Davies v Cresswell [2001] QDC 1

DISTRICT COURT OF QUEENSLAND CITATION: Davies v. Cresswell [2001] QDC 001 PARTIES: TIMOTHY GLEN DAVIES (Appellant) v. ANTHONY JOHN CRESSELL (Respondent) FILE NO/S: Appeal 3469/00 DIVISION: PROCEEDING: Application ORIGINATING COURT: Magistrates Court Brisbane DELIVERED ON: 31 January 2001 DELIVERED AT: Brisbane HEARING DATE: 17 January 2001 JUDGE: McGill DCJ ORDER: Application dismissed with costs CATCHWORDS: APPEAL AND NEW TRIAL – procedure – service of Notice of Appeal on respondent – whether personal service required – whether service waived – Justices Act 1886 s.222(2)(a), Acts Interpretation Act 1954 s.39(1) Forsyth v. O’Connor (1972) 66 QJPR 38 - considered Scottorn v. Howard (1972) 66 QJPR 34 – considered Carey v. Armstrong (1972) 66 QJPR 136 – considered R v. Judge of District Court at Brisbane and Davies; ex parte Allen [1969] Qd.R. 114 – considered Von Schulz v. Durrant [2000] QCA 235 – considered COUNSEL: T D Martin SC for the respondent SOLICITORS: Director of Public Prosecutions for the appellant Boe & Callaghan for the respondent [1] On 21 July 2000 a Magistrate dismissed two charges alleging summary offences against the respondent in the Magistrates Court at Brisbane. On 18 August 2000 a Notice of Appeal by the appellant against that decision pursuant to s.222 of the Justices Act 1886 was filed in the Magistrates Court. The appellant also entered into the recognisance referred to in s.222(2)(a)(ii). The following day an attempt was made to serve the respondent at an address in Brisbane, but he was not present and a copy of the Notice of Appeal was left with a person who said he would hand it to the respondent. Something similar occurred on 21 August 2000. Evidently -- 1 of 5 -- 2 one or other of these came to the attention of the respondent, because on 5 September 2000 an Entry of Appearance to the Notice of Appeal in Form 5 was filed by solicitors for the respondent, giving an address for service at South Brisbane. [2] By an application filed on 22 December 2000, the appellant sought an extension of the time for service of the Notice of Appeal, and substituted service of the Notice of Appeal by service on the solicitors for the respondent. When that application came before me counsel appeared for the respondent and submitted that the Notice of Appeal had been served in the manner specified by s.39(1) of the Acts Interpretation Act, and therefore in compliance with the requirement in s.222(2)(a)(i) that the appellant “serve on the person concerned in upholding such decision … a Notice of Appeal in the approved form … ”. [3] It is perhaps more common for the party upon whom service has been attempted to allege that proper service has not been effected, and the other party to allege it has. Here the positions are reversed; it is the appellant who is alleging that service on the respondent has not been effected, or not sufficient. The reason for this is that the appellant has adopted the view, consistent with at least one decision of this court, that the Notice of Appeal under s.222 must be served personally on the respondent, a form of service which is more limited and specific than service in accordance with s.39(1) of the Acts Interpretation Act (see Uniform Civil Procedure Rules r.106), and that the failure to effect personal service may deprive the District Court of jurisdiction to hear and determine the appeal under s.222. Authorities On Requirements For Jurisdiction [4] There are three decisions of the District Court to the effect that, if an appellant fails to comply with one of the provisions of s.222, and that failure is not waived by the other party, the District Court has no jurisdiction to entertain the appeal: Forsyth v. O’Connor (1972) 66 QJPR 38; Scottorn v. Howard (1972) 66 QJPR 34 and Carey v. Armstrong (1972) 66 QJPR 136. In Carey v. Armstrong, Demack DCJ concluded that “serve on the person” means serve personally, as that phrase has come to be understood, a construction he said was made clear by the existence of the power, now in subsection (2A), to make an order for substituted service. [5] The proposition that satisfactory compliance with the requirements of subsection (2) is a matter going to the jurisdiction of the District Court to hear the appeal has the support of the decision of the Full Court in R v. The Judge of the District Court at Brisbane and Davies; ex parte Allen [1969] Qd.R. 114, where a decision on such an appeal was quashed by certiorari because of want of jurisdiction where there had been a failure to comply with what is now subsection (2)(c). More recently, in Von Schulz v. Durrant, [2000] QCA 235, the Court of Appeal has suggested, although not decided, that as a result of amendments made to the Justices Act in 1997, non-compliance with the requirements of s.222(2) does not deprive the District Court of jurisdiction to hear an appeal. For present purposes however I will assume that compliance with s.222(2) is a matter which goes to jurisdiction. -- 2 of 5 -- 3 Is Personal Service Required? [6] It was submitted on behalf of the respondent that s.39(1) of the Acts Interpretation Act applies to the service on the respondent of the Notice of Appeal. It was pointed out that s.39 in essentially its present form was inserted into the Acts Interpretation Act in 1991, after the decision in Carey v. Armstrong, and that in its present form the wording fits precisely with the wording in s.222(2)(a)(i). That is true, but the consideration which led to the conclusion in Carey still applies, as there is still a power to order substituted service. [7] As well, an appeal under s.222 is a serious matter and it is of some importance that the Notice of Appeal actually be brought to the attention of the respondent personally. That is not something which would necessarily occur if service of the Notice of Appeal was effected in the manner specified in s.39(1)(a)(ii) of the Acts Interpretation Act. The consequences of the success of an appeal can be significant; in the present case the appeal is against the dismissal of two summary criminal charges. [8] I note, however, that s.56 of the Justices Act provides that a summons issued upon a complaint may be served either by delivering a copy to the person to be served personally or by posting it by registered post to the person’s place of business or residence last known to the complainant, or, if the person cannot reasonably be found, by leaving a copy with some person for the person at the person’s usual place of business or residence, or place of business or residence last known to the person who serves the summons. This is in substance quite similar to s.39. If a summons on a complaint does not need to be served personally, it is not consistent to require a Notice of Appeal under s.222 to be served personally. [9] On the other hand, there appears to be no power to order substituted service of a summons. Section 56 was put into essentially its current form by the Justices Acts and Other Acts Amendment Act 1968 s.5, which commenced on 19 April 1968. Under the Uniform Civil Procedure Rules, a Notice of Appeal to the Court of Appeal must be served on the respondent (r.752(1)) and, because it is an “originating process” (r.8(2)), may have to be served personally: r.105(1). The same may apply to a Notice of Appeal from a Magistrates Court to the District Court in respect of a civil matter under the Uniform Civil Procedure Rules: see r.785. [10] The matter is of some difficulty and I am reluctant, under these circumstances, to differ from a conclusion arrived at by another judge of this court, particularly one which has stood for a long time. It is, however, in my opinion, unnecessary for me to decide in the present case whether personal service is still required of a Notice of Appeal under s.222, because I am satisfied that if it is still required the requirement has been waived by the respondent. In circumstances where the Court of Appeal is apparently reluctant to tackle the issue of just what is required by s.222(2) for an appeal to be valid, I think I am justified in refraining from deciding anything more than is absolutely necessary. -- 3 of 5 -- 4 Waiver [11] It was accepted in the decisions to which I have referred that the requirements of subsection 222(2) can be waived by the respondent. The incongruity of this was the subject of comment in Von Schulz (supra) but again I think in the light of the decisions to which I been referred I should accept that that is the situation. Accordingly, the Notice of Appeal has to be properly served on the respondent, unless the respondent has waived service. [12] After the solicitors for the respondent filed and served an Entry of Appearance, they were asked to waive the requirement for personal service, and initially did so. That was done clearly by a letter sent by facsimile on 11 December 2000, exhibited to the affidavit of Wooldridge filed 4 January 2001. They then purported to withdraw the waiver by another letter the same day, on the ground that personal service was not required so there was no such obligation to waive. Although the second letter was, in my opinion, in substance an assertion that the Notice of Appeal has been validly served for the purposes of s.222 (by being served in accordance with s.39(1)), the appellant regarded this as insufficient to waive the requirement for personal service. [13] If the relevant waiver was waiver in the nature of an election, once a party having the right to waive does so, that is the end of the matter, and the waiver cannot be retracted. Apart from that, the subsequent letter of the same date said in substance that the Notice of Appeal had been properly served, and that personal service was not required, and that in my opinion was also effective to waive a requirement for personal service (assuming that there was such a requirement). [14] The respondent’s attitude throughout has been that the service required by r.222(2) has been effected. The respondent’s position is that the Notice of Appeal has been validly served. In my opinion, a respondent who adopts that attitude waives whatever the requirement may be for service under the section, to the extent that it has not already been satisfied. In my opinion, once the respondent adopted the attitude that there had been sufficient service of the Notice of Appeal on the respondent, if that were wrong, it amounted to a waiver of any obligation to effect further and better service. [15] As well, I suspect that filing the Entry of Appearance to the Notice of Appeal could be regarded as waiver of the requirement of personal service. Filing an Entry of Appearance to a writ was a waiver of the requirement for personal service of the writ if that had not been effected: Pioneer Concrete (North Coast) Pty Ltd v. Bennett [1973] Qd.R. 544 at 551-2. If a defendant wished to dispute that proper service had been effected, a conditional appearance was entered, or the defendant could simply apply to set aside service: O.12 r.22. [16] However, for present purposes it is in my opinion sufficient to say that the respondent, by taking the attitude that the Notice of Appeal had been properly -- 4 of 5 -- 5 served, waived any requirement for any further service of the Notice of Appeal under s.222(2). Accordingly, in my opinion, the Notice of Appeal is to be treated as having been properly served, so the application is unnecessary and should be dismissed. Costs [17] With regard to costs, the dispute over the question of service in the present case has unfortunately developed something of a life of its own, and some of the correspondence seems to me to be more acrimonious, and less helpful, than was appropriate. I sympathise with the understandable desire of the appellant to ensure that the statutory requirements, as expounded in the cases, are met, but in the present case I think it ought to have been apparent that there had been a waiver of any requirement for further service, and, in circumstances where the authorities indicate that whatever the requirement for service may be in s.222(2), it can be waived, the appellant ought to have realised that that was sufficient. In those circumstances the appellant should pay the respondent’s costs of the application to be assessed. -- 5 of 5 --