McKee v Department of Transport and Main Roads
[2025] QDC 7
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- Unreported Judgment
- McKee v Department of Transport and Main Roads[2025] QDC 7
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McKee v Department of Transport and Main Roads[2025] QDC 7
McKee v Department of Transport and Main Roads[2025] QDC 7
DISTRICT COURT OF QUEENSLAND
CITATION: | McKee v Department of Transport and Main Roads [2025] QDC 7 |
PARTIES: | GORDON MCKEE (Applicant) v DEPARTMENT OF TRANSPORT AND MAIN ROADS (Respondent) |
FILE NO: | DC 159 of 2024 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Southport |
DELIVERED ON: | 7 February 2025 (ex tempore) |
DELIVERED AT: | Southport |
JUDGE: | Holliday KC DCJ |
ORDER: |
|
CATCHWORDS: | APPEAL – MAGISTRATES – APPEAL AGAINST CONVICTION – application for extension of time – an appeal pursuant to s 222 of the Justices Act 1886 (Qld) – where the applicant was convicted in his absence for an offence of driving a light vehicle that was defective pursuant to section 8 (1) Transport Operations (Road Use Management – Vehicle Standards and Safety) Regulation 2021 (Qld) – where the applicant provided a medical certificate explaining his absence but it was not placed on the court file – where the respondent concedes a denial of procedural fairness – where the respondent concedes that the application for extension of time be granted and the appeal allowed |
LEGISLATION: | Transport Operations (Road Use management – Vehicle Standards and Safety) Regulation 2021 (TORUM-VSS) s 8 Justices Act 1886 (Qld) ss 147, 222, 223 |
CASES: | House v The King (1936) 55 CLR 499 Laurent v Commissioner of Police [2015] QDC 160 Merrin v Commissioner of Police [2012] QCA 181 |
COUNSEL: | The applicant appeared on his own behalf A. Allam for the respondent |
SOLICITORS: | The applicant appeared on his own behalf Department of Transport and Main Roads for the respondent |
Introduction
- [1]On the 19th of February 2024, the applicant was convicted in the Magistrates Court at Southport following a summary hearing, which proceeded in his absence pursuant to section 147 of the Justices Act 1886 (Qld) (Justices Act), of an offence of driving a light vehicle that was defective pursuant to section 8(1) of the Transport Operations (Road Use Management—Vehicle Standards and Safety) Regulation 2021 (Qld). The applicant was fined $500, and a conviction was recorded. The applicant was ordered to pay the costs of the complainant in the amount of $103.50, and professional costs of $250.00 to the Department of Transport and Main Roads.
- [2]The applicant emailed the Southport Magistrates Court stating he could not attend at the summary hearing on 19 February 2024. This was known to the learned Magistrate and she read the email into the record. In determining that she would nonetheless proceed in the applicant’s absence, the learned Magistrate stated:
“It has been listed for hearing on multiple occasions. There has been no reason provided by the defendant and I am satisfied that [as] you have got two witnesses present, that it is appropriate for the matter to proceed in the absence of the defendant.”
- [3]The learned Magistrate was in error in two respects. Firstly, the matter had not previously been listed for hearing; it had been mentioned on four prior occasions. Secondly, there was a “reason provided” by the applicant for his non-attendance on 19 February 2024. Whilst it was not on the court file, the email sent by the applicant included as an attachment a medical certificate for the relevant period.
- [4]On 10 June 2024, the applicant’s reopening application was refused. It was noted by the Magistrate that the attachment to the email (the medical certificate) was not on the court file at the time of making the decision to proceed ex parte on 19 February 2024, but nonetheless, the reopening application was refused.
- [5]By way of a Notice of appeal filed on 17 June 2024, the applicant appeals against the conviction. A Notice of application for extension of time for filing a notice of appeal to a District Court Judge was also filed as the appeal was out of time.
Nature of appeal
- [6]The applicant appeals pursuant to section 222 of the Justices Act. Such an appeal is by way of rehearing on the evidence before the Magistrates Court (original evidence) together with any fresh, additional or substituted evidence (new evidence) adduced by leave.[1] As this is an appeal against conviction, the well-known principles as explained in House v The King are applicable:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the Judge composing the appellate court consider that, if they had been in the position of the primary Judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion.
If the Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed, and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary Judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way, there has been a failure properly to exercise the discretion which the law reposes in the court at first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”[2]
The position of the Applicant
- [7]The applicant contends the following: he never received the infringement notice; his vehicle had been stolen; he was driving to the service station; he followed all instructions of the transport inspectors; and was not given an opportunity to present his defence at hearing.
The appeal is conceded by the Respondent
- [8]The respondent concedes that the applicant has been denied natural justice by being prevented from presenting his defence at the hearing and took the court to decisions including Laurent v Commissioner of Police [2015] QDC 160 where Farr DCJ SC stated at [7]-[8]:
“Notwithstanding that the medical certificate may have been lacking in sufficient detail, there was no reasonable basis to refuse the application to, at the very least, stand the matter down to determine if a more detailed certificate could be obtained. Allowing the trial to proceed in these circumstances and then proceeding to sentence without receipt of any submissions constitutes a gross denial of natural justice, and the trial was infected by unfairness of the most extreme order.”
The appeal is allowed
- [9]The appeal is, in my view, properly conceded by the respondent. The applicant emailed the court and attached a medical certificate. The medical certificate detailed that the applicant, “has a medical condition and will be unfit to attend court from 16 February 2024 to 23 February 2024 inclusive.” The medical certificate was not placed on the court file or otherwise brought to the attention of the learned Magistrate at the time of her decision to proceed ex parte. To my mind, there was no reasonable basis to refuse the adjournment application, at least without further inquiry, on the state of the material that ought to have been known to the Magistrate. It was the first time that the matter had been listed for hearing, and there was a medical certificate detailing that the applicant was unfit to attend court.
- [10]I accept the respondent’s concession that the applicant has been denied natural justice by being prevented from presenting his defence at a hearing.
- [11]The appeal is out of time. As the respondent conceded the appeal, it is appropriate, given the merit of the appeal, to extend the time for filing the Notice of appeal.
Costs
- [12]The costs of a self-represented party are limited to the costs of filing and other court fees incurred.[3] The applicant does not recall paying a filing fee for lodging his appeal in the District Court. I cannot see on the file any record of a filing fee being paid. However, to ensure that the applicant is reimbursed for that filing fee, if indeed he did pay one, the respondent accepts that the appropriate order is as I have made.
Orders
- [13]My orders are as follows:
- 1. The application for extension of time within which to file the notice of appeal be granted.
- 2. The appeal is allowed.
- 3. The orders of 19 February 2024 be set aside.
- 4. The matter is remitted back to the Magistrates Court at Southport to be heard according to law before a different Magistrate.
- 5. The Respondent is to pay any filing fee paid by the Applicant to commence the appeal upon proof of payment by the Applicant of such.