Shield v Topliner Pty Ltd - [2004] QCA 476

SUPREME COURT OF QUEENSLAND

CITATION:

Shield v Topliner P/L; Shield v Eaton [2004] QCA 476

PARTIES:

GRAHAM BLAIR SHIELD
(complainant/appellant/applicant)
v
TOPLINER PTY LTD
(defendant/respondent/respondent)

GRAHAM BLAIR SHIELD
(complainant/appellant/applicant)
v
MICHAEL JOHN EATON

(defendant/respondent/respondent)

FILE NO/S:

CA No 136 & 137 of 2004

DC No 97 & 98 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave s 118 DCA (criminal)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

10 December 2004

DELIVERED AT:

Brisbane

HEARING DATE:

31 August 2004

JUDGES:

McPherson JA, Jerrard JA, Holmes J

Separate reasons for judgment of each member of the court, McPherson JA and Holmes J concurring as to the orders made, Jerrard JA dissenting in part

ORDERS:

1.   Leave be granted to appeal from the decisions given on 19 April 2004 in the appeals numbered D 97/04 and D 98/04 in the District Court, and that each of those appeals be allowed by setting aside the decisions of the District Court dismissing those appeals

The order or orders made on 12 December 2003 in the Magistrates Court at Brisbane dismissing the complaints now in that Court, and numbered 31265/03 and 31262/03, be set aside 2.

Proceedings on those complaints be remitted to the Magistrates Court at Brisbane for hearing and determination according to law 3.

That the complainant pay to the defendants their costs (to the extent not already paid) of and incidental to:   4.

these applications and appeals, to be assessed on an indemnity basis a)

the appeals in the District Court as ordered by Brabazon DCJ; and b)

the hearing before the magistrate on 12 December 2003, such costs having been fixed in the sum of $250. c)

CATCHWORDS:

MAGISTRATES COURTS – DISMISSAL OF COMPLAINT – where magistrate dismissed summary charges against the defendant, after the complainant failed to appear at a mention – whether the magistrate, by dismissing the complaint, erred in the exercise of his discretion

Justices Act 1886 (Qld) s 141, s 147

Andrews v Henderson [2004] QCA 145, cited
Doonan v McKay [2002] QCA 514, cited
Fitzgerald v Newing; ex p Newing [1965] QWN 14, cited
James v Williams; ex p James [1967] Qd R 496, considered
Kimlin v Wilson; ex p Kimlin [1966] Qd R 237, cited
Paulger v Hall [2003] 2 Qd R 294, cited
R v His Honour Judge Dodds, ex p Smith and Graham [1990] 2 Qd R 80, cited

R v T [1995] 2 Qd R 192, cited

COUNSEL:

A J MacSporran for the applicant

P J Davis for the respondent

SOLICITORS:

Department of Primary Industries/Fisheries for the applicant

McNamara Garrahy for the respondent

McPHERSON JA: The defendants, who are Topliner Pty Ltd and Mr Eaton, were charged on complaints by Graham Shield (who is a fisheries inspector employed by the Department of Primary Industries) in the Magistrates Court at Redcliffe with various contraventions of the Fisheries Act 1994. At intervals during the ensuing ten months there were appearances in that court at which both complainant and…

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 Shield v Topliner Pty Ltd

Details

AGLC: Shield v Topliner Pty Ltd [2004] QCA 476
Case: [2004] QCA 476
Decision Date: 10 December 2004

CaseChat Overview and Summary

Shield initiated proceedings against Topliner Pty Ltd in the Magistrates Court, Brisbane, where they were assigned case numbers 31265/03 and 31262/03. The nature of the dispute involved summary charges against the defendant, which the magistrate dismissed after the complainant failed to appear at a mention. The defendant subsequently appealed to the District Court, where the appeals were assigned numbers D 97/04 and D 98/04. These appeals were also dismissed by the District Court. The central legal issues before the court were whether the magistrate, by dismissing the complaint, erred in the exercise of his discretion, and whether the dismissal of the appeals by the District Court was appropriate.

The court examined the magistrate's exercise of discretion in dismissing the complaint due to the complainant's absence. It found that the magistrate had the authority to dismiss the complaint under the relevant legislation, which allows for such action when the complainant does not appear. However, the court also considered whether the dismissal was an appropriate exercise of that discretion, given the circumstances. The court determined that the dismissal was not an error of law or an abuse of the magistrate's discretion, as the complainant's failure to appear justified the dismissal. Regarding the District Court's dismissal of the appeals, the court found that the District Court had correctly exercised its discretion in affirming the magistrate's decision.

Ultimately, the court granted leave to appeal from the decisions of the District Court, allowing the appeals by setting aside the decisions that dismissed them. It ordered that the decisions of the Magistrates Court dismissing the complaints be set aside, and that the proceedings be remitted to the Magistrates Court for hearing and determination according to law. The court also ordered that the complainant pay the defendants their costs of and incidental to the applications and appeals, to be assessed on an indemnity basis.

Orders

Orders of the court

1. Leave be granted to appeal from the decisions given on 19 April 2004 in the appeals numbered D 97/04 and D 98/04 in the District Court, and that each of those appeals be allowed by setting aside the decisions of the District Court dismissing those appeals

The order or orders made on 12 December 2003 in the Magistrates Court at Brisbane dismissing the complaints now in that Court, and numbered 31265/03 and 31262/03, be set aside 2.

Proceedings on those complaints be remitted to the Magistrates Court at Brisbane for hearing and determination according to law 3.

That the complainant pay to the defendants their costs (to the extent not already paid) of and incidental to: 4.

these applications and appeals, to be assessed on an indemnity basis a)

the appeals in the District Court as ordered by Brabazon DCJ; and b)

the hearing before the magistrate on 12 December 2003, such costs having been fixed in the sum of $250. c)

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	Shield v Topliner P/L; Shield v Eaton [2004] QCA 476
PARTIES:	GRAHAM BLAIR SHIELD (complainant/appellant/applicant) v TOPLINER PTY LTD (defendant/respondent/respondent) GRAHAM BLAIR SHIELD (complainant/appellant/applicant) v MICHAEL JOHN EATON (defendant/respondent/respondent)
FILE NO/S:	CA No 136 & 137 of 2004 DC No 97 & 98 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Application for leave s 118 DCA (criminal)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	10 December 2004
DELIVERED AT:	Brisbane
HEARING DATE:	31 August 2004
JUDGES:	McPherson JA, Jerrard JA, Holmes J Separate reasons for judgment of each member of the court, McPherson JA and Holmes J concurring as to the orders made, Jerrard JA dissenting in part
ORDERS:	1. Leave be granted to appeal from the decisions given on 19 April 2004 in the appeals numbered D 97/04 and D 98/04 in the District Court, and that each of those appeals be allowed by setting aside the decisions of the District Court dismissing those appeals The order or orders made on 12 December 2003 in the Magistrates Court at Brisbane dismissing the complaints now in that Court, and numbered 31265/03 and 31262/03, be set aside 2. Proceedings on those complaints be remitted to the Magistrates Court at Brisbane for hearing and determination according to law 3. That the complainant pay to the defendants their costs (to the extent not already paid) of and incidental to: 4. these applications and appeals, to be assessed on an indemnity basis a) the appeals in the District Court as ordered by Brabazon DCJ; and b) the hearing before the magistrate on 12 December 2003, such costs having been fixed in the sum of $250. c)
CATCHWORDS:	MAGISTRATES COURTS – DISMISSAL OF COMPLAINT – where magistrate dismissed summary charges against the defendant, after the complainant failed to appear at a mention – whether the magistrate, by dismissing the complaint, erred in the exercise of his discretion Justices Act 1886 (Qld) s 141, s 147 Andrews v Henderson [2004] QCA 145, cited Doonan v McKay [2002] QCA 514, cited Fitzgerald v Newing; ex p Newing [1965] QWN 14, cited James v Williams; ex p James [1967] Qd R 496, considered Kimlin v Wilson; ex p Kimlin [1966] Qd R 237, cited Paulger v Hall [2003] 2 Qd R 294, cited R v His Honour Judge Dodds, ex p Smith and Graham [1990] 2 Qd R 80, cited R v T [1995] 2 Qd R 192, cited
COUNSEL:	A J MacSporran for the applicant P J Davis for the respondent
SOLICITORS:	Department of Primary Industries/Fisheries for the applicant McNamara Garrahy for the respondent