Todd v Commissioner of Police

[2005] QDC 400

[2005] QDC 400

DISTRICT COURT
CIVIL JURISDICTION

JUDGE ROBIN QC

No 1168 of 2005

JACQUELINE ANN TODD	Applicant
and
COMMISSIONER OF POLICE	Respondent
BRISBANE
..DATE 07/12/2005
ORDER

CATCHWORDS: Clarification of "final order" as issued by Court following successful appeal against Magistrate's refusal of licence under r 87 of Transport Operations (Road Use Management) Act 1995 - order as issued gave misleading impression the appeal dealt with a licence disqualification and fine - appellant concerned the disqualification period would be interpreted by Transport officials to run from the disposition of the appeal, rather than the date of the original sentencing.

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07122005 D.1 T1/DBK (Robin DCJ)

HIS HONOUR: Mr Lewis has asked the Court to mention the	1
appeal which the Court decided on the 15th of August 2005. The reasons are now available at [2005] QDC 252.
The difficulty faced by his client is that the Department of Transport take the view that a nine months disqualification from holding or obtaining a driver's licence imposed by a Magistrate at Cleveland on the 16th of March 2005 runs from the date of this Court's disposition of the appeal rather than the date when the Magistrate pronounced the order.	10
20
subject of the appeal, describes it as one whereby she was sentenced to the suspension mentioned and a fine of $1,500 and refused a licence pursuant to section 87 of the Transport
Although the Notice of Appeal, in identifying the order the clear from the following statement of the grounds of appeal that the only area of complaint was the Magistrate's refusal to grant a licence under section 87. That's the only matter that was considered on the hearing of the appeal. The certificate of readiness signed by the parties and filed on 17 June 2005 identifies it as the only "matter in issue".	30
40
The final order issued by the Court to record my decision has
a schedule on the front page introduced by the words "upon
50
consideration of an appeal lodged by the above-named
appellant...in respect of the following", which sets out
various relevant sections from the Act mentioned and also the
Police Powers and Responsibilities Act. Section 87 is not

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07122005 D.1 T1/DBK (Robin DCJ)

among them.	1
The order issued by the Court goes on to provide:

"1. Appeal allowed

2. The appellant should have a restricted licence under

section 87 of the Act to permit driving to and from her	10
work as a pharmacist by the most direct route while in any required work uniform during the hour before and the hour after her rostered shifts.
3. No order as to costs."

A reader of that order who was not aware of the course of proceedings or the Notice of Appeal might well assume that matters were at large in this Court and that it had given consideration to the fine and the nine months disqualification which are prominently set out in the schedule at the beginning of the order as issued.	20
30
Miss Dixon, appearing for the respondent today, has reminded the Court of the opportunities which are created by section 87 for the respondent to seek a variation of a disqualification period if a section 87 licence is granted. She has fairly acknowledged that on the hearing of the appeal no attempt was made to use that opportunity.	40
It appears to me that a gross injustice is done to the
appellant if, in these circumstances, the nine months
50
disqualification period is regarded as running from the date
of this Court's order when this Court was never concerned with
the correctness of that particular or any other
disqualification, just as it was not concerned in any respect

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07122005 D.1 T1/DBK (Robin DCJ)

with the fine.	1
No doubt ordinary procedures were followed in the formulation of the order. Unfortunately in this instance it may be working a serious and unintended injustice to Ms Todd in the form of an increased penalty.	10
What the order ought to say on the first page of it is:

"Upon consideration of an appeal lodged by the
above-named appellant pursuant to section 222 of the
Justices Act 1886 against the order made by the

Magistrates Court at Cleveland on 16 March 2005 whereby	20
the learned Magistrate refused to grant a licence pursuant to section 87 of the Transport Operations (Road Use Management) Act 1995",

and the existing schedule in the final order ought not to be there. If the Court had jurisdiction similar to that which exists under the slip rule in the UCPR to amend the order - something that has not been gone into, although Mr Lewis has referred to section 188 of the Penalties and Sentences Act - it would obviously be an appropriate case for doing so.	30
Hopefully it is not necessary to explore the jurisdictional issue. Hopefully Ms Todd may achieve the outcome which she desires which is the one the Court intended by production to	40
appropriate authorities of a copy of today's reasons.
(FOOTNOTE: Mr Lewis' case is strengthened by reference to the
Notice of Appeal filed, as opposed to the version he handed
up. The filed document notifies an appeal "against the	50
order"; below, the suspension and fine appear under the heading "Sentence"; all that appears under the heading "Order" is the declining of the application under s.87.)

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