Dunn v Rafter [2012] QDC 190

QDC [2012] 190 DISTRICT COURT APPELLATE JURISDICTION JUDGE HARRISON Appeal No 220 of 2011 GARY DUNN Applicant (Appellant) and EDITH SILVIA MAY RAFTER Respondent CAIRNS ..DATE 17/02/2012 JUDGMENT -- 1 of 12 -- 2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: This is an application for leave to extend time for the filing of a notice of appeal under the provisions of the Justices Act 1886. On the 22nd of September 2011, at the conclusion of the one- day hearing of a complaint, the Magistrate at Atherton ordered that a warrant of possession issue in favour of Edith Sylvia May Rafter and Tracey Lee Sparks, the registered owners, in respect of a property described as Lot 1 on Crown Plan MPH31570, situated at 10 Termite Street, Mount Garnet. The complaint in this matter was issued pursuant to the provisions of section 143 of the Property Law Act 1974 on the 25th of May 2011. On the 5th of July 2011, the Magistrate made directions to the effect that this matter be heard by way of affidavits with cross-examination. Both parties filed affidavits prior to the matter proceeding to trial on the 22nd of September 2011. On the 28th of November 2011, the applicant lodged his notice of appeal and also at the same time filed the application to extend time. In the notice of appeal, his ground of appeal is as follows: "I was not a tenant but a business partner. Ethel Rafter did provide the initial finance for the property and the title deed was apparently in her name, but I provided monetarily on a weekly basis and in kind for four years. She held it in trust for an agreed project and thus -- 2 of 12 -- 3 JUDGMENT 1 10 20 30 40 50 60 should not have sought to evict me." In his notice of application to extend time, he included the following grounds: "I had applied for a re-opening of the matter before a different Magistrate under the impression that the matter would be re-opened. I was unable to receive advice from Legal Aid about this civil matter and private advice proved to be beyond my means. Too late, I realised I had made a sensitive error." During the course of argument I was referred to the Court of Appeal decision in R v. Tait [1992] QLR667 and in particular to the passage in paragraph 5 of that judgment which reads: "The recent approach of this Court to the question of extending time in criminal appeals is sufficiently illustrated in R v. Mentink and a number of unreported cases in this Court. These suggest 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 -- 3 of 12 -- 4 JUDGMENT 1 10 20 30 40 50 60 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 that 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." The reference there is to criminal appeals, but they clearly apply in relation to appeals under the Justices Act and there is specific provision under section 143 of the Property Law Act for these matters to be dealt with by way of complaint and therefore any appeals would need to be dealt with pursuant to the provisions of that Act. I have considered the reason for the delay advanced and I have also had the benefit of perusing the Court file. This confirms that the applicant did in fact make an application for rehearing and was told by a different Magistrate who dealt with that application that this was not an appropriate way to proceed with the matter and that he should have proceeded by way of appeal. He then filed his notice of appeal and the notice of the application to extend time. He was self-represented at the trial and remains self- represented and I am prepared to accept that his mistake in proceeding via that avenue, as opposed to an appeal in the first place, is a good reason for the delay and explains why there was a delay in this case of about five weeks. -- 4 of 12 -- 5 JUDGMENT 1 10 20 30 40 50 60 This is one of those cases referred to in Tait where it is feasible to assess the prospects of the prospective appeal. I have read a copy of the trial transcript and I have also read copies of all of the affidavits that were filed prior to the trial on both sides. In essence, the applicant is claiming that the landlords were not entitled to a warrant because he has an interest in the land pursuant to a trust. I have read his affidavit filed on the 16th of August 2011. It deals to some extent with the dealings they had back at the commencement of what he referred to as "the project" in his material, but nowhere in that document does he claim any beneficial interest in the land, either by way of an agreement or otherwise. The complainant on the hearing filed a number of affidavits dealing with the matters which are relevant under section 145 of the Property Law Act. Essentially, by virtue of subsection (1) four matters have to be proved namely: The tenancy, The expiry or determination by notice to terminate or demand of possession of the tenancy, The lawful right of the landlord as against the defendant to possession, The failure of the defendant to deliver up possession. In this case, those matters were all addressed in the -- 5 of 12 -- 6 JUDGMENT 1 10 20 30 40 50 60 affidavit material. The notice to quit was exhibited to an affidavit of Mr Murphy, the solicitor who appeared on behalf of the complainant, and it provided notice of, roughly, five weeks. It was not argued nor, it seems to me, can it be argued that that was not reasonable notice. Mrs Rafter gave evidence at the hearing and was cross-examined by the applicant. At no stage did he formally put to her during cross-examination, that he did in fact have an interest in the land, nor did he put to her the basis, whether it be by way of agreement or otherwise, on which he claimed to have such an interest. He did raise the issue of an interest in land on the trial and the Magistrate was aware of that. With that in mind, the Magistrate, on a number of occasions during the course of the cross-examination of Mrs Rafter, suggested to him that he put those matters to her. He pointed out to him that if there was an agreement, he should put the terms of that agreement to her when cross-examining her. On my reading of the record, this was not done. The Magistrate went even further in this case when it came to the opening of the applicant's case in response to the complainant's case. Even though he had made the earlier directions order about the trial proceeding by way of affidavit and cross-examination, he invited the appellant to give evidence which he did. Again, he suggested to the appellant that if he was trying to suggest that there was an agreement which gave him an interest in the land, that he -- 6 of 12 -- 7 JUDGMENT 1 10 20 30 40 50 60 should give evidence of that. Yet again, that did not come out in evidence-in-chief. I have perused an affidavit from the applicant which was filed in this Court on the 28th of November 2011. In paragraph 3 of that affidavit he said: "Our agreement was that Ethel provide the initial finance for the property and it is now apparent that only her name had ever been on the title deed until the inclusion of her daughter more recently. I was to pay into this project on a weekly basis which I did for four years until other legal bills made me insolvent. I also paid (and continued to pay) in kind. All of this I understood as a contribution towards an equitable interest. Ethel Rafter had agreed that she held the property in trust for a specific project including that she intended to retire there (it is an acre block and her home was to be away from the business complex) and that I was investing both time and money into an ongoing venture as a partnership. The property was not to be sold. Matters changed however when her daughter returned from America, an eventuality that Ethel had not expected." During the course of argument, I raised this with the applicant and inquired of him as to why particulars of the agreement referred to in paragraph 3 of that affidavit, were not put to her during the course of the trial. He told me that he had not received advice about that matter until after -- 7 of 12 -- 8 JUDGMENT 1 10 20 30 40 50 60 the hearing. Even if he had not received advice, it seems to me that he would and should have been aware of the agreement in particular, and I fail to see why, when asked by the Magistrate on a number of occasions to put to her what the agreement was or to state in evidence what the agreement was, he failed to do so. Further, I have grave doubts that even if he did lead such evidence, that that of itself would have assisted him in successfully resisting the application. As I understand it, he would have required declaratory relief in terms of any interest in the land and it seems to me that no evidence was advanced on the trial which challenged in any way the matters that had to be proved under section 145 of the Property Law Act and it also seems to me that any of these matters, if raised, could not have amounted to any finding other than the one that was made. I should also add that he has made considerable criticism of the Magistrate who was involved in this matter, that he set out in detail in a number of areas, firstly in the application for rehearing, and secondly, in a document addressed to the Chief Magistrate which he handed up to me on the hearing of the matter. He raises issues about conflict of interest on the part of the Magistrate, amongst other allegations. These do not form part -- 8 of 12 -- 9 JUDGMENT 1 10 20 30 40 50 60 of the grounds referred to in the notice of appeal but should they become relevant it seems to me that it would be difficult for him to raise these now because at not stage, on my reading of the record, did he ask the Magistrate to disqualify himself----- APPELLANT: That's why. HIS HONOUR: -----on the hearing of the matter. On my analysis of the matter, it seems clear to me that he does not have reasonable prospects of succeeding on the grounds of the appeal and the appeal is not a viable one. APPELLANT: That's the problem with this place. They don't understand. HIS HONOUR: It therefore seems to me that it is not in the interests of justice that the grant of extension is given, and I dismiss the application and I dismiss the notice of appeal. APPELLANT: In other words, you just don't understand any part of it. HIS HONOUR: Well, say what you like. APPELLANT: Look, Braes will be taken up against the authorities. He has acted criminally and that's - that's why he asked me to find out if you - if you understood that here today. But it doesn't matter, we'll take it to another Court, and we can take it to another Court. HIS HONOUR: Mr Murphy, do you have any further application? MR MURPHY: Yes, I was going to ask your Honour whether you'd consider an application for costs. -- 9 of 12 -- 10 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: Yes, what are you asking for? MR MURPHY: Your Honour, the costs are governed by the regulation. HIS HONOUR: I'm about to deal with an application----- APPELLANT: No. HIS HONOUR: -----for costs, Mr Dunn. If you walk out I'll deal with it in your absence. APPELLANT: Well, that's all right. I'm not taking any notice of this. You know, this is some sort of a cartoon, this set- up here. I gave you the explanations----- HIS HONOUR: It's not a very funny one. APPELLANT: -----and you don't - you can't understand that. I didn't understand a word you said, so I will have to get another lawyer to come back to attack your Court here. But Braes will be taken out of that Court there, along with Murphy here. Now, he is - he is under investigation now and we're going to add onto it and onto it until they understand the situation that he perverted the course of justice, that they kept me away from legal representation, and if you can't understand that, then please leave me alone while we go and - and sort this out through proper channels. No. HIS HONOUR: Mr Murphy, what are you asking for on costs? MR MURPHY: Your Honour, the----- APPELLANT: He's wasting his time. MR MURPHY: Under part 2----- APPELLANT: Fancy you coming to my Court----- UNIDENTIFIED SPEAKER: Would you be quiet, sir. MR MURPHY: -----if it were the hearing of the appeal----- APPELLANT: Don't you tell me to be quiet. -- 10 of 12 -- 11 JUDGMENT 1 10 20 30 40 50 60 MR MURPHY: -----I think I'd be entitled to ask for an amount of $1800. This is just the - an extension of time. HIS HONOUR: That's under the regulations----- APPELLANT: [Indistinct]----- HIS HONOUR: -----to the Justices Act, isn't it? APPELLANT: Are you coming? MR MURPHY: Yes, your Honour. APPELLANT: They have got no chances of getting----- MR MURPHY: There is a provision----- APPELLANT: -----anything whatsoever. This - this whole corruption----- MR MURPHY: -----for----- APPELLANT: -----is corrupt. MR MURPHY: -----Court attendances----- APPELLANT: And that's what I intend to tell the Channel 7 people down [indistinct] too. MR MURPHY: -----other than the hearing of the, I suppose you would interpolate, the appeal----- APPELLANT: Are you coming or not? UNIDENTIFIED SPEAKER: Yes, I'm coming. MR MURPHY: -----with a figure of $250 permitted which the regulation allows to be increased by 20 per cent for an appeal. APPELLANT: I'll take this to a proper forum. MR MURPHY: I would ask your Honour to consider allowing me three appearances at $300 an appearance. HIS HONOUR: What I will probably do is fix the costs. I think the base rate is 15 and I can mark it up by 20 per cent. MR MURPHY: You can, yes. The maximum amount is 1800 for the appeal. HIS HONOUR: Well, outside of - it wasn't a complicated matter from a legal point of view. MR MURPHY: No, it wasn't, your Honour. -- 11 of 12 -- 12 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: And I will not defer the costs any further. He heard you were making the application. He was given the opportunity to respond. He doesn't intend to. MR MURPHY: Yes. HIS HONOUR: In the circumstances, it seems to me reasonable that the costs should follow the event in this matter and I fix those costs at $1800 and I order that the applicant - I'm just getting his name----- MR MURPHY: Gary Dunn. HIS HONOUR: -----Gary Dunn pay the respondents - and I'll call them Ethel Silvia May Rafter and Tracey Lee Sparks - costs of and incidental to the appeal which I fix at $1800. MR MURPHY: Thank you, your Honour. HIS HONOUR: Thank you, Mr Murphy. MR MURPHY: Thank you. ----- -- 12 of 12 --