Richards v Gold Coast City Council
[2008] QDC 91
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- Unreported Judgment
- Richards v Gold Coast City Council[2008] QDC 91
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Richards v Gold Coast City Council[2008] QDC 91
Richards v Gold Coast City Council[2008] QDC 91
DISTRICT COURT OF QUEENSLAND
CITATION: | Richards v Gold Coast City Council [2008] QDC 91 |
PARTIES: | ANDREW JOHN RICHARDS (applicant) v GOLD COAST CITY COUNCIL (respondent) |
FILE NO/S: | DC 96 of 08 |
PROCEEDING: | Application |
ORIGINATING COURT: | Magistrates Court Southport |
DELIVERED ON: | 2 May 2008 |
DELIVERED AT: | Southport |
HEARING DATE: | 28 April 2008 |
JUDGE: | Newton DCJ |
ORDER: | The application for leave to extend time is dismissed. The applicant is to pay the respondent’s costs of and incidental to the application. |
CATCHWORDS: | Application for leave to extend time to appeal – whether long period of delay is explained or justified – whether appeal has any merit – whether jurisdictional point now sought to be taken on appeal was agitated in the lower court – whether delay detracts from the public interest in the finality of litigation – whether it can be shown that the interests of justice are strongly in favour of the applicant – whether applicant is able to pay the substantial costs of appeal if unsuccessful. Justices Act 1886 s.224 (1)(a) Local Government Act 1993 Gold Coast City Council Local Law No. 12 (Keeping and Control of Animals) Gold Coast City Council Local Law Policy No. 12 (Keeping and Control of Animals) R v Tait [1999] 2 QD R 667 – referred to Kobylski v Queensland Police Service [2007] QCA 50 – referred to R v DAQ [2008] QCA 75 – referred to Liftronic Pty Ltd v Umber [2001] HCA 24 – referred to |
COUNSEL: | The applicant appeared self represented R Frigo for the respondent |
SOLICITORS: | The applicant appeared self represented Woods Hatcher for the respondent |
- [1]This is an application for extension of time for filing notice of appeal to a District Court Judge from a decision of a magistrate.
- [2]The applicant, Mr Richards, was convicted on 20 April 2007 following a summary trial in the Southport Magistrates Court of an offence in contravention of section 1193K(2) of the Local Government Act 1993 that he on 21 February 2006 without reasonable excuse did supply a restricted dog to someone else. He was fined $2,000.00 and ordered to pay costs of $5,565.40. No conviction was recorded.
- [3]Mr Richards filed a notice of appeal on 18 February 2008 pursuant to section 222 of the Justices Act 1886. The notice of appeal having been filed almost nine months out of time, Mr Richards now applies for leave to extend time to file his notice of appeal pursuant to section 224(1)(a) of the Justices Act 1886.
- [4]In R v Tait [1999] 2Qd. R 667 at p.668 the Court of Appeal considered the principles relating to the question of extending time in criminal appeals. It was stated that “the Court will examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension. That may involve some assessment of whether the appeal seems to be a viable one. It is not to be expected that in all such cases the Court will be able to assess whether the prospective appeal is viable or not, but when it is feasible to do so, the Court will often find it appropriate to make some provisional assessment of the strength of the applicant’s appeal, and take that into account in deciding whether it is a fit case for granting the extension. Other factors include prejudice to the respondent, but in the case of criminal appeals this is not often a live issue. Another factor is the length of the delay, it being much easier to excuse a short than a long delay”.
- [5]In Kobylski v Queensland Police Service [2007] QCA 50 Mullins J at paragraph [11] stated:
“In considering whether to grant an extension of time within which to apply for leave to appeal from a District Court Judge who has dealt with appeals from the Magistrates Court, the Court looks at ‘whether there is any good reason shown to account for the delay and... whether it is in the interests of justice to grant the extension’: R v Tait [1999] 2 QLD R 667 at 668”.
- [6]Keane JA, in refusing leave to extend time, stated in R v DAQ [2008] QCA 75:
“Delay in making an application is relevant to the exercise of the discretionary power to grant an extension of time because delay detracts from the public interest in the finality of litigation. Indeed, it is the public interest in this regard that affords the raison d’etre of statutory time limits on appeals”.
- [7]The long delay in the present case is poorly explained. Grounds 2 and 3 of the applicant’s notice of application for extension of time are in the following terms:
- This application for leave to appeal is brought on the grounds that an appeal was not lodged within the requisite appeal period as the applicant could not afford legal representation and applied for and was ultimately refused legal aid assistance by the Queensland Legal Aid Commission on the grounds that the Commission did not fund what it describes as “other Administrative Law” and furthermore, it did not consider that the detriment to be suffered by the applicant was sufficient to warrant a grant of aid. The applicant appealed this decision to an external review officer who affirmed the decision to not grant aid.
- By the time the applicant’s application for legal aid had finally been determined the time for lodging an appeal against the decision of Magistrate Pirie, as described in paragraph 1, above, had expired.
- [8]Further explanation for the delay was forthcoming in the applicant’s oral submissions. Mr Richards referred to problems experienced by himself and his father (with whom he resides in Grafton). These include his father’s blindness and other illness, and the applicant’s poor state of mind resulting from a dispute with the Clarence Valley Council in Grafton. I should indicate that there is no formal evidence of any of this, the various matters being raised in oral statements made from the bar table.
- [9]There are, in fact, two periods of time which require explanation by Mr Richards. Firstly, there is the delay from 20 April 2007 (the date of conviction) to 14 October 2007 (the date of rejection of his application for legal aid). Secondly, there is the further period of delay from approximately 19 October 2007 (the date the unsuccessful review of the decision by the Legal Aid Office was notified) to 18 February 2008 (the date of filing the notice of application for extension of time).
- [10]In my view the explanation for delay in respect of both these substantial periods of time is entirely inadequate.
- [11]As Keane JA observed in R v DAQ, delay of this type detracts from the public interest in the finality of litigation. This is particularly so in the present case as Mr Richards has made very little effort in paying the fine imposed by the magistrate or in making arrangements to satisfy the considerable costs order made against him. I hold some doubt as to whether he has any intentions of paying either the fine or the costs. To permit the further incurring of costs by allowing this application on anything but the firmest of grounds as to the likelihood of an appeal ultimately succeeding would be irresponsible.
- [12]The applicant claims that he has been subjected to a gross miscarriage of justice by being found guilty of an offence that does not apply to the Gold Coast City Council or its area pursuant to section 193D(1) of the Local Government Act. This is so, contends Mr Richards because there exists a local law as promulgated by the Gold Coast City Council regarding prohibited dogs but he was not charged under the local law. Accordingly, the Gold Coast City Council has no statutory obligations under section 1193K(2) of the Local Government Act. This much may be gleaned from the ground of appeal 4 of the applicant’s notice. What follows is not so easily understood. Mr Richards contends that:
“As chapter 17A The Minimum Standards does not apply since the commencement of GCCC Subordinate Local Law (2) 2003 and the Subordinate Local Law is binding on GCCC pursuant to section 897 Local Government Act 1993 and they have not repealed the Subordinate Local Law (2) 2003 for the keeping and control of animals pursuant to section 897A(2), I believe that their acts and omissions constitute an abuse of office, abuse of process and a perversion of the course of justice”.
- [13]This jurisdictional point, it may be noted, was not agitated in the Magistrates Court. In fact, the applicant conducted his defence in a manner quite inconsistent with the point he now wishes to rely on. In Liftronic Pty Ltd v Umber [2001] HCA at paragraph 44 McHugh J said:
“It is an elementary rule of law that a party is bound by the conduct of his or her case: University of Wollongong v Metwaly (No 2) [1985] HCA 28; (1985) 59 ALJR 481; Coulton v Holcombe (1986) 1621 at 8-9. As six justices of this Court said in University of Wollongong v Metwaly (No.2):-
‘Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether or deliberately or by inadvertence, he failed to put during a hearing when he had an opportunity to do so.
There are a number of factors that underpin this principle. There is public interest consideration that litigation should have an end point and that the time and place for parties to put their case is at trial. If parties where free to present new cases on appeal the trial process might become no more than a preliminary skirmish. Added to this is the injustice that might flow from allowing a party to deviate from the case that is presented at trial.’ ”
- [14]Mr Richards submits that subsection 1 of section 1193D of the Local Government Act applies in the present case because the Gold Coast City Council has passed a local law that prohibits any person in its area from possessing a restricted dog, and therefore Chapter 17A of the Local Government Act has no application in relation to the Gold Coast City Council or its area. Section 1193D provides:
“Relationship with local laws
- (1)If a local government makes a local law that prohibits anyone in its local government area, other than an exempted person, from possessing a restricted dog, this chapter does not apply in relation to the local government or its area.
- (2)If a local government makes a local law that provides a person may, in stated circumstances, possess a restricted dog in its local government area, but otherwise prohibits anyone in the area, other than an exempted person, from possessing a restricted dog, this chapter—
(a) applies to everyone to whom the circumstances apply; and
(b) otherwise does not apply in relation to the local government or the area.
- (3)This chapter does not prevent a local law from imposing requirements in relation to dogs generally.
- (4)However, if this chapter and a local law are inconsistent about a requirement, the local law is invalid to the extent of the inconsistency if it imposes a less onerous obligation or lower standard on an owner of, or a responsible person for, a restricted dog than the obligations or standards imposed on the person under this chapter.
- (5)This section applies for a local law whether made before or after the commencement of this chapter.
- (6)In this section—
exempted person means an authorised person exercising functions or powers under this Act or a local law.
local law includes a subordinate local law.
prohibits includes a prohibition that does not provide for a penalty if the prohibition is contravened."
- [15]It will be recalled that Mr Richards was charged with and convicted of an offence in contravention of section 1193K(2) of the Local Government Act, which is contained within Chapter 17A of that Act. The question to be determined, then, is whether the Gold Coast City Council was precluded from bringing a prosecution against Mr Richards under that section because it has made a local law regulating the keeping of restricted dogs within the City of the Gold Coast.
- [16]The relevant Local Laws as at 21 February 2006 (the date of the offence) that regulated the keeping of restricted dogs within the City of the Gold Coast are contained within:
(a) GoldCoastCity Council Local Law No. 12 (Keeping and Control of Animals) (“the Local Law”); and
(b) GoldCoastCity Council Local Law Policy No. 12 (Keeping and Control of Animals) (“the Policy”).
It will suffice for present purposes to note that the prohibition in the Local Law and the Policy regulate the keeping of a restricted dog rather than the supply of a restricted dog. There is no prohibition on the sale or supply of a restricted dog in the Local Law or the Policy.
- [17]There appears to be, therefore, no obvious reason to hold that section 1193K(2) of the Local Government Act, contained as it is within Chapter 17A, does not continue to apply within the City of the Gold Coast to prohibit the supply of a restricted dog.
- [18]In these circumstances it cannot be said that the applicant’s appeal has any substantial prospect of succeeding were it to be argued fully at an appeal hearing.
- [19]In my view the application for leave to extend time should be refused because:
- (1)the notice of appeal was filed almost nine months out of time;
- (2)the long period of delay is poorly explained and not supported by any sworn evidence ;
- (3)the appeal has very little, if any, merit in that the jurisdictional point appears to be misconceived;
- (4)the jurisdictional point now sought to be taken on appeal was not agitated in the court below;
- (5)the jurisdictional point now raised is entirely contrary to the way Mr Richards conducted his defence before the Magistrate where he contended that Chapter 17A of the Local Government Act applied;
- (6)the dog the subject of the prosecution has, apparently, now been destroyed;
- (7)the applicant has not paid to the respondent any of its $5,565.40 costs awarded in the Magistrates Court;
- (8)the applicant has paid only $300.00 of the $2,000.00 fine imposed by the Magistrate;
- (9)delay of this degree detracts from the public interest in the finality of litigation; and
- (10)it cannot be shown that the interests of justice are strongly in favour of Mr Richards.
- [20]The application for leave to extend time is dismissed. The applicant is to pay the respondent’s costs of and incidental to the application.