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Rosily v RSPCA[2022] QCA 102

[2022] QCA 102

COURT OF APPEAL

MULLINS P

CA No 40 of 2022

DC No 1322 of 2021

ROSILY, Gila Golda Applicant

v

RSPCA Respondent

BRISBANE

THURSDAY, 9 JUNE 2022

JUDGMENT

MULLINS P:  Ms Rosily applies for leave to appeal the decision of the learned District Court judge dismissing her appeal from the orders made in the Magistrates Court and in which Ms Rosily was found guilty of nine charges against section 17 of the Animal Care and Protection Act 2001 (Qld) and ordered to pay $6043.32 in costs and disbursements: Rosily v RSPCA [2022] QDC 32.  Ms Rosily requires leave to appeal from the appellate judgment of the District Court pursuant to section 118, subsection 3 of the District Court of Queensland Act 1967 (Qld).  In the Magistrates Court, the hearing lasted three days.  After the Magistrate found Ms Rosily to be guilty of the nine charges, she was sentenced to a good behaviour bond and no conviction was recorded.  A prohibition order was made against her.  Ms Rosily appealed on extensive grounds that were dealt with in a detailed way by the District Court judge on the re-hearing of the matter on the appeal, on the evidence that had been adduced in the Magistrates Court.

Ms Rosily’s application for leave to adduce additional evidence was also dismissed by the District Court judge.  There is no right for a litigant to appeal from the exercise of the District Court of its appellate jurisdiction.  This is for good reason as a litigant will have had a full hearing in the Magistrates Court followed by a re-hearing in the District Court.  In this particular matter, Ms Rosily has a concern about subpoenas that were not issued to the witnesses she wished to call in the Magistrates Court.  This was a matter, however, that was raised on appeal before the District Court judge and dealt with in the District Court in respect of Ms Rosily’s application to allow new evidence in that court.  The District Court judge asked the court to issue seven subpoenas to various people that are identified in paragraph 19 of the District Court judgment.  On the basis of the outline of the nature of the evidence that Ms Rosily proposed to obtain from those witnesses the District Court judge concluded (at [26]) that those witnesses were not relevant to the issues in the appeal.  The District Court judge also found (at [26]) that, if she erred on this point, the evidence proposed from those witnesses was not likely to have led the Magistrate to return a different verdict.

The respondent’s submissions referred to the usual test that is applied on applications for leave in this type of matter that is set out in Williamson v Betterlay Brick and Block Laying Pty Ltd (2020) 3 QR 594; [2018] QCA 52 at [25].  Relevantly, leave to appeal against a decision of the District Court in its appellate jurisdiction will not be given lightly.  It is usual for an applicant for leave to demonstrate that there has been a substantial injustice and that an appeal is necessary to correct the substantial injustice and there is a reasonable argument that there is an error to be corrected.

The question of what is required for an applicant for leave to appeal was considered again recently by the Court of Appeal in Commissioner of Police v Antoniolli [2021] QCA 237 and, in particular, at [115] per Bond JA.  Relevantly it is noted that the discretion to grant leave to appeal is unfettered, although the tests that are referred to in Williamson v Betterlay are usually applied.  The tests are expressed in other ways as well, that the proposed appeal raises an important point of law or principle or that the proposed appeal raises a question of general or public importance.

Although Ms Rosily’s grounds set out in her application are a reference to an order made by Judge Moynihan that permitted her to serve her subpoenas and that the court failed to procure a professional mental health forensic investigations, there is no material put before the court in relation to either of these two grounds.  There is no obligation – there was no obligation on the District Court to procure any mental health forensic investigation for the purpose of hearing the appeal.

The third ground of appeal is expressed in these terms, that:

Ms Gila Golda Rosily was not born in the UK as claimed by RSPCA and that she is Israeli born with Australian residency.

As I indicated to Ms Rosily during the hearing of the application, if there were an error made by the RSPCA in documents identifying the wrong place of birth of Ms Rosily, that is not a relevant matter for the purpose of showing there are grounds for pursuing the appeal for which leave should be given.

The fourth ground set out for the application is:

Notice to leave to adduce further evidence granted by earlier Judge Moynihan.

Ultimately before Judge McDonnell, who was the judge who heard the appeal, no further evidence was adduced for the hearing.  Little light is thrown on these grounds by the outlines that have been filed by Ms Rosily.  The first outline that was received in the court on 14 March 2022 contains largely irrelevant statements made by Ms Rosily.

The second outline for which leave was given today refers to Ms Rosily seeking natural justice and due process and claims a natural right to natural justice and refers to the case of Williamson v Betterlay Brick that was referred to in the respondent’s outline.  Ms Rosily was given an opportunity to develop her submissions in support of her application for leave to appeal during the hearing today and nothing that was said in those submissions showed that this was the type of matter that should proceed to a full appeal.

It is for these reasons that I consider the application for leave to appeal should be refused and the order that I make, therefore, is application for leave to appeal is refused.

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Editorial Notes

  • Published Case Name:

    Rosily v RSPCA

  • Shortened Case Name:

    Rosily v RSPCA

  • MNC:

    [2022] QCA 102

  • Court:

    QCA

  • Judge(s):

    Mullins P

  • Date:

    09 Jun 2022

Litigation History

EventCitation or FileDateNotes
Primary JudgmentBeenleigh Magistrates Court27 May 2021-
Primary Judgment[2022] QDC 3203 Mar 2022-
Appeal Determined (QCA)[2022] QCA 10209 Jun 2022-

Appeal Status

Appeal Determined (QCA)

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