Whittaker v Ward - [2005] QDC 97

[2005] QDC 97

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE DODDS

Appeal No 1 of 2005

MARK ALAN WHITTAKER	Appellant
and
BELINDA JOANNA WARD	Respondent
CAIRNS ..DATE 12/04/2005
JUDGMENT

12042005 D.1 T6/JFG M/T CNS1/2005 (Dodds DCJ)

HIS HONOUR: This is an appeal against orders made in the	1
Magistrates Court at Cairns on the 7th of December 2004. On that day the appellant was convicted of three offences committed on the 28th of August 2003 arising out of his driving of a motor vehicle in Cairns on that date.

The offences were:

(1) driving an unregistered motor vehicle,

(2) driving a motor vehicle fitted with registration plates

which had been cancelled, and

(3) driving an uninsured motor vehicle.

On the 7th of December 2004, the appellant did not appear, despite being present at the Court on the 26th of August 2004 when the matters were adjourned to the 7th of December 2004 for hearing. In those circumstances, after having the appellant's name called and waiting for some time, the

Magistrate proceeded according to the provisions of section
142A of the Justices Act 1886.

The Magistrate convicted the appellant of the charges. He recorded no convictions. He imposed one fine of $500 for the

offence of driving an unregistered motor vehicle and driving a
motor vehicle fitted with cancelled registration plates. He
fined the appellant $400 for the offence of driving an
uninsured motor vehicle. He allowed three months to pay the
12042005 D.1 T6/JFG M/T CNS1/2005 (Dodds DCJ)

JUDGMENT

fines. He ordered the appellant pay $65.20 costs of Court and	1
professional costs of $622.
On the 4th of January 2005, the appellant filed notices of appeal. One notice of appeal was against the order that, "no

conviction was recorded." "That you pay the following: fined
$500."

Another was in the same terms except it was for the $400 fine. Each of those notices had as a ground of appeal that the Court

had no jurisdiction to hear the matter.

Another notice of appeal was against the order that, "no conviction be recorded", and "that you pay the following: costs of Court $65.20."

Another was in the same terms except that it was for, "professional costs $622." Each of these notices had as ground that "the order to pay costs was an unreasonable exercise of discretion."

The notices of appeal do not in terms state that the appeal is against the convictions. On their face, the appeals purport to be against the orders made consequent upon the convictions.

The notices of appeal against the fines however, set out as a

ground of appeal that the Court had no jurisdiction to hear
the matter, which I take to be the matter for which the fine
order was imposed. So far as those notices are concerned, I
12042005 D.1 T6/JFG M/T CNS1/2005 (Dodds DCJ)

JUDGMENT

will proceed as if the notice initiated an appeal against the	1
conviction for the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Whittaker v Ward

Details

AGLC: Whittaker v Ward [2005] QDC 97
Case: [2005] QDC 97
Decision Date: 12/04/2005

CaseChat Overview and Summary

In the case of Whittaker v Ward, the appellant, Mark Alan Whittaker, contested orders made by the Magistrates Court at Cairns on 7 December 2004, wherein he was convicted of three traffic offences. These included driving an unregistered vehicle, driving a vehicle with cancelled registration plates, and driving an uninsured vehicle. The appellant appealed against the orders to not record a conviction, to pay fines, and to pay costs. The primary legal issues were whether the court had jurisdiction to hear the matter and whether the imposition of fines and costs was an unreasonable exercise of discretion.

The court considered the arguments presented by the appellant, primarily that the summons was invalidly issued and that the adjournment of the hearing was not consensual. The court dismissed these arguments, finding that the summons was valid and the adjournment was within the Magistrate's power to manage court lists. The court further found that the appellant's refusal to comply with the Magistrate's instructions and his attempts to record proceedings without consent justified the adjournment. The court found no error in the proceedings or in the exercise of discretion by the Magistrate. The appeals were dismissed, and the orders of conviction, fines, and costs were upheld. The appellant was ordered to pay the respondent's costs of the appeal.

Orders