Cavanagh v Brisbane City Council
[2005] QDC 280
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Cavanagh v Brisbane City Council[2005] QDC 280
- Add to List
Cavanagh v Brisbane City Council[2005] QDC 280
Cavanagh v Brisbane City Council[2005] QDC 280
DISTRICT COURT | No 4562 of 2004 |
CIVIL JURISDICTION
JUDGE RYRIE
PATRICK JOHN CAVANAGH | Applicant |
and
BRISBANE CITY COUNCIL | Respondent |
BRISBANE
..DATE 01/09/2005
JUDGMENT
(ex tempore)
HER HONOUR: This is an appeal by the appellant and a cross-appeal from the respondent from a decision of the Magistrate given on the 10th of December 2004 at Brisbane.
The appellant pleaded guilty as a joint owner of a residential land situated at Kenmore which was to the charge of failing to ensure that an outdoor pool had around it fencing complying with the relevant statutory standards. By doing so the appellant was in breach of section 14 subparagraph 3 of the Building Act 1975. The maximum penalty prescribed under that section is $12,375.
The Magistrate who heard the matter imposed a fine of $1500 and, in addition, ordered the appellant to pay costs in the amount of $1500 for professional costs and $67.10 for costs of the Court.
The appellant appeals to this Court on the ground that the penalty imposed was manifestly excessive.
While the appellant, who prepared his own appeal documents and appeared before this Court unrepresented, did not seek to appeal before this Court the costs order made at first instance, leave was granted by this Court to allow the self-represented appellant to add this ground to his notice of appeal for the purpose of the hearing of this matter.
The respondent's amended grounds of the cross-appeal only seeks to demonstrate that the penalty imposed by the Magistrate at first instance was manifestly inadequate.
Reliance was placed upon the comparatives handed to the Magistrate at first instance which demonstrated that a range of 2,000 to 4,000-dollar fines had been meted out previously. However, as noted by this Court, those comparatives were of little or any real assistance to the Magistrate or, for that matter, this Court, in circumstances where the comparatives sought to be relied upon at first instance and before this Court were in respect of offences not of the same nature or calibre to that for which the appellant was being sentenced.
Those comparatives dealt with offences relating to enforcement notices which had been issued under the Integrated Planning Act of 1997, section 4.3.15, which carries a maximum penalty of 1665 penalty units. That is, $124,875. Most of those comparatives also dealt with the situation where the offender had deliberately or flagrantly disregarded the enforcement order which had been issued and was dealt with before the Court under those circumstances. That is not the case here.
The appellant had been issued with a notice to comply and an infringement notice given initially to the managing agent of his investment property, the subject residential land under issue. Upon the appellant receiving due notice personally of those notices, the appellant contacted the respondent and a series of events followed which I do not intend to go into in any great detail for the purpose of dealing with this appeal.
The appellant eventually pleaded guilty before the Magistrate in respect of one charge only and now under appeal on 10th of December 2004. Prior to doing that however, it is clear from the transcript of proceedings before the Magistrate that negotiations had taken place between the parties at first instance which led to the matter resolving in the manner it finally did on that day.
The question here is was the penalty imposed by the Magistrate by way of a fine with no conviction recorded manifestly excessive or, indeed, manifestly inadequate as now contended by the respective parties. That is, has the Magistrate made a demonstrable error of law in the exercise of his sentencing discretion?
As properly conceded by counsel for the respondent and accepted by the appellant, it is not enough for either party to simply say that had another Magistrate heard this matter or even if this Court was to hear this matter afresh, that a different penalty might have been imposed. This Court can only intervene where a matter of discretion is involved if it can be demonstrated that there has been an error in the exercise of that discretion of such a magnitude that the appeal Court could or should properly intervene.
Counsel for the respondent, at the request of this Court, offered further comparatives for my consideration. The appellant was in fact provided those to look at and has made further submissions. As indicated by me to Mr Cavanagh, who is the appellant, it is my decision ultimately what I consider to be an appropriate penalty in the respect of the offences and the circumstances thereto relating to the charge for which he was being sentenced.
Comparatives that were handed to me in fact refer to the correct Act as well as the correct section. However, having said that, those comparatives that show that a series of fines, anywhere between $400 and a thousand dollars, have been ordered, turn on their own facts as well and are decisions that have been handed down by Magistrates who, as acknowledged by and stated by Ms Hay, are not decisions that I am, as a District Court Judge, bound to follow in any event.
It is my job to consider what it is that I consider an appropriate penalty taking into account the circumstances of the case, the nature of the offence and the maximum penalty, particularly with respect to the offence before the Court. Consequently, it is that exercise that I have to undertake if I'm satisfied that the Magistrate made a demonstrable error of law in the exercise of his sentencing discretion.
It is clear to some degree that the Magistrate relied upon, as Magistrates and Courts of any jurisdiction are required to do, those who appear before them and place material for their consideration. It is clear the Magistrate took into account initially the comparatives that were placed before him which, as I have already stated, were not even in relation to the correct Act let alone the correct offence and, as a consequence, was led into error to some degree.
Having said that, it is also my view that having now determined that the Magistrate may have been led into error in that regard, has he, in any event, fallen into error in that his penalty, if I look at it now, was it in any way manifestly excessive or in that case manifestly inadequate if he had had the material before him that has now been placed before this Court? What this Court does now is it puts itself in the position that it would had it been the one required to be sentencing the appellant and that is what I intend to do.
As I have stated, the maximum penalty for an offence of this nature is in the order of 12,375. The spirit of the legislation by dictating such a high penalty as a maximum clearly is to act as a deterrence to those who may fail to comply with the regulations relating to proper fencing regarding pools. Drowning, of course, is a most common cause of a traumatic death in children under the age of five years in Queensland and, of course, the legislation has undoubtedly placed such a maximum penalty to reflect, as it were, the seriousness of that conduct, that is, if one fails to adequately fence a swimming pool, that the legislative wishes to at least place across that those who do so, shall do so at their own peril, if they come before the Court.
It does not follow that simply because Magistrates have handed out fines of $400 or anywhere up to a thousand dollars for similar type offences that this Court is bound to follow them.
Having said that, in the circumstances it is my view that taking into account the spirit of why the legislative has placed a maximum penalty to the degree it has for this type of offence, it is therefore my view that an appropriate penalty ought to be set by this Court, at least setting a bare minimum as to what is an appropriate penalty in the circumstances for a breach of this nature.
I am prepared to accept that the appellant in this case has done all that is necessary in so far as that he ultimately did comply in a timely fashion, in my view, with regards to the infringement notice relating to the fencing breaches or his non-compliance. He entered a plea of guilty and that must be taken into account and it is a factor that I do take into account.
Accordingly, it is my view that a maximum penalty to the level of the degree that it is, an appropriate penalty for this type of offence, taking into account as I have said that the appellant did in fact comply ultimately very quickly with respect to the infringement notice, that he pleaded guilty only to one charge, that he has not been breached in the past with respect to this offence - sorry, this Act and/or any other Acts as I understand it, that I am entitled to accept that a minimum penalty to properly reflect what the legislative was intending, that is to send a message, act as a deterrence with respect to pool fencing, ought to be in the order of a thousand dollars. However, I am not inclined to record a conviction, which is a discretionary matter for my Court in the circumstances because of Mr Cavanagh, the appellant's, good character.
I do not consider that the penalty that was imposed by the Magistrate at first instance was manifestly inadequate. In some circumstances there may be an appropriate case where there has been a deliberate or flagrant disregard by those who come before the Courts but this is not, as I have said, the case here, or in a situation, for example, where those who are being sentenced for even this type of offence, might not choose to follow a notice to rectify and in fact have to be constantly reminded and in fact do not do so.
As I have said, those are the facts that I have taken into account when determining a minimum penalty that might be appropriate in respect of this type of offence which ought to be in the order of a thousand dollars. It follows, of course, from that that penalty can therefore be of greater amount in the appropriate case. However, that is not a matter for this Court to determine at this stage because to do so, to try and set some sort of tariff would be inappropriate and would take away the right of any sentencing Court to exercise its discretion quite properly by taking into account not only the maximum penalties applicable but the circumstances of each individual case.
So in respect of the first point, therefore, it is my view that the cross-appeal that the penalty imposed by the Magistrate at first instance was manifestly inadequate fails and, therefore, the cross-appeal shall be dismissed.
However, in light of the reasons I have just given, this Court is prepared to intervene and has done so and it is my view that in respect of the penalty that was imposed, I therefore set aside the penalty orders that were made by the Magistrate at the first instance and make the following order.
That in respect of the section 14 subparagraph 3 Building Act offence, that the appellant be fined $1,000. That no conviction be recorded.
How long do you need to pay?
APPELLANT : Three months.
HER HONOUR: I order that the appellant be given a period of three months to pay as from today's date.
A secondary question, of course, that I must deal with is the question of costs. As I have stated, the Magistrate in respect of this matter ordered that the appellant be paid the costs in the amount of $1500 for the professional costs and $67.10 costs of Court. It would be trite for me to say that it has been stated time and time again by Judges of the District Court, in particular by his Honour Judge McGill and 4 others, that where there is to be an exercise of discretion in respect of ordering costs pursuant to section 157 of the Justices Act, that that should be done not in a willy nilly fashion, but rather, in the proper exercise of that discretion, in this case by a Magistrate who is ordering costs under that section in the exercise of that discretion.
If I understand what was placed before me, while it is true that the Justices Regulations of 2004 provide that professional costs may be awarded to a successful party at first instance in the order of up to $1500 or sometimes more in circumstances where that can be ordered or considered, it is simply not good enough for a Magistrate making such an order under section 157 of the Justices Act to ignore that costs that are to be ordered in those circumstances can only be ordered in circumstances where they consider it just and reasonable to do so in the exercise of his or her discretion.
As observed by his Honour Judge Wylie in Keating against Kneipp such costs may be awarded but only after proper reference to appropriate itemisation to justify, as it were, how those costs have been properly assessed.
It is not, as I have said, good enough and this is noted in the past by this Court, simply for those who appear in front of the lower Court to ask for costs to be ordered up to any amount as provided by the Justices Regulation of 2004 unless they provide proper itemisation that would then allow a Magistrate to actually give proper consideration thereto and make the appropriate assessment as to whether or not those costs were just and reasonable in the circumstances.
Accordingly, I am told that the appeal of this matter by counsel appearing for the Brisbane City Council, who was not by the way the counsel who appeared at the first instance, and I am also advised by the appellant Mr Cavanagh, that no such itemisation was placed before the Magistrate on the day in question to allow the proper assessment to have been made, as was the usual case. Unfortunately it appears that a request of an amount is just requested of a Magistrate, who simply orders that amount with any real consideration as to whether or not that amount is in fact appropriate in the circumstances.
I do not consider it an appropriate case to allow the Brisbane City Council to place before this Court the assessment that would have justified an order to the amount that was actually ordered by the Magistrate to be put before this Court now for its consideration. To do so would be to be attempting to plug its case in circumstances where it had the opportunity to do so before the Magistrate and did not do so.
His Honour Judge McGill, again in Bailey against the Home Company Proprietary Limited, Appeal 3443 of 1999, sets out, as it were, a helpful and concise summary in relation to when a District Court might give leave to adduce fresh, additional, substituted evidence if there is special grounds for giving leave. Of course, as he says, for me to allow, as it were, proper itemisation to now be placed before this Court for its consideration would be allowing the Brisbane City Council of course to place further evidence before the Court. As his Honour noted, there is an important difference between the situation where a party seeks to lead additional evidence or further evidence at a hearing and that is refused and a situation where no attempt is made at hearing to lead the additional evidence or fresh evidence but on appeal seeks to plug some gap in the case exposed in the decision under appeal.
Consequently, leave was refused on that basis to allow the Brisbane City Council, the respondent, to place that material before this Court. Accordingly, it is my view that the order made by the Magistrate in respect of the professional costs in the order of $1500 must properly be set aside for the reasons that I have already stated and I would ask that all parties consider this decision as but another reminder of the decisions that have been handed down by the District Court in relation to this aspect of the exercise of the discretion in respect of costs under section 157 of the Justices Act, as noted, I see, by his Honour Wylie, Kneipp and Keating and further restated by his Honour Judge McGill in the decision of Durrant against Gardener, which was a District Court of Appeal decision (2000) QDC 198 where his Honour gives a summary on this question and the cases on costs which may be helpful to all concerned.
Accordingly, in respect of the costs that were ordered at first instance, I order that that cost order be set aside but only to the degree and the amount of $1500 that was ordered in respect of professional costs. I consider that the amount in relation to $67.10 costs of the Court should stand and the appellant is required to pay that amount, because that is associated with a Court document in bringing the matter before the Court.
Mr Cavanagh represents himself as I have said at first instance and today there are no professional costs that can be ordered in his favour in respect of this appeal where he has been successful. As such, I do not intend to make any order as I cannot, and those shall be my orders.
So, Mr Cavanagh, in a nutshell, your no conviction, a thousand dollars is your penalty that you need to pay within three months and you are also required, obviously, to still pay the $67.10.
APPELLANT: I understand that, thank you very much.
HER HONOUR: Which I understand that you should be able to pay in your three months as well.
APPELLANT: I'll see if I can manage that, your Honour.
HER HONOUR: Would you like a month to pay it off?
APPELLANT: I'll take the three months, that's fine.
HER HONOUR: Unless there is anything else, Ms Hay?
MISS HAY: Your Honour, just for completeness, I may have missed it so I apologise if you already done so but I'm sure it won't be a case for Mr Cavanagh, but in event of default, perhaps an order in relation to that in the usual course.
HER HONOUR: In what terms would you like me to say in default?
HER HONOUR: Your Honour, I think the terms can be in relation to the - in relation to the penalty, a payment of a thousand dollars to be paid within three months. In the event of default, a Court might then add, in the event of default, either a period of imprisonment or levy in distress, I think are the usual alternate orders, your Honour.
HER HONOUR: I would think in the circumstances that in default of payment within the time prescribed, that there be levy in distress.
MISS HAY: Thank you, your Honour.
-----