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Isaac Regional Council v Warner

 

[2019] QDC 196

DISTRICT COURT OF QUEENSLAND

CITATION:

Isaac Regional Council v Warner [2019] QDC 196

PARTIES:

ISAAC REGIONAL COUNCIL

(appellant)

v

JANICE WARNER

(respondent)

FILE NO/S:

D51/18

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

10 October 2019

DELIVERED AT:

Brisbane

HEARING DATE:

17 June 2019

JUDGE:

Moynihan QC DCJ

ORDER:

  1. The appeal is allowed.
  2. The orders of the magistrate are set aside.
  3. A new trial is ordered before a different magistrate.
  4. The respondent pay the appellant’s costs of the appeal.
  5. The costs of the first trial are reserved to the magistrate hearing the re-trial.

CATCHWORDS:

LOCAL GOVERNMENT – POWERS, FUNCTIONS AND DUTIES OF COUNCILS GENERALLY – POWERS GENERALLY – EXERCISE OF POWERS – GENERALLY – where the council obtained an enforcement order against the respondent due to her failure to comply with public health orders – where the appellant was found to have trespassed by entering the respondent’s property at a time earlier than that specified in the enforcement order – where the magistrate awarded a global amount for both compensation and damages for trespass – where the magistrate failed to indicate the amount attributed under each heading – whether the magistrate’s failure to give reasons identifying the amount allowed under each heading constitutes an error of law

LOCAL GOVERNMENT – POWERS, FUNCTIONS AND DUTIES OF COUNCILS GENERALLY – POWERS GENERALLY – EXERCISE OF POWERS – GENERALLY – where the respondent claimed compensation for items of value unnecessarily disposed of from the property – whether the power to claim compensation under s 422 of the Public Health Act was engaged

District Court Act 1967 (Qld), s 113

Magistrates Court Act 1921 (Qld), s 45

Public Health Act 2005 (Qld), s 23, 24, 25, 26, 27, 385, 386, 387, 388, 388A, 389, 390, 390A, 393, 422

Queensland Civil and Administrative Tribunal Act 2009, sch 3

Uniform Civil Procedure Rules 1999 (Qld), r 770

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424, cited

Coulton v Holcombe (1986) 162 CLR 1, cited

McIntyre & Anor v Tully [2000] QCA 115, applied

O’Brien v Komesaroff (1982) 150 CLR 310, cited

Rains v Frost Enterprises [1975] Qd R 287, cited

Ramey v Body Corporate for GC3 CTS38396 & Anor [2012] QDC 397, cited

Schiliro v Peppercorn Child Care Centres [2000] 2 Qd R 83, cited

COUNSEL:

B Vass for the applicant

S McLennan for the respondent

SOLICITORS:

Wallace & Wallace Lawyers for the applicant

Beckey Knight & Elliot Lawyers for the respondent

Introduction

  1. [1]
    Janice Warner (the respondent) owned a house and land situated at Moranbah, Queensland in the district of the Isaac Regional Council (the appellant). In 2011, the appellant received numerous complaints from the respondent’s neighbours relating to public health concerns as a result of the accumulation of waste and vermin at the respondent’s premises.
  1. [2]
    The appellant issued the respondent with a public health order for a public health risk at that address under s 23 of the Public Health Act 2005 (Qld) (“the Act”) on 12 December 2011. That order directed the respondent to remove all rubbish and maintain the property in a clean and tidy manner by 6 January 2012. It also informed the respondent that it is an offence not to comply with a public health order.
  1. [3]
    The appellant issued the respondent with further public health orders on 12 December 2012 and 26 November 2013. Those orders informed the respondent that an authorised officer had inspected the property and reasonably believed that she was responsible for a public health risk. The respondent was again directed to take steps to remove or reduce the risk to public health arising from the accumulation of refuse and metal objects including machinery, regulated waste and vegetation at the property.
  1. [4]
    The respondent failed to comply with the public health orders.
  1. [5]
    The appellant subsequently made an application to the Magistrates Court for an enforcement order on 5 February 2014 pursuant to s 24 of the Act. On 20 February 2014, the appellant obtained an enforcement order against the respondent.
  1. [6]
    The enforcement order required the respondent to take steps to remove or reduce the risk to public health on or before 17 March 2014. If the respondent failed to take those steps within the specified period, the enforcement order provided that the appellant, or an employee or agent of the appellant, may enter the place and take the steps under the order.The enforcement order specified the times and intervals for those entries to occur, namely between the hours of 8:30am and 5:00pm from 18 March 2014 to 28 March 2014.[1]
  1. [7]
    The appellant engaged a cleaning company, Oz Clean Emerald City (“Oz Clean”), to take steps to remove or reduce the public health risk in accordance with the enforcement order. Consequently, the cleaners entered the respondent’s premises between 18 March 2014 and 17 April 2014 and removed items, some of monetary and sentimental value.
  1. [8]
    The respondent, in a counterclaim against the appellant in the Magistrates Court, claimed general, aggravated and exemplary damages for trespass to land and compensation under s 422 of the Act.
  1. [9]
    The trespass action claimed that the cleaners entered the respondent’s premises outside the hours prescribed by the enforcement order on the following three occasions:
  1. (a)
    Tuesday 25 March 2014 from 7:00am to 8:30am;
  1. (b)
    Wednesday 26 March 2014 from 7:00am to 8:30am; and
  1. (c)
    Thursday 27 March from 6:00am to 8:30am.
  1. [10]
    The appellant sought compensation in the amount of $12,818 for items of value, including clothing, jewellery, electrical equipment, paperwork and furniture that the cleaners unnecessarily disposed of from the property.[2]

The evidence at trial

Ms Victorsen

  1. [11]
    Ms Victorsen was a Senior Environmental Health officer employed by the appellant at the relevant time. Ms Victorsen gave evidence that she was responsible for overseeing the execution of the enforcement order and ensuring compliance with the Act. Ms Victorsen inspected the respondent’s property on 18 March 2014 in accordance with the enforcement order. Although the yard was “slightly tidier”,[3] she said that there had been very little change to the state of the property since she last attended following the issuing of the public health orders. Ms Victorsen described the respondent’s property as “a rubbish tip”,[4] flooded with cockroaches and mice. She said that the whole property had a distinctive, offensive odour and the floor was rotting.
  1. [12]
    Ms Victorsen gave evidence that she directed the Oz Clean cleaners to attend the property between 8:30am and 5:00pm during both weeks. Ms Victorsen would arrive at the property at approximately 8:30am each day. The respondent was present for the first three or four days of the clean-up. She said that the cleaners were told not to enter the property unless a council officer was present and she never observed anyone working on or cleaning the property before 8:30am on any day. The cleaners would be at the front gate of the property when she arrived. Although Ms Victorsen recalled rain forcing the cleaners to stop work on occasion, she did not agree that she told the cleaners to start work at 6:00am on 27March 2014 to make up lost time.
  1. [13]
    Ms Victorsen said that the cleaners were given specific instructions that nothing was to be thrown out or removed from the property unless approved by herself or another council officer. Ms Victorsen was responsible for sorting through the boxes and making decisions as to what items should be kept and those that were to be discarded. She said that personal items and items of value were kept and catalogued while items that were a breeding ground or likely to be a breeding ground for pests were thrown out. To her knowledge, there were no items disposed of that did not go through the sorting process.

Ms Vorinov

  1. [14]
    Ms Vorinov, the owner of Oz Clean, gave evidence that her company was contracted to undertake the cleaning work at the respondent’s property. Ms Vorinov stated that she travelled to the respondent’s property in convoy with her cleaning staff each day during the clean-up and that she was with her staff at all times prior to entering the property with the council officers. She said that they would leave the motel at approximately 7:50am each morning, arriving at the respondent’s property between 8:00am and 8:10am. Upon arriving at the property, Ms Vorinov and her team would dress in protective clothing and then await instructions from the council officers. Ms Vorinov said that there was no deviation from the daily routine and that she and her staff did not enter the respondent’s property without the council officers being present.
  1. [15]
    Ms Vorinov gave evidence that she was never advised by the council as to the hours that they were able to access the respondent’s property in accordance with the enforcement order. However, she agreed that her staff worked an average of 10 hours a day for each day charged on the invoice. When asked whether she was told by Ms Victerson that the cleaners needed to start early to make up lost time due to the rain, Ms Vorinov responded “that sounds vaguely true”.[5] Ms Virinov also indicated that if the council officers had arrived at the respondent’s property before 8:00am, the cleaners would have started working earlier.

The respondent

  1. [16]
    At trial, the respondent agreed that she received the public health orders issued by the appellant and that the enforcement order was made on 20 February 2014. The respondent did not consent to the magistrate making the enforcement order and said that she understood the order as only referring to her yard.
  1. [17]
    The respondent gave evidence that the three cleaners and Ms Victorsen first arrived at her property to start cleaning on 24 March 2014. She said that when the cleaners first attended the property it was “clean, but it was untidy”.[6] On 25 and 26 March 2014, the respondent arrived at her property at around 6:45am and the cleaners entered at 7:00am and commenced cleaning. On 27 March 2014, the respondent arrived at 5:45am and the cleaners entered her property at 6:00am and continued cleaning. She said that she did not give the cleaners permission to enter her property at a time earlier than that specified in the enforcement order. The respondent agreed that Ms Victorsen arrived at the property at 8:30am on each of those days. When the respondent asked Ms Victorsen why the cleaners were arriving early, she was told that they had to make up lost time due to the rain.
  1. [18]
    The respondent said that during the clean-up, the cleaners placed her belongings together in garbage bags and then threw them into a skip bin or trailer. The respondent did not observe any of those bags being checked. When the respondent attended court on 28 March 2014, she complained that the cleaners were “just throwing everything out. Nothing was being kept. All my personal stuff, all the stuff that meant a lot to me.”[7] The respondent subsequently produced a list of items said to have been unnecessarily disposed of during the clean-up.[8]
  1. [19]
    The respondent gave evidence that she was present during the first week of the clean-up but was excluded from the property during the second week. The respondent observed the council representatives starting to clean inside her house towards the end of the first week. However, she did not retrieve any of the personal items she wanted to keep during the first week or after the cleaners had put them aside. The respondent conceded that she could have done this after the cleaners had left the premises at the end of each day but said that she was not aware that the cleaners were going to throw her personal items away. When the respondent asked Ms Victerson what was happening, she told her not to worry about it as it would all be sorted out later. The respondent said she felt very anxious and upset while the work was being undertaken at her property.

The Magistrate’s findings

  1. [20]
    The learned magistrate found that the cleaners entered the respondent’s property outside the terms of the enforcement order on three occasions and that constituted a trespass on each occasion, and secondly, that items of value were discarded unnecessarily. The magistrate accepted that the respondent incurred a loss due to the exercise or purported exercise of a power under part 2, chapter 2 of the Act.[9] The magistrate determined to “make a global assessment for damages for both heads” and assessed “damages” at $20,000.[10]  The appellant was ordered to pay the respondent’s costs on an indemnity basis. 
  1. [21]
    The appellant does not challenge the magistrate’s finding that the cleaners trespassed by entering the respondent’s property on three occasions prior to 8:30am between 25 March 2014 and 27 March 2014.[11] The appellant also accepts that items of sentimental and monetary value, albeit nominal, were unnecessarily disposed of during the clean-up.[12] Rather, it is the legal consequences resulting from those findings that are challenged by the appellant.

The appeal

  1. [22]
    The appellant appeals the judgment of the magistrate under s 45(1) of the Magistrates Court Act 1921 (Qld).  That section relevantly provides: 

45 Appeal

  1. Subject to this Act, any party who is dissatisfied with the judgment or order of a Magistrates Court—
  1. in an action in which the amount involved is more than the minor civil dispute limit;

may appeal to the District Court as prescribed by the rules.” 

  1. [23]
    Further, s 113 of the District Court Act 1967 (Qld) provides: 

113 Power of District Court on appeal from Magistrates Court

The District Court has, for an appeal from a Magistrates Court, the same powers as the Court of Appeal has to hear an appeal.” 

  1. [24]
    The relevant rule under the Uniform Civil Procedure Rules 1999 (Qld) is r 770(1), which provides: 

770  New trial

  1. If, on the hearing of an appeal, it appears to the Court of Appeal there ought to be a new trial, the Court of Appeal may set aside the decision and order a new trial.”
  1. [25]
    Given the amount claimed by the respondent in the counterclaim exceeds the minor civil dispute limit,[13] there is no need for leave to appeal.[14]

The grounds of appeal

  1. [26]
    The grounds of appeal are as follows:

“1. The primary Magistrate erred in awarding common law damages against the Appellant for trespass in his decision at first instance as:

  1. (a)
    It is entirely inconsistent with his finding that is was not representatives of the Appellant (“the Council”) who had trespassed;
  1. (b)
    There was no evidence that lead the “cleaners”, who the primary Magistrate found had trespassed, did so under the direction or with the actual or apparent authority of the Council;
  1. (c)
    There was no evidence that there were representatives of the Council present on the three occasions the trespass are said to have occurred;
  1. (d)
    It was not pleaded and there was no evidence lead that the cleaners had acted as the Council’s agents in entering the premises outside of the times stated in the enforcement orders without Council representatives present;
  1. (e)
    It resulted in the denial of natural justice to the Appellant as they were not able to be heard in relation to those matters.
  1. The primary Magistrate erred in awarding statutory compensation against the appellant pursuant to s 422 of the Public Health Act 2005:
  1. (a)
    It is a requirement that a court may order compensation to be paid only if it is satisfied it is just to make the order in the circumstances of the particular case in accordance with s.422(4);
  1. (b)
    The primary Magistrate failed to make any findings or give any reasons to the effect that he was satisfied that it was just to make the order in the circumstances of the particular case;
  1. (c)
    As the power exercised by the Council under the Public Health Act 2005 was exercised pursuant to s.27(2)(b) which is not an exercise or purported exercise of a power under part 2 or chapter 2, part 4 of the Public Health Act 2005.”
  1. [27]
    The appellant also seeks leave to add a further ground of appeal, namely that the learned magistrate erred in law in awarding a global amount for both compensation and damages for trespass. The respondent contends that leave should not be granted to add the ground of appeal but can point to no prejudice other than the fact that the ground was not specifically pleaded in the appellant’s Notice of Appeal.[15]
  1. [28]
    I am satisfied that leave should be granted to add the further ground of appeal because, first, the error was identified and submissions made in relation to it in the parties’ outlines of argument. Secondly, the ground involves a question of law and it is in the interests of justice that the question should be argued and decided. There are no evidentiary matters on that issue that could have affected the conduct of the trial.[16]

Global award of damages

  1. [29]
    The learned magistrate allowed an amount for damages for trespass to land and an amount as compensation under s 422 of the Act in the “global” award of $20,000. The magistrate has failed to indicate the amount attributed under each heading. The amount allowed is not transparent and does not enable the appellant to meaningfully challenge the amount allowed when there was no specific finding as to the nature and extent of property unnecessarily discarded and for what the appellant contends would be, in any event, a minor trespass warranting only a nominal award under that head.
  1. [30]
    The Court of Appeal in McIntyre & Anor v Tully [2000] QCA 115 said at [24]-[25]:

“The duty to give reasons calls for some reasonable indication from the tribunal at least of the approximate level of separate components upon which an overall award is based….

…In our view the failure of a tribunal to indicate the basis of what is after all the ultimate penalty imposed upon the infringer as well as the compensatory benefit to the complainant is capable of amounting to an error of law. For reasons mentioned hereunder the failure to give reasons in the present case masks the true basis of the award and deprives both the appellant and this court of necessary information that would enable a proper review of its propriety. We would identify the failure to give reasons in the present case as an error. It should be noted that any future instance in which the true structure of the assessment is kept invisible is likely to result in the identification of legal error.” (Footnotes omitted)

  1. [31]
    The failure of the learned magistrate in the present case to give reasons identifying the amount allowed under each head is, as the respondent properly concedes, an error of law in the assessment of the award and warrants the setting aside of the order and an order for a new trial.[17]

Is s 422 of the Act engaged?

  1. [32]
    The respondent contends that the learned magistrate was correct to find that “the plaintiff has incurred a loss because of the exercise or purported exercise of a power under part 2 of chapter 2 of 4 of the Public Health Act”[18] and that “section 442 of that Act allows the plaintiff to claim damages from the Local Government”.[19]
  1. [33]
    The appellant primarily contends that it was acting under the enforcement order made under ss 24 to 27 in chapter 2, part 3 of the Act at the relevant time and therefore the power to claim compensation under s 422 of the Act was not engaged. That is, the source of the power to enter the respondent’s place did not arise pursuant to chapter 9, part 2 or chapter 2, part 4 of the Act.
  1. [34]
    Section 422 of the Act appears in chapter 9, part 3 of the Act concerning monitoring and enforcement and relevantly provides:

422  Compensation

  1. If a person incurs loss or expense because of the exercise or purported exercise of a power under part 2 or chapter 2, part 4 the person may claim compensation—  
  1. for the exercise or purported exercise of a power by or for the State—from the State; or
  2. for the exercise of purported exercise of a power by or for a local government—from the local government.

  1. A court may order compensation to be paid only if it is satisfied it is just to make the order in the circumstances of the particular case.” 
  1. [35]
    Chapter 2 concerns environmental health and part 4 provides for authorised prevention and control programs. Chapter 2, part 4 of the Act is not relevant here.
  1. [36]
    Chapter 9, part 2 of the Act provides the power for authorised persons to enter places to take steps and to obtain information in certain circumstances. Chapter 9, part 2 commences in Division 1 of the Act with sections 385(1) and (3), which relevantly provide:

385  Power to enter places

  1. An authorised person may enter a place if—
  1. an occupier of the place consents to the entry; or
  2. it is a public place and the entry is made when it is open to the public; or
  3. the entry is authorised by a warrant; or
  4. entry is under section 386, 387, 388, 389, 390 or 390A.

  1. Nothing in this part allows entry to a dwelling without the occupier’s consent, an enforcement order or a warrant.”
  1. [37]
    Section 385(1)(d) of the Act gives a power to enter a place to ascertain if there is a public health risk,[20] to check compliance with a public health order,[21] to take steps if a public health order is not complied with,[22] to check compliance with an improvement notice,[23] to enter under an approved inspection program,[24] to enter a health care facility[25] and to monitor compliance with chapter 5A of the Act.[26] None of the circumstances in s 385(1)(a) – (d) of the Act are engaged in this case.  Further, the power to give a public health order is found in s 23 of chapter 2, part 3 of the Act.
  1. [38]
    In this case, the appellant applied under s 24 of the Act to a court for an enforcement order. The magistrate made the enforcement order under s 26 of the Act. It contained requirements authorised by s 27 of the Act. The power the appellant exercised at the relevant time was under ss 24 – 27 of the Act. Those sections are in chapter 2, part 3 of the Act. Section 422 of the Act was not engaged and the magistrate had no power to order the appellant to pay the respondent compensation.
  1. [39]
    Given that finding, it is not necessary to determine whether the magistrate materially erred in failing to make an express finding pursuant to s 422(4) of the Act.

Agency

  1. [40]
    It should be noted in relation to the first ground of appeal that at the hearing of the appeal the appellant accepted that the cleaners were its agents but contended it could not be liable for any trespass because the cleaners were acting outside the scope of their agency.[27] It is not necessary to determine this ground concerning the scope of the agency first, because the points sought to be agitated were not properly raised, argued or determined below, and secondly, in light of the outcome in relation to the ground added by leave and the ground concerning the application of s 422 of the Act.

Costs

  1. [41]
    The appellant has succeeded on a substantive ground of appeal and is entitled to its costs of the appeal. Further, I am satisfied in all the circumstances that the costs of the trial be reserved to the magistrate hearing the re-trial.

Orders

  1. [42]
    The orders are:
  1. The appeal is allowed.
  1. The orders of the magistrate are set aside.
  1. A new trial is ordered before a different magistrate.
  1. The respondent pay the appellant’s costs of the appeal.
  1. The costs of the first trial are reserved to the magistrate hearing the re-trial.

Footnotes

[1]  On 7 April 2014, a further amended enforcement order was made extending the time for the entries.

[2]  Amended defence and counterclaim filed 16 December 2016, para 6.

[3]  Trial transcript 1-96, l 47 and 1-97, ll 1-2.

[4]  Trial transcript 1-98, l 33.

[5]  Trial transcript 2-15, l 30.

[6]  Trial transcript 1-57, l 45.

[7]  Trial transcript 1-20, ll 1-3.

[8]  Amended defence and counterclaim filed 16 December 2016, para 6.

[9]  Judgment of Magistrate Dwyer 10 July 2018 p 9, ll 31-32.

[10]  Judgment of Magistrate Dwyer 10 July 2018 p 9, ll 40-41.

[11]  Trial transcript 1-4, ll 15-16.

[12]  Trial transcript 1-6, ll 20-23.

[13] Queensland Civil and Administrative Tribunal Act 2009, Schedule 3.

[14]  See Graham v Roberts & Muller [1956] St R Qd 459 at 462; Rains v Frost Enterprises [1975] Qd R 287; Schiliro v Peppercorn Child Care Centres [2000] 2 Qd R 83 and Ramey v Body Corporate for GC3 CTS38396 & Anor [2012] QDC 397 at [18], [30] and [37].

[15]  Appeal hearing transcript 1-69, ll 41-47 and 1-70, ll 1-11.

[16]  See Coulton v Holcombe (1986) 162 CLR 1; O’Brien v Komesaroff (1982) 150 CLR 310 and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424, [37]-[39]. 

[17]  Appeal hearing transcript 1-69, ll 41-47 and 1-70, ll 1-3.

[18]  Judgment of Magistrate Dwyer 10 July 2018 p 9, ll 31–32.

[19]  Judgment of Magistrate Dwyer 10 July 2018 p 9, ll 32–33.

[20] Public Health Act 2005 (Qld), s 386.

[21]  Ibid, s 387.

[22]  Ibid, s 388.

[23]  Ibid, s 388A.

[24]  Ibid, s 389.

[25]  Ibid, s 390.

[26]  Ibid, s 390A.

[27]  Appeal hearing transcript 1-33, ll 17-20.

Close

Editorial Notes

  • Published Case Name:

    Isaac Regional Council v Janice Warner

  • Shortened Case Name:

    Isaac Regional Council v Warner

  • MNC:

    [2019] QDC 196

  • Court:

    QDC

  • Judge(s):

    Moynihan DCJ

  • Date:

    10 Oct 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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