Young v Tulloch
[2000] QDC 210
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- Young v Tulloch[2000] QDC 210
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Young v Tulloch[2000] QDC 210
Young v Tulloch[2000] QDC 210
DISTRICT COURT | No 3678 of 1999 |
APPELLATE JURISDICTION
JUDGE WYLIE QC
SUZANNE ANNETTE YOUNG | Appellant |
and
WILLIAM ROSS TULLOCH | Respondent |
BRISBANE
DATE 11/04/2000
JUDGMENT
HIS HONOUR: I have made my views and conclusions clear during submissions and I will be brief in re-stating them. I do so, however, in the knowledge that those who administer the Motor Vehicles Safety Act (1980) may wish to keep a copy of these reasons on file.
Section 44(2) provides that all offences against that Act may be prosecuted in a summary way under the Justices Act (1886) upon the complaint of any person authorised by the Minister or the Chief Executive. The complainant in this case was such a person. Section 44(3) then deals with the matter of when a prosecution for an offence against the Act may be commenced.
In the first instance it is provided that the prosecution may be commenced within one year from the time when the matter of complaint arose. It is then provided that the prosecution may be commenced within four months after the matter of complaint came to the knowledge of the complainant “whichever period is the later to occur”. In that compressed fashion two periods are referred to. If the matter of complaint came to the knowledge of the complainant within one year from the time when the matter of complaint arose then one year is the relevant period. If, on the other hand, the matter of complaint only came to the knowledge of the complainant after that one year period then the complainant must commence the prosecution within four months after the matter came to his or her knowledge. While I am prepared to concede that the knowledge of the complainant could, on particular facts, include the knowledge of a servant or agent of the complainant it is my view that within the Public Service context it is not possible to say that the knowledge of another officer of the Public Service of the matter of complaint is to be imputed to the complainant as knowledge of the matter of complaint.
It is clear that the Magistrate in this case took the view that knowledge by the inspector, Mr Watts, and his recommendation of the making of a complaint against Mr Tulloch could be imputed to the complainant thereby producing the situation that the complainant did not commence the prosecution within the period, whether 12 months or four months, allowed by section 44(3). As the evidence showed that the complainant did not have knowledge of the matter of complaint until a time outside the initial period she was allowed by the Act a period of four months in which to commence the prosecution. She did so well within that latter but shorter time period.
Contrary to the Magistrate it is my view that a question of law was involved rather than one of fact although I acknowledge that the Magistrate found the phrase “a question of fact” used in the decision of the Court of Appeal in Woods v. Beattie ex parte Woods (1995) 1 Qd.R 343 at page 345. It is my conclusion that the decision of the Magistrate was wrong as a matter of law and indeed also was wrong on the evidence that he had before him.
...
HIS HONOUR: It is my view that whilst the appellant has vindicated herself by this appeal and the ruling I have made the nature of the appeal and the powers of a Judge of this Court on appeal combine to produce the result that although the appeal must be allowed there can not be remission to the Magistrate to continue hearing the complaint. Such a power used to exist of course under an order to review but there, of course, if the Magistrate made a further error there could have been a further appeal. Well, that is my order. The appeal is allowed and the consequential orders made by the Magistrate are set aside.
We come to the question of costs now. I am conscious that you have won. I am equally conscious that Mr Tulloch has incurred expense in coming here. He has sought to uphold the decision but it does appear that he cannot be said to have been responsible for the original decision. It would be an injustice to Mr Tulloch to require him to pay costs to the Crown but I am equally conscious that if the decision were wrong he could have conceded that.
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HIS HONOUR: I am of the view that the circumstances are such that (a) I should make an order for costs in favour of the appellant and (b) consequent upon that that I should make an order granting the respondent an indemnity certificate under the Appeal Costs Fund Act. I have indicated that I have allowed the appeal on a question of law rather than of fact and make the view that it was not the respondent who was responsible for the Magistrate's error in the first place and I do not find anything untoward or unreasonable in the submissions which Mr Smith made on his behalf today so I will carry on with my order.
I order the respondent to pay the appellant's costs of and incidental to the appeal to be assessed. I grant the respondent an indemnity certificate under the Appeal Costs Fund Act.
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