Schulz v Brisbane City Council & Durrant

[2001] QCA 88

[2001] QCA 88

COURT OF APPEAL

McPHERSON JA
MOYNIHAN J
BYRNE J

CA No 10780 of 2000

KARL VON SCHULZ                   Applicant (Appellant)

and

BRISBANE CITY COUNCIL             Respondent (Respondent)

and

JILLIAN ELIZABETH DURRANT         Respondent (Respondent)

BRISBANE

..DATE 12/03/2001

JUDGMENT

McPHERSON JA:  This is an application for leave to appeal against a decision of a Magistrate from whom an appeal was taken to a District Court Judge.  The District Court Judge slightly altered the order but otherwise dismissed the appeal. 

The applicant before us now asks that his appeal against that order of the District Court Judge be adjourned.  The reason he gives is that he did not receive the respondent's written outline of argument until it was too late for him to answer it, or rather to do the necessary research needed in order to do so. 

The reason why the respondent's outline was received late, if that is what it was, is that the applicant himself had not provided the respondent with a written outline relating to his appeal which, chronologically, was required before the respondent could answer it. 

The respondent by his counsel undertook not to rely on paragraph 16 of its written outline, which appears to be the subject of some contention on the part of his opponent.  Apart from that paragraph, the outline is almost entirely a recital of the history of these proceedings and would not have occasioned, in my opinion, any difficulty in answering it.

The applicant also suggested at one stage that there had been an agreement that the hearing of this application should be adjourned, but I accept that no such agreement was ever made. 

The only other matter I should mention is one that arises out of paragraph 16, or the matter mentioned in it.  It is suggested that I have been involved - that is, as a Judge - in a case in which the applicant was concerned and that that case is now before the High Court.  The applicant apparently asserts some impropriety on my part and in consequence it is suggested that I cannot properly sit in this case.

I confess not remembering anything about the details of that matter which has gone to the High Court, and I am perfectly satisfied that nothing has come to my notice which would require or suggest to me that I should recuse myself in this matter.

I would therefore refuse an adjournment of the hearing of this appeal and, depending on what my colleagues say, continue with the application that is before us.

MOYNIHAN J:  I agree that the application for an adjournment should be refused for the reasons that have been canvassed.  I and a number of other judges of the Court are mentioned in the material.  I have had a look at what is there and, as I say, I have little memory of the events in which I am referred to and I can see no justification for my not continuing with hearing the appeal.

BYRNE J:  I agree with the order proposed with respect to the disposition of the application for the adjournment by the Presiding Judge and with his Honour's reasons.

McPHERSON JA:  The adjournment is refused.

...

McPHERSON JA:  I will ask Mr Justice Byrne to deliver the first judgment.

BYRNE J:  On 11 May 1999, after a trial in the Brisbane Magistrates Court, the applicant was convicted of a traffic offence:  namely, that in August 1997 he did stand a vehicle in Elizabeth Street, Brisbane, contrary to an official traffic sign designating the area as a "Clearway".

The Magistrate, who preferred the evidence of a parking attendant to that of the applicant and his wife concerning the circumstances, imposed a fine of $60, ordered the applicant to pay costs, allowed 28 days for payment of the fine, and fixed a default period of 16 days imprisonment.

On 13 November last year, on the hearing of the applicant's appeal pursuant to section 222 of the Justices Act 1886, a District Court Judge varied the default period of imprisonment by substituting 10 days for 16, but otherwise dismissed the appeal with costs.

The applicant now applies pursuant to section 118(3) of the
District Court Act 1967 for leave to appeal against the Judge's decision.

It emerges from the proposed notice of appeal that the decisive issue the applicant would wish to agitate on appeal concerns his contention that the Judge erred in concluding that it was open to the Magistrate to have preferred the evidence of the parking attendant to that of the applicant and his wife.

The Judge, whose reasons disclose that he examined the trial transcript, said that he saw no proper basis to interfere with the Magistrate's findings, pointing out that he, the Judge, could not be persuaded to prefer the evidence of the applicant and his wife merely because the applicant had insisted that his version was the truth.

On the material before us, which as it happens appears not to include either the Magistrate's reasons or the trial transcript, an examination of the applicant's case does not suggest that there is any basis for supposing that the Judge erred in concluding that it was open to the Magistrate to find the offence proved after rejecting the evidence of the applicant and his wife and preferring other evidence.

In argument before us, the applicant also recounted a version of events, apparently failing to appreciate that the appeal could not realistically be expected to afford an opportunity for receiving testimony from him on matters already investigated in the Magistrates Court upon evidence given by, and adduced for, him in that Court. 

The attempt to challenge the Judge's view would therefore appear to enjoy no prospect of success. 

One other matter ought to be mentioned.  A point was sought to be made that a fine of only $60 - somewhat less than the amount of one penalty unit, which Mr Von Schulz informed us was $75 - was imposed.  There is plainly no substance in his contention that somewhat less than the minimum penalty unit (if $75 was the applicable amount) was imposed.

On no ground does it appear to me that the appeal, if permitted, would enjoy any prospect of success. 

I would therefore refuse the application for leave to bring it, with costs. 

McPHERSON JA:  I agree.

MOYNIHAN J:  I agree.

McPHERSON JA:  The order is that the application for leave to appeal is dismissed with costs.

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