Robertson v Robertson[2024] QCA 92

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA:  On 15 May 2024, the Court dealt with an application for leave to appeal certain orders made in the District Court.
2. [2]
   It was common ground between the parties to the application that on 16 November 2021 in purported exercise of power under s 149 the Justices Act 1886 (Qld) (the Act) a Magistrate had ordered that certificates of dismissal issue in respect of charges which the fourth respondent had prosecuted in respect of the present first, second and third respondents.
3. [3]
   It was also common ground that the Magistrate had no jurisdiction to issue the s 149 certificates in the particular circumstances before him.
4. [4]
   The Court disposed of the application by making orders in the following terms:

“For reasons which will be published later, the Court makes the following orders:

1. Each of the following certificates is invalid:

1. The certificate dated 16 November 2021 issued in respect of Mark Harold Robertson;

2. The certificate dated 16 November 2021 issued in respect of Peter Craig Robertson; and

3. The certificate dated 16 November 2021 issued in respect of Todd Edward Robertson.

2. No order as to costs.”

5. [5]
   I set out below my reasons for joining in the making those orders.
6. [6]
   The present first, second and third respondents were charged with indictable offences involving alleged acts of violence against their father, the present applicant.
7. [7]
   The indictable offences were to be dealt with summarily in the Magistrates Court under part 6 of the Act.  The parties to the proceeding were the present fourth respondent as complainant and the first, second and third respondents as, respectively, the first, second and third defendants.
8. [8]
   The proceeding was listed for trial on 16 November 2021.  At the hearing on that day both sides were legally represented.  After the matter was called, the complainant made an application that the hearing be adjourned and delisted.  That application was successfully opposed by the defendants.
9. [9]
   Once that application was refused, the complainant announced that it had no evidence to offer in relation to the four charges against the defendants.  Immediately thereupon and in respect of each defendant the Magistrate made an order that the four charges against the defendant were dismissed, and the defendant was discharged.  Notably the Magistrate had not yet embarked upon the hearing and determination of the charges under s 144 of the Act.  In particular, there had not yet been compliance with s 145(1) of the Act which required the substance of the complaint to be stated to the defendants and that they each be asked how they plead.
10. [10]
    Counsel for the defendants made an application for costs and also made an application for an order of dismissal and for a certificate pursuant to s 149 of the Act.  Section 149 provides:

“If the justices dismiss a complaint, they may, if required so to do, and if they think fit, make an order of dismissal, and give the defendant a certificate thereof, which certificate shall upon production and without further proof be a bar to any subsequent complaint for the same matter against the same person.”

11. [11]
    The disposition of the application for costs has no present relevance.  Having heard argument, the Magistrate acceded to the application for s 149 certificates, expressing as his reasons:

“In the matter of the Queensland Police against Robertson, Robertson and Robertson I have dismissed the complaints for reasons which are apparent in my refusal of the adjournment which led to the offering of no evidence.  Although it has not been a hearing on the merits it has been a dismissal for more than just a merely technical reason.

I therefore am of the view that it is a fit case in which to issue a certificate of dismissal pursuant to s 149 of the Justices Act, and, so, I order that that certificate issue.”

12. [12]
    The Magistrate made an indorsement on the file in relation to each defendant to the following effect:

“1.Prosecution application for adjournment due to absence of complainant, opposed by defence. Refused.

2. Prosecution offers no evidence x 4, all 4 charges are dismissed and the defendant discharged.
3. I order that a certificate of dismissal issue.”

13. [13]
    Consequent upon the order which the Magistrate had made and in respect of each defendant the Magistrate issued a certificate dated 16 November 2021 which certified that on 16 November 2021 the defendant was charged with the four relevant charges and that the Court had ordered that the complaint had been dismissed.
14. [14]
    On 9 August 2022 the applicant filed an application in the District Court for an extension of the time within which to appeal the order concerning the issue of a certificate pursuant to s 149, together with a notice of appeal pursuant to s 222 of the Act.  The defendants were the first, second and third respondents to that application.  The complainant became the fourth respondent.
15. [15]
    In support of his application, the applicant filed an affidavit which sought to explain why he had been unable to attend court on the day listed for trial and his reasons for the delay in bringing the appeal.  He explained that he wanted to commence a private prosecution against the first, second and third defendants and the issue of the certificates of dismissal prevented him from doing so.  In reliance on the Court of Appeal decision of R v Hay; ex parte Patane [1981] Qd R 152, his argument was that because there had been no hearing on the merits, the Magistrate had no jurisdiction to issue the s 149 certificates.  He sought to have set aside the order made by the Magistrate that the certificates issue.
16. [16]
    Before the primary judge the first, second and third respondents adopted the position taken by the fourth respondent.  The fourth respondent conceded that the Magistrate had no power to issue the s 149 certificates in the circumstances.  The fourth respondent maintains that position before this Court.  However, the fourth respondent opposed the application before the primary judge (as he does in this Court) on the basis the applicant had no standing to appeal because, for the purposes of s 222 of the Act he was not a person “aggrieved” by the order of the Magistrate.
17. [17]
    Had the primary judge concluded that the applicant had standing to appeal, she would have granted the extension of time.  However, the primary judge accepted the fourth respondent’s argument and concluded that the applicant had no standing to appeal and refused the application.
18. [18]
    By application filed under s 118(3) of the District Court of Queensland Act 1967 before this Court the applicant seeks leave to appeal from the decision of the primary judge on the grounds that:

    1. the primary judge erred in finding that the applicant was not, for the purpose of s 222 of the Justices Act 1886, a person “aggrieved” by the order of the Magistrate to grant the certificates of dismissal; and
    2. the primary judge erred in refusing leave to extend the period for filing on the basis that the applicant did not have standing to appeal.
19. [19]
    The first, second and third respondents were parties to the application before this Court.  When the application first came on for hearing the hearing was adjourned because the applicant could not demonstrate personal service of the first, second and third respondents.  That error has since been rectified.  The applicant has provided affidavit evidence of service and other communications with the first, second and third respondents.  Material exhibited to that affidavit suggested that in late February 2024 the first, second and third respondents advised that they intended to participate at the hearing of the appeal; that they opposed the appeal and that they opposed any order setting aside the certificates which had been issued.
20. [20]
    Subsequently, however, by letter received by the registry on 20 March 2024, the first, second and third respondents advised the Court that:

“We’ve considered our position and we align with the submission of the Fourth Respondent’s [counsel] … which disagrees with the Applicant (Craig Robertson) grounds for an appeal.

As we support the submission of the Fourth Respondent, we do not wish to add anything further to the legal argument.

As such we don’t intend to be present during the Court’s proceedings, therefore the proposed dates are only relevant for the participating parties. However as we are an interested party we do request ongoing correspondence of this matter”

21. [21]
    Out of an abundance of caution, each of the first, second and third respondents was called at the reconvened hearing of the present application, but there was no appearance.
22. [22]
    Accordingly, it seems that in this Court, as they did below, the first, second and third respondents adopt the submissions of the fourth respondent, which means that they too take the position that the Magistrate had no power to issue the s 149 certificates in the circumstances.  Notwithstanding that adoption, they still object to any order setting aside the certificates.
23. [23]
    The principles informing this Court’s approach to an application to grant leave pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) have been summarised in the following way:^[1]

“The discretion is unfettered, and exercisable according to the nature of the case, but leave to appeal will not be granted lightly, given that the applicant has already had the benefit of two judicial hearings.

It will usually be necessary – but not sufficient – that the Court be persuaded that there is a reasonable argument that there is an error to be corrected, which, if corrected would justify the applicant’s claim for relief.

Tests which provide useful guidance as to the nature of the additional consideration over and above the existence of a reasonable argument that there is an error to be corrected include:

1. that leave is necessary to correct a substantial injustice;

2. that the proposed appeal raises an important point of law or principle; and

3. that the prospect appeal raises a question of general or public importance.”

24. [24]
    As it was before the primary judge, it is common ground between the parties to the application before this Court that on the authority of R v Hay; ex parte Patane the Magistrate had no power to issue the s 149 certificates because the order of dismissal was not made after a hearing on the merits.
25. [25]
    It is true that R v Hay; ex parte Patane supports that conclusion.
26. [26]
    No party sought to argue that R v Hay; ex parte Patane should be overruled by this Court.  Save as to note that any such argument would have faced formidable hurdles (as to which see Lynch v Commissioner of Police [2022] QCA 166 at [60] to [70] per Beech AJA (with whom Morrison and Bond JJA agreed) and Madden v Commissioner of Police [2023] QCA 31 at [26]), I express no view on that question.
27. [27]
    Under s 149 the certificates only have effect “upon production”.  If the applicant did commence a private prosecution against the first, second and third respondents, the certificates would have to be produced by the first, second and third respondents, and pleaded in bar.
28. [28]
    At any early stage in the argument before this Court on 15 May 2024, the Court invited the parties’ response to the following analysis of the position:

    1. It seemed to be common ground between the parties that on the authority of R v Hay; ex parte Patane the Magistrate had no jurisdiction to order the certificates to be issued.
    2. It could hardly be thought that, on its proper construction, s 149 of the Act intended that effect be given to certificates issued without jurisdiction.  Accordingly, it would follow that certificates must be invalid.
    3. In the event that the first, second and third respondents threatened to act upon invalid certificates, the Supreme Court could make declarations or grant injunctions to prevent invalid certificates being acted upon.^[2]
    4. If that was correct, then there seemed to be little utility in considering the application for leave to appeal, or the merits of the proposed ground of appeal.
    5. Rather, and unless the invalidity of the certificates was a moot point, the appropriate course might be to resolve the dispute between the parties by making a declaration as to the invalidity of the certificates.
29. [29]
    Neither the applicant nor the fourth respondent sought to argue against that analysis.  The fourth respondent accepted that there was utility in making the proposed declarations.  The applicant proposed and the fourth respondent agreed that if the application was resolved in that way there should be no order as to costs.
30. [30]
    Accordingly, the Court made the following orders:

“For reasons which will be published later, the Court makes the following orders:

1. Each of the following certificates is invalid:

1. The certificate dated 16 November 2021 issued in respect of Mark Harold Robertson;

2. The certificate dated 16 November 2021 issued in respect of Peter Craig Robertson; and

3. The certificate dated 16 November 2021 issued in respect of Todd Edward Robertson.

2. No order as to costs.”

31. [31]
    CROW J: I agree.
32. [32]
    CROWLEY J: I agree with Bond JA.