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Williams v Department of Transport and Main Roads

 

[2018] QCA 49

SUPREME COURT OF QUEENSLAND

CITATION:

Williams v The Department of Transport and Main Roads [2018] QCA 49

PARTIES:

WILLIAMS, VICTOR OWEN
(applicant)
v
THE DEPARTMENT OF TRANSPORT AND MAIN ROADS
(respondent)

FILE NO/S:

CA No 180 of 2017

DC No 59 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Southport – Unreported: 12 July 2017 (Kent QC DCJ)

DELIVERED ON:

23 March 2018

DELIVERED AT:

Brisbane

HEARING DATE:

30 November 2017

JUDGES:

Holmes CJ and Fraser and Gotterson JJA

ORDER:

The application for leave to appeal is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL UNDER S 118 OF THE DISTRICT COURT OF QUEENSLAND ACT 1967 – where the applicant seeks leave to appeal against the order of a judge of the District Court striking out his appeal brought under s 222 of the Justices Act 1886 (Qld) – where the applicant had failed to appear in the District Court to argue his appeal from a refusal to reopen a hearing in the Magistrates Court – where the District Court judge allowed an application by the respondent to strike out the applicant’s appeal pursuant to s 229 of the Justices Act 1886 – where the applicant asserts that he was not able to attend the District Court due to ill health – whether an error of fact or law can be identified in the decision of the District Court judge to strike out the appeal – whether the applicant has suffered any injustice through the striking-out of his appeal – whether the application for leave to appeal should be allowed

District Court of Queensland Act 1967 (Qld), s 118(3)

Justices Act 1886 (Qld), s 142A, s 222, s 226, s 229(3)

Motor Vehicles Safety Act 1980 (Qld)

Traffic Act 1949 (Qld)

Transport Operations (Road Use Management) Act 1995 (Qld)

Transport Operations (Road Use Management – Vehicle Standards and Safety) Regulation 2010 (Qld), s 19(4)(c)

McDonald v Queensland Police Service [2017] QCA 255, cited

Pickering v McArthur [2005] QCA 294, cited

COUNSEL:

The applicant appeared on his own behalf

A Loudon (sol) for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Department of Transport and Main Roads for the respondent

  1. HOLMES CJ:  The applicant seeks leave to appeal under s 118(3) of the District Court of Queensland Act 1967 against the order of a judge of the District Court striking out his appeal brought under s 222 of the Justices Act 1886.  The applicant had failed to appear in the District Court to argue his appeal from a refusal to reopen a hearing in the Magistrates Court.  Leave to appeal to this court will be granted only if there is a reasonable argument that there is an error to be corrected and an appeal is necessary to remedy a substantial injustice to the applicant.[1]  An appeal under s 118 is an appeal in the strict sense, in which the sole question is whether error can be shown in the decision in the District Court on the basis of the material which was before it.[2]

The Magistrates Court proceedings

  1. The applicant was charged under s 19(4)(c) of the Transport Operations (Road Use Management – Vehicle Standards and Safety) Regulation 2010 (the “Vehicle Standards Regulation”) that as an approved examiner he signed an inspection certificate for a defective vehicle: a Volkswagen with extensive rust in its chassis.  The matter was first before the Magistrates Court on 11 January 2016, when the applicant did not appear.  In his absence he was convicted and fined and ordered to pay court costs.  He made an application for re-hearing which was granted and the earlier orders were revoked.  A further hearing was set for 10 June 2016 but adjourned on the applicant’s application.  The matter was eventually listed for hearing on 9 August 2016.
  2. On that date, the applicant pleaded not guilty, informing the magistrate that the charge was defective because his approval as an examiner had originally been issued in 1983 under the Motor Vehicles Safety Act 1980.  That approval was in fact cancelled in 2006, but the applicant had successfully re-applied for an approval under the Transport Operations (Road Use Management) Act 1995 in November 2009; it was granted in March 2010.  It appears that the approval issued then under the Transport Operations (Road Use Management) Act bore the same number and issue date as the 1983 approval.  A replacement approval with the correct issue date of 10 March 2010 was issued; it was made an exhibit in the Magistrates Court hearing.  However, the applicant argued that because the approval as issued bore the 1983 date, the Vehicle Standards Regulation could not apply to it; the relevant Act was the Motor Vehicle Safety Act, notwithstanding that it was repealed in 2000.
  3. The applicant advanced an additional argument, which was that the Australian Design Rules applied by the Transport Operations (Road Use Management) Act were not made until 1971 and the car in question was manufactured in 1963, so the criterion which should be applied on inspection was that under legislation he claimed was called the Motor Transport Act;[3] which according to him, was whether there was sufficient rust in the vehicle to affect its structural integrity.  At this point, the prosecutor pointed out that an engineer’s report expressing an opinion to that effect had been provided to the applicant, and the engineer would be called as a prosecution witness.
  4. The applicant then announced that he was not in an appropriate mental state to proceed to a hearing, because he had understood that his application seeking withdrawal of the charge would be dealt with.  He had filed an affidavit which apparently cited both the Bible and Magna Carta.  The magistrate said that the affidavit was irrelevant and that she was not presently convinced that there was any basis on which to strike the matter out and intended to hear the prosecution case.  The application could still be made once the prosecution case was concluded.  The applicant reiterated that he was not in a mental state to deal with the prosecution evidence and wanted to seek medical advice; he had a condition called “fibrillation”.
  5. The prosecutor said that he opposed any adjournment, because this was the second time his witnesses had had to attend and it had been made clear on the last mention that this was to be a hearing.  While he was still making his submissions, the applicant said that he would have to leave and did so, at about 10.30 am.  After taking a short break, in case he reconsidered, the magistrate dealt with the matter under s 142A of the Justices Act.  The applicant was fined and ordered to pay costs, without any conviction recorded.
  6. The applicant then applied for a re-hearing.  The application was opposed by the respondent, which filed affidavits including one to the effect that the applicant was seen back at work later on 9 August 2016, the day of the original hearing, working on vehicles.  A copy of a certificate he had issued showing that he had inspected a vehicle at 11 am was in evidence, together with a number of other certificates he had issued over the following days.  The application was set for hearing on 19 December 2016 when, it appears from the order sheet, the applicant failed to appear but by email requested that it be withdrawn or rescheduled.  It was dismissed.  The applicant made a further application for a re-hearing dated 6 February 2017, asserting, without any supporting evidence, that at the hearing he had “suffered a serious heart fibrillation attack”.  His application was refused on 14 February 2017, the magistrate noting that the application for reopening had already been dismissed.

The appeal to the District Court

  1. The applicant then appealed to the District Court against the dismissal of his 6 February application to reopen.  His grounds were that he was unable to attend the Magistrates Court in February 2017 because he did not have a clearance from his heart specialist, and had suffered a severe heart attack in court on 9 August 2016; the same charges had been brought against him by the respondent nine years previously and were withdrawn in an out-of-court settlement; and an employee of the Department of Transport had verbally threatened his wife.
  2. The applicant lodged a written argument, asserting that his original approval was a “covenantal contract agreement” which fell within the authority of the Bible.  He relied on St Paul’s Letter to the Galatians in which it was said that the law could not annul God’s covenant with Abraham (that Abraham would be the father of his people to whom the land of Canaan would be given).  The argument is not entirely clear, but apparently equates his examiner’s approval with a divine covenant.  In addition, he asserted that the approval gave him the sole authority to decide the facts when certifying a vehicle.
  3. The next matter the applicant raised concerned a judicial review application he had brought in 2007 in respect of the respondent’s cancellation of his 1983 inspection approval under the Motor Vehicles Safety Act, and a magistrate’s dismissal of his  appeal from that decision.  He claimed the respondent had settled the application on the basis that it would withdraw charges it had brought against him and return his approval.  However, he claimed, his approval had not been returned for two years and when returned had illegally been changed “to comply with the 1995 Act”.  In that regard, he annexed counsel’s written submissions on his behalf in the judicial review application, in which it was argued that the respondent and the magistrate had erred in law by proceeding under the provisions of the Transport Operations (Road Use Management) Act when the approval had been issued under the Motor Vehicles Safety Act.  (That argument seems to have been the genesis of some of the applicant’s current contentions.)  The appeal record contains a copy of an order by consent of this court that the application be dismissed.  Finally, the applicant complained of what he alleged was aggressive conduct by a Queensland Transport employee during an audit in September 2016.
  4. The applicant did not appear on the day set down for the District Court appeal, 12 July 2017, instead informing a registry officer that he required a month’s adjournment.  He furnished two letters: one, dated February 2017, from a cardiologist saying that he suffered from paroxysmal atrial fibrillation and the other from his general practitioner, dated September 2016, saying that stress could bring on the condition and that it could resolve spontaneously.  The District Court judge observed that the merits of the appeal were “pretty thin”, adverting to the argument as to which legislation applied to the applicant’s approval and the contention about Biblical authority, noting also that the applicant had failed to identify any error by the magistrate.
  5. Section 229(3) of the Justices Act provides that an appeal may be struck out if the appellant fails to appear and proof is given that the appellant was served at least 10 days before the hearing with notice of the hearing, warning of the risk of striking-out upon failure to appear.  His Honour, on being satisfied that the applicant had been duly served, struck the appeal out.  He awarded costs against the applicant.

The application for leave to appeal

  1. The applicant has now sought leave to appeal.  He asserted in his application for leave that he was not able to attend the District Court because of “a very severe attack of diverticulitis” which he said was confirmed by a doctor on the day he was to appear in the District Court.  The reasons given for his seeking leave were that he wanted to present his evidence and that the costs order was an exercise of civil jurisdiction when the charge was criminal.  No draft notice of appeal was provided, so the proposed grounds were not identified.
  2. There was no application to adduce further evidence before the Court, but on the hearing of the application on 30 November 2017, the applicant sought to tender two documents.  The first was a statutory declaration, mostly to do with his heart condition, but also asserting that he requires a judicial review of the settlement of the judicial review application of 2007.  The second was a photocopy of a letter dated 23 November 2017, apparently under the hand of a Dr Gregory McMahon, certifying that the applicant attended the Burleigh Heads medical centre on 13 and 14 July 2017 with symptoms of abdominal pain and diarrhoea, diagnosed as acute diverticulitis.  Dr McMahon gives his opinion (apparently from the records, since he was not one of the doctors who examined the applicant) that “the presenting symptoms would exclude his attendence (sic) in court on the 12 July 2017”.
  3. I would refuse leave for the applicant to adduce either document.  The first is entirely irrelevant.  The second is an unsworn photocopy, not in any admissible form; and because this is an appeal in the strict sense and it was not before the District Court judge, it can have no relevance to proving error on his Honour’s part.
  4. The applicant informed the Court that his argument was based on the out-of-court settlement of his 2007 judicial review application.  However, because of his severe hearing difficulties, it proved impossible to proceed by way of oral submissions.  Instead, the applicant was given leave to make any further point he wanted to in written submissions.  He has now filed an outline of argument which commences by saying that his application is for a judicial review of matters arising from his application to have a specified inspection station and inspection licence transferred from one location to another.  That, self-evidently, has absolutely nothing to do with the application before this court.
  5. The applicant then goes on to say he wishes to have “the matter struck out or withdrawn” because he has a perpetual licence, reiterating the Biblical argument made before the District Court to the effect that this cannot be altered because it is “a perpetual completed document”.  Secondly, he again makes the assertion that his approval to inspect vehicles gives him the sole authority to decide what is fact for the purposes of the declaration that he signs.  Thirdly, he claims that his earlier approval was never cancelled so that the 1983 approval was in effect; and fourthly, he repeats his complaint that a Transport Department employee behaved aggressively during an audit.  In an addendum outline, he complains that the respondent’s submissions fail to recognise the severity of his heart condition, and he denies the contents of the affidavits filed in connection with the reopening application in the Magistrates Court, asserting he did not perform mechanical work on 9 August 2016.

Conclusions

  1. I would refuse the application for leave to appeal.  Firstly, no error of fact or law has been identified in the decision of the District Court judge to strike out the appeal.  There was no dispute as to the failure to appear or the due service of the applicant with the required notice of hearing, so there is no question as to the existence of the factual premises for the exercise of the discretion to strike out under s 229(3) of the Justices Act.  No evidence was put before his Honour which would justify the applicant’s failure to appear on that occasion, and he plainly and correctly took into account in exercising his discretion the relevant consideration that the proposed appeal was entirely lacking in merit.  The applicant has not obtained leave of the District Court judge to appeal the costs order, but in any event it was made pursuant to s 226 of the Justices Act, which governed the applicant’s appeal.
  2. Secondly, the applicant has not suffered any injustice through the striking-out of his appeal, which was doomed to failure.  There was no evidence on the appeal or on the original application for reopening in the Magistrates Court to support his claim to have been forced to leave the hearing for medical reasons, and there was evidence to the contrary.  Also relevant on the question of injustice is the fact that his defence to the charge in the Magistrates Court (that his original examiner’s approval gave him some sort of perpetual authority, and that he had power to certify whatever he chose, whether it was accurate or not) is nonsense.  The issues raised about the settlement of the judicial review application in 2007 and the alleged aggression of a departmental employee are entirely irrelevant.

Order

  1. The application for leave to appeal should be refused.  The respondent with remarkable forbearance not having sought costs, no further order is necessary.
  2. FRASER JA:  I agree with the reasons for judgment of Holmes CJ and the order proposed by her Honour.
  3. GOTTERSON JA:  I agree with the order proposed by Holmes CJ and with the reasons given by her Honour.

Footnotes

[1]Pickering v McArthur [2005] QCA 294 at [3].

[2]McDonald v Queensland Police Service [2017] QCA 255.

[3] Possibly a reference to the Traffic Act 1949, regulations under which dealt with certificates of roadworthiness.

Close

Editorial Notes

  • Published Case Name:

    Williams v The Department of Transport and Main Roads

  • Shortened Case Name:

    Williams v Department of Transport and Main Roads

  • MNC:

    [2018] QCA 49

  • Court:

    QCA

  • Judge(s):

    Holmes CJ, Fraser JA, Gotterson JA

  • Date:

    23 Mar 2018

Litigation History

Event Citation or File Date Notes
Primary Judgment DC59/17 (No Citation) 12 Jul 2017 Unreported (Kent QC DCJ).
Notice of Appeal Filed File Number: Appeal 180/17 10 Aug 2017 -
Appeal Determined (QCA) [2018] QCA 49 23 Mar 2018 Application for leave to appeal refused: Holmes CJ and Fraser and Gotterson JJA.

Appeal Status

{solid} Appeal Determined (QCA)