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  • Unreported Judgment

Phillips v Spencer

 

[2005] QSC 53

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

JONES J

Application No 638 of 2004

CRIS BRIAN PHILLIPS

Applicant

and

 

MAGISTRATE ROBERT SPENCER

First Respondent

and

 

THE STATE OF QUEENSLAND

Second Respondent

CAIRNS

DATE 07/03/2005

JUDGMENT

HIS HONOUR: On 5th of October 2004 at the Magistrates Court at Cairns the applicant was convicted on his own plea of guilty to an offence against the Nature Conservation Act 1992, namely that between 1 June 2002 and 19 September 2003 at Cowley in the Magistrates Court district of Innisfail in the State of Queensland he, Chris Brian Phillips, being an executive officer of a corporation namely Nino Pty Ltd, did fail to ensure that the said Nino Pty Ltd complied with the Nature Conservation Act 1992 contrary to section 162(1) of the said Act in that he did fail to ensure that Nino Pty Ltd not being an authorised person did not take protected animals other than under a conservation plan applicable to the animals or a licensee permit or other authority issued or given under a regulation or an exemption under a regulation.

Before me are two applications. The first is an application by Chris Phillips seeking an order of review of a decision of the Magistrate, being the first respondent, in respect of that conviction. The application relies upon an allegation of constitutional limitations on the power of the State of Queensland, the second respondent, to legislate the laws under which his offence is found and other related matters. The challenge to the decision relates as well to a complaint against Nino Pty Ltd which pleaded guilty to the same offence.

The second application is made on behalf of the State of Queensland to have the first application dismissed on the grounds that it would be inappropriate for the proceedings to continue; secondly, that no reasonable basis for the application is disclosed; thirdly, that the application is frivolous or vexatious; and, fourthly, that the application is abuse of the process of the Court.

The first application was filed on 24 December 2004. It was amended on 7 February 2005 and further amended before me to substitute a different first respondent. No issue has been taken with these amendments, and the first respondent appeared only to advise that he would abide the orders of the Court.

The first application, though headed as seeking a statutory order of review, was in its form and in its grounds seeking a review of a judicial decision. The arguments raised in the applicant's amended application agitated a number of issues, but which might be broadly classified as-

(1)the complainant, Ashley Leavy, a public officer, did not have proper delegated authority to make the complaint;

(2)that the place where the offence committed was not by evidentiary averrment shown to be a specified protected area or zone in a protected area;

(3)that a search warrant executed by an authorised officer was unlawfully obtained; and

(4)the relevant Act did not apply to the activities on freehold land.

Arguments relating to the statutory delegation of powers on the part of Mr Leavy to lay complaints, the evidentiary averrments in the complaint and the efficacy of the search warrant used to obtain that evidence are matters, if they are to be raised, ought to have been done before the plea of guilty was made.

The nature of the offence is readily understandable and it seems clear that the applicant of his own free will pleaded guilty to his commission of the offence and to the company's commission of the similar offence.

In R v Radic (2001) NSWCCA 174, the judgment of the Court stated, paragraph 30:

“It is important to remember that a plea of guilty is a solemn matter; it has two effects. First of all it is a confession of fact. Secondly, it is such a confession that without further evidence the Court is entitled to, and indeed in all proper circumstances will, so act upon it that it results in a conviction. Thus the plea admits to those matters which are of essence to the charge. A plea of guilty does not, however, admit non-essential ingredients of the offence.”

Those matters of authority, delegated authority and averment are matters which are essential to the charge and for that reason it would require very special and unusual considerations to go behind a plea of guilty.

By his so doing, the applicant, in my view, has waived his rights to put the complainant to proof of the matters he now seeks to raise. He might, if circumstances warrant, show that he was misled in some way and seek the leave of the Magistrates Court to have the conviction set aside, but for the purpose of a judicial order of review, there is simply nothing in the material to show any error of law or want of jurisdiction on the part of the first respondent.

As to the issues concerning the validity of the Legislature to pass laws relating to private property, I observe, firstly, that the offence relates not to property but to personal conduct. The sovereign law making power of Queensland Parliament was considered in some detail in Bone v Mothershaw (2003) 2 Queensland Reports 600 in a similar context. See per McPherson JA in paragraphs 17-19. This decision was referred to by the learned Chief Justice in Burns v the State of Queensland SC 515 (2005). The plaintiff's arguments in respect to the applicability of a statute to freehold land are unsustainable.

Mr Fitzgibbon of counsel who appeared also as counsel in that later case hints at appeals and urges caution on my part and following the decision. Quite apart from the authority of those decisions, I consider that they are plainly correct and arguments against them are misguided.

These considerations lead inevitably to the view that the applicant's application cannot succeed. I have, for reasons stated, refused a late application for an amendment of the grounds upon which the application is made. I therefore allow the second respondent's application and I will dismiss the applicant's application.

Counsel for the second respondent sought costs personally against counsel appearing for the plaintiff on the basis that the application was frivolous and that in its presentation to Court it showed signs of lack of preparedness and a lack of regard to authority.

Against that, counsel for the applicant points to difficulties which he and those instructing him had in obtaining details from the Crown Law Office and also the fact that the affidavit relied upon by the second respondent was only filed by leave at the commencement of the hearing today.

These delays result in my not acceding to the request that counsel for the applicant pay personally to the costs, but I do however propose to order that the applicant pay the costs of the application for the reason that there has been a change in attitude on the part of the applicant who appeared in all the circumstances to be prepared to accept his commission of the offence as outlined. His pursuit of this application by which it is sought to avoid the effects of the conviction is on bases which are to my mind completely misguided and indeed dangerously close to being found frivolous.

If there was to be any appeal about the sentence that was imposed, it ought to have been done in the District Court. If there was any basis for setting aside the plea of guilty, and none has been disclosed to me, then it ought to have been taken up in another way. In those circumstances I propose to order that the applicant pay the costs of the second respondent to be assessed on the standard basis.

My orders therefore will be that the applicant's application be dismissed. I order that the applicant the costs of the first and second respondent to be assessed on the standard basis.

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Editorial Notes

  • Published Case Name:

    Cris Brian Phillips v Magistrate Robert Spencer

  • Shortened Case Name:

    Phillips v Spencer

  • MNC:

    [2005] QSC 53

  • Court:

    QSC

  • Judge(s):

    Jones J

  • Date:

    07 Mar 2005

Litigation History

No Litigation History

Appeal Status

No Status