Tolstoff v. Harmer

[2008] QDC 20

[2008] QDC 20

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No BD123 of 2008

PETER TOLSTOFF	Appellant
and
DAVID HILTON HARMER	Respondent

BRISBANE

..DATE 01/02/2008

ORDER
CATCHWORDS: Justice Act 1886 s222 - extension of time for appealing to District Court in circumstances where applicant wishing to appeal against his conviction for speeding following misleading advice from SPER and embarked on an incorrect procedure for reopening in the Magistrates Court instead.

HIS HONOUR: This is Mr Tolstoff's application which I have indicated succeeds for an extension of time under section 222(1)(a) of the Justices Act 1886 in relation to his commencing an appeal against conviction by a Magistrate on the 19th of November 2007 of an offence of disobeying the speed limit.

The circumstances involve the riding of a motorcycle, allegedly at 103 kilometres per hour on a road where the limit was 70 kilometres per hour.  That conviction occurred after a hearing at which the Magistrate's notes indicate and
Mr Tolstoff confirms two police officers gave evidence, as did he.

The Magistrate imposed a fine and ordered that costs of court be paid.  Those financial aspects were referred to the State Penalties and Enforcement Registry which was the source of the formal advice Mr Tolstoff got of his obligations to SPER in relation to the conviction.

Exhibit 1 is a copy of SPER's letter enclosing "application for a rehearing or reopening as requested."  The letter goes on to refer to rehearing applications and appeals to the District Court in separate paragraphs.

Exhibit 2 is another communication to Mr Tolstoff from SPER indicating as the "date of order" 21st November 2007 and the due date 20th of December 2007, inconsistently with the true dates and a document emanating from the Magistrates Court to Mr Tolstoff, a copy of which is Exhibit 3, issue date 21st of January 2008, referring to the correct date of the conviction and imposition of penalty and a due date of 17th December 2007.  Confusingly, to Mr Tolstoff, at least, this Magistrates Court document identified the amount owed as nil.

That may have to do with the matter having been referred to SPER.  I ought to say that Exhibit 1, as Ms Rutherford noted, indicates that the District Court ought to be approached, if the reader wished to lodge an appeal.

Exhibit 2 collects under the heading, "Option D Your appeal Option", review and re-opening possibilities and also the appeal possibility but advises the recipient to "contact the call centre for further information or visit your nearest Magistrates Court office" - there being no indication for this option that it might be appropriate to approach the District Court.

The documents before the Court clearly indicate that
Mr Tolstoff, on the 20th of December 2007, which SPER indicated as the due date, completed the application for rehearing or reopening. It bears the Magistrates Court stamp, 21st of December 2007. It may be that the point could have been taken, that that application was made late in the circumstances - which appears to me a real possibility given the 28 day time limit in the Justices Act sections referred to.

That point was not taken, rather the Clerk of the Court by letter of 3rd of January 2008 advised Mr Tolstoff that the Magistrate ordered that the application had  been refused, "as you pleaded not guilty" to the offence in Court: "You are therefore required to appear at the District Court if you wish to continue further with this matter."

Mr Tolstoff said he received that communication on the 7th or the 8th of January so that by the time it had been written, the one month appeal period provided in section 222 of the Justices Act had expired.

A Notice of Appeal to the District Court was filed on the 18th of January 2008.  Also filed on that day was a form 27B, Notice of Application for Extension of Time for filing a Notice of Appeal to a District Court Judge.

Consistently, there is other documentation.  Mr Tolstoff elliptically rather than helpfully said that the grounds of the application for extra time were "misinformation supplied to me by SPER to apply for the opening of my case."

It has been possible this afternoon to explore the situation in detail.  The statement I quoted encapsulates the situation.  I see nothing unreasonable in the circumstances in the delay from the 7th of January 2008 when Mr Tolstoff's application says he became aware of the situation and apparently signed that Notice of Application, an observation I make on the basis that that is the date.  It is not written in there, but it is stamped 18th of January.

That does not strike me as an unreasonable delay in the circumstances.  The Court is grateful to Ms Rutherford for responding to telephone summons by my associate so that the respondent could be represented this afternoon.

Section 224(4) makes it clear that an application of the kind being heard today must be served on the other party.  Regarding service on the respondent, what led my associate to make contact was the Registrar's letter of the 18th of January 2008 to the DPP, attention Cecelia Andrews, advising of the filing of the appeal and the application for extension of time.

It would be astounding if that letter from the Registrar has miscarried.  In all the circumstances, I think the Court should treat the respondent as having been served as required.

Ms Rutherford's approach was that she was not in a position to deal with the application for extra time without knowing anything of the merits of the appeal.  No-one, apart from those who were in the Magistrates Court can know what those are for the moment, but it seems to me that the sensible and practical course is to have those issues ventilated in an appeal as things have turned out, rather than in an application for further time.

The Justices Act gave Mr Tolstoff a right of appeal which, by the close of the one month appeal period, he had indicated he wished to pursue. For the appeal, while he may have done the wrong things, he acted with reasonable expedition in accordance with guidance he received from public authorities, which could be presumed to be giving reliable advice.

I do not expect any Judge who has to hear the appeal which involves a challenge to a reading which the police say was obtained from some electronic speed measuring device to thank me for granting this extension of time to make presentation of the appeal possible.  I think that is the clear course for the Court today.  There should be an extension of time until the 18th of January 2008.

APPLICANT:  Sorry, your Honour, January?

HIS HONOUR:  Well, the 18th of January, is that not right?  Is that when you filed it?

MS RUTHERFORD:  Your Honour, the application was filed, yes, the 18th of January.

HIS HONOUR:  You have filed the appeal.  You will not have to file another appeal.

APPLICANT:  Okay.

HIS HONOUR:  You should have, I would say, by the 19th of‑‑‑‑‑

MS RUTHERFORD:  December.

HIS HONOUR:  ‑‑‑‑‑December, but all you need is an extension to the 18th of January because you have done it.  That is good enough, is it not?

APPLICANT:  I believe so.  I thought you had said that that was the date that the hearing would actually take place and I was having a hard time understanding that since we are in the second month.  You had suggested I needed a certain amount of time to‑‑‑‑‑

HIS HONOUR:  Oh, you need another document.  You have got to file an outline of argument.  That is what you have got until the end of the month for.

APPLICANT:  Yes.

MS RUTHERFORD:  Yes.

HIS HONOUR:  Very well, I grant the extension of time until the 18th of January 2008 for an appeal against conviction and sentence of Acting Magistrate Pitt in the Brisbane Magistrates Court on the 19th of November 2007 and the outline of argument be filed.  Is that to be served too?

MS RUTHERFORD:  Oh, yes, it does, your Honour.

HIS HONOUR:  Filed and served, so, you will have to get a copy for the DPP by the end of February 2008 and the practice direction will tell you when yours has got to go in.

MS RUTHERFORD:  Oh, yes, your Honour.

HIS HONOUR:  That is all we have to do?

MS RUTHERFORD:  Yes, your Honour.

HIS HONOUR:  Thank you very much for coming across.

MS RUTHERFORD:  Thank you.

HIS HONOUR:  Sorry it took so long, Mr Tolstoff.  It is a write-off today anyway.  If you keep in touch with the Registry, they will ultimately advise you of the appeal date but you will have to do things like get the transcript.

APPLICANT:  Thank you, your Honour.

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