Energex Ltd v Kerr [2003] QDC 429

DISTRICT COURT OF QUEENSLAND CITATION: Energex Ltd v Kerr [2003] QDC 429 PARTIES: Energex Ltd Appellant and Anthony David Kerr Respondent FILE NO/S: 13 of 2003 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: Magistrate Court DELIVERED ON: 27th November 2003 DELIVERED AT: Maroochydore HEARING DATE: 3rd November 2003 JUDGE: K.S Dodds DCJ ORDER: THE APPEAL IS DISMISSED; NO ORDER AS TO COSTS OF THE APPE AL CATCHWORDS: Appeal under s222 Justices Act 1886 against granting rehearing application under s 142 A (1) – where application for rehearing out of time – wh Magistrate had power to grant rehearing – wh respondent had grounds to justify rehearing – where appellant had no opportunity to make submissions on rehearing application. COUNSEL: Mr D Katter for the Appellant No appearance for the Respondent SOLICITORS: Sciacca’s Lawyers for the Appellant No appearance for the Respondent -- 1 of 4 -- 2 [1] This is an appeal against the grant of a rehearing pursuant to section 142 A (12) of the Justices Act 1886 (the Act) of a complaint of unlawfully taking electricity, which pursuant to section 142A (4) of that Act had been determined ex parte in the Magistrates Court at Maroochydore on the 24th April 2003. [2] According to the bench charge sheet the application for rehearing was granted by a Magistrate on 29th May 2003. There is a letter on the court file dated the 13th May 2003 and date stamped as received on 29th May 2003 addressed to the Maroochydore Magistrates Court and signed Anthony David Kerr applying for a rehearing. The writer said the respondent had come to the court on the 24th April 2003 arriving at 1.40pm. He had spoken to a clerk at 1.50pm and was told the court was running behind schedule, that the morning’s proceedings had not concluded and that the court had not to that time had a lunch break. He was informed it would be at least 2.30pm before his matter would be dealt with. He had a business matter to attend to and so he left, intending to return for his matter. He was delayed and did not return until 3pm. Registry staff directed him to the court where he appeared before the Magistrate. He was informed that his matter had been dealt with in his absence, a conviction recorded and a fine and order for costs imposed. [3] What is said in the letter is confirmed to an extent by the bench charge sheet which contains the following notation over date 24th April 2003; “at 3.40pm the defendant appears. I informed of outcome. Told to seek legal advice”. [4] There are three grounds of appeal. Stripped to their essentials they were: • The application for rehearing was out of time. The Magistrate had no power to grant a rehearing. -- 2 of 4 -- 3 • The grounds advanced by the respondent for a rehearing were insufficient to justify a rehearing. • The Magistrate gave the appellant no opportunity to be heard or make submissions on the application for a rehearing. [5] Section 142 A (12) of the Act provides “upon the determination of the matter of complaint in accordance with the provisions of this section the court of the place of determination upon application made in that behalf by the clerk of the court or the complainant or by the defendant or on the defendant’s behalf by counsel or solicitor within 28 days after such determination may for such reason as it thinks proper grant a rehearing of the complaint on such terms and subject to the payment of such costs as it thinks fit.” [6] To comply with the 28 day time limit the application for a rehearing had to be made on or before the 22nd May 2003. [7] I think in the circumstances existing here, the application should be regarded as being made on the 24th April 2003. The bench charge sheet shows that at 3.40pm on that date the respondent appeared before the Magistrate who informed him of the outcome, and told him to seek legal advice. I infer from that it is probable the respondent expressed some dissent about what had occurred in his absence. It would have been open to him there and then to make a formal application for a rehearing if he was aware or informed of that right. Alternatively the Magistrate could have, in the circumstances, of his own motion granted a rehearing. Material in the respondent’s letter of the 13th May 2003 is generally consistent with the brief notation on the bench charge sheet and also purports to provide some background information relevant to the circumstances as they unfolded on the 22nd April. It may be regarded as material in support of an application for a rehearing. [8] The respondent’s behaviour in departing and not ensuring he returned in time showed a lack of consideration for the seriousness of the matter and the schedule of -- 3 of 4 -- 4 a busy court. However the provisions of the Act providing for a determination of guilt exparte recognise that such a determination should not be allowed to stand in circumstances where a defendant says they are not guilty and provides a sufficient reason for his or her non-attendance on a hearing date. Grant of a re-hearing may be upon terms including the payment of such costs as the court thinks fit. An order for wasted costs may have been appropriate here. However it appears the Magistrate who granted the rehearing saw fit not to make such an order. [9] The remaining two grounds are without merit. The grant of a rehearing is in the discretion of the Court. There is apparent on the material before the court when the rehearing was granted, sufficient to justify the exercise of favourable discretion. [10] There is no requirement in section 142 A that the prosecuting authority be notified of an application for the grant of a rehearing. Provision of the procedure is to alleviate the potential injustice of a determination of guilt in a person’s absence when there is a sufficient explanation for their failure to appear. It was not an error on the part of the Magistrate to not ensure the prosecuting authority was given an opportunity to be heard on the application. [11] The appeal is dismissed. The respondent did not appear at the hearing of the appeal. There is no order as to costs of the appeal. -- 4 of 4 --