Shield v Topliner Pty Ltd

Case [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 

  1. 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…

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Details
AGLC
Shield v Topliner Pty Ltd [2004] QCA 476
Case
[2004] QCA 476
Decision Date

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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