Dart & Anor v Singer [2010] QCA 124

SUPREME COURT OF QUEENSLAND CITATION: Dart & Anor v Singer [2010] QCA 124 PARTIES: DART, Frederick William (first applicant/cross-respondent) v SINGER, Clifford (respondent/cross-applicant) HAJRIDIN, Megan Ann (second applicant/cross-respondent) v SINGER, Clifford (respondent/cross-applicant) FILE NO/S: CA No 21 of 2010 CA No 22 of 2010 CA No 112 of 2010 CA No 113 of 2010 DC No 452 of 2008 DC No 453 of 2008 DIVISION: Court of Appeal PROCEEDING: Application for Extension of Time s 118 DCA (Criminal) ORIGINATING COURT: District Court at Brisbane DELIVERED EX TEMPORE ON: 27 May 2010 DELIVERED AT: Brisbane HEARING DATE: 27 May 2010 JUDGES: McMurdo P, Cullinane J and McMeekin J Separate reasons for judgment of each member of the Court, each concurring as to the orders made ORDERS: Appeal numbers 21/22 of 2010: 1. Applicant's application for adjournment refused. 2. Applications 21 and 22 of 2010 are dismissed by consent. 3. Applicant to pay Respondent’s costs of those applications on standard basis to be assessed if not agreed. 4. Respondent to make submissions regarding costs of stay, limited to 2 pages and consistent with the Practice Direction, filed and served within 7 days. Appellants Dart and Hajridin may make -- 1 of 7 -- 2 submissions regarding costs of stay, limited to 2 pages and consistent with the Practice Direction, to be filed and served within 7 days of receipt of Respondent's submissions. Appeal numbers 112/113 of 2010: 1. Application for leave to cross appeal refused. 2. Respondent, Clifford Singer, is to pay Applicants, Dart and Hajridin’s costs of cross-application on the standard basis to be assessed if not agreed. CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – respondents filed an application for extension of time to apply for leave to cross appeal – application was four months out of time – respondent emphasised RSPCA's charitable status and financial position – whether respondent able to demonstrate prospects of success – whether it is in the interests of justice to grant an extension of time PROCEDURE – COSTS – COSTS OF APPEAL – appeals dismissed by consent – applicant withdrew application day before appeal hearing – matter remained listed as respondents consent was required and respondent had filed an application for extension of time to seek leave to cross-appeal – whether standard costs following the event should be applied Animal Care and Protection Act 2001 (Qld) Dart & Anor v Singer [2010] QCA 75, cited COUNSEL: The first applicant appeared for himself and the co-applicant R G Fryberg for the respondent SOLICITORS: The first applicant appeared for himself and the co-applicant Roberts Nehmer McKee Lawyers for the respondent THE PRESIDENT: The applicants, Frederick William Dart and Megan Ann Hajridin, in their applications, CA numbers 21 and 22 of 2010, pleaded guilty to a number of charges brought against them under the Animal Care and Protection Act 2001 (Qld). Orders were made against them in the Magistrates Court on 12 December 2008, including an order that their animals be forfeited to the Royal Society for the Prevention of Cruelty to Animals (RSPCA). Mr Dart and Ms Hajridin appealed to the District Court from those orders. They were substantially successful in that some orders were varied, although not the disposal order. -- 2 of 7 -- 3 The District Court delivered its orders on 11 December 2009. Mr Dart and Ms Hajridin filed applications in this Court for extensions of time to apply for leave to appeal against the orders made in the District Court. They then applied to the Court of Appeal for stays of the orders made in the District Court. They were unsuccessful in the stay applications: see Dart & Anor v Singer [2010] QCA 75). The respondent, Clifford Singer, was a party to the applications for a stay and was legally represented at the hearing of them on 22 February 2010. The Court delivered its decision refusing the stay applications on 30 March 2010. On 13 May 2010, Mr Singer filed an application for an extension of time to apply for leave to cross-appeal from the District Court orders. That application was over four months out of time and was made in circumstances where Mr Singer, who was legally represented at all steps, had long known of the applications brought by Mr Dart and Ms Hajridin in this Court and had in fact appeared in the Court of Appeal resisting their applications for stays. Mr Dart and Ms Hajridin's applications, CA number 21 and 22 of 2010, have been listed for some considerable time for hearing at this Townsville sittings. Despite that, it was only on the 13 May that Mr Singer applied to extend time to apply for leave to cross-appeal. The only explanation given for this very lengthy delay is that Mr Singer was considering whether the costs of pursuing his appeal rights were justified in light of the charitable status of the RSPCA and it, and his, financial positions. I am not persuaded that that is a proper explanation for the delay in the circumstances. Were an extension of time given to Mr Singer he would apply for leave to appeal on two bases. First, he would seek to appeal from the costs order made by the District Court Judge, pointing out that he was not given the opportunity to make submissions in respect of it. Second, he would appeal from the District Court judge's reduction of the applicants' fines on the basis that the Court of Appeal should give guidance as to the appropriate sentence in respect of these sorts of cases. -- 3 of 7 -- 4 Costs matters are discretionary and on the face of it the District Court judge's exercise of that discretion in this case does not appear out of the ordinary. Bearing in mind the significant delay in any case in bringing the application to extend time, I am not persuaded that this point has any particular prospects of success or demonstrates any injustice warranting an extension of time to apply for leave to appeal. Mr Singer's second point as to the Court of Appeal setting some standards for fines in cases of this sort is also no reason to justify extending time to grant leave to appeal. If there is reason in the future for the Court of Appeal to do that in an appropriate case, the application for leave to appeal or cross-appeal should be made within time. For these reasons I consider that the application for an extension of time to apply for leave to cross-appeal should be refused. CULLINANE JA: I agree. McMEEKIN JA: I agree. THE PRESIDENT: So the order is the application for leave to cross-appeal is refused. ... THE PRESIDENT: I have set out the long history of this matter in the reasons I have just given refusing Mr Singer's application for an extension of time to apply for leave to cross-appeal. As I have noted, the matter has been listed for hearing today for some time. The applications are old ones. Mr Dart and Ms Hajridin have had every opportunity to obtain legal advice. They have been legally represented in the past. The fact that they have only sought legal representation in the last day or two is no reason why this matter, which has been listed for hearing in Townsville at these sittings at the request of Mr Dart and -- 4 of 7 -- 5 Ms Hajridin, should now be adjourned. It is in the interests of justice that the applications be heard today. The application for an adjournment of Mr Dart and Ms Hajridin's applications for an extension of time for leave to appeal is refused. CULLINANE JA: Yes, I agree. McMEEKIN JA: I agree. ... THE PRESIDENT: Mr Dart, speaking on behalf of both applicants in the applications, CA numbers 21 and 22 of 2010, has stated that he wishes to withdraw both applications for an extension of time for leave to appeal. Mr Fryberg, on behalf of the respondent to those applications, submits that the applications should be dismissed with costs. Mr Fryberg has also asked for the costs of the applicant's unsuccessful applications for stays in Dart & Anor v Singer [2010] QCA 75. There is no doubt that this Court should order that applications, CA numbers 21 and 22 of 2010 should be dismissed. The orders that should be made as to costs are slightly more problematic. The applicants informed the Registry only yesterday that they wished to withdraw these applications. It seems that the matters remained listed because they could not withdraw their applications without the respondent's written consent. That was not able to be obtained at short notice. The second reason why the matters remained listed was because the respondent wished to pursue his application for an extension of time to apply for leave to cross-appeal. That application was refused earlier today. Mr Dart argues that the applicants should not in those circumstances be required to pay the respondent's costs of the applications. It cannot be said that any significant costs could have been saved by the respondent in the light of the very late notice of the applicants' intention to withdraw the applications. There -- 5 of 7 -- 6 is no reason why the standard costs order following the event should not be applied in respect of the applications. As to the stay applications, Dart & Anor v Singer [2010] QCA 75, no orders were made as to costs when the orders refusing the applications were delivered. The Court did not reserve the question as to the costs of those applications. The respondent did not make an application for the costs of the stay applications under the relevant section of the Practice Direction. In those circumstances I am not prepared to now make an order in the respondent's favour in respect of the stay applications. As I have noted, the respondent's cross-application was refused earlier today. The respondent should pay the applicants' costs of the cross-application. The orders I propose are as follows: 1. Applications CA numbers 21 and 22 of 2010 are dismissed, by consent; 2. The applicants are to pay the respondent's costs of those applications on the standard basis, to be assessed if not agreed; 3. The respondent's application for costs of the stay applications, Dart & Anor v Singer [2010] QCA 75, is refused; 4. The respondent, Clifford Singer, is to pay the applicants Frederick William Dart and Megan Ann Hajridin's costs of the cross-applications on the standard basis, to be assessed if not agreed. CULLINANE JA: I agree. McMEEKIN JA: And I agree. ... -- 6 of 7 -- 7 THE PRESIDENT: I will vacate the order in respect of the costs of the stay and allow Mr Fryberg to make submissions limited to two pages and consistent with the Practice Direction as to orders as to costs, filed and served within seven days; and Mr Dart will have leave to file and serve submissions on a similar basis in accordance with the Practice Direction, within seven days of receipt of Mr Fryberg's submissions. -- 7 of 7 --