MC Property Investments Pty Ltd v Bismire
[2011] QDC 331
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- MC Property Investments Pty Ltd v Bismire[2011] QDC 331
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MC Property Investments Pty Ltd v Bismire[2011] QDC 331
MC Property Investments Pty Ltd v Bismire[2011] QDC 331
[2011] QDC 331
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE ROBERTSON
No 58 of 2011
MC PROPERTY INVESTMENTS PTY LTD and MARIOS CONSTANTINIDES | Appellants |
and | |
MICHAEL BISMIRE | Respondent |
MAROOCHYDORE
DATE 16/06/2011
JUDGMENT
HIS HONOUR: The appellant seeks, by its notice of appeal filed on the 22nd of March 2011, to impugn orders made by his Honour Magistrate Hodgkins in the Maroochydore Magistrates Court on the 11th of March 2011. The respondent Council officer argues as a preliminary point that the appeal is incompetent and should be dismissed.
Brief Introduction:
Mr Constantinides and a company he controls, M C Property Investments Pty Ltd, are facing a large number of charges in the Maroochydore Magistrates Court alleging breaches of various provisions of the Integrated Planning Act 1997, described generically as "development offences", and various breaches of The Building Act 1975. All charges made on the complaint of the respondent as the manager of planning assessment of the Council relate to what Council says are various breaches of section 4.3.1 of the IPA (carrying out accessible development without a development permit) against Mr Constantinides personally as executive officer of the company in failing to ensure the company did not carry out accessible development without a permit, and against the company for the substantive offences and for breaching section 114 of The Building Act 1975. All charges relate to alleged activities by the company at land it owns at 7172 Bruce Highway, Forest Glen.
It appears that charges are grouped in relation to various buildings and/or tenancies on the land. The complaints on Bench complaint sheet file number MAG-00262824/09(8) was set for hearing from the 11th to the 15th of April 2011 in the Maroochydore Magistrates Court. The determination of development offence type charges under the IPA are to be brought in the Magistrates Court (section 4.3.18) and section 4.3.20 empowers that Court to make orders (after hearing the complaint). Proceedings for offences against the IPA may be instituted in a summary way under The Justices Act 1886 and section 4.4.2 of the IPA provides that:
"a proceeding for an offence against this Act must state-
- (a)within one year after the commission of the offence; or
- (b)within six (6) months after the offence comes to the complainant's knowledge".
The Proceedings in the Magistrates Court:
On the 4th of March 2011 the appellants, by written application previously filed, came before his Honour and essentially argued that in relation to the charges under the IPA the Court did not have jurisdiction as the complaints had not been filed within one year after the commission of the offence and were otherwise flawed. Other complaints were made about failure to make disclosure. The complaints were made by Mr Bismire on the 12th of November 2009. By way of example in relation to the first three charges in the complaint relating to building 3 - tenancy 19A - category B - Coral Homes, particulars were provided including particulars as to the dates of the offence. These were particularised as "dates ... between a date unknown prior to the 14th of November 2008 and the 11th of November 2009". Similar particulars are provided in relation to all other groupings of charges although the end date differs slightly in some.
The Issue Before the Magistrate:
Mr Glynn SC of Counsel appeared for the appellants before his Honour. In his usual erudite style he (a) conceded properly that the hearing before his Honour was a pre-trial hearing or a directions hearing, to use the wording of The Justices Act, and (b) the real issue between the parties was whether or not the IPA offences were in the nature of "continuing offences" (analogous to offences under the Criminal Code and The Drugs Misuse Act such as carrying on the business of trafficking in dangerous drugs and maintaining a sexual relationship with a child); although I immediately note that Mr Glynn did not raise those particular offences as analogies.
Mr Sinclair who appeared for the Council also raised the issue of the power to amend under The Justices Act if that proved to be necessary.
It was conceded by both parties that his Honour was not the trial Magistrate and that he would not be required to make any findings of fact. Some facts were conceded but solely for the purposes of the interlocutory hearing.
His Honour had the advantage of written and oral submissions from the parties. I should note, as I've already done, that the written submissions from the appellant raised other issues about the form of the charges and the lack of particulars.
His Honour's Decision:
His Honour reserved his decision and gave a considered written judgment on the 11th of March 2011 in which he found against the appellant on all grounds. In summary, he found that the IPA offences were continuing offences and the lack of a starting date did not deprive the Court of jurisdiction.
The Appeal to this Court:
The Council takes a preliminary point to the effect that the appeal is incompetent. In my opinion Council is clearly correct in its contention.
As I have noted, it was accepted by the appellants at the hearing before his Honour that is was a "pre-trial hearing" or a "directions hearing" and that his Honour would not be required to hear or determine any evidentiary matters.
Section 83A of The Justices Act 1886 provides for a "directions hearing" and is expressed in wide enough terms to encompass the directions or rulings made by his Honour on the 11th of March 2009. The expression "pre-trial hearing" comes from the language of the equivalent section in the Criminal Code, section 590AA,which empowers a superior Court to give "directions or rulings". Section 83A(7) is explicit:
"a direction must not be subjected to interlocutory appeal but may be raised as a ground of appeal on conviction or sentence". It follows that the appeal is incompetent and should be dismissed for that reason alone.
The appeal is made to this Court pursuant to section 222(1) of The Justices Act 1886. The appellant seeks to avoid the application of section 83A(7) by arguing that the wording of section 222(1) is wide enough to encompass an appeal of this nature. As Mr Sinclair correctly notes, the appellate jurisdiction of this Court is not enlivened unless "a person feels aggrieved as ... defendant ... by an order made by ... a Justice in a summary way on a complaint for an offence".
At common law this section has been considered on many occasions. In Schneider v. Curtis [1967] Qd 300 the Full Court (per Gibbs J as his Honour then was) decided on a case stated, that an appeal from a rejection of a "no case" submission at the end of the prosecution case was not subject to an appeal under section 222: His Honour wrote:
"In my opinion the legislature did not intend that the wide powers of control over the proceedings of Magistrates which this Court may exercise by way or order to review should also be available on appeal under section 222. Such an appeal in my opinion only lies from an order which disposes of a complaint, for example by dismissing it, or by entering a conviction and imposing a penalty.
It does not lie, from a Magistrate's ruling given at the close of the complainant's case, that there is a case for the defendant to answer, for although such a ruling may amount to the refusal of an application, it may be regarded as an order within the definition of section 4. It is made upon an incidental application during the hearing of the complaint and is not an order made upon the complaint".
Section 83A (enacted since that decision) has not broadened the rights of appeal under section 222. In Paulger v. Hall [2002] QCA 353 Justice Holmes, with whom the President agreed, said : at paragraph [27]
"Quite apart from the construction question addressed in Schneider v. Curtis, there is much to be said on policy grounds for prohibiting the bringing of appeals under section 222 against interlocutory rulings. Such appeals may lead to fragmentation of the criminal process, may in the long run prove to have been pointless, and capable of being misused to exhaust the resources of a less well-heeled opponent. But an appellant may in an appeal against a final judgment properly raise the issue of the correctness of an interlocutory ruling "which affected the final result" ... "thus, an appeal from a ruling before any evidence had been put before the Court on a voir dire or called in the case might well be doomed to failure, because of the impossibility of saying whether it had affected the final result. On the other hand, it does not follow in a case such as the present that every piece of evidence available to the prosecution must be called before it can be said that an interlocutory ruling as affected the outcome".
Clearly his Honour made no order "on a complaint for an offence" which would require him to hear evidence and make findings of fact and law and find the defendant guilty. Any other interpretation would render meaningless the words of section 233(1):
"An appeal against section 222 is by way of re-hearing on the evidence ("original evidence") given in the proceedings before the Justices". The appeal is also incompetent on that ground and should be dismissed for that reason.
The Merits:
In view of my findings above it would be inappropriate to say anything about the merits that may influence any future appeal if indeed there is one. Mr Christoforou, quite properly at the commencement of the proceedings today, withdrew his submissions made in his written outline at 5.1.6 to 5.1.7 in which he alleged reasonable apprehension of bias on the part of the Magistrate. No such bias was demonstrated; no application was made either before or during the hearing to his Honour to recuse himself on the grounds of apprehended bias and the withdrawal of that submission by Mr Christoforou was proper in the circumstances. The order of the Court is that the appeal is dismissed.
MR SINCLAIR: Your Honour, under The Justices Act section 226, your Honour may make such order as to costs to be paid by either party as your Honour thinks is just. That doesn’t expressly bring in the UCPRs but for completeness rule 681 would normally apply that they follow the event and, your Honour, I urge to consider whether they shouldn’t be on an indemnity basis such as dealt with under rule 704. And I can only put that on one of the many basis which are commonly put up and that is that in this particular case, the institution of the appeal was contrary to settled law. Your Honour has just referred to the authorities, the very passages which are relevant to your Honour's judgment form part of the relevant case dealt with in the outline by the appellant in Marchetti v. Williams. That should have signalled clearly that the application was doomed to failure and the appellant's outline also dealt with section 83A subsection (7).
HIS HONOUR: What's the sections again in the UCPR?
MR SINCLAIR: 681, costs should follow the cause.
HIS HONOUR: And what's the indemnity cost one?
MR SINCLAIR: 704, your Honour. It doesn’t give your Honour a lot of guidance.
HIS HONOUR: The guidance comes from the common law. There's that Colgate‑‑‑‑‑
MR SINCLAIR: Yes, Colgate - Palmolive Co v. Cussons Pty Ltd [1993] 46 FCR 225. There's a list which is given by his Honour Judge - Justice Shepherd there and he includes in it in his Roman iii: "commencing or continuing proceedings for some ulterior motive or in wilful disregard of known facts or clear law". He goes on to say: "of course the question must always be one where the particular facts and circumstances ... warrant making of an order for payment of costs other than on a party to party basis". And‑‑‑‑‑
HIS HONOUR: Have you got a copy of Colgate there?
MR SINCLAIR: I don’t, your Honour, I have a copy of where it was referred to in a single Justice decision in the Supreme Court; I wasn’t able to get a copy of it in the‑‑‑‑‑
HIS HONOUR: Yes, could you just hand it up to me; I've considered it on many occasions.
MR SINCLAIR: Yes, your Honour. The authority that I have is Emanual Management Pty Ltd v. Fosters Brewing‑‑‑‑‑
HIS HONOUR: Yes, I see that’s cited under 703.
MR SINCLAIR: Yes, your Honour, and it's at [2003] QSC 299; the relevant quote of Colgate is at paragraph 17.
HIS HONOUR: All right.
MR SINCLAIR: Your Honour, I don’t say that there's anything relevant about that actual case other than the quote.
HIS HONOUR: No. Justice Chesterman does say that there's - I mean, there's no allegations or suggestions here of improper or deliberate misconduct or dishonesty or anything like that.
MR SINCLAIR: No, it's only the one grounds that I rely on, your Honour.
HIS HONOUR: Proceeding in the face of an appeal that was doomed‑‑‑‑‑
MR SINCLAIR: Yes.
HIS HONOUR: ‑‑‑‑‑to fail. What do you say, Mr Christoforou?
MR CHRISTOFOROU: Well, with respect, your Honour, I don’t believe that as with the submissions I made that the appeal was doomed to failure. There was a genuine belief by both my clients and myself that the proceedings - the order that was made was not interlocutory in nature and we sought to distinguish the cases that your Honour has referred to‑‑‑‑‑
HIS HONOUR: Yes.
MR CHRISTOFOROU: ‑‑‑‑‑in that regard.
HIS HONOUR: Yes.
MR CHRISTOFOROU: So, it was not done with any intention of wasting time or being disruptive or anything of that nature, it was an endeavour by my clients to pursue a - an appeal which they legitimately thought they had grounds to file.
HIS HONOUR: Mmm.
MR CHRISTOFOROU: And I should perhaps add to that, your Honour, that in none of those cases is there any mention of an appeal being lodged with respect to this type of application, whereby it was sought to challenge the finding that proceedings were not out of time.
HIS HONOUR: Yes, all right.
MR CHRISTOFOROU: It's a unique‑‑‑‑‑
HIS HONOUR: All right.
MR CHRISTOFOROU: ‑‑‑‑‑type of case.
HIS HONOUR: Yes. Having considered the submissions made by both parties on the issue of costs, I'll order that the appellants pay the respondent's cost incidental to the appeal to be assessed on the standard basis.