DISTRICT COURT OF QUEENSLAND
CITATION: | Building and Construction Industry (Portable Long Service Leave) Authority v Greet [2003] QDC 443 |
PARTIES: | BUILDING AND CONSTRUCTION INDUSTRY (PORTABLE LONG SERVICE LEAVE) AUTHORITY (Complainant/Respondent) v ALAN ROSS GREET (Defendant/Appellant) |
FILE NO/S: | D2541/2003 |
DIVISION: | Civil Jurisdiction |
PROCEEDING: | Application to strike out for failure to serve respondent in time. |
ORIGINATING COURT: | District Court of Queensland |
DELIVERED ON: | 9 December 2003 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 20 November 2003 |
JUDGE: | Judge Robin QC |
ORDER: | Application refused |
CATCHWORDS: | Justices Act s 222(2)(a)(i) and (2A) – appellant “serves” clerk of court with appeal against sentence and enters into recognizance within time, but fails to serve complainant in time – whether time for that service could and should be extended – complainant/respondent’s application for dismissal of appeal for want of jurisdiction refused – respondent found to have waived timely service by prevailing on registrar to seek dismissal of appeal for failure of appellant to file his outline of argument |
COUNSEL: | Mr R. Alldridge for the defendant/appellant Mr. T. P. Sullivan for the complainant/respondent |
SOLICITORS: | McCarthy Durie Ryan Neil for defendant/appellant McCullough Robertson for the complainant/respondent |
“1.That the purported Appeal No. D2541/03 be struck out for want of jurisdiction on the basis that the defendant (Appellant in the appeal) failed within one calendar month after the decision at first instance to serve on the Complainant (Respondent in the Appeal) the Notice of Appeal in the approved form stating the grounds of the appeal as required by section 222(2)(a)(i) of the Justices Act 1886 (as amended).”
“For prosecution: Mr JA Wilson
For defendant: Mr Abaza
Now a plea of guilty to all 30 charges (these charges pre-date the earlier “test case” offence for which I imposed a fine of $400).
The prosecution has briefed counsel and the first he knew of the pleas of guilty was when Mr Wilson came into court. The prosecution seeks adjournment.
Adjourned to Court 11, 10 am Monday 28 April 2003 for sentencing submissions.”
“I refer to and incorporate herein relevant comments from C/F Bris-Mag-6092/02 decisions dated 9/8/02 and 12/9/02 (copies of relevant transcripts attached).
Re all 30 offences
CONVICTIONS RECORDED
The defendant is convicted and fined $37,500, such fine to be paid to the Building and Construction Industry Authority in accordance with s 111A of the Building and Construction (Portable Long Service Leave) Act 1991 within four (4) years of today’s date, such payments to be made on the basis of annual payments (the first being within 12 months of today’s date) of $9,375 at least in default of payment within that time imprisonment for six months.
Further I order the defendant to pay to the claimant within six (6) months of today’s date, costs in the sum of $1,282 being the following ….”
“1)This Notice of Appeal shall be served by the appellant on the person concerned in upholding such decision and on the Clerk of the Court at the place where the decision was given, within 1 calendar month after the decision, or as heard by a District Court Judge, as the case may be.
2)Within 7 days of such service, you must enter into a recognizance before a justice in such sum and with such sureties (if any) as the justice may require, conditioned to appear on the hearing of the appeal and to abide the decision of the judge therefore and to pay the costs the judge may order.”
“TO:District Court
Of:Brisbane
AND TO:The Clerk of the Court, Ron Micola at Brisbane Magistrates Court”
In my opinion, although it may seem plain who is the “person concerned in upholding” the decision under appeal, to a reader of s 222(2), it is to be lamented that the form made available (presumably officially) does not more clearly identify by name, in some obvious position, that person.
“222Appeal to a single judge
(1)When any person feels aggrieved as complainant, defendant, or otherwise by any order made by any order made by any justices or justice in a summary manner upon a complaint for an offence or breach of duty such person may appeal as hereinafter provided to a District Court judge:
(1A)However, if the order the subject of the proposed appeal is an order of justices dealing summarily with an indictable offence, a complainant aggrieved by the decision may appeal under this section only against sentence or an order for costs.
(1B)Also, this section does not apply to a person convicted of a summary offence by the Supreme Court or District Court under the Criminal Code, section 651.
(2) Every such appeal shall be made under and subject to the following rules and conditions -
(a)the appellant shall –
(aa)after entering into the recognisance, the appellant must immediately forward the recognisance to the clerk of the court at the place where the decision was given;
(2A)However, if the appellant can not give notice under subsection (2)(a), through no fault of the appellant’s, the appellant may apply to a District Court judge for an order extending time for service of the notice and, if necessary, for substituted service.
(2B)A District Court judge may make the orders in relation to an application under subsection (2A) the judge considers appropriate.”
“Section 222(2)(a)(i) of the Justices Act 1886 relevantly provides:
‘(2) Every such appeal [against any order made by any justices or justice in a summary manner upon a complaint for an offence or breach of duty to a Judge of District Courts] shall be made under and subject to the following rules and conditions –
Judge Daly held that “It is clear that Mr Tully was always contactable for service during the relevant time and, indeed, no basis for inability has been laid.” The Court of Appeal (at 609) rejected Mr McKenna’s submission that inability to serve may be assessed at the time of making of the application, when, by definition, there is inability to serve “as aforesaid” (which means, inter alia, within due time). At 610, the court made it clear that, “no question of waiver of due service arises here and we say nothing on that subject” in response to another submission.
“[9]WB Campell J, as he then was, described the requirement for the giving of notice as “a condition of the appeal … an essential preliminary proceeding”, although in the absence of notification, the otherwise ‘null’ proceeding could be saved were the respondent to waive the non-compliance. in ex parte Allen there was no waiver, and the ‘error of procedure (was) so grave as to mean that the learned judge acted without jurisdiction’ (p 127).
[10]Not unreasonably, subsequent decisions in the District Court proceeded on the basis that the various procedural requirements specified in s 222 should be approached similarly. It is however difficult, adopting current approaches to statutory interpretation, to see why any failure to meet the procedural requirements of s 222 should necessarily deny the District Court jurisdiction to entertain such an appeal.
[11]Take, for example, an intending appellant’s failure to serve a notice of appeal within time, thereby not complying with s 222(2)(a)(i). Because especially of the power of the District Court to extend time for service (s 222(2A)), such non-compliance would better be regarded as an irregularity, and one which could be waived. Of course absent service, and absent waiver, the appeal would not however proceed.
[12]Similarly, the requirement that an appellant enter into a recognizance committing himself to appear, abide by the judge’s decision and meet any costs order, is of an essentially procedural character, and it would be an unusual result were any non-compliance, in the absence of waiver, to mean that the court had no jurisdiction. Significantly, s 229 (1) of the Justices Act provides that if an appellant defaults ‘in taking any necessary step in the presentation’ of an appeal, any other party may apply for an order discharging the notice of appeal, and the court’ shall make such order as shall be just with regard to the subject matter of the application’. That would appear to give a court a discretion, apart from terminating proceedings, to regularise them. The existence of such a discretion is inconsistent with a conclusion that in the absence of waiver of such non-compliance, the court ipso facto loses (or fails to gain) jurisdiction.
[13]It would seem odd that where procedural steps have not properly been carried through, the question whether the court has jurisdiction may be left to be determined by one of the parties, albeit that that party might take an otherwise completely unreasonable attitude. The better view is that the court in such cases retains its jurisdiction, with the issue whether and how the proceedings are to be progressed depending on the exercise of judicial discretion.
[14]The trend of modern authority would be to regard this applicant’s late compliance with s 222(2)(a)(ii) as an irregularity enlivening such a discretion in the court whether or not to proceed, and not such as to deny the court jurisdiction. In the present circumstances where the delay, albeit substantial, occasioned no whit of prejudice to any other party, the appeal should plainly have proceeded. Entering into the recognizance was not determinative of the court’s jurisdiction, in the sense that delay in doing so could not be excused, or the question whether the appeal was well founded left to be determined by the attitude of one or other of the respondents to the non-compliance.”
In the result, the matter was remitted to the District Court for determination of the appeal from the decision of the magistrate in accordance with the law.
“The learned Magistrate failed to exercise his sentencing discretion in any balanced way. The fine is one third of one half of a maximum thirty, without taking into account the nature of the offence.”
Here, again, some indulgence needs to be extended to Mr Greet. I am willing to accede to the application made by Mr Alldridge, his counsel (instructed by new solicitors) to permit amendment. I consider that what is there is already is sufficient to include an appeal against the recording of convictions, but it would be preferable to make this explicit.
“That it be declared that the Complainant/Respondent waived the appellant’s non-compliance with s 222(2)(a)(i) by virtue of its failure to apply to the Court before 12 November 2003 and by virtue of its conduct in requesting the Registrar to strike out the Appeal on the basis of the Appellant’s failure to file his Outline of Argument.”
“…the Legislature seems to assume ‘inability’ in a case where a notice has not been given, and to impose on the plaintiff the obligation of showing why there was inability. The great difficulty is caused by the word ‘unable’. It is a word … of flexible meaning……The Legislature intended, I think, to permit the tribunal which has to decide the matter to judge whether a person injured could fairly be said to have been capable of giving the notice. Any other reading would result in inequality and in harshness to the poor, the helpless, and the ignorant…”
Mr Greet’s affidavit indicates (and I accept) that neither Mr Abaza nor Magistrates Court officers told him of the need to serve the Authority, that he believed all he had to do was serve “the Magistrate”. There is no reason to doubt his assertion that, had he known of the service requirements, he would have proceeded immediately thereafter to serve the Authority. I would infer that he either did not read or did not understand “Important Note 1)”. At 224-225, Cussen J said:
“… These considerations have led me to ask myself whether ignorance of the provisions of sec. 708 could be relied on by a plaintiff, but I am not prepared to give a definite answer to that question. … It is true that in the administration of the criminal law ignorance of the law is ordinarily no excuse …
It is of course ridiculous to say that everyone is presumed to know the law except when that statement is used as a vague paraphrase for the more accurately stated rule mentioned above. Now, under this Statute, which applies, as I have said, to all sorts of persons, I can imagine nothing which more plainly shows “inability” to give the notice than ignorance of the necessity for giving the notice. Would, then, such ignorance be sufficient reason? I should think it would be but for the fact that such a reading would result in the sections being of little avail in bringing about the important results which no doubt the Legislature intended to follow from it. I prefer to leave the matter open, but I feel sure that there is an important difference between the case of a person who has, during the statutory period, his attention specifically directed to the necessity for or desirability of giving the notice and the case of one who has to start to think of possible statutory requirements.”
In Double Time, the failure to enter into the recognisance was regarded as “oversight” (paragraph [2]). The last two sentences from the quotation from Cussen J were relied upon in Carrington at 307, where Fullagar J said at 307-08:
“In the present case the plaintiff was an elderly woman, an old-age pensioner, her foot was seriously injured and was in plaster for a period of five months, she had only her husband, who is also an old-age pensioner, to assist her, she could only attend to business matters with great difficulty, and she could not be expected to know even that she might have a cause of action against the city of Melbourne, much less that, if she had, the law required her to give notice of the accident within ten days.
It is clear to my mind that she can fairly be said to have been incapable of giving the notice, and I find that she was, and that the latter part of paragraph (1) of sec. 123 has been complied with. It follows that I refuse to stay the action on this ground.”
“Under section 324.05, the county court is authorised within one year to grant an extension of the time within which an appeal from an order or judgment of the county court must be taken (which is 60 days), “if it shall appear that justice requires a revision of the case, *** or the county court may in its discretion reopen the case and grant a retrial of the matter complained of.” As a condition of the exercise of this power on the part of the court, it must appear that the party applying omitted to take an appeal according to law from some cause “without fault on his part.”
[1] As appears in the case of Beck v. State, supra, decided herewith, this tax was paid under protest. The constitutionality of the 6 year statute (section 72.01[3]) was raised at the hearing held for the purpose of determining the inheritance tax. The constitutionality of the statute was upheld. The petitioners here, as well as the executors of the estate, knew that they had the right of appeal from that judgment. They did not appeal. They accepted from the state and county treasurers the rebate to which they were entitled under the law. They acquiesced in the decision of the county court upon the constitutionality of the statute, and, to all intents and purposes, abandoned their contention that the law was unconstitutional. Being fully advised in the premises, they elected to abandon their right of appeal and abide by the judgment of the county court. It was only when the Supreme Court of the United States, several years later, in a proceeding in another estate, held the statute unconstitutional, that they made this petition for a correction or a modification of the former judgment. Under such circumstances, it is impossible to find that they failed to take their appeal without fault on their part. If the county judge had so found, it would have been contrary to palpable facts and an abuse of discretion.”
“Her Honour’s decision was made a little over a week before this Court gave its decision in Double Time Pty ltd v. Ryan and Chiwei [2001] QCA 57. In that case the Court concluded that the failure to observe the procedural requirements of section 222(a) as to service and entry of a recognisance did not deprive the District Court of its jurisdiction to hear an appeal. The District Court had, the Court concluded, a discretion to terminate proceedings in the event of such an irregularity.
Not surprisingly in the light of then existing authority, the learned District Court Judge did not attempt to exercise any discretion in this regard. It is clear in the light of Double Time that it would have been appropriate for her to do so, and Mr Quayle for the respondent does not contend to the contrary. He conceded that the better approach in this case if the appeal were to be allowed would be to remit the appeal to the District Court for hearing, rather than the application for an extension of time.”
No basis of inability to serve the respondents there in time appeared, except the appellant’s untenable belief that she had to wait until she had a sealed copy of the Notice of Appeal to serve.
“Re:Alan Ross GREET v. Building and Construction Industry (Portable Long Service Leave Authority)
District Court File D2541/03/02
Please find enclose copy of Appeal which relates to a decision of the Industrial magistrates Court at Brisbane on 15 April 2003. The abovementioned District Court file number has been issued on 4 August 2003.”
The Authority’s response was a letter of 12 August 2003:
“Thank you for your letter of 7 August, 2003 and the documents therewith.
QLeave has not been served with the Notice of Appeal and was unaware of its existence until receiving your correspondence today. As a consequence, no notice of address for service has been filed. I would also submit that as the appeal has not been served and dealt with in accordance with the rules, it is appropriate that it be dismissed.
I look forward to receiving your advices and my telephone number is 32126847 should you wish to contact me.”
The Deputy Registrar sent a full response dated 15 August 2003:
“I refer to the above matter and to your letter of 12 August and note the contents thereof.
In answer to your submission that “as the appeal has not been served and dealt with in accordance with the rules, it is appropriate that it be dismissed” I say as follows:-
Having regard to the above and the fact that the Appellant has yet to default in his obligations pursuant to my direction of 8 August I suggest that if you feel that it is appropriate that the appeal should be dismissed you should bring an application in accordance with S229 of the Act. If no application is bought by you the appeal will proceed in accordance with Practice Direction 5 of 2001.”
“We act for the Respondent in the above action, the Building & Construction Industry (Portable Long Service Leave) Authority.
Our client has forwarded to us a copy of a DCA 5 Warning Notice (Appellants outline outstanding) which was addressed to our client. Our client is the Respondent in this Appeal. We assume that the Warning Notice is not directed to our client, but is in fact directed to Mr Greet, the Appellant in the action.
In your Warning Notice you stated that if the Appellant failed to file the Outline of Argument by 3 November 2003, that the Appeal would be listed as a reference pursuant to Rule 982 of the UCPR 1999 on 12 November 2003. It is our client’s position that this Appeal ought be listed as a reference on 12 November 2003. our reasons are as follows.
The Appellant lodged the Appeal with the Magistrates Court on 21 May 2003. Notwithstanding being informed of the obligations of an Appellant pursuant to Practice Direction No 5 of 2001, the Appellant failed to provide you with a copy of the Appeal until 31 July 2003. Notwithstanding the clear obligation on the Appellant to file and serve on the Respondent an outline of argument within 28 days, the Appellant failed to do so. Indeed, in its letter dated 26 August 2001 the Appellant requested an additional 7 weeks to prepare its Outline, notwithstanding that at that time the Appellant was 78 days late in the delivery of the outline. On 4 September 2003 you granted an extension of time to 26 September 2003. Notwithstanding this extension, the appellant failed to deliver its Outline of Argument. It is now 28 October 2003 – 125 days after the Appellant ought have delivered its Outline of Argument.
It is our client’s respectful submission that this matter be referred by you to a Judge pursuant to Rule 982 of the UCPR 1999 with a view to having the Appeal dismissed for want of prosecution.”
