregularity that it renders any ensuing proceedings a nullity.  Mr Byrne QC for the respondent accepts that this Court has power to make such a declaratory order, but urges the Court not to make an order in the exercise of its discretion.

The Court has power to make such a declaration under s 29(3) Supreme Court of Queensland Act 1991 (Qld). I do not, however, consider that it is appropriate in the circumstances here to do so. Importantly, a proper process for the determination of the appeals in these cases lies under the Justices Act to the District Court.  That process has not been completed.  Significantly, the appellants are not in custody.  Further, they wish this Court to overturn a longstanding decision of the Full Court of the Supreme Court of Queensland, Todhunter v Zacka; ex parte Zacka [1965] Qd R 515. If they are successful, there are likely to be very wide repercussions throughout the state in potentially tens of thousands of cases determined by the Magistrates Court. It is desirable that, if this matter proceeds in this Court, it does so with the benefit of a decision from the District Court at first instance and before a bench of five judges. For those reasons, I would refuse the oral application for declaratory relief and dismiss the cases stated so that the appeals can be determined in the District Court.

MORRISON JA:  I agree.

PETER LYONS J:  I also agree.

THE PRESIDENT:  So the order is the oral application for declaratory relief and the appeals in the cases stated are dismissed so that the appeals can be determined in the District Court.