Laird v Byrne[1998] QDC 247

APPELLATE JURISDICTION

JUDGE WHITE

and

CAIRNS

DATE 04/09/98

JUDGMENT

HIS HONOUR: On 22 January 1998 in the Magistrates Court at Cairns the appellant, according to his notice of appeal, was convicted of eight charges of animal cruelty. He has sought to appeal against those convictions and the sentences imposed in respect thereto pursuant to section 222 of the Justices Act. According to that section an appeal lies to a single Judge of the District Court.

The respondent takes a preliminary point that, the appellant not having complied with all of the requirements or what might be termed conditions precedent to the hearing of the appeal, the Court has no jurisdiction to hear it. So far as is relevant, subsection 222(2) provides as follows:

HIS HONOUR: It is not entirely clear to me the date upon which the notice of appeal was served on the respondent but it is common ground that it was served within the time required, namely one calendar month of 22 January 1998, the date upon which the decision was made. Therefore, according to the requirements of paragraph (ii) the respondent should have entered into the required recognisance no later than 1 March 1998.

There is no dispute that the respondent did not do so and in fact the recognisance was not entered into and the required sureties paid until, according to Exhibit 1, 2 September 1998. It is unfortunate that questions like this arise regularly before the District Court on such appeals and also, from time to time, the Court of Appeal.

I have not been provided with any judgments of any of my colleagues on the District Court or any judgments of the Court of Appeal or the Full Court which apply to the form of section 222 as it now stands. There have been some changes. The question arises as to whether the changes have been merely cosmetic or have brought about some change in substance as to the requirements.

In The Queen v. The Judge of the District Court at Brisbane and Davies Ex Parte Allen (1969) Queensland Reports 114 the Full Court dealt with a requirement of subsection (2) in the form which the section previously took.

It held that the identical opening words to subsection 2 made it mandatory that the requirement with which the Court was dealing be performed before the appeal could proceed.

That decision has been relied upon by His Honour Judge McLoughlin, in Forsyth v. O'Connor, reported at (1972) 66 QJPR 38. By Nicholson DCJ in Scothorn v. Howard (1972) QJPR at 34. And particularly by my colleague Judge Daly in Surjani Shar Mohammand v. Somerville and Burkin, appeals 10 and 11 of 1992, District Court Cairns, judgment delivered 28 July 1992.

In the form that the Act previously took paragraph (b) of subsection 222(2), provided as follows:

It seems to me so far as the form of paragraph (ii) in the amended legislation is concerned the alterations are cosmetic and give rise to no change in the substance of the meaning of the former provision. What has resulted is that the language is much clearer and plainer in the amended provision as compared to the previous provision which had been in force for many, many years.

In that decision of His Honour Judge Daly he referred to a judgment of our colleague Judge Botting in a matter of Davies v. Tardent, District Court Appeal case number 12 of 1991, judgment 2 August 1991, in which His Honour considered that the service provisions which were also referred to as a “rule and condition” of an appeal were a mere irregularity and which did not prevent the Court from having jurisdiction.

With due respect to His Honour Judge Botting he appears to be alone in that view. Any other judgments of Judges of the District Court to which I have been referred take the same view as Judge Daly, which in turn is the same view taken by the now retired but very experienced former Judges of the District Court, Judge Nicholson and Judge McLoughlin.

I have also myself on previous occasions ruled in the same manner as Judge Daly and those other Judges have ruled. In my view, that line of reasoning is required by the Full Court case to which I have referred and also by a more recent decision of the Court of Appeal GSA Industries (Australia) Pty Ltd v. Tully (1995), 1 Queensland Reports, 607.

It has been submitted that by reason of the form of subsection 222(2A), those authorities are no longer applicable. It is submitted that the amendments which took place in 1997 have resulted in a significant change of meaning. That latter subsection now reads:

The words used clearly have no application to any provision other than paragraph (i) of subsection 222(2). That is the provision which requires for the service of the notice of appeal.

However it is perhaps curious that it refers to “subsection 2(a)”. When one looks to subsection 2(a) it not only deals with the requirement for the service of notice in paragraph (i), it also deals with the requirement now under consideration for the entry into a recognisance under paragraph (ii).

However it seems to me to be clear that if one puts aside that possible anomaly or curiosity that the plain words of subsection (2A) refer only to the service of notice under paragraph (i) and cannot have any application to the requirement for the lodgment of a recognisance under paragraph (ii).

I am therefore of the view that the judgments to which I have referred, in particular the binding judgments of the Full Court and the Court of Appeal still apply in spite of the amendments. And I am of the view that the requirement for the lodgement of a recognisance is a rule and condition which whilst capable of being waived by the respondent is a necessary precondition to giving the District Court jurisdiction to hear and determine the appeal. It seems to me that there is a good basis for thinking that that is the intention of the legislature.

The provision allowing for an extension of time for service of notice anticipates that an appellant may have difficulty in locating a respondent in order to comply with the requirements of service. That is why an applicant may obtain an extension of time for service of the notice if it can be shown that the failure to give notice within time was, “through no fault of the appellant”.

Whether it is good policy or bad policy it is not a matter for me to consider. But it seems to me tolerably clear that the legislature considered that no such difficulty should arise in an appellant entering into a recognisance within seven days after the service of the notice. It would seem that one ought to be able to obtain an appearance before a Justice within a reasonable period of time.

In any event there is no explanation for the failure of the appellant to enter into the recognisance from 1 March 1998 to 3 September 1998. And, in my view, the failure to do so is fatal to the appeal unless the appellant can succeed on one further point which is raised.

It is submitted that the respondent has, in fact, waived the requirement that the appellant enter into a recognisance within seven days after the service of the notice of appeal.

There is no evidence to suggest that the respondent had any knowledge of the appellant's failure to lodge the recognisance until 13 August 1998 when the Court file was searched by an officer of the Director of Public Prosecutions, Mr Hibble. The Director of Prosecutions then wrote on behalf of the respondent informing the appellant that the failure to lodge the recognisance within time was not waived.

It is submitted that somehow the failure of the respondent to make himself aware of the absence of the recognisance before that time is some evidence of waiver. It is further submitted that the respondent entered an appearance to the notice of appeal on 3 April 1998, and that is further evidence of waiver. I am afraid I must reject the submission. It seems to me that the responsibility to enter into the recognisance falls upon the appellant. There is no responsibility upon the respondent to check. And certainly not to check within any particular period of time to see that the appellant has complied with what is solely the appellant's obligation. The entry of appearance is no waiver. It is nothing more than a form notifying the Court that the respondent proposes to take part in the appeal. I can see no basis upon which the respondent can be said to have some form of implied or constructive notice of the absence of the recognisance.

As I have said there is no evidence to indicate the reason why the appellant failed to enter into a recognisance within time. There is certainly no suggestion that the appellant could not have done so. One may only presume in those circumstances that it was an oversight.

But, according to the scheme of the legislation, if an appellant wishes to commence and prosecute an appeal it is for the appellant to comply with the rules and conditions set out for such appeal. And it is for the appellant to ascertain what those rules are.

I therefore have come to the conclusion that the appeal must be dismissed for want of jurisdiction. Anything else?

MR BAILEY: I won't be seeking costs in the circumstances Your Honour.

HIS HONOUR: I order that the appeal be dismissed.