Schmidt v Stickens[2003] QDC 56

DISTRICT COURT OF QUEENSLAND

1. [1]
   There are two applications before the court. The first relates to an application that was made to the magistrate pursuant to s 142 (6) of the Justices Act for a re-opening of the proceedings of 30 January 2003.  The proceedings of 30 January 2003 had taken place in the absence of the appellant.  That application was heard on 7 March 2003 and refused after the magistrate had heard sworn evidence from the applicant and the respondent Mr Stickens.  The second relates to the hearing of the original complaint which occurred on 30 January 2003.  On that day the appellant failed to appear and the proceedings proceeded in his absence.  The appellant was convicted of an offence pursuant to s. 74(1)(A) of the Meat Industry Act 1993 and fined the sum of $7,000 and was ordered to pay $62.10 costs of court, $478 witness expenses and $1,500 for professional costs.  A conviction was recorded.  A moiety of the fine was ordered to be paid to Safe Foods (Queensland). The time for payment was 28 days in default three months imprisonment.  An appeal was not lodged against this decision within the time provided for in s 222(2) of the Justices Act 1886 either as to conviction or as to sentence.  The appellant then seeks an extension of time within which to appeal pursuant to s 222(2A) of the Act. 

2. [2]
   It should be noted that at the hearing of these matters before me and on the occasions when the appellant did appear in the Magistrates Court he was self represented.

3. [3]
   The sequence of hearings is sufficiently set out in the material and in the transcript of 23 May 2003 before myself.

4. [4]
   The original complaint was mentioned on 1 November 2002 before Mr Mould, Magistrate at Caboolture. Mr Stickens, the complainant, attended as did the respondent Mr Schmidt in person. The matter was set down for hearing on 30 January 2003. At the request of the respondent, the matter was set down before a different magistrate, Mr Krosch.

5. [5]
   On 30 January 2003 the complainant was represented by Mr Farrah. The respondent did not appear but his wife was seen in the precincts of the court. The appellant concedes that he did send his wife along to the court on that day.

6. [6]
   A facsimile dated 6 February 2003 from Christine Linklater of Legal Aid to the Magistrates Court, Caboolture reveals that Mr Schmidt was in receipt of legal advice on that day concerning a re-hearing pursuant to s 142(6) of the Act. That re-hearing subsequently occurred on 7 March 2003 before Mr Krosch who refused the application.

7. [7]
   The transcript of the hearing of that application and the reasons for the decision of Mr Krosch persuaded me that there was no merit in that appeal. I explained the reasons for that view to Mr Schmidt at pp 6-10 inclusive of the transcript of 23 May 2003.

8. [8]
   The remaining question is whether the appellant should be given an extension of time within which to appeal the decision of 30 January 2003 pursuant to s 222(2A) of the Act. That section provides as follows:

“(2A)However, if the appellant cannot 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

the judge considers appropriate.”

9. [9]
   Section 222(2)(a) of the Justices Act as it then was, was considered by the Court of Appeal in GSA Industries (Aust) Pty Ltd v Tully (1995) 1 Qd R 607.  The current provisions do not appear to be markedly different although I note that the present section refers to “giving notice” rather than “serving notice”.  There may be a subtle difference as the former section dealt quite specifically with service and the decision under appeal in GSA Industries concerned the difficulties that may have existed with serving the respondent within the 28 days which was the prescribed time for service.  In the absence of an inability to serve notice which was due to no fault on the part of the applicant there was simply no discretion conferred on a District Court judge to enlarge time.  At p. 610 the judgment of the Court comments on the fact that authority would support a liberal reading of the requirement of inability to serve.  The point, however, did not need to be resolved as the initial basis of inability to serve during the 28 day period was not established.  Furthermore, the court was not required to consider the relevance of a solicitor’s fault.

10. [10]
    The situation in the present case can be stated quite briefly. On 30 January 2003 the appellant was convicted in his absence of an offence under the Meat Industry Act and fined.  On 6 February 2003 Ms Linklater of Legal Aid wrote on his behalf to the Magistrates Court seeking a re-hearing under s 142(6) of the Act.  That application was not heard until 7 March 2003 by which time of course the 28 day period provided for under s 222(2)(a) had elapsed.  When that application was unsuccessful the applicant filed his present application to the District Court which was done on 4 April 2003.

11. [11]
    It is worth noting that the appellant was at all times unrepresented in court and that no consideration would appear to have been given by Ms Linklater to lodging an appeal to the District Court against conviction and/or sentence in addition to notifying the court of the application under s 142(6). Applying a liberal construction to the question of inability to give notice through no fault of the appellant it seems to me that there are sound reasons of a practical kind why the appellant, through no fault of his own, failed to appeal to the District Court within time. Furthermore, the potential for a serious miscarriage of justice supports a liberal view. He had been convicted in his absence and a conviction had been recorded. He was fined a very large sum of money which other material suggests he has absolutely no chance of paying and in default is to serve three months imprisonment. I therefore find that the discretion to extend time does exist on the abovementioned facts. I therefore turn to the question whether the extension of time should be granted for leave to appeal against conviction and/or sentence.

12. [12]
    I have already mentioned the factors that would seem to support an appeal against conviction. These concern the ex parte nature of the hearing where the appellant was absent in circumstances where he said he had been led to believe that he did not have to attend.  These latter circumstances were said to arise out of the mention hearing that had occurred before Mr Mould on 1 November 2002 and from telephone conversations that the appellant said had taken place between himself and Mr Stickens’ office.

13. [13]
    However, these are the same issues that were litigated before Mr Krosch on 7 March Mr Krosch rejected his explanations and found that he was well aware of the need to appear. Having elected not to appear with witnesses on 30 January 2003 at the hearing which resulted in his conviction, the appellant should not be a permitted a second try. The application for an extension of time within which to appeal against conviction is therefore refused.

14. [14]
    At the hearing before me, no mention whatsoever was made of an appeal against sentence. It does seem to be a case, however, where an appeal against sentence should be permitted to be made if desired. I have already referred to the onerous nature of the fine that has been imposed, the recording of a conviction and the default term of imprisonment. The schedule of comparative penalties for breaches of s 74 of the Meat Industry Act 1993 which was apparently put before the magistrate reveals penalties which are generally speaking far lower than that imposed on the appellant.  There was some evidence from the appellant before Mr Krosch that he had some previous experience of litigation including the pursuit of a successful appeal but there was no suggestion in the material before me  that he had a criminal history for offences of this kind.  There would of course have been no evidence before the magistrate of capacity to pay.  An affidavit filed by him in this appeal on 4 April 2003 reveals that he is unemployed and has no income other than a NewStart Allowance from Centrelink.  He is supporting two children.

15. [15]
    The discretion to extend time to permit an appeal against sentence should therefore be exercised in the appellant’s favour. The notice of appeal filed 4 April 2003 does in fact seek “leave to appeal against the whole of the decision of the Magistrates Court at Caboolture on 30 January 2003 by which it was ordered that:

1. (i)
   a conviction was recorded;

2. (ii)
   that he pay the following $9,040.10 in default three months imprisonment.”

16. [16]
    This is sufficient to support an appeal against sentence on the grounds that the sentence was manifestly excessive. If the appellant wishes to file an amended notice of appeal against sentence within fourteen days of today’s date I give him leave to do so. As I heard no submissions on sentence from either party at the hearing on 23 May 2003 I proposed to adjourn further hearing of the appeal to a date to be fixed.