Van Deventer v Cardwell Shire Council

[2001] QCA 140

[2001] QCA 140

COURT OF APPEAL

WILLIAMS JA
WHITE J
HOLMES J

CA No 2416 of 2001

REBECCA ANN VAN DEVENTER             Applicant-Appellant

and

CARDWELL SHIRE COUNCIL               First Respondent

and

ALAN DOUGLAS GREEN                   Second Respondent

BRISBANE

..DATE 10/04/2001

JUDGMENT

WILLIAMS JA:  I will ask Justice Holmes to deliver the first judgment.

HOLMES J: The parties agree that the application for leave and the substantive appeal in this matter should be dealt with together. The appellant, Ms Van Deventer, appealed under section 222 of the Justices Act to the District Court on 19 February 2001 in respect of her conviction of a breach of the Cardwell Shire Council's by-laws.

The learned District Court Judge who heard the appeal on
19 February found as a fact that the notice of appeal had not been served on the respondents, the Council and its Environmental Services Manager, within a calendar month of conviction as required by section 222(2)(a)(i) of the Justices Act.

In any event, the appellant contended, she had been precluded from effecting service because no sealed copy of the notice of appeal had issued from the Magistrates Court in time for her to comply with the statutory time limit.  This argument was premised on the supposition that the Act requires service of sealed rather than unsealed copies. 

The learned District Court Judge, correctly in my view, rejected this argument and went on to dismiss both the appellant's application for an extension of time and the substantive appeal.  She did not consider whether the circumstances of the case otherwise warranted an extension of time. 

Her Honour's decision was made a little over a week before this Court gave its decision in Double Time Pty Ltd v. Ryan and Chiwei [2001] QCA 57. In that case the Court concluded that the failure to observe the procedural requirements of section 222(a) as to service and entry of a recognisance did not deprive the District Court of its jurisdiction to hear an appeal. The District Court had, the Court concluded, a discretion to terminate proceedings in the event of such an irregularity.

Not surprisingly in the light of then existing authority, the learned District Court Judge did not attempt to exercise any discretion in this regard.  It is clear in the light of Double Time that it would have been appropriate for her to do so, and Mr Quayle for the respondent does not contend to the contrary.  He conceded that the better approach in this case if the appeal were to be allowed would be to remit the appeal to the District Court for hearing, rather than the application for an extension of time.

The orders I would make are as follows. Leave to appeal granted; appeal allowed; order that the matter be remitted to the District Court for the entering up of any necessary adjournments and determination from the appeal from the decision of the Magistrate in accordance with law; order that the respondents pay the appellant's costs of and incidental to the appeal, assessed on the standard basis; and order that the respondents be granted an indemnity certificate in respect of the appeal under section 15(1) of the Appeal Costs Fund Act.

WILLIAMS JA:  I agree.

WHITE J:  I agree.

WILLIAMS JA:  The order will be as indicated by Justice Holmes.

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