Wandulla Pty Ltd v Body Corporate for Broadwater Plaza
[2021] QDC 341
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Wandulla Pty Ltd v Body Corporate for Broadwater Plaza[2021] QDC 341
- Add to List
Wandulla Pty Ltd v Body Corporate for Broadwater Plaza[2021] QDC 341
Wandulla Pty Ltd v Body Corporate for Broadwater Plaza[2021] QDC 341
DISTRICT COURT OF QUEENSLAND
CITATION: | Wandulla Pty Ltd v Body Corporate for Broadwater Plaza [2021] QDC 341 |
PARTIES: | WANDULLA PTY LTD ACN 061 467 865(Appellant) v BODY CORPORATE FOR BROADWATER PLAZA (Respondent) |
FILE NO/S: | 121/21 and 122/21 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | Magistrates Court at Southport |
DELIVERED ON: | 23 November 2021 (ex tempore) |
DELIVERED AT: | Southport |
HEARING DATE: | 23 November 2021 |
JUDGES: | Jackson QC DCJ |
ORDER: | Appeal allowed.
|
CATCHWORDS: | APPEAL – APPEAL BY WAY OF RE-HEARING – Where the appellant submits that the learned Magistrate erred in refusing to adjourn the trial – Where the appellant submits that this resulted in a miscarriage of justice – Whether the appeal should be allowed. |
LEGISLAION: | Justices Act 1886 (Qld) |
CASES: | Allesch v Maunz (2000) 203 CLR 172 Bloch v Bloch (19801) 180 CLR 390 House v The King (1936) 55 CLR 499 Maxwell v Keun [1928] 1 KB 645 McInnis v The Queen (1979) 143 CLR 575 Romero v Body Corporate for White Lanterns Community Titles Scheme [2014] QDC 128 Valk v Commissioner of Police [2017] QCA 126 |
COUNSEL: | J Buckland for the Appellant B Strangman for the Respondent |
SOLICITORS: | Dundas Lawyers for the Appellant Grace Lawyers for the Respondent |
Introduction
- [1]There are two appeals before the court.
- [2]The first in time is an appeal against an order of one Magistrate on 22 March 2021 during the trial in this matter. The second in time concerns an earlier decision of another Magistrate shortly before the trial. Leave to appeal or an extension of time in which to appeal is required in respect of that appeal.
Grounds of appeal
- [3]The grounds of the second appeal are that:
“The learned Magistrate erred in refusing to adjourn the proceeding in circumstances where the appellant was unable to obtain legal representation through no fault on its part, such refusal resulting in a miscarriage of justice, namely that the appellant was convicted without a fair trial.”
- [4]As to the first appeal, the grounds are as follows:
- The learned Magistrate erred in finding that no application for adjournment was before him;
- The learned Magistrate erred in finding himself bound by the refusal of [the other] Magistrate to adjourn the proceeding as the basis of refusing to adjourn the proceeding before him;
- The learned Magistrate erred in finding the appellant was required to show ‘new reasons’ before an adjournment could be granted;
- The learned Magistrate erred in refusing to adjourn the proceeding in circumstances where the appellant was unable to obtain legal representation through no fault on its part, such refusal resulting in a miscarriage of justice, namely that the appellant was convicted without a fair trial;
- The learned Magistrate erred in not fully particularising the charge when taking a plea from the appellant;
- The learned Magistrate erred in failing to adequately explain the trial procedure to the appellant prior to commencing the proceedings in circumstances where the appellant was without legal representation in those proceedings;
- The learned Magistrate erred in calling upon the prosecutor to make closing submission prior to calling upon the appellant to give or call evidence;
- The learned Magistrate erred in calling upon the prosecutor to make submissions on penalty before returning a verdict;
- The penalty imposed by the learned Magistrate was manifestly excessive;
- The learned Magistrate failed to take into account matters relevant to sentence pursuant to ss 9(2)(c), (e) and (f) of the Penalties and Sentences Act 1992;
- The learned Magistrate erred in only taking into account the long-standing nature of the dispute and the non-compliance with the adjudicator’s order when arriving at the penalty;
- The learned Magistrate erred in finding the facts of the case surpassed what is common or usual in the ordinary case (that the case was one of special importance) and awarding costs in an amount higher than those prescribed in Schedule 2 of the Justices Regulation 2014.”
Nature of the appeal
An appeal pursuant to s 222 of the Justices Act 1886 is an appeal by way of rehearing on the evidence at trial.[1] For an appellant to succeed on such an appeal, it must be demonstrated that the order the subject of the appeal is the result of some legal, factual or discretionary error.[2]
Background
- [5]The matter has a long and unsatisfactory procedural history which is set out both in submissions for the appellant and for the respondent. The respondent submitted that it could be inferred that the delay on the part of the appellant was purposeful so as to delay the hearing of the trial. It was pointed out that the first trial had also been adjourned.
- [6]The respondent Body Corporate took the position that the appellant had contravened a Body Corporate By-Law in relation to various chattels and fixtures placed upon the common property of the Body Corporate and rubbish thereon and damage thereto.
- [7]Notices were given in relation to the alleged contraventions in 2017. Conciliation was engaged in and the appellant was to submit a proposal to the respondent about how to reach a resolution. That did not occur. Instead, the respondent filed an adjudication application and some seven months later orders were made on 8 November 2018. There was no appeal from those orders.
- [8]Following that the respondent granted a conditional approval to the appellant in respect of the electronic signs, shade sail, security cameras and roof structure, but the appellant did not comply with the conditional approval. The deadline for removal of those structures went by.
- [9]The appellant filed an adjudication application against the respondent, but that did not proceed.
- [10]On 31 January 2020, a complaint and summons was filed in the Southport Magistrates Court and originally set down for hearing on 28 May 2020. Each of the chronologies then shows the appellant had an extremely relaxed attitude to furthering the matter.
- [11]Ultimately the matter was set down for a trial on 22 March 2021. A barrister, Mr Malhotra, was briefed on behalf of the appellant. Unfortunately, he was involved in a serious motorcycle accident mid-afternoon on 18 March 2021. He communicated via email on 19 March 2021 that as a result of that accident he would not be in a position to appear and requested an adjournment to the next available date of 25 May 2021. He had first raised the request for an adjournment prior to the accident and when he was first retained on 17 March 2021.
- [12]The respondent’s solicitors appropriately indicated that their barrister, Mr Strangman, was available then and that the request, perfectly appropriately, was not opposed in the circumstances of that accident, however, the request for administrative adjournment was refused by the first Magistrate. Thus, the matter remained listed for 22 March 2021.
- [13]This refusal to allow an adjournment is the subject of what I have referred to as the first appeal.
- [14]The hearing proceeded on 22 March and the appellant was convicted. What I have referred to as the second appeal concerns the conduct of that hearing.
- [15]The essence of the complaint in relation to the first appeal is that an appealable error arose in refusing to grant the adjournment requested.
The appellant’s submissions as to the first appeal
- [16]I have already set out the background to the refusal of the adjournment on 19 March 2021.
- [17]The appellant submits as to the first appeal that an extension of time ought to be granted on the basis that the appellant has shown good reason for the delay in filing the notice of appeal within time and that it is in the interests of justice to grant the extension.
- [18]The explanation for delay is that counsel was briefed on 15 April (within time) but was unable to consider the material given existing court commitments until 20 April 2021 by which time an extension was already required. The material was considered promptly on 20 April with a draft notice of appeal produced on 21 April and filed on 22 April. It is explained that the extension sought is short and arises because the applicant did not have access to legal representation and was unaware of the limitation period until shortly prior to expiration.
- [19]The respondent submits that there is no explanation of the delay between 22 March (or even 19 March 2021) and 15 April 2021. In my view that overlooks the explanation that the appellant was unaware of the limitation period.
- [20]In any case, even if I were not satisfied that there had been a good reason for delay, I would grant the extension having regard to the second element, being whether I consider it in the interests of justice to grant the extension. I would do so, for the reasons set out below. In this respect I have had regard to the judgment of Justice Bond in Valk v Commissioner of Police [2017] QCA 126 at [12], which is usefully cited in paragraph [5] of the respondent’s written outline.
- [21]As to the refusal of the adjournment the subject of the first appeal (and, effectively, the second appeal) the appellant relies on McInnis v The Queen (1979) 143 CLR 575 and in particular a passage from the reasons of Barwick CJ (with whom Atkin J and Wilson J agreed – at page 579):
“Nothing I say, nor what follows, can be taken to cast any doubt on my own belief that a defence conducted by competent counsel has an advantage to an accused and that it is in the best interest of the administration of justice that an accused be so represented. Consequently, in my opinion, the trial judge ought very seriously to consider whether an accused should be forced on without counsel in any case in which there is a reasonable possibility that he may obtain the services of counsel in his defence without unbearable delay: but, of course, a trial judge must also have in mind the interests of the Crown and of the witnesses, including a prosecutrix in such a case as the present, and of the jurors….I would emphasise the need for the most careful weighing of the interests of the accused, of the Crown, witnesses, jurors and, generally, of the administration of justice, when an adjournment is sought in order to obtain or to endeavour to obtain the services of counsel for the conduct of the defence.”
- [22]In response, the respondent points to the extremely tardy approach to the conduct of this matter taken by the appellant. It relies on the decision of Bloch v Bloch (1981) 180 CLR 390 at 395 which was a civil case in which Wilson J cited a passage from the judgment of Lord Justice Atkin in Maxwell v Keun [1928] 1 KB 645 at 653 to the effect that the Court of Appeal ought to be very slow to interfere with the discretion of a trial judge on the question of an adjournment of trial. However, that passage also states that one would be less slow to do so in circumstances where the Court of Appeal was satisfied that the order made below defeated the rights of a party altogether. That is of course the submission made in this case and an accurate way to describe the appellant’s position. The factual circumstances in Bloch v Bloch, usefully collected at page 396 of the judgment, make clear that there was no exigent reason such as a motorcycle accident befalling counsel in the case which lay behind the request for the adjournment.
- [23]Next it is submitted for the respondent that the appellant’s submissions fail to address why the appellant terminated the services of its original solicitor and barrister, why it failed to appear at a mention and why it did not retain its barrister until 17 March 2021 and why it chose to engage counsel in Victoria. It does not appear to me that any of those matters is ultimately particularly relevant to the question faced by those considering the application for adjournment. Once the learned Magistrate was faced with a request for an adjournment made by counsel for the appellant on the basis that counsel had suffered a serious motorcycle accident and which application for adjournment was not opposed by the respondent, it seems to me that it was an error to force the appellant on self-represented in such circumstances. The circumstances are quite different, in my view, from those which might exist where one is, as here, (reasonably sceptical of the appellant’s past conduct of the proceedings) and the effect of the order would be to force a lawyer for the appellant to proceed to the hearing. It is a very different position, in my view, to force an unrepresented litigant who had retained counsel and ultimately counsel were to be unable to attend because of an accident. Nor does it seem to me that the position is altered by the fact that an adjournment was sought by Mr Malhotra prior to the motorcycle accident. There is no reason to suspect that had it not been for the accident, he would not have attended upon the hearing if the adjournment was refused. Indeed, there is material on the file showing that an aeroplane ticket had been booked and paid for. Nor is it difficult to see that any competent counsel might be able to prepare over the weekend for a one-day hearing of that kind.
- [24]In my view, it was unreasonable to refuse the adjournment application, particularly where it was unopposed and an error of the kind set out in House v The King (1936) 55 CLR 499 arises. Nor do I place much weight on the submission for the respondent in paragraph [17] of its written outline to the effect that the trial judge considering such an application must consider the interests of the prosecutor, witnesses and the administration of justice. That is undoubtably true. But those interests were able to be adequately considered by having regard to the fact that the application for an adjournment was not opposed by the respondent.
The hearing
- [25]Consideration of the second appeal focuses upon the hearing on 22 March 2021 and whether the appellant was afforded a fair trial must start from the proposition that the appellant had chosen to have legal representation but was unable to have that representation at the trial because of the motorcycle accident to which I have already referred.
- [26]It is submitted for the appellant that:
- (a)His Honour clearly considered himself bound by the decision of the first Magistrate (see para 4.3 of the appellant’s written submissions);
- (b)In those circumstances it was particularly important that his Honour take steps such as those suggested by Judge Dearden in Romero v Body Corporate for White Lanterns Community Titles Scheme [2014] QDC 128 at [34] (see para 4.4 of the appellant’s written submissions);
- (c)Despite those matters his Honour did not address Mr Kaucic again until the witness called for the respondent had given his evidence in chief (see para 4.5 of the appellant’s written submissions);
- (d)His Honour was unduly focussed on finding fault on the part of Mr Kaucic rather than having proper regard to the fact that Mr Malhotra was unable to attend because of an unfortunate motorcycle accident and his Honour, in any case, failed to have regard to the further reasons indicated by Mr Kaucic (albeit inferentially) that he was not in possession of the documents required to cross-examine. At least at that point it is submitted the matter ought to have been adjourned part-heard (see paras 4.7 and 4.8 of the appellant’s written submissions);
- (e)His Honour was too focussed on whether he was bound by the decision of the first Magistrate and thus appears not to have recognised the significance of what Mr Kaucic said and thus lost sight of whether he was afforded procedural fairness (see para 4.9 of the appellant’s written submissions);
- (f)The passages from the Transcript which are set out at pp 17 to 21 of the appellant’s written submissions indicated the difficult position in which Mr Kaucic found himself;
- (g)Specific submitted errors in calling for the respondent’s closing arguments without having called upon the appellant and calling on the respondent to make submissions on penalty before affording the defendant an opportunity to respond to the prosecution’s closing arguments are also identified on pp 18 and 19 of the appellant’s written submissions;
- (h)Further submissions are also addressed to what are submitted to be defects in the way in which the appropriate penalty was considered and also costs.
- (a)
- [27]The respondent submits that the appellant’s representative Mr Kaucic made inconsistent representations to the court to the effect that he understood the trial process but was not in a position or was unwilling to participate in the trial.
- [28]It is submitted that the trial process was adequately explained.
- [29]In paragraph 18 of the respondent’s written outline it is submitted that the learned Magistrate’s decisions not to grant an adjournment should be upheld. I have already addressed the underlying submissions behind that conclusionary statement in considering the first appeal.
- [30]In my view the second appeal ought to be allowed because:
- (a)It ought to have been apparent to his Honour that there was doubt as to whether or not he was bound by the decision of the first Magistrate in respect of an adjournment application.
- (b)In any case, his Honour appeared to consider that if there were new reasons, he could provide an adjournment. Mr Kaucic was constantly saying he was not prepared and did not have the necessary documents.
- (c)Further, specifically in response to an exchange between counsel for the respondent and the Bench as to whether or not anything new had been raised in addition to the information that was before the first Magistrate, Mr Kaucic, when it was indicated that it was a matter for him as to whether he wished to cross-examine Mr Carzona, said “I don’t have any material here to do that”. In the context of his earlier statement during an exchange with the Bench as to whether or not an adjournment could be allowed and as to his supposed opportunity to cross-examine Mr Kaucic said:
- (a)
“Look, I don’t – I’m here this morning unprepared. I don’t have any of the documentation because it is with the lawyers. The lawyer was up and ready to go today, we have – if it had to run, but unfortunately, like I’ve stated to you, I mean, he’s involved in a motorcycle accident, can’t be here, and at the eleventh hour from the Court.”
Mr Kaucic went on to protest that he couldn’t do a solitary thing other than come to the court that morning.
- (d)The Magistrate then identified that the application for an adjournment had been made before the motorcycle accident. That seems to me to be of little significance, with respect, given that by the time the application for an adjournment was refused by the first Magistrate, the motorcycle accident had indeed occurred. Also, as I have already mentioned, there is material on the file to indicate that Mr Malhotra was booked to travel. In any case, Mr Kaucic had told the learned Magistrate that Counsel would have been there but for the motorcycle accident.
- (e)In my view, his Honour was faced with a corporate litigant deprived of its legal advisor by reason of a motorcycle accident and with its director protesting that he was not in a position to conduct the trial. That should, in my view, have raised significant concern as to whether the appellant was able to receive a fair trial.
- (f)In my view, the appellant did not receive a fair trial and it is appropriate that the orders made by the second Magistrate on 22 March 2021 be set aside.
- (g)It is unnecessary in the circumstances for me to consider the other errors submitted to have occurred in respect of the hearing by reference to penalty and costs.
- [31]The matter should be remitted for trial in the Magistrates Court.