Ebb v Donaldson [2008] QDC 79

1 [2008] QDC 79 DISTRICT COURT CIVIL JURISDICTION JUDGE ROBIN QC No 1081 of 2007 BRETT ALEXANDER EBB Appellant and P G DONALDSON Respondent BRISBANE ..DATE 31/03/2008 ORDER CATCHWORDS: Justices Act 1886 s.222, s.225, s.229 - where appellant made no further contact with the court after filing an appeal giving his address as Brisbane Watchhouse - appellant appeared to have no interest in challenging a sentence of imprisonment now expired but might have an interest in challenging a longer licence disqualification - he failed to file an outline of argument as required by Practice Direction - appeal set down for hearing in final ten days -- 1 of 5 -- 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: On this reference by the Registrar, set down the appeal for hearing on the 21st of April 2008 notwithstanding the appellant's failure to file his outline of argument as required by the practice direction. That order is made in circumstances where, if the appellant has not disappeared, he appears to have no further interest in prosecuting the appeal and indeed he may not have any interest - subject to the continued effect of an order made by the Magistrate on the 5th of April 2007 disqualifying Mr Ebb from holding or obtaining a driving license for 54 months from that date. It is one of the grounds of appeal that the duration of disqualification is excessive. The other ground of appeal was that by the Penalties and Sentences Act imprisonment should have been seen as a last resort for the punishment of an offence on 28th of January 2007 of driving while unlicensed and also while disqualified. The six month sentence imposed on the 5th of April 2007 was ameliorated by an order that Mr Ebb be "eligible for parole on the 3rd of May 2007." Whether or not he obtained parole, he would be at liberty now. The appeal, instituted in time on the 16th of April 2007, has had something of a history, the appellant still having done nothing to advance it in terms of the practice direction. In particular, there is no outline of argument. In the middle of January this year Senior Judge Skoien made an order extending time for the taking of that step by the -- 2 of 5 -- 3 ORDER 1 10 20 30 40 50 60 appellant who, true to form, had not appeared or been represented before his Honour. The Registrar took steps to inform him of the terms of the order by writing to two addresses which were known. One of those communications addressed to Mr Ebb at 665 Mains Road Macgregor was returned by the postal authorities marked "Return to sender - no longer at this address." The other version of the Registrar's advice was not returned by postal authorities. It went to 41 Tramore Street Rocklea - is that correct? MS FAULKNER: Yes, your Honour. HIS HONOUR: And that is a communication which advised Mr Ebb that a Registrar's reference would be heard at this time today. He has not responded when called by the Bailiff. Over the years, the apparent disappearance of appellants has been a real difficulty in section 222 appeals. In the present case, in the circumstances, the notice of appeal gives as Mr Ebb's address the Brisbane Watchhouse under the heading "My contact details and address for service." There is a further piece of information there identifying with the customary full details a solicitor. Have there been attempts to contact the solicitor? MS FAULKNER: He was initially represented by AP Hodgson & Associates----- -- 3 of 5 -- 4 ORDER 1 10 20 30 40 50 60 HIS HONOUR: That is right. MS FAULKNER: -----your Honour, yes, that was in April 2007. They did request an extension of time which was granted to June. He then lodged an application with Legal Aid that was rejected. They advised us in August of '07 that they were not acting for the appellant. HIS HONOUR: All right. I would like the State Reporting Bureau to include in the transcript the Registrar's information as she presented it to the Court. It does not change the situation. I think the Court is entitled to proceed on the basis that Mr Ebb is delinquent in having failed in the basic obligation on any appellant to have on the record an address where he can be contacted in relation to his appeal. I would assume things have been done regularly and that he ought to be taken as aware that his former solicitors will no longer be acting for him and of course the watchhouse address is of no real practical value whatever. It is not open to the Court to dismiss this appeal for want of prosecution on the basis of non-compliance with the practice direction. See Gamble v Davidson [2000] 1 QdR 510. The simplest way to advance the matter is to fix a date for hearing, sufficiently far ahead for the Registrar to give the requisite notice to Mr Ebb at such addresses as are available, and I would respectfully suggest also to the solicitors who -- 4 of 5 -- 5 ORDER 1 10 20 30 40 50 60 have indicated they are happy to receive communications by e- mail. It is likely on the 21st of April 2008, when the hearing will be listed, there will again be no appearance for Mr Ebb though the Court will be in a position, if dismissal of the appeal seems appropriate, to make an order to that effect under s.225 of the Act. There is no attraction in the respondent's pursuing an application under s.229. ----- -- 5 of 5 --