Von Schulz v Durrant

[2000] QCA 478

[2000] QCA 478

COURT OF APPEAL

WILLIAMS J
CULLINANE J
DOUGLAS J

Appeal No 8407 of 2000

KARL and THERESIA VON SCHULZ       Respondents (Appellants)

and

JILLIAN ELIZABETH DURRANT            Applicant (Respondent)

BRISBANE

..DATE 21/11/2000

JUDGMENT

WILLIAMS J: This is an application for leave to appeal pursuant to section 118 of the District Court Act 1967. The matter arises in a somewhat unusual way. The respondents Karl and Theresia Von Schulz were charged on complaint in the Magistrates Court that they failed to pay a parking fee. The matter was heard in the Magistrate Court, and the complainant was successful.

Mr and Mrs Von Schulz have always appeared on their own behalf.

The Von Schulzs appealed to the District Court pursuant to section 222 and the learned District Court Judge after hearing argument allowed the appeal and quashed the orders made on the complaint. It is clear from the reasons given by the learned District Court Judge that the proper construction of section 44B(3)(b) of the Traffic Act 1949 is of critical importance. It provides:

"A local government may install an official traffic sign applying to parking throughout a traffic area only if:

(a)the local law has declared the traffic area and defined its boundaries; and

(b)the sign is installed on the road at every road entry to the traffic area."

There was evidence before the Magistrate which satisfied her that both those requirements had been met. In the District Court the Judge was satisfied that the first of the particulars was established by the evidence but he adopted a particular view of what was meant by "road entry" and concluded that there was not a sign installed on one particular road entry namely Annerley Road. He therefore concluded that the local authority had not established the requirements of section 44B(3)(b). From his reasons it appears that he concluded that the sign had to be "installed on the road where the boundary of the traffic area crosses it". He did concede that questions of practicability may require the sign to be in a particular position, but otherwise he expressed the view that issues such as convenience did not necessarily equate with what is required by the Act.

Counsel for the local authority has submitted that the proper construction of the section, and a construction of the words "road entry" in accordance with dictionary meanings, would mean that the section was satisfied if the sign was within a reasonable distance of the boundary of the traffic area.  He also submitted that the Court should have regard to the purpose of the Act and that would mean that the sign could be appropriately placed in a location to ensure the best visibility to motorists.

In my view there is a question of law of some significance and importance to the local authority involved in this case. Without in any way indicating any decision on the merits, and the Court does not have at this stage a full record of the evidence before the tribunals below, I am of the view that the necessary requirements for the granting of leave pursuant to section 118 of the District Court Act have been made out.

It should be noted that the matter came on for hearing before a Magistrate on 9 November 1999. A decision was given on 18 November. There was then an application for a rehearing before a Magistrate on 13 December 1999 which was refused. There was then the appeal under section 222 of the District Court Act to the District Court Judge. This is a matter which is of particular significance to the local authority and that is why the hearing on the merits before the Court of Appeal is justified. In my view the grant of leave pursuant to section 118 should be conditional upon the applicant paying costs of the hearings in the Court of Appeal in any event.

The orders I would therefore propose are: grant leave to appeal to the Court of Appeal pursuant to section 118 of the District Court Act on condition that the appellant Jillian Elizabeth Durrant pay the costs of the hearings in the Court of Appeal in any event.

CULLINANE J:  I agree.

DOUGLAS J:  I agree.

WILLIAMS J:  The order of the Court will be as indicated. 
Mr Von Schulz, you will be notified when the matter is listed for hearing on the merits before the Court of Appeal.

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