Department of Primary Industries v Mowburn Nominees Pty Ltd
[2004] QDC 27
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- Unreported Judgment
- Appeal Determined (QCA)
- Department of Primary Industries v Mowburn Nominees Pty Ltd[2004] QDC 27
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Department of Primary Industries v Mowburn Nominees Pty Ltd[2004] QDC 27
Department of Primary Industries v Mowburn Nominees Pty Ltd[2004] QDC 27
DISTRICT COURT OF QUEENSLAND
CITATION: | Department of Primary Industries v Mowburn Nominees Pty Ltd [2004] QDC 027 |
PARTIES: | DEPARTMENT OF PRIMARY INDUSTRIES Appellant v MOWBURN NOMINEES PTY LTD (ACN 008 522 030) Respondent |
FILE NO/S: | Appeal No 1553/2003 |
DIVISION: |
|
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Brisbane |
DELIVERED ON: | 4 March 2004 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 5 November 2003 |
JUDGE: | McGill DCJ |
ORDER: | Appeal struck out. Order that the appellant pay the respondent’s costs of the appeal to be assessed. |
CATCHWORDS: | APPEAL AND NEW TRIAL – Right of Appeal – statutory jurisdiction of Magistrates Court, on appeal from administrative decision – whether that proceeding an “action” – no right of further appeal. Martin v Commissioner for Employees Compensation [1953] St R Qd 85 – followed. Wynch v Ketchell [2002] 2 Qd R 560 – followed. |
COUNSEL: | R J Douglas SC and R S Jones for the appellant J E Gallagher QC and D A Kelly for the respondent |
SOLICITORS: | Crown Solicitor for the appellant Thynne and Macartney for the respondent. |
- [1]On 30 April 2003 the Magistrates Court at Brisbane dealt with six appeals by Mowburn Nominees Pty Ltd (“the company”) from decisions of an inspector as to the compensation payable to the company as a result of the destruction of large numbers of stock for the purpose of eradicating a disease, namely bovine tuberculosis. Stock had been destroyed in accordance with the powers conferred under the Stock Act 1915 (“the Act”), and s 31 of that Act provides an entitlement to compensation in respect of stock destroyed in that way. Compensation is to be assessed in accordance with the regulation, and was assessed by an inspector. Presumably there were six separate decisions assessing compensation.
- [2]Section 36 of the Act provides that a person aggrieved by a decision, defined in a way which would include a decision by an inspector made under the Act, may appeal to a Magistrates Court against the decision. The appeal is by way of rehearing, and the Magistrates Court has all the powers and functions of the person whose decision is the subject of appeal.[1] If on appeal the court reverses or varies the decision, the Magistrates Court decision is taken for the purposes of the Act to be that of the person whose decision was the subject of the appeal.[2] There is no provision in the section however, and as far as I can see elsewhere in the Act, for any appeal to this court from a decision of the Magistrates Court under s 36.
- [3]The magistrate on 30 April 2003 varied the decisions to provide that compensation in the total amount of $6,495,212 be paid for the stock destroyed. On 1 August 2003 the magistrate, by a consent order presumably made under the slip rule, varied the earlier order so that the amount payable became $6,385,497. That order which was described as a “consent judgment” went on to provide that the Department of Primary Industries pay to the company a specific amount by way of interest and costs.
- [4]In the meantime however on 19 May 2003 a notice of appeal was filed in this court, by which the department purported to appeal against the decision of the Magistrates Court. The notice of appeal was in the form provided under the Uniform Civil Procedure Rules for a civil appeal from the Magistrates Court. However, those rules do not in themselves give jurisdiction to this court to entertain an appeal from an order of the Magistrates Court.
- [5]When the appeal came on for hearing before me on 5 November 2003, senior counsel for the appellant submitted that there was a right to appeal under s 45(1) of the Magistrates Courts Act 1921. Relevantly that section provides:
“Subject to this Act, any party who is dissatisfied with the judgment or order of a Magistrates Court –
- (a)in an action in which the amount involved is more than $5,000 …
may appeal to the District Court as prescribed by the Rules.”
Senior counsel for the respondent in written submissions conceded that the appeal was brought pursuant to s 45(1) of the Magistrates Courts Act, but went on to submit that the appeal was one stricto sensu, because of the absence of any relevant provision that it be in the nature of a rehearing. It was submitted in particular that r 765(1) which provides that an appeal to the Court of Appeal is by way of rehearing, did not apply to the present appeal. But if it is an appeal from a Magistrates Court to the District Court, in the absence of some statutory provision to the contrary, r 765(1) is made applicable by r 785(1) of the UCPR. Accordingly if an appeal does lie to this court, it is an appeal by way of rehearing.
- [6]The consideration of that issue however led me to have doubts about the correctness of the concession by counsel for the respondent, that an appeal lies under s 45(1) of the Magistrates Courts Act 1921. In the absence of any provisions giving a right to appeal to the District Court from the decision of the Magistrates Court under s 36,[3] and the absence of any other more general provision for appeals in civil matters to be brought from decision of the Magistrates Court to the District Court, the appeal will lie only if s 45(1) does apply. Appeals are matters of statute, and appeal rights exist only if and to the extent the statute so provides. Perhaps more importantly, this court is one of limited statutory jurisdiction, and can only exercise such jurisdiction as is conferred upon it by some Act. Jurisdiction cannot be conferred merely by the consent of the parties.[4] Accordingly I should not embark on the determination of the appeal unless satisfied that I have jurisdiction to do so.
- [7]The scope of s 45(1) was examined in considerable detail by Thomas JA (with whom the other members of the court agreed) in Wynch v Ketchell [2002] 2 Qd R 560. In that case it was decided that there was a right of appeal to the District Court from a decision of a Magistrates Court on a proceeding for condemnation of forfeited goods under s 9(2) of the Crimes Act (Cth). His Honour concluded, on the basis of certain provisions in the Excise Act (Cth), and some discussion of the nature of proceedings for the forfeiture of property in excise matters, that the proceeding in the Magistrates Court was an “action” for the purposes of s 45(1) notwithstanding that it was commenced by application rather than by claim: p. 570. Importantly for present purposes there was detailed consideration of the scope and meaning of s 45(1).
- [8]His Honour concluded that the scope of the right of appeal created by s 45(1) was wider than the original jurisdiction of the Magistrates Court stated in s 4 of the Act: p.568. In that respect he overruled a statement in an earlier authority on the section,[5] Martin v Commissioner for Employees Compensation [1953] St R Qd 85, where Mack J at p. 90 rejected the submission that s 11 was wider than s 4 and gave a right of appeal in matters not referred to in s 4. Mack J said: “In my opinion, s 11 is narrower in its scope than s 4. A right of appeal does not exist in every case where a magistrate has jurisdiction – that is, an open right of appeal – under s 4 to hear and determine a matter. The word “action” in s 11 is not used in its widest sense.” In the light of the decision in Wynch v Ketchell, this proposition is no longer good law.
- [9]Nevertheless, Thomas JA at p. 567 referred to the actual decision in Martin and expressly confirmed it. That was that no appeal lay to the Supreme Court[6] from the decision of a magistrate under s 20 of the Commonwealth Employees Compensation Act. That Act provided that any person affected by any determination or action of the commissioner under the Act might appeal against such determination or action to a “county court’, which as defined in that Act included the Magistrates Court of Queensland. The statute made no provision for any further appeal, although Mack J at pp. 88-89 cited authority for the proposition that where a Commonwealth Act conferred jurisdiction on a state court all of the incidents of such jurisdiction, including any applicable right of appeal from its decision, would apply. Accordingly the fact that the appeal to the Magistrates Court was conferred under a Commonwealth statute rather than a state statute was not crucial to the decision; the decision turned on whether the proceeding in the Magistrates Court was one within the statute providing for appeals from the Magistrates Court, then to the Supreme Court. Mack J held that it was not.
- [10]Commenting on the decision, Thomas JA said at p. 567: “In that case, Mack J held that an appeal heard by a magistrate under s 20 of the Commonwealth Employees’ Compensation Act, was not an “action” and accordingly, that s 11 (a forerunner of the present s 45) of the Magistrates Courts Act conferred no appeal from such a decision. That, with respect, was plainly a correct decision (cf Goward v The Commonwealth (1957) 97 CLR 355, 359),[7] but it hardly bears upon the question whether the proceeding in which original jurisdiction of the kind exercised in the present matter should be regarded as an “action” in the Magistrates Court.”
- [11]His Honour there appeared to be distinguishing between a proceeding by way of an appeal from an administrative decision to the court, and a proceeding involving the kind of original jurisdiction exercised in an “excise prosecution”. Although his Honour clearly adopted a wider meaning of the word “action” in s 45 than did Mack J, he did not treat it as being so wide as to extend to an appeal from an administrative decision under a statute. The distinction is not between original jurisdiction and appellate jurisdiction in the conventional sense, because an appeal from an administrative body to a court is ordinarily regarded as invoking the original jurisdiction rather than the appellate jurisdiction of the court.[8] Rather the references to that kind of original jurisdiction which, as expressed at p. 569, involves some sort of litigation between a plaintiff and a defendant. That was I take it a reference to a situation where a party was claiming from the court some relief against another party,[9] and the other party was resisting it. But it seems to me that his Honour was distinguishing that situation from one where a party dissatisfied with a decision of an administrator was seeking to have that decision reviewed or reconsidered by a court.
- [12]At p.568 Thomas JA referred to two decisions of mine[10] which I should say were heavily influenced by the decision in Martin (supra). On the basis of what was said there it appeared to me that the term “action” in s 45(1) carried a narrow meaning, hence my use of the expression “action in the technical sense” in Crowley at p. 11. His Honour said of my decision in Horne v Frank that, insofar as I was suggesting that, in relation to an application made to a Magistrates Court under s 425 of the Police Powers and Responsibilities Act, no appeal lay to the District Court under s 45 of the Magistrates Courts Act, I was incorrect. It was my view at that time, on the basis of what was said in Martin, that s 45 was so limited, and that no appeal under it was available from a decision under s 425 of that Act, but in the light of the decision in Wynch v Ketchell that opinion was wrong.[11]
- [13]There may however be some significance in the fact that his Honour did not suggest that my conclusion in Crowley v McKay, that an appeal to the District Court from a decision of a magistrate on appeal from an authorised officer under the Weapons Act 1990 was not an appeal within s 45(1) of the Magistrates Courts Act 1921, was incorrect. In that case there was no doubt that there was a right of appeal, because it was conferred expressly by the Weapons Act, but what mattered was whether s 45(1) applied to it. If so, certain other provisions fixing the time within which the appeal was to be brought were made applicable. I concluded that those provisions were not applicable, because the appeal was not one within s 45(1), since the proceeding in the Magistrates Court from which the appeal lay was not an “action”. His Honour did not suggest that that conclusion was wrong.
- [14]It follows in my opinion that, although Thomas JA took a wider view of the term “action” than did Mack J in Martin, it did not extend to any civil proceeding in the Magistrates Court. Relevantly for present purposes, Wynch provides no authority for the proposition that s 45(1) applies to give a right of appeal from a decision of a magistrate on appeal from an administrative decision under some particular statute, such as the appeal conferred by s 36 of the Act. I would interpret his Honour’s express approval of the actual decision in Martin as confirmation that a proceeding of that nature is not an “action” for the purposes of that section. It follows that no right to appeal to this court from a decision of the Magistrates Court under s 36 of the Act is given by s 45(1) of the Magistrates Courts Act 1921.
- [15]No other basis for the appeal was suggested, and I can find none. In my opinion there is no right of appeal to the District Court from a decision of a magistrate under s 36 of the Act. The present appeal is incompetent, and is therefore struck out. I order that the appellant pay the respondent’s costs of the appeal to be assessed.[12]
Footnotes
[1] Section 36(9), (11).
[2] Section 36(12).
[3] I have not found any authority on s 36, probably because it was inserted into the Act only in 1993. Previously there was a right of appeal to the Minister from the decision of an inspector. See 1962 reprint Volume 16 p. 591. In that context it was unsurprising that there was no further appeal to a court.
[4] Essex County Council v Essex Incorporated Congregational Church Union [1961] AC 808 at 828.
[5] Then numbered s 11.
[6] There was in those days no District Court in Queensland, and s 11 provided for appeals to a single judge of the Supreme Court.
[7] Where the decision in Martin was not questioned, and it was held that an appeal lay in such circumstances from the decision of the magistrate to the High Court, by special leave under s 39(2) of the Judiciary Act (Cth).
[8] Builders Licensing Board v Sperway Constructions Pty Ltd (1976) 135 CLR 616 at 621.
[9] Or in respect of a particular thing, in the case of a proceeding in rem.
[10] Crowley v McKay (1999) 21 Qld Lawyer Reps 9 and Horne v Frank [2001] QDC 29.
[11] I say that not just because that decision is binding on me, but in the light of the persuasive analysis of principle and authority in that judgment.
[12] District Court of Queensland Act 1967 s 85(5)(b).