Camel Company Australia Pty Ltd & Madden v Sunshine Coast Regional Council [2011] QDC 161

DISTRICT COURT OF QUEENSLAND CITATION: Camel Company Australia Pty Ltd & Madden v Sunshine Coast Regional Council [2011] QDC 161 PARTIES: Camel Company Australia Pty Ltd & David John Madden (Applicant) AND Sunshine Coast Regional Council (Respondent) FILE NOS: 83/11 DIVISION: District Court at Maroochydore PROCEEDING: Appeal and Application for Extension of Time to Appeal ORIGINATING COURT: Magistrates Court at Maroochydore DELIVERED ON: 29 July 2011; ex tempore DELIVERED AT: Maroochydore HEARING DATE: 29 July 2011 JUDGE: J.M. Robertson DCJ ORDER: 1. The notice of appeal, and notice seeking an extension of time in which to appeal, both filed on the 29 April 2011, are dismissed. 2. Order that the applicants pay the respondent's costs of and incidental to the appeal and notice of appeal including the costs reserved on the 27 May 2011, to be assessed on the standard basis or as agreed. CATCHWORDS: APPEAL- Extension of time- where applicant and applicant’s company pleaded guilty to one count of failure to comply with a compliance notice and one count of carrying on a business on a road without a permit under Local Law number 9-where applicant seeks -- 1 of 5 -- 2 leave in this Court for an extension of time to appeal against conviction- whether appeal is competent-whether applicants entered pleas of guilty- whether it is in the interests of justice to allow an extension of time to appeal- whether appeal has any prospects of success-where applicant was legally represented when it entered guilty pleas- whether there has been a miscarriage of justice and pleas should be set aside Legislation: Justices Act 1886 (Qld) Cases Considered: Long v Spivey [2004] QCA 118 R v Meissner (1995) 184 CLR 132 R v Tait [1999] 2 Qd.R. 667 Till v Johns [2004] QCA 451 SOLICITORS: Applicant self-represented Mr M. Heiner from Heiner & Doyle solicitors for the respondent [1] David Madden and his company, Camel Company Australia Proprietary Limited seek leave for an extension of time in which to appeal against conviction imposed in the Maroochydore Magistrates Court on the 18 March 2011. [2] The appeal, pursuant to section 222 of the Justices Act 1886 (Qld) and application for an extension of time to file the notice of appeal pursuant to section 224(1)(a) of the Justices Act 1886 (Qld) were filed on the 29 April 2011, so some 11 days out of time. -- 2 of 5 -- 3 [3] There are many difficulties facing the applicant. Firstly, he and the company were represented before his Honour Magistrate Hodgins on the 18 March 2011 by Mr C Pratt, a Senior Associate with the reputable firm Gilshenan & Luton, and the penalties imposed by his Honour, followed lengthy submissions, made on behalf of the council by Mr McAuley of counsel and submissions made on behalf of the applicants by Mr Pratt. [4] There can be no doubt, therefore, that the applicants pleaded guilty and as a result the appeals against conviction are incompetent: section 222(2)(c); Long v. Spivey [2004] QCA 118. Mr Heiner made this point when the application was first mentioned in this Court on the 27 May 2011. On that day, I made a number of orders designed to give Mr Madden and the company every opportunity to explore any proper basis for the appeal, and or extension of time including ordering that the transcript and reasons for judgment of his Honour be provided to the parties free of charge. [5] Since then I've had the opportunity of reading the transcript of the proceedings before his Honour, and it is as clear as it possibly can be, that Mr Pratt entered pleas of guilty to the two complaints against Mr Madden personally and the two similar complaints against the company. [6] Today I am informed that prior to the proceedings on that day Mr Madden gave written instructions to Gilshenan & Luton to plead guilty. I've also had placed before me a letter from Gilshenan & Luton dated the 27 July 2011 to Mr Heiner, which makes it clear that, as far as the firm is concerned, the pleas were entered in a proper way and in accordance with full and complete signed instructions. -- 3 of 5 -- 4 [7] It was a late plea. The matter was set for trial on the 18 March, but on the 17 March Mr Pratt forwarded a letter to the Registrar of the Maroochydore Magistrates Court, which was (inter alia) in these terms: "We refer to the above matter which is listed for summary hearing in the Maroochydore Magistrates Court on the 18th of March 2011. We confirm that discussions have been held between the prosecution and our office on behalf of our client, that have resolved the issues in context and, as such, our client has instructed that the matter can proceed by way of a plea of guilty on the 18th of March 2011." [8] On the 27 May 2011 Mr Heiner filed by leave an affidavit of the complainant Mr Davidson, who is a Local Laws officer employed the council, who swears to the fact that Mr Madden and his wife were present in Court on the 18 March 2011, and that is not disputed by Mr Madden. [9] Mr Madden filed an affidavit on the 20 June 2011 purportedly in compliance with order 2 made by me on the 27 May 2011. He does not in that affidavit raise any issue to suggest that his solicitor acted without instructions or that he, Mr Madden, did not understand the nature of the plea or the charges. There is nothing to suggest that there has been a miscarriage of justice: R v Meissner (1995) 184 CLR 132 and Till v Johns [2004] QCA 451. [10] The complaints were clearly open and proved on the evidence accepted before his Honour, and there is no doubt that the council had power to make Local Laws (s 28 of the Local Government Act such as Local Law number 9). On behalf of Mr Madden, the solicitor entered pleas of guilty to one count of failure to comply with a compliance notice contrary to section 13(4) of Local Law -- 4 of 5 -- 5 number 9 and one count of carrying on a business on a road without a permit in breach of section 4(2) of the Local Law. The solicitor also entered pleas of guilty to similar counts against the company. [11] The appeal is incompetent for the reasons I have given and should be dismissed for that reason alone. In any event, I'm not satisfied that the appeal has any prospects of success and I am of the opinion that it is not in the interests of justice to allow the extension of time: R v Tait [1999] 2 Qd.R. 667. [12] Mr Madden belatedly filed an application to adjourn the appeal today to the Registry. I've considered that application, which is supported by an affidavit of Mr Madden. I do not understand the relationship between the pleas of guilty in the Maroochydore Magistrates Court on the 18 March 2011 by Mr Madden and the company to the charges that I have mentioned, and the proceedings which he's apparently commenced in the Supreme Court for judicial review under the Judicial Review Act 1991 (Qld). [13] Despite my requests, Mr Madden has not been able to show any link and in my opinion there is no link and as I indicated to him I intended to proceed with the appeal. For that reason, the notice of appeal, and notice seeking an extension of time in which to appeal, both filed on the 29 April 2011, are dismissed. I'll order that the applicants pay the respondent's costs of and incidental to the appeal and notice of appeal including the costs reserved on the 27 May 2011, to be assessed on the standard basis or as agreed. -- 5 of 5 --