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Niels Francis Madsen v Bertheim Bob Appo


[1973] FC 49


O.S.C. Nos. 46-50 of 1973


- v -



Cor: Wanstall S.P.J.

Williams J.

Andrews J.




O.S.C. Nos. 46 to 50 of 1973






Five Orders Nisi to review were brought to this Court on the application of Niels Francis Madsen who as complainant in five complaints alleged offences in each against one Bertheim Bob Appo. The complaints purported to have been laid pursuant to the Justices Acts 1886 to 1968 for separate offences, each alleged to have occurred within the Magistrates Courts District of Maryborough and each being an offence against a provision of The Fisheries Acts 1957 to 1962. The complainant, as each complaint showed, was an Inspector of Fisheries within the meaning of the Fisheries Acts. Two of the complaints charged the possession of under-sized fish (mud crabs) contrary to S. 71(1)(ii) of the Acts, one charged the possession of fish (female crabs) contrary to S. 71(1)(i) of the Acts, one of obstructing an Inspector appointed under those Acts, contrary to S. 14(1)(i) thereof, and the final one, the use of insulting language to an Inspector appointed as aforesaid contrary to S. 14(1)(viii) of the Acts.

Of the five complaints, two were allegedly made before the same Justice of the Peace on 5th April, 1972 and the remaining three before different Justices on 7th July, 1972, on 10th January, 1973 and on 27th April, 1973, each Justice issuing his or her summons.

When the complaints finally came on for hearing before the Stipendiary Magistrate at Maryborough, Mr. Turley appeared for the I defendant. All five complaints were then dealt with together. He submitted that the complaints were irregular due to the manner in which the summons in each case had issued.

The record shows that counsel for the complainant then called him to give evidence “of the circumstances in which they (the complaints) were made”.

Whether this was an appropriate course to take in the absence of any evidence to impugn the apparent validity of the complaints and the apparent regularity of the summonses is not a matter that has to be decided by this Court.

Evidence was led of the circumstances occurring at the time each complaint was laid before the Justice. The complainant was then cross-examined. That questioning involved his being asked to state what conversation occurred in the presence of the Justice of the Peace prior to the issue of each summons. The questioning concluded with these questions and answers:—

“Q. Could the nature you, your encounter with the J.P. in each case be regarded as brief?

Ans. Yes?

Q. Brisk?

Ans. Yes.

Q. Very short?

Ans. Yes.

Q. Informal?

Ans. Informal would be the word.

Q. As far as you're concerned it was your duty to take the complaint and as far as you are concerned to use your term to get your signature witnessed?

Ans. That is correct.



Q. You mentioned on that occasion that to the J.P. was in the nature of gossip. Explain what you meant by gossip?

Ans. I assume that he meant casual conversation.

Q. You would not have meant anything like wild rumour?

Ans. No.”

Dr. Gerber who appeared before us for the respondent endeavoured to make much capital out of the last question and answer in cross-examination. He contended that the evidence showed that, in effect, all the complainant did in each case was to get the Justice to witness his signature as distinct from lay a complaint within the meaning of section 53 of The Justices Act.

In my view, the whole of the material before the Magistrate indicates that in each case the complainant who, as I have said, was an Inspector of Fisheries attended at the Magistrates Court at Maryborough on each occasion for the purpose of laying each complaint. His procedure was to obtain from the deposition clerk to the Magistrate a date suitable to the Magistrate as the return date for the hearing of each complaint. Armed with that date, he then enlisted the services of a Justice of the Peace employed at the Court House at Maryborough. The Justice in each case perused the complaint and acquainted himself (or herself, in the case in which one of the Justices was a female) with the details of the written complaint and there was some short general discussion concerning the facts surrounding the complaint. In some cases, there was a discussion as to whether evidence to support the complaints was contained in reports.

The picture that emerges therefore, is of an Inspector of Fisheries stationed at Maryborough attending before a Justice of the Peace at the Court House Maryborough and in a form which can only be described as regular, putting before Justices of the Peace complaints which on their face allege offences against the defendant contrary to sections of the Fisheries Acts which sections were noted at the top of each complaint. Having regard to each such section, the facts alleged an offence that fell within it and was an offence which on its face was amply particularised and within the jurisdiction of the Magistrates Court at Maryborough. There is nothing in the material to indicate that the Justice in each case did not exercise the discretion vested in him (or her) to issue or not to issue a summons. Evidence indicating any lack of formality in the dealings in each case between the complainant and the Justice, on careful examination gives no ground to suspect that the Justice was unaware of his (or her) duty or of the process in which he (or she) was involved or of the nature of the procedure to be followed.

In the absence then, of any reason to suppose that the Justice did not treat the matter for what it appeared to be, namely a genuine complaint by a responsible officer, the complaints in each case seem to me to have been regularly laid. They certainly were not in the category of the complaints in R. -v- The S.M. at Townsville & Brasnett Ex parte Tinsley (1970) Q.W.N. 23 where the Justice thought he was merely a witness to the complainant's signature.

The Stipendiary Magistrate, however, after referring to the necessity for Justices to exercise their discretion in a judicial manner said:—

“Whataver is discussed by the complainant and the Justice there must be at some stage information upon which he can exorcise his discretion.

As an example and without in any way deciding it should have been done one would expect in the complaints dealing with ‘did have in his possession fish’ the Justice would have some information before him as to where and how the fish were found. In the complaint dealing with ‘did obstruct’ one would expect some information as to what the obstruction was alleged to be.

The evidence convinced me that what was discussed on each occasion were extraneous matters, matter of interest in general conversation while the complainant and the Justice went through the mechanical motions of applying their signatures and tidying up the gaps or blank spaces in the complaints and summons.

I hold that the complaints are bad for irregularity.”

In respect of these decisions the complainant obtained the Orders Nisi to review. The main grounds are that the finding that the complaint in each case was bad for irregularity, was a finding that was wrong in law and that the Magistrate should have been satisfied that the complaint in each case was regular and he should have proceeded according to law.

The nature of a complaint and summons under the Justices Act has been recently the subject of a decision of this Court in R. -v- Peacock Ex parte Whelan (1971) Q.R. 471. That case was preceded by two decisions of the New South Wales Court of Appeal and one of the High Court of Australia in which aspects associated with the performance by a Justice of the Peace of his function under a section similar to our s. 53 were canvassed. In my view the Magistrate's decision in each of the matters presently before this Court was due to his failure to understand adequately the nature of those decisions.

Firstly, it is now established beyond doubt that so far as this Court is concerned, “When a complaint is made before a Justice in Queensland pursuant to the provisions of section 53 of the Justices Act he has the discretion as to whether or not he should issue a summons and he must exercise his discretion in a judicial manner”. See R. -v- Peacock Ex parte Whelan (supra) at p. 476D. Peacock's case turned upon the possibility of the existence of bias and this was held sufficient to render the complaint and summons invalid. The complaint, which alleged a breach of the By-Laws of a Local Authority, was laid in the name of the Local Authority but by a firm of solicitors acting on its behalf. The complaint was made before a Justice of the Peace, an employee of the solicitors, who issued his summons upon the complaint. Two members of the Court placed reliance upon the decision of the High Court in Electronic Rentals Pty. Ltd. -v- Anderson 124 C.L.R. 27 and upon the decision of Asprey J.A. in the same case in the Court of Appeal, reported in (1970) 92 (U.S.A.) 672.

In relation to the serious and important nature of, a complaint and the necessity for the Justice properly to consider the matter before issuing his summons, the remarks of Windeyer J. in the first mentioned case at pages 39 and 40 are to the same effect as those of Asprey J.A. at pp. 680 and 681 in the latter. The decision both in the Court of Appeal and the High Court turned on several points. They are of importance so far as the matters presently before this Court are concerned, because they give a guide to a Justice as to what is required of him before he decides to issue or not to issue his summons requiring the person complained against to appear before a Court to answer an alleged charge. Before citing that part of the judgment of Asprey J.A. at page 681 which received the commendation of Matthews J. in Peacock's case, I desire to make reference to some extracts from an earlier case, which also received consideration in Peacock's case and was also referred to by members of the High Court in the Electronic Rentals case, namely Ex parte: Qantas Airways Limited; re Horsinpyton & Anor. (1969) 90 W.N. (Part 2) (N.S.W.) 55. That also was a case in which bias was alleged against the Justice who issued the summons. Sugerman J.A. (as he then was) at pages 59 to 63 carefully examined the history of decisions on the circumstances under which a Justice should issue his summons. Those decisions clearly indicate the importance and seriousness of the task facing a Justice who has to decide whether he should issue his summons which will have the effect of requiring some person to attend before a Court. Throughout these decisions, there is reference to the Justice having to satisfy himself he has jurisdiction and that there is consequently a prima facie case alleged against the person to be charged. For example at page 63E, Sugerman J.A. said,

“He may, according to the cases earlier cited, refuse to issue his summons if there is no prima facie case or the proceeding is vexatious, and perhaps on other grounds as well - for example, that the complaint is out of time or that the complainant is not authorised by law to lay it or that some necessary consent has not been obtained.”

Asprey J.A. in that same case, made a careful examination of the earlier cases and at page 68 said:—

“In the result I am of the opinion that, when a Justice of the Peace hears an information or complaint and determines whether or not at prima facie case has been made out and whether or not there exists proper grounds for him to refuse to issue his summons thereon, such Justice is exercising a judicial function. Some of the cases to which I have referred above show, having regard to the scope of the matters which may be made the subject of an information or complaint, it is important that such a discretion should exist to safeguard members of the community against abuse of process.”

It can be seen therefore that the issue of the summons is by no means equivalent to the witnessing of the signature of the complainant or the affixing of the Justice's signature as a matter of formality. It is far from that. I agree with my brother Matthews when he says in Peacock's case that the exposition of what constitutes a “prima facie case” is well set out by Asproy J.A. in the Electronic Rentals case at page 681 of 92 Weekly Notes New South Wales. The learned Judge said:—

“The question is: what must a Justice of the Peace do in the exercise of his discretion in order to satisfy himself that it is a proper case for him to receive the information laid before him and issue the summons thereon? It seems to me, however, that the expression ‘prima facie case’ is not a wholly satisfactory one to use in this context. The expression ‘a prima facie case is made out’ is commonly used to indicate that material admitted in evidence discloses a case which, if uncontradicted and if believed, would be sufficient to entitle a tribunal of fact to hold that a claim made by one party has been established against another. An information is in the nature of a pleading. It is a statement by the informant to a Justice of the Peace that some named person has by the matters averred therein committed an offence, which must be described clearly in the statement. The offence need not be stated in the precise language of the statute, provided that in similar words sufficient facts are stated to bring the case within the provisions of the statute, (s. 145A) (1) of the Justices Act 1902, as amended). The fact that, in order to avoid unfairness to a defendant, it may be desirable to provide the defendant separately from the information with further particulars of the offence does not of itself impugn the legal sufficiency of the information (Davies -v- Ryan (1933) 50 C.L.R. 379 at p. 386; ex parte Graham; re Dowling (1968) 88 WN (Pt. 1) (N.S.W.) 270 at pp. 279-280). When an information is laid before a Justice of the Peace it is in most instances an ex parte proceeding and its contents do not require to be verified by oath unless required by some statutory provision or unless a warrant is required “in the first instance (Justices Act 1902 as amended ss. 55, 59) and no evidence in required by statute to be tendered to prove any facts in relation to the ingredients of the offence, although in the exercise of his discretion the Justice of the Peace may wish to be satisfied by the introduction before him of evidence that it is a proper case for him to issue a summons and, if the informant tenders such evidence, he would be bound to hear it (R. v. Adamson (1875) 1 Q.B.D. 201; R. v. Paddington Valuation Officer; ex parte Peachey Property Corporation Ltd. (1966) 1 Q.B. 380 at p. 403). If the Justice, after reading the information, is satisfied that no legal offence is alleged in it, he may decline to issue the summons. In the exercise of his discretion, he may also decline to issue a summons upon other grounds, even though a legal offence is averred in the information, as, for instance, where he considers that the issue of a summons would be vexatious or improper. A number of authorities relevant to cases where a summons has been refused are referred to in ex parte Qantas Airways Ltd.; re Harsington (1969) 90 WN (Pt. 2) (N.S.W.) 55. On the other hand, if the Justice is satisfied that a legal offence is averred in the information and no other matter appears to him to justify a refusal to issue the summons, he may in the exercise of his discretion receive the information and issue the summons thereon.”

It is not possible to lay down hard and fast rules which every Justice must follow before issuing his summons - a Justice must deal with each individual case in a manner consistent with what has been stated above. It will depend upon the circumstances of each case whether he does more than satisfy himself that the complaint is genuinely laid for good cause seeking to bring the person charged before a Court to answer a charge that on its face seems good. I agree, with respect, that the expression “prima facie case” is not a wholly satisfactory expression in this context. Unless there are grounds for the justice suspecting, e.g., that there is not evidence available to support the charge, he would not normally need to subject the complainant to the type of questioning which the Magistrate suggested in this case, the more so when the facts alleged fit the section nominated and are amply particularised. A complaint laid before him by a responsible officer of a department which alleges facts that fall within the provisions of legislation with which the officer is to the knowledge of the Justice concerned, will detain him far less before he makes his decision, than will one brought before him by a person who appears to him irresponsible, motivated by malice and making a complaint which contains apparently extravagant allegations which barely fall within the provisions of any statute.

In my view, the Magistrate should have proceeded to hear and deal with the matters according to law. The Order therefore should be that the Order Nisi in each case be made absolute, each matter being remitted to the Magistrate to enter all necessary adjournments and to proceed to hear and determine the complaints according to law. In each case, the respondent should pay the costs of the appellant to be taxed.


Editorial Notes

  • Published Case Name:

    Niels Francis Madsen v Bertheim Bob Appo

  • Shortened Case Name:

    Niels Francis Madsen v Bertheim Bob Appo

  • MNC:

    [1973] FC 49

  • Court:


  • Judge(s):

    Wanstall SPJ, Williams J, Andrews J

  • Date:

    20 Dec 1973

Litigation History

No Litigation History

Appeal Status

No Status