[2015] QCA 3
COURT OF APPEAL
MARGARET McMURDO P
MORRISON JA
JACKSON J
CA No 180 of 2014
DC No 217 of 2013
DC No 224 of 2013
THE QUEEN
v
MONTEFORTE, James
BRISBANE
WEDNESDAY, 4 FEBRUARY 2015
JUDGMENT
THE COURT: This is an application for an extension of time for leave to appeal under s 118, District Court of Queensland Act 1967, (Qld). The applicant was originally convicted of two speeding offences and fined in the Cairns Magistrates Court. He appealed to the Cairns District Court under s 222 Justices Act 1886 (Qld). A transcript shows that he consented to his appeals being dismissed, even though the judge offered him an adjournment because of his manifest ill-health.
He subsequently brought this application in an effort to overturn the District Court judge’s orders, made with his consent, dismissing his appeals. Tragically, since filing his application, the applicant died on 19 December 2014. A death certificate to that effect has been filed in the Registry.
The material before this Court does not support the granting of his application. His separated wife and his carer at the time of his death, Ms Ilona Margaret Monteforte, has notified the Registry that the applicant nominated her to deal with his affairs after his death. She has requested that this application be discontinued.
In any case, in our view, the right conferred upon a person to apply for leave to appeal under s 118(3) of the District Court of Queensland Act from a judgment of the District Court upon an appeal brought before that court under s 222 of the Justices Act 1886 (Qld) does not continue after death. It does not vest in and is not exercisable by any other person.
The respondent is agreeable to this matter being dealt with on the papers and has not sought to make any submissions. In these circumstances the order must be that the application for an extension of time for leave to appeal is refused and the Court so orders. Adjourn the Court.
- AGLC
- R v Monteforte [2015] QCA 3
- Case
- [2015] QCA 3
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the right to apply for leave to appeal under section 118(3) of the District Court of Queensland Act 1967 survives after the death of the applicant, and if so, whether it is exercisable by another person, specifically Monteforte's separated wife and carer, Ms Ilona Margaret Monteforte. The court had to determine if the statutory right to appeal continues post-mortem and whether it is assignable to another individual. The court also needed to consider whether the application should be dismissed in light of Monteforte's death and his wife's request to discontinue the application.
The Court of Appeal held that the right to apply for leave to appeal under section 118(3) of the District Court of Queensland Act 1967 does not continue after the death of the applicant. The court reasoned that the statutory right to appeal is personal to the appellant and does not vest in or is exercisable by any other person, including the deceased's separated spouse and carer. The court found that the application for an extension of time for leave to appeal was effectively nullified by Monteforte's death, and his wife had no standing to continue the application. Consequently, the court refused the application for an extension of time for leave to appeal and ordered the matter to be dismissed.
Orders
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Background
Background to the litigation
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Evidence
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Decision
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Ratio Decidendi
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