Davidson v Gamble[1998] QCA 154

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

 C.A. No. 111 of 1998

Brisbane

[Davidson v. Gamble]

G. GAMBLE

v.

JOHN WILLIAM DAVIDSON

(Applicant) Appellant

Pincus JA

Ambrose J

Lee J

Judgment delivered 19 June 1998

Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

APPLICATION FOR LEAVE TO APPEAL AGAINST ORDER MADE ON 4 MARCH 1998 GRANTED. APPEAL ALLOWED AND THAT ORDER SET ASIDE.

CATCHWORDS: CRIMINAL LAW - District Court - Justices Act - striking out of a duly instituted appeal without a hearing date ever having been fixed or notified to the parties.             

District Court Act 1967 ss. 113, 28A(1), 28A(2)

Justices Act 1886 (Qld) ss. 222, 225, 227, 228(1), 229, 229(1), 231

District Court Practice Direction No. 4 of 1997, Parts 9, 9(c)

Counsel:  Applicant/appellant appeared on his own behalf

Ms L. Clare for the respondent

Solicitors:  Applicant/appellant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent

Hearing Date: 26 May 1998

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 19 June 1998

I have read the reasons of Ambrose J. in which his Honour explains the circumstances which led to the applicant’s appeal being struck out.  The basis on which it was done was that the applicant has failed to comply with a practice direction part of which (para. 9(c)) purported to empower the court to strike an appeal out for non-compliance.  The applicant had been given notice, by letter, that the appeal might be struck out in that way, but it is unclear whether that letter was received by him.

Section 28A(2) of the District Court Act 1967 is as follows:

"Subject to any Act, the Chief Judge has power to do all things necessary or convenient to be done for the administration of District Courts and for ensuring the orderly and expeditious exercise of the jurisdiction and powers of the District Courts".

Some broad questions as to the proper scope of that power might fall for consideration, in another case, but do not need to be decided here;  the central question is whether s. 28A empowered the Chief Judge to empower the judges of the District Court to strike out appeals under s. 222 of the Justices Act 1886 for non‑compliance with a practice direction.

The Justices Act deals specifically with the remedy for defaults of this kind.  It says in s. 229(1):

"If any appellant makes default in prosecuting the appeal without delay or in taking any necessary steps in the presentation thereof any other party may apply to a judge in chambers by summons served on such appellant for an order discharging the notice of appeal and the judge shall make such order as shall be just with regard to the subject matter of the application and to costs".

Paragraph 9(c) amounts to an attempt to confer an additional power, in terms inconsistent with those of s. 229(1), to put an end to appeals under s. 222, on the ground of default by the appellant.  That may, in my view, be done only by statutory amendment.  Whatever the true scope of s. 28A(2) of the District Court Act, it cannot have been intended to empower the Chief Judge to confer on judges power to deal in this way with defaults such as those for which provision is made in s. 229(1).  Therefore, without expressing any opinion as to the validity of any other part of the relevant practice direction, I hold that para. 9(c) cannot validly operate on s. 222 appeals.

In my opinion the application for leave to appeal against the order made on 4 March 1998 should be granted, the appeal allowed and that order set aside.

REASONS FOR JUDGMENT -B.W. AMBROSE J.

Judgment delivered 19 June 1998

This is an application for leave to appeal against an order made by a District Court Judge in Chambers striking out an appeal by the applicant against a conviction in the Magistrates Court. The appeal was duly instituted pursuant to s. 222 of the Justices Act on 2 December 1997. It is clear on the material that the reconnaissance required under s. 222(2)(a) was given.

Under s. 222(1) the determination of the appeal by a District Court Judge is final between the parties to the appeal.

Under s. 222(2)(c) the Registrar of the District Court was required to give to the applicant (appellant) and to the respondent “concerned in upholding such decision” ten days notice of the day on which the appeal was to be heard. This statutory requirement is in mandatory terms.

It does not emerge on the material that any such notice was given to the appellant or to the respondent or indeed that any date was fixed upon which the appeal was to be heard.

The striking out of a duly instituted appeal without a hearing date ever having been fixed or notified to the parties in my view contravenes the mandatory terms of s. 222(2). This in fact was the view taken by Wylie DCJ in Reid v Everitt (Unreported No 5062 of 1998, 17 March 1998).

Under s. 231(1) an appeal under s. 222 is by way of re-hearing and leave may be given to adduce fresh and additional evidence if the Court is satisfied that there are special grounds for giving such leave. If the Court does give leave to adduce further evidence then the appeal is by way of re-hearing on the original evidence and on the new evidence adduced.

Section 224 of the Justices Act provides that the Judge may at any time adjourn the hearing of the appeal for such time and upon such terms and conditions as may be thought fit.

Section 225 of the Justices Act provides:-

“225. Upon the hearing of any appeal the Judge may by the Judge’s order confirm, quash, set aside, vary, increase or reduce the conviction, order, sentence or adjudication appealed against or make such other order in the matter as the Judge may think just and may by such order exercise any power which the Justices might have exercised and such order shall have the like effect and may be enforced in the like manner as if it had been made by Justices.”

Under s. 227 the District Court Judge may state in the form of a special case for the opinion of the Court of Appeal any questions of law upon the facts of the case.

Under s. 228(1) it is provided:-

“No appeal shall be defeated merely by reason of any defect whether of substance or of form in any Notice of Appeal or in the statement of the grounds of the appeal.”

Section 229 provides:-

“(1) If any appellant makes default in prosecuting the appeal without delay or in taking any steps necessary in the presentation thereof any other party may apply to a Judge in Chambers by summons served on such appellant for an order discharging the Notice of Appeal and the Judge shall make such order as shall be just with regard to the subject matter of the application and the costs.”

(2) If the appellant fails to appear on the day on which the appeal is to be heard the Judge may upon proof of notice of the hearing having been given to both parties estreat the recognisance entered into by the appellant or order the forfeiture of the deposit lodged by way of security in lieu of such reconnaissance and order the appellant to pay to the other party such costs as the Judge thinks fit.”

With respect to an appeal brought before a District Court under s. 222 of the Justices Act 1886 a party who is dissatisfied with the order of the District Court  may appeal to the Court of Appeal only by leave.

On 2 December 1997 the applicant appealed to the District Court against his conviction in the Magistrates Court on 24 November 1997 pursuant to s. 222 of the Justices Act. The applicant who apparently prepared the Notice of Appeal himself specifies grounds which are quite difficult to follow and arguably at least failed to state the grounds of appeal. However his appeal may not be “defeated” by reason of a defect of substance or form in the statement of the grounds of appeal under s. 228(1) of the Justices Act.

On 4 March 1998 the applicant’s Notice of Appeal was “struck out”. The material does  not make clearly apparent the grounds upon which it was struck out. It appears from the transcript of proceedings that the order was made in Chambers on that day. The material, if any, upon which it was made however has not been included in the record book. The only record of the proceedings of 4 March is a very brief record of the order made by the District Court Judge in these terms:-

“There has here been non-compliance - this is an appeal matter - non-compliance with the Practice Direction and I order that it be struck out.”

With some difficulty I have obtained a photostat copy of a document headed

“District Court Practice Direction No. 4 of 1997

Practice Direction

Re: Appeals”

The document comprises 4½ foolscap pages of directions and purports to be signed by the Chief Judge of District Courts on 18 August 1997. It contains 18 paragraphs.

Paragraph 2 of the document states:

“The purpose of this Practice Direction is to assist the District Courts, the profession and unrepresented litigants in the efficient determination of appeals.”

I infer from what emerged upon the hearing of the application for leave to appeal that the District Court Judge struck out the applicant’s Notice of Appeal purporting to rely upon Part  9 of the Practice Direction. That Part reads:

“9(a) Within 28 days of filing the Notice of Appeal the appellant shall file and serve on any respondent who has entered an appearance an outline of argument on behalf of the appellant.

(b) An appeal will not be given a date for hearing until the outline of argument has been filed.

(c) The Court may of its own motion or on application of a respondent strike out an appeal if no complying outline of argument has been lodged within 60 days of filing the Notice of Appeal or within 30 days of transmission to the appellant or the solicitors for the appellant by the Registrar of the District Court of a request for a complying outline of argument to be filed.”

On 15 January 1998 the Deputy Registrar of the District Court at Brisbane wrote the applicant a letter in the following terms:-

“In consideration of the aforementioned appeal filed on 2 December 1997 I refer you to Part 9(a) of  ‘District Court Practice Direction No. 4/97' requiring you to file and serve your outline of argument as defined in Part 4(d) thereof on any respondent who has entered an appearance within twenty-eight (28) days of filing a Notice of Appeal.

A search of our records shows that the 28 days have now elapsed and no such outline has been filed.

You are requested to comply with the requirements of Part 9(a) of the said Practice Direction. If you have not complied by the 16 February 1998 the matter may be listed for the purposes of having the appeal struck out pursuant to the provision of Part 9(c).”

The Registry apparently received no reply to this letter apparently and on 16 February 1998 the Deputy Registrar sent a second letter to the applicant, a copy of which was sent to the Department of Public Prosecutions.

In this letter it was pointed out that no outline of argument had yet been filed and  continued:-

“I advise that pursuant to Part 9(c) of the aforementioned Practice Direction the Court may of its own motion strike out an appeal if no complying outline of argument is lodged within sixty (60) days of the filing of a Notice of Appeal.

As the sixty (60) day period for filing your outline of argument has now expired the matter will be listed before a Chamber Judge on the 3rd March 1998 for the purpose of having your appeal struck out unless your outline of argument is filed by 4 p.m. on 24 February 1998.

If you wish to proceed with your appeal please comply with the requirement of Part 9(a) of the Practice Direction by the date as set in paragraph 3 of this letter (the preceding paragraph) and advise the Appeals Clerk on 32474422 upon to enable the hearing before the Chamber Judge to be cancelled.”

On 2 March 1998 the applicant's argument was received by the Registrar by post.

I have examined the District Court file and there is nothing on it to suggest that the order made on 4 March 1998 against which the applicant seeks leave to appeal was made otherwise than upon the basis of Part 9(c) of the Practice Direction. There is nothing to indicate that the respondent appeared on the matter or that the Chamber Judge relied upon anything other than the fact that an outline of argument had not been  filed by the applicant by 4 p.m. on 24 February 1998. Whether it was drawn to the attention of the Chamber Judge that the outline of argument was in fact received on 2 March 1998 - two days before this appeal was struck out for non-delivery on or before 24 February 1998 - does not emerge. I have been unable to discover any basis in the Justices Act or the District Court Act or Rules for the exercise of the power purportedly conferred by Part 9(c) of Practice Direction No. 4 of 1997.

We were not assisted by the applicant who appeared before this Court in person. He said that he had a copy of the Practice Direction No. 4, although he did not advise when or the circumstances under which he obtained a copy of that Direction. Part 5(f) of the Practice Direction requires that the Registrar provide a copy of the Practice Directions to a “non legally represented” appellant when he files his notice of appeal. I infer that the applicant was given a copy of the Practice Directions when he filed his notice of appeal on 2 December 1997.  He seemed intent upon his application only on canvassing matters which undoubtedly he would have canvassed before the District Court upon a hearing of his appeal. On the material he advanced it would seem to me that his prospects upon appeal on a re-hearing upon the Magistrates Court record would be slight. However he would have the right to seek to call additional evidence and perhaps to seek to have witnesses further cross-examined. This was not a matter that was canvassed or debated with him; the only application this Court entertained was one for leave to appeal against the order of the District Court Judge made on 4 March 1998 striking out his Notice of Appeal for non-compliance with Part 9 of the Practice Direction. 

Unsurprisingly, the applicant was unable to offer any assistance as to the statutory power to make a direction of the sort contained in Part 9(c) of the Practice Direction which would permit the Court “of its own motion” to strike out an appeal in the event that there was a failure within the time constraints contained in Part 9(c) to file and serve an outline of argument. Counsel for the Crown however has made careful and helpful submissions on this issue.

Section 113 of the District Courts Act provides:-

“113. A District Court has for an appeal from a Magistrates Court the same powers as the Supreme Court had for the same type of appeal immediately before the commencement of the District Courts Act 1958 including for an application for leave to appeal.”

Undoubtedly the Supreme Court of Queensland has and has always had an inherent power to give Practice Directions not inconsistent with the Rules of Court or statutory constraints to assist in the discharge of its responsibility for the administration of justice. 

There are many Practice Directions currently in force in the Supreme Court; however, none of which I am aware has a content the equivalent of that Part 9(c) of Practice Direction No. 4 of 1997 relating to appeals in the District Court.

It is unclear from the material whether the District Court Chamber Judge who struck out the applicant’s appeal did so “of his own motion” or upon application by the respondent to the appeal.  I infer however from the record that the appeal was struck out in accordance with the intimation given in the letter sent by the Deputy Registrar on 16 February 1998 to which I have referred.

The applicant says that he was unaware that the appeal was to be or had been struck out because the relevant letters which the Court file indicates were posted to him at a specified address did not come to his attention because he had changed that address.

Section 28A of the District Court Act (inserted in 1997) provides:-

“28A(1) The Chief Judge is responsible for the administration of District Courts and for ensuring the orderly and expeditious exercise of the jurisdiction and powers of District Courts.

         (2) Subject to any Act the Chief Judge has power to do all things necessary or convenient to be done for the administration of District Courts and for ensuring the orderly and expeditious exercise of the jurisdiction and powers of District Courts.”

We were referred to no source of power by which the Chief Judge might give a direction in terms of Clause 9(c) which would permit a duly instituted appeal pursuant to s. 222 of the Justices Act to be struck out in Chambers apparently only upon information gleaned from Court records that the appellant had failed to file and serve a written outline of argument by a date specified by the Registrar.

Section 225 of the Justices Act sets out the powers of a Judge “upon the hearing of any appeal”. Clearly the order against which the applicant seeks leave to appeal was not made upon the hearing of an appeal. 

The order was made essentially on the ground that by failing to comply with the Practice Direction relating to the filing and delivery of an outline of argument the applicant had defaulted in prosecuting the appeal without delay or “in taking necessary steps in the presentation thereof” within s. 229(1) of the Justices Act. However the statutory remedy for such a default is also specified in that section. That remedy is for the “other party” to apply to a Judge in Chambers by summons served on the appellant for an order discharging the Notice of Appeal.

There is nothing in the material to suggest that the applicant in this case was served with any summons seeking to have his Notice of Appeal “discharged”. 

The real question is whether the power purportedly given to a Chamber Judge of District Courts to “strike out” the applicant’s Notice of Appeal for non-compliance with Part 9 of Practice Direction No. 4 of 1997 was conferred upon the Chief Judge of District Courts either under the inherent jurisdiction of those Courts of the sort upon which Practice Directions of the Supreme Court are based or perhaps by the express statutory power given him under s. 28A(2) of the District Courts Act.

One problem with the second approach is the statutory constraint imposed by the express wording of s. 28A(2) that the power of the Chief Judge in “doing all things necessary or convenient” for the orderly and expeditious disposal of appeals pursuant to s. 222 of the Justices Act is “subject to any Act” - which of course includes the Justices Act.

The power of a Chamber Judge in a District Court to deal with an appellant’s failure or default in prosecuting an appeal without delay or in taking any “necessary steps in the presentation thereof” is set forth in s. 229(1).  

In my view the power purportedly given to “the Court of its own motion” to strike out a duly instituted Notice of Appeal because of non-compliance with Part 9 of the Practice Direction by Part 9(c) of that Direction cannot stand with the requirements of s. 229 of the Justices Act.

There is nothing in the material to suggest that the applicant was given any notice of a day upon which the appeal might be heard. The appeal was never called on for hearing. Had it been called on for hearing and had the applicant failed to appear then of course the Court could have exercised the powers it has under s. 225 and 229(2) of the Justices Act.

Part 9(c) of the Practice Direction however contemplates the Court of its own motion or apparently upon an ex parte application of a respondent striking out an appeal on the grounds of non-compliance with Part 9.

In my view Part 9 of Practice Direction 4 of 1997 relating to appeals did not empower the District Court Chamber Judge to make the order which he did make on 4 March 1998 because it is inconsistent with the statutory requirements of s. 229(1) for the making of such an order.

I would therefore set aside the order made on that day striking out the appeal. The consequence will be that the appeal will remain pending in the District Court until it is either discharged upon summons in Chambers pursuant to s. 229(1) of the Justices Act or until it is listed for hearing when power may be exercised to dismiss it or strike it out pursuant to s. 225 and/or s. 229(2) of the Justices Act if the circumstances warrant that course.

REASONS FOR JUDGMENT - LEE J.

Judgment delivered 19 June 1998

I have read the reasons of Pincus JA and Ambrose J and agree with the conclusions reached. As there is no substantial difference between the reasoning of each, I agree with both of them and the orders proposed.