Kranz v Tipman[1995] QDC 256

APPELLATE JURISDICTION

JUDGE ROBIN QC

and

BRISBANE

DATE 11/07/95

CATCHWORDS:

Appeal - Justices Act s 222(2)(i)(a) - respondent not served within 28 days allowed - appellant's inability to serve respondent not established to exist following his release from custody on bail after - few days - appellant acting for himself, but experienced in Court (including appellate procedures) - appeal dismissed - Court held to lack jurisdiction to extend time for service of notice of appeal - respondent declined to waive timely service.

JUDGMENT

HIS HONOUR: This is an appeal brought against a Magistrate's decision handed down on 12 April 1995 pursuant to a notice of appeal filed in time on 21 April 1995. Section 222(2)(1)(a) of the Justice's Act required the appellant, who was acting for himself, to serve notice of the appeal on the respondent as the person interested to uphold the decision. The respondent, when he gave evidence before the Magistrate, was officer-in-charge of the Gympie CIB and is still such. There is no physical difficulty in locating him. Because the magistrate's order had the consequence that the appellant was in custody, he was certainly unable personally to effect service for a week or so, but he received bail on 18 April. From that time it seem; impossible to regard him as being unable, through no fault of his own, to serve notice as referred to in the provision I have mentioned.

The appellant's view was that the filing of the appeal documents, which he had discussed with Mr Dwyer, a clerk of the Brisbane Magistrates Court, was sufficient and duly instituted the appeal. It has come to the respondent's attention on 30 May 1995, when the office of the Director of Public Prosecutions gave appropriate advice. This, of course, was too late to assist the appellant.

The potential unfairness of the requirement to serve the respondent within a short period of time has often been commented on and the desirability of amending the arrangements adverted to. It seems to me the just system would be one in which the Court in some way undertook the responsibility of serving respondents, at least those being members of the Police Force, who are presumably easy to find. One can readily understand why lay people such as the appellant, at the least, would think that filing of a notice of appeal in the Court was sufficient.

Mr Kelly, who, on behalf of the respondent, raises the technical objection to the Court's jurisdiction to deal with the appeal, or to extend time for service, so that the appeal may be regularized, points out that the appellant is certainly not the ordinary, layman, having been a successful appellant in the past. One occasion specified was an appeal to this Court, No 111 of 1994, in which the respondent faced a similar difficulty to that confronting him today. The difference was that he had attempted to effect service on the respondent but unsuccessfully. The respondent then did not take the point against him, unlike the respondent today.

In my opinion, the decision of the Court of Appeal in GSA Industries (Aust) Pty Ltd (trading as Actrol Parts) v. Patrick Lawrence Tully (Appeal No 214 of 1993, the judgment delivered 30 May 1994) controls what I may do today. The appellant, and now perforce applicant for an extension of time to serve the respondent, is simply unable to establish that he comes within section 222(2)(a)(1) as explained in the Court of Appeal's judgment. It follows that the appeal is to be dismissed with costs, an order which I make with some regret, for reasons which appear above.

I make an order for issue of a warrant under section 231(4) of the Justices Act in respect of the appellant.