Monteforte v Fogarty
[1999] QDC 55
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- Monteforte v Fogarty[1999] QDC 55
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Monteforte v Fogarty[1999] QDC 55
Monteforte v Fogarty[1999] QDC 55
DISTRICT COURT | Appeal No 73 of 1998 |
APPELLATE JURISDICTION
JUDGE WHITE
JAMES MONTEFORTE | Appellant |
and
BRIAN FOGARTY | Respondent |
CAIRNS
DATE 18/02/99
JUDGMENT
HIS HONOUR: On 2 November 1998, the respondent to this appeal was convicted in the Magistrates Court at Cairns for an offence of assault occasioning bodily harm. The appellant in this case was the victim of the offence. He seeks to appeal against the leniency of the sentence, and the inadequacy of the compensation which the respondent was ordered to pay him. There is no dispute that the appellant has a right of appeal under section 222 subsection 1 of the Justices Act.
The notice of appeal was filed on 24 November 1998. I am not sure when the notice of appeal was served on the respondent, but the respondent's entry of appearance to the notice of appeal was filed in the Court on 25 November 1998. Obviously, therefore, service of the notice of appeal was within the time required.
Mr Mellick, on behalf of the respondent, takes a preliminary point, that the appellant has not complied with all of what might be termed the conditions precedent to the hearing of the appeal. As a consequence, he submits that the Court has no jurisdiction to hear the appeal. So far as is relevant, subsection 222 (to the Justices Act) provides as follows.
“Every such appeal shall be made under and subject to the following rules and conditions.
- (a)The appellant shall -
- (ii)Within seven days after service of the notice on the other party and the Clerk of the Court enter into a recognisance before a Justice for the amount, and with sureties, if any, the Justice may require to appear on the hearing of the appeal and to abide the decision of the Judge and pay the costs the Judge may order.”
It is not disputed that, in this case, no recognisance has ever been entered into by the appellant and certainly not within seven days of the service of the notice on the respondent and the Clerk of the Court.
I have previously dealt with an identical point in appeal number 16 of 1998 Laird v. Byrne, judgment delivered 4 September 1998. In my view, the result is well established by a long line of authorities. Other Judges of this Court have dealt with the point in Forsyth v. O'Connor 1972 66 QJPR 38, Scothorne v. Howard 1972 QJPR 34, Sirjani Shah Mohammed v. Somerville and Birkin, appeals 10 and 11 of 1992, District Court Cairns, judgment delivered 28 July, 1992.
The Court of Appeal has also considered the question in Q v. The Judge of the District Court at Brisbane and Davies ex parte Allen 1969 Queensland Reports 114. More recently, the Court of Appeal has dealt with the question in GSA Industries Australia Pty Ltd v. Tully 1995 1 Queensland Reports 607.
In all of those cases, it has been held that the requirement for the lodgment of a recognisance is a rule and condition, which is a necessary pre condition to giving the District Court jurisdiction to hear and determine the appeal. Whatever might be the practises of Justices or Registrars in requiring a surety is not to the point. That is a matter for the discretion of the Justice before whom the recognisance is entered into, but there is no dispensation for a recognisance. Subsection 2 and the “Rules and Conditions” to which every appeal is subject, applies to any appellant under the Justices Act, whether it be complainant, defendant or in this case, victim of a crime.
Practises by Court officials cannot displace requirements of an Act of Parliament. It is to be greatly regretted that this appeal cannot be heard upon its merits, but unfortunately the law is so clear and so well established that I am obliged to rule that I have no jurisdiction to hear the appeal, and it must be dismissed. I order that the appeal be dismissed.