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Queensland Judgments
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Usherwood v Keegan

 

[2020] QSC 263

SUPREME COURT OF QUEENSLAND

CITATION:

Usherwood v Keegan & Ors [2020] QSC 263

PARTIES:

EMILY USHERWOOD (RSPCA INSPECTOR)

(Applicant )

v

MAGISTRATE KEEGAN

(First Respondent)

BRODIE LEE RAPETTI

(Second Respondent)

CARMEN BRENNAN

(Third Respondent)

FILE NO/S:

BS 8416 of 2020

DIVISION:

Trial Division

PROCEEDING:

Originating application

DELIVERED ON:

Delivered Ex Tempore on 12 August 2020

DELIVERED AT:

Brisbane

HEARING DATE:

12 August 2020

JUDGE:

Jackson J

ORDER:

The order of the court is that:

  1. It is declared that the order of the first respondent made 13 July 2020 that three dogs seized by the RSPCA on 8 April 2020, which are the subject of proceedings before the Magistrates Court at Townsville, is invalid.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION – DECLARATIONS – where the applicant is a RSPCA inspector – where, in executing a warrant under the Animal Care and Protection Act 2001 (Qld), three dogs owned by the second and third respondents were seized – where the first respondent made orders that the dogs be returned to the second and third respondents and made directions for a trial of the complaints – where the applicant applied for a declaration that the first respondent did not have power to make the order that constitutes the decision sought to be reviewed, that the order was invalid and that it should be set aside – where the first respondent had power to order the return of the seized dogs but that was subject to internal review and appeal processes – where the applicant submitted that this power was not engaged as there had been no internal review application and no appeal from an internal review of an original decision – where the second and third respondents submitted that the first respondent also had power to order the return of the seized dogs under section 39 of the Justices Act 1886 (Qld) – whether the inspector who seized the dogs was a ‘public officer’ – where the court found that the internal review and appeal processes were a precondition to making a stay order that would operate to require the return of the dogs – where the court found that the inspector was not a public service officer or employee but someone who was employed by the RSPCA meaning that they were not a ‘public officer’– where the court found that the first respondent did not have power to make an order for the return of the dogs

Animal Care and Protection Act 2001 (Qld), s 17, s 114, s 127, s 142, s 143, s 148, s 149, s 150, s 152, s 182, s 183, s 194, s 195, s 196, s 199, s 201, s 204, Schedule

Criminal Code (Qld), s 242, s 468

Judicial Review Act 1991 (Qld), s 4, s 20, s 30, s 47

Justices Act 1886 (Qld), s 4, s 39

COUNSEL:

S Keim SC for the Applicant

Second and Third Respondents in person

SOLICITORS:

Solicitor for the RSPCA for the Applicant

 

  1. [1]
    This proceeding is for judicial review of a decision made by the Magistrates Court at Townsville. The proceeding was started by an application for a statutory order of review. That is a proceeding under the Judicial Review Act 1991 (Qld) (“JR Act”).[1]
  2. [2]
    The relief sought is for a declaration that the first respondent did not have power to make the order that constitutes the decision sought to be reviewed, that the order was invalid and that it be set aside.[2] An order is also sought that the first respondent not hear particular offences charged against the second respondent and third respondent.
  3. [3]
    A statutory order of review may be made in respect of a “decision to which this Act applies”.[3] A decision to which the JR Act applies is a “decision of an administrative character made… under an enactment”.[4] The decision in question was an order by the Magistrate’s Court that the applicant return three dogs seized by an inspector appointed under the Animal Care and Protection Act 2001 (Qld) (“the Act”). The order was made that the dogs be returned to the second and third respondents as their owners. It was made in the context of the mention of a criminal proceeding brought by way of complaint and summons under the Justices Act 1886 (Qld) as between the applicant as complainant and the second and third respondents as defendants and was not a decision of an administrative character made under an enactment.
  4. [4]
    Accordingly, the applicant filed and was given leave to file an amended application for orders by way of the appropriate procedure subject to any discretionary considerations.[5] That is an application for an order in the nature of a prerogative order of certiorari or similar under part 5 of the JR Act and for a declaration under that Part.[6] And the hearing before me proceeds on that basis.
  5. [5]
    On 8 April 2020, a warrant issued pursuant to s 127 of the Act was executed by inspectors appointed under the Act. The applicant has undertaken to provide an affidavit as to the identity of the inspector and that that person is an inspector appointed under s 114 as an individual who is employed by the Royal Society for the Prevention of Cruelty to Animals (Qld) Ltd.
  6. [6]
    Three dogs in the possession of the second and third respondents were seized and it is not in dispute that they are in the possession of the inspector or RSPCA Queensland.
  7. [7]
    On 6 May 2020, Emily Usherwood swore complaints against the second and third respondents before a Justice of the Peace at Townsville. The Justice of the Peace issued a summons to each of the second and the third respondents to appear before the Magistrates Court at Townsville on 13 July 2020 to answer the complaints.
  8. [8]
    On 13 July 2020, the second and third respondents appeared in person to answer the summonses before the first respondent at the time appointed, but there was no appearance at that time for the complainant. Later the first respondent called a solicitor whose email address and telephone number had been provided, and who then appeared for the complainant by telephone. The first respondent enquired how the dogs could be returned to the care of the second and third respondents, pending the final hearing of the complaints.
  9. [9]
    After an adjournment, the matter resumed and the solicitor for the complainant informed the first respondent that the dogs were alive, the complainant was seeking a disposal order to transfer ownership of the animals to the RSPCA Queensland and that for the dogs to be returned, a submission would have to be sent by the defendants to a prosecutions committee and be reviewed.
  10. [10]
    In response to the last submission, the first respondent said “How about I just order that the dogs be returned?” The solicitor responded that there were concerns from the RSPCA as there was an animal welfare direction given to the defendants for an opportunity to “amend” the issues, but they failed to do so. I assume that the subject of charge 24 against the second respondent is about that subject matter.
  11. [11]
    The first respondent then ordered the dogs be returned and made directions towards a hearing of the complaints.
  12. [12]
    On the afternoon of 13 July 2020, a solicitor for the complainant sent an email to the registry at the Magistrates Court at Townsville to the effect that the RSPCA did not believe that the first respondent had power to make the order that had been made earlier that day. The solicitor informed the registry that the dogs were being held by the applicant or the RSPCA pursuant to the provisions of the Act pending determination of the applications made by the applicant for a disposal order pursuant to s 182 of the Act and for a prohibition order pursuant to s 183 of the Act. Although the solicitor requested that the correspondence be placed before the first respondent that was an inappropriate communication to the court in the circumstances.
  13. [13]
    On 14 July 2020, the registry at the Magistrates Court at Townsville responded to the solicitors email stating that the correspondence has been placed before the first respondent and that the matter is listed for hearing on 17 August 2020. The response indicated that if there is a matter that the complainant considered needed to be dealt with before the hearing, there would need to be a request made in writing to have the matter listed for mention before the first respondent.
  14. [14]
    On 31 July 2020, following further steps where the complainant sought to re-agitate the question of the order for the return of the dogs to the second and third respondents, an application to that effect was brought before the first respondent who ruled that the existing order would remain in force.
  15. [15]
    At no point to the present has the applicant complied with the order of the Magistrate’s Court to return the dogs to the second and third respondents.
  16. [16]
    On those facts, the applicant applies for the statutory order of review, as previously described.
  17. [17]
    The facts as I found them to be do not include many of the matters sworn to in an affidavit by a solicitor on behalf of the applicant. Most of the information contained in the affidavit is not within the solicitor’s personal knowledge. This is the final hearing of the application for judicial review. Evidence is only admissible in accordance with the rules of evidence and it was inappropriate to swear an affidavit in the form which was put before the court. Accordingly, I have not paid attention to matters that are asserted by the deponent that are not shown to be within her personal knowledge or are not otherwise supported by documentary evidence or other evidence that is admissible.
  18. [18]
    The offences with which the second and third respondents are charged, are alleged breaches of duty of care owed by a person in charge of an animal to it which the person must not breach.[7] In total, there are 24 offences alleged against the second respondent, constituted by different acts or omissions by him and the third respondent in relation to each of the three relevant dogs and one other dog. There are 23 of those offences alleged as against the third respondent.
  19. [19]
    The warrant under s 127 of the Act that was executed on 8 April 2020 is not in evidence. But a warrant under s 127 of the Act must state a number of things including, relevantly, that there are reasonable grounds for suspecting a particular animal or thing or activity that may provide evidence of an animal welfare offence, may be at the place. The warrant must state that a stated inspector may enter the place and exercise the inspector’s powers and the evidence that may be seized under the warrant. Breach of the duty of care a person in charge of an animal owes to it is an animal welfare offence as defined in the Act.
  20. [20]
    The power to seize evidence is conferred by s 142 of the Act. An inspector who has entered a place under that Part of the Act may seize an animal or other thing at the place that the inspector reasonably suspects is evidence of an animal welfare offence, or if the inspector reasonably believes an animal has been the subject of an animal welfare offence. Further, under s 143 of the Act, an inspector who, under the Part enters a place with a warrant may seize the evidence for which the warrant was issued.
  21. [21]
    An inspector who seizes an animal may move it from the place where it was seized,[8] take it to a place the inspector considers appropriate and give it accommodation, food, rest, water or other living conditions.[9]
  22. [22]
    For an animal seized under that Part, a person other than an inspector or a person authorised by an inspector must not do a number of things unless the person has a reasonable excuse, including entering or being at the place where the animal or other thing is being kept.[10]
  23. [23]
    There are some safeguards provided for in the Act in relation to seized animals. First, the inspector is required as soon as practicable after the seizure to give the person from whom the thing was seized a receipt and an information notice.[11] There is no evidence whether that was done in the present case.
  24. [24]
    Second, the inspector must within 28 days after the seizure, return the animal to its owner unless one of the excuses or conditions justifying retention of the animal exists.[12] One of the excuses or conditions is that an application has been made for a disposal order or prohibition order in relation to the animal.[13] If the application for the disposal or prohibition order has been finally decided or otherwise ended and a disposal or prohibition order has not been made in relation to the animal, the inspector must promptly return the animal to its owner.[14] The applicant presently retains the seized dogs on the basis that there is an unresolved application for a disposal or prohibition order in relation to each of the dogs.
  25. [25]
    The Act makes other provision for orders under which seized animals may be returned to their owners. First, the expression “original decision” is defined to include a decision to seize an animal under the Act or a warrant, subject to an irrelevant exception.[15] An interested person for an original decision may apply to the chief executive for an internal review of the decision.[16] Such an application is called an internal review application. Although an internal review application does not stay the original decision subject to the application,[17] the applicant may immediately apply for a stay of the original decision to a relevant body.[18] A relevant body for this purpose is the Magistrates Court.[19]
  26. [26]
    Second, if an interested person has applied for an internal review of an original decision to seize an animal, any interested person for the decision may appeal against the internal review decision to the Magistrates Court.[20] Again, an appeal does not operate as a stay. However, the Magistrates Court may grant a stay of the operation of an internal review decision appealed against to secure the effectiveness of the appeal.[21] On the conclusion of the appeal, if the Magistrates Court sets aside an internal review decision about the seizure, it may also order the return of the animal.[22]
  27. [27]
    The applicant submits that these provisions under the Act constitute the only provisions under which a Magistrates Court may order the return of the seized dogs. The applicant further submits that none of those provisions is engaged in the circumstances of the present case, because there has been no internal application and no appeal from an internal review of an original decision.
  28. [28]
    The second and third respondents rely on another source of power for the order made by the Magistrates Court. Section 39 of the Justices Act 1886 (Qld) provides as follows:

39 Power of court to order delivery of certain animals

  1. (1)
    If property—
  1. (a)
    has come into the custody or possession of a public officer—
  1. (i)
    in connection with any charge or prosecution; or
  1. (ii)
    otherwise in the course of their duty; or
  1. (b)
    has come into the possession of a Magistrates Court or clerk of the court, whether as an exhibit or otherwise, in connection with a summary proceeding under this Act;

the Magistrates Court may, on application by a public officer or the clerk of the court or by a claimant of the property—

  1. (c)
    make an order for the delivery of the property to the person who appears to be its owner; or
  1. (d)
    if the owner cannot be ascertained—make such order in relation to the property as the court considers appropriate.
  1. (2)
  1. (6)
    In this section—

public officer includes—

  1. (a)
    in relation to a complaint of an offence against the Criminal Code, section 242 or 468, includes an RSPCA inspector; and
  1. (b)
    other than in relation to a thing seized by a police officer that is in the possession of the Crime and Corruption Commission, does not include a police officer.”
  1. [29]
    The inclusive definition of “public officer” in s 39(6) Justices Act 1886 (Qld) operates to extend the meaning of public officer in one respect and to restrict it in another. However, there is another more general definition which also applies in s 4 as follows:

public officer means –

  1. (a)
    an officer or employee of the public service of the State or the Commonwealth; or
  1. (b)
    an officer or employee of a statutory body that represents the Crown in right of the State or the Commonwealth; or
  1. (c)
    an officer or employee of a local government;

who is acting in an official capacity.”

  1. [30]
    There is no evidence at present before me as to who was the inspector who seized the dogs but the applicant has given an undertaking to that effect, as I’ve already mentioned. An inspector may be appointed by the chief executive under the Act.[23]
  2. [31]
    The power to appoint an inspector is limited to an individual who is either a public service officer or employee or employed by the Royal Society for the Prevention of Cruelty to Animals (Qld) Ltd or included in the class of individuals declared under a regulation to be an approved class of persons for the relevant section.[24]
  3. [32]
    If the person who seized the dogs had been a public service officer or employee they would have been a “public officer” within the meaning of ss 4 and 39 of the Justices Act 1886 (Qld).
  4. [33]
    However, if, as the facts now appear to be, the inspector was not a public service officer or employee but someone employed by the Royal Society for the Prevention of Cruelty to Animals (Qld) Ltd, they were not a “public officer” within the meaning of ss 4 and 39 of that Act.
  5. [34]
    It may seem anomalous that the power of the Magistrates Court to make an order under s 39 depends on whether or not the relevant inspector was employed as a public service officer or employee. That is even more so when the definition of “public officer” as extended by s 39(6) expressly includes an RSPCA Inspector in relation to a complaint of an offence under s 242 or s 468 of the Criminal Code (Qld). Both those sections provide for offences against animals including causing serious injury or prolonged suffering to an animal and maiming or wounding an animal. Nevertheless, that is how the text of the relevant provisions in the sections operates.
  6. [35]
    If the first respondent did not have power under s 39 of the Justices Act 1886 (Qld), in my view, she did not have a relevant power otherwise or under the Act to make the order. The Magistrate’s Court may stay an original decision, including a seizure decision, under s 196(2) of the Act, but that is where an internal review application is made under ss 194 and 195 of the Act. In my view, the making of an internal review application is a precondition to a stay order, assuming that a stay would operate to require the return of the dogs to the second and third respondent.
  7. [36]
    For those reasons, in my view, the magistrate did not have power to make the order for the return of the dogs to the second and third respondents, as a matter of law.

Footnotes

[1] Judicial Review Act 1991 (Qld), s 20(1).

[2] Judicial Review Act 1991 (Qld), s 30(1)(a) and (c).

[3] Judicial Review Act 1991 (Qld), s 20(1).

[4] Judicial Review Act 1991 (Qld), s 4.

[5] Such as refusal on discretionary grounds where there is an effective appellate procedure.

[6] Judicial Review Act 1991 (Qld), 47(1).

[7] Animal and Care Protection Act 2001 (Qld), s 17(2).

[8] Animal and Care Protection Act 2001 (Qld), s 148(1)(a).

[9] Animal and Care Protection Act 2001 (Qld), s 148(1)(d)(i) and (ii).

[10] Animal and Care Protection Act 2001 (Qld), s 149.

[11] Animal and Care Protection Act 2001 (Qld), s 150(2).

[12] Animal and Care Protection Act 2001 (Qld), s 152(1) – (2).

[13] Animal and Care Protection Act 2001 (Qld),s 152 (2)(d).

[14] Animal and Care Protection Act 2001 (Qld), s 152 (3)(b).

[15] Animal and Care Protection Act 2001 (Qld), Schedule.

[16] Animal and Care Protection Act 2001 (Qld), s 194.

[17] Animal and Care Protection Act 2001 (Qld), s 196(1).

[18] Animal and Care Protection Act 2001 (Qld), s 196(2).

[19] Animal and Care Protection Act 2001 (Qld), s 196(7)(a).

[20] Animal and Care Protection Act 2001 (Qld), s 199.

[21] Animal and Care Protection Act 2001 (Qld), s 201(1).

[22] Animal and Care Protection Act 2001 (Qld), s 204(2)(a).

[23] Animal and Care Protection Act 2001 (Qld), s 114 (1).

[24] Animal and Care Protection Act 2001 (Qld), s 114 (2).

Close

Editorial Notes

  • Published Case Name:

    Usherwood v Keegan & Ors

  • Shortened Case Name:

    Usherwood v Keegan

  • MNC:

    [2020] QSC 263

  • Court:

    QSC

  • Judge(s):

    Jackson J

  • Date:

    12 Aug 2020

  • White Star Case:

    Yes

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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