Storry v Commissioner of Police
[2021] QCA 230
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- Storry v Commissioner of Police[2021] QCA 230
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Storry v Commissioner of Police[2021] QCA 230
Storry v Commissioner of Police[2021] QCA 230
[2021] QCA 230
COURT OF APPEAL
FRASER JA
Appeal No 604 of 2021
SC No 2913 of 2017
VENETIA LOUISE STORRY Applicant
v
COMMISSIONER OF POLICE First Respondent
JONATHON DAVID WEIR Second Respondent
BRISBANE
TUESDAY, 26 OCTOBER 2021
JUDGMENT
FRASER JA: What is before me today is the applicant’s amended application filed on 22 October 2021 for orders staying orders made by the President on 16 February 2021 “in consideration of High Court Rule 2004, 1.06.02, and the lodged application”, and a decision of the Registrar on 21 September 2021 appointing a costs assessor. The “lodged application” is an application for special leave to appeal lodged by the applicant in the High Court. There was some debate before me upon the question of whether one or both of the applications for special leave lodged by the applicant in the High Court were or were not rejected. I proceed upon the assumption, that at least one such application has been accepted or will be accepted in the near future.
I will give something of a chronology of the key events in the long-running litigation out of which the present application arises. On 27 July 2016, there was a collision between a car driven by the second respondent and a car the applicant was driving. On 24 March 2017, the applicant was convicted in the Magistrates Court of an offence that, on 27 July 2016, she failed to give way at an intersection governed by a stop sign. She was fined $475 and ordered to pay court costs and witness expenses.
On 1 December 2017, the applicant’s appeal to the District Court under s 222 of the Justices Act 1886 against the orders made in the Magistrates Court was dismissed. (Storry v Commissioner of Police [2017] QDC 282) On 26 October 2018, the Court of Appeal dismissed the applicant’s application pursuant to s 118(3) of the District Court of Queensland Act 1967 for leave to appeal against the decision made in the District Court. (Storry v Commissioner of Police [2018] QCA 291)
On 4 December 2020, in civil proceedings arising out of the collision, the Magistrates Court gave judgment after a trial in October 2020 dismissing the applicant’s claim and ordering the applicant to pay the second respondent $13,396.06 for the claim; $22,741.52 for costs; and $3,086.62 for interest; and $282.66 for witness expenses.
On 15 January 2021, the applicant filed an application in the Court of Appeal. That application sought orders to the effect that the Court’s judgment of 26 October 2018 be set aside and there be a rehearing of the applicant’s original application for leave to appeal to the Court of Appeal from the judgment of the District Court in that matter. Upon an interpretation of the application which favours the applicant, it also sought an order that the rehearing proceed together with a hearing of an appeal from the orders made in the Magistrates Court on 4 December 2020. The application also sought a stay of those orders made in the Magistrates Court.
On 28 January 2021, the applicant filed an amended notice of appeal from the decision of the Court of Appeal on 26 October 2018 and the decision of the Magistrates Court on 4 December 2020. In relation to the Court of Appeal’s decision, the notice of appeal includes a statement under the heading “Grounds” that “I am seeking to reapply for leave to appeal under special circumstances and have the leave for appeal reheard.”
On 10 February 2021, the second respondent filed an application in the Court of Appeal for an order dismissing the applicant’s appeal against the judgment in the Magistrates Court for want of jurisdiction and for an order that the applicant pay the second respondent’s costs of and incidental to his application.
On 11 February 2021, the applicant filed an application in response to the second respondent’s application of 10 February 2021, seeking “dismissal of the application of the Second Respondent filed 10 February 2021”.
On 16 February 2021, the President ordered that the applicant’s amended notice of appeal filed on 28 January 2021 be struck out. The applicant’s application filed on 11 February 2021 was dismissed and the applicant was ordered to pay the respondent’s costs of the proceedings and of the application to dismiss the appeal.
On 21 September 2021, upon an application filed by the second respondent on 9 September 2021, the Registrar ordered the appointment of a Court approved costs assessor to assess the costs payable by the applicant to the second respondent pursuant to the order made by the President on 16 February 2021 at a specified hourly rate.
On 29 September 2021, solicitors for the second respondent served upon the applicant a bankruptcy notice claiming a total debt which comprised the various separate amounts for which the judgment was given in the Magistrates Court on 4 December 2020, together with an amount claimed for interest accrued since that judgment.
The affidavits filed by the applicant in support of her application for a stay refer to relevant events in the litigation and exhibit judgments and other documents. Otherwise, the affidavit evidence filed by the applicant comprises assertions to the effect that she will be disadvantaged by the bankruptcy notice and there is no competing disadvantage to either respondent because:
“An appeal of the Magistrate is needed to take place in any case and the evidence held back by the 1st respondent had caused significant harm to the applicant over a long period of time.”
There is no utility in staying the orders made by the President. The orders dismissing the applicant’s appeal and the application for leave to appeal, which would be the subject of the proposed appeal to the High Court, would produce no prejudice to the applicant in the period between now and the disposition of the application for special leave to appeal and any consequential appeal. At least that is so upon the evidence before me.
Nor is there any such utility as might justify a stay in relation to the order appointing a costs assessor to assess the costs ordered by the President. That order already has taken effect. Insofar as a stay of that order might have the effect, perhaps a practical effect, of preventing the appointed costs assessor from assessing the costs until determination of the application for special leave to appeal, the utility of such an order would be confined to the avoidance of any cost and inconvenience the applicant might sustain by reason of the assessment proceeding. There is, however, no evidence that the applicant in fact disputes or has any reasonable basis for disputing the amount claimed by the second respondent to be an appropriate measure of its costs.
Mr Nardone, who appeared for the first respondent, explained that the first respondent will not be seeking costs pursuant to the order of the President.
Arguably, there would be utility in a stay of the order made in the Magistrates Court giving judgment against the applicant and in favour of the second respondent in the civil proceedings; however, it is at least seriously arguable that this Court does not have jurisdiction to grant any such stay. The Court apparently lacks jurisdiction for the reason that it has no jurisdiction to hear the proposed application for leave to appeal or the proposed appeal against the judgment given by the Magistrates Court. A litigant has a right of appeal only if such a right is conferred by statute. No Queensland statute confers a right of appeal from a judgment given by the Magistrates Court to the Court of Appeal. Furthermore, the Court of Appeal is a division of the Supreme Court, and s 112 of the District Court of Queensland Act 1967 provides that “[a]n appeal may not be made from a Magistrates Court to the Supreme Court.”
The applicant pointed out that in some states other than Queensland, there are statutory provisions which, the applicant submitted, provide for direct appeals to the Supreme Courts of those other states. I have not looked at the provisions. Accepting for the purpose of argument they do exist, that does not supply a basis for submitting that this Court has jurisdiction to hear an appeal from a Magistrates Court in the absence of an applicable statutory provision and contrary to s 112 of the District Court of Queensland Act 1967.
If, however, the Court does have jurisdiction to grant such a stay, I would not exercise that jurisdiction. The main reason why I would not exercise it is that, as the applicant and the second respondent informed me, the applicant has already applied for a stay of the Magistrates Court judgment in the Magistrates Court. It is accepted by the second respondent that the Magistrates Court has jurisdiction to hear that stay. I see no reason to doubt that this is so. I have been informed that that application has been listed for hearing in about mid-November this year. For that reason, there is no particular reason why I should exercise any discretion I may have to grant a stay of the judgment in the Magistrates Court.
It is true, as the applicant points out, that it will be solely for the High Court to consider whether or not her application for special leave to appeal has substance, and, if special leave is granted, to decide the appeal. It is not necessary for me to make any observations about that.
The material before me provides no reasonably arguable ground for thinking either that there is some necessity to grant a stay to protect the interests of the applicant or that there is some substantial reason for thinking that the decision made by the President is incorrect.
I note that the application for special leave to appeal contends that the President erred by not transferring to the District Court so much of the appeal commenced by her amended notice of appeal of 28 January 2021 as concerned the appeal from the judgment in the Magistrates Court to the Court of Appeal. On this topic, the applicant referred to s 61(2)(b) of the Supreme Court of Queensland Act 1991. It provides that “[i]f a proceeding is a started in the Court of Appeal, but is a proceeding that the Court of Appeal considers could be more conveniently heard and determined in another court, the Court of Appeal may, on application by a party or of its own motion, order that the proceeding be remitted to the other court.”
The text of that subsection is rather against the proposition that it confers a power upon the Court of Appeal to transfer a proceeding which is commenced in the Court of Appeal in circumstances in which the Court lacks jurisdiction. In any event, the evidence adduced before me does not supply any substantial basis for thinking that the President was in error in not making such a transfer order.
In these circumstances, I would dismiss the amended application brought by the applicant against the respondents. On the footing that the second respondent has been successful in opposing the applicant’s amended application, he applies for an order for costs of this application in his favour. The applicant opposes that, essentially upon grounds which involve arguing matters that are not consistent with the reasons I have just given or pointing to what she submits is the importance of her proceeding.
The applicant also submits that it is really the High Court that should make the relevant decisions. Finally, she submits that costs should be reserved. The latter submission cannot be accepted because the effect of an order dismissing the amended application is to bring this proceeding to an end. There is no event to which the costs can be reserved.
The matters advanced by the applicant do not supply a principled basis for refusing the application for costs. The orders are that the amended application is dismissed and the applicant is ordered to pay the second respondent’s costs of and incidental to the application.