Gold Coast City Council v Walker
[2007] QDC 16
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- Gold Coast City Council v Walker[2007] QDC 16
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Gold Coast City Council v Walker[2007] QDC 16
Gold Coast City Council v Walker[2007] QDC 16
DISTRICT COURT OF QUEENSLAND
CITATION: | Gold Coast City Council v Walker [2007] QDC 016 |
PARTIES: | GOLD COAST CITY COUNCIL (Appellant) v Ken Walker (Respondent) |
FILE NO: | 194 of 2006 |
PROCEEDING: | Appeal |
DELIVERED ON: | 7 February 2007 |
DELIVERED AT: | Southport |
HEARING DATE: | 30 January 2007 |
JUDGE: | C.F. Wall Q.C. |
ORDER: | Appeal dismissed with costs. |
CATCHWORDS: | APPELLATE JURISDICTION –Legal Proceedings – Offences – Validity of council’s dog registration scheme. Legislation referred to: Local Law 12 (Keeping and Control of Animals) Local Law Policy 12 (Keeping and Control of Animals) Local Government Act 1993, ss. 1071A and 1117(3). Cases referred to: McLean Brothers Bros & Rigg Ltd v. James (1906) 4 CLR 835 at 849-851 Williams v. McCarthy (1979) 44 LGRA 58 at 64. |
COUNSEL: | Mr Ron Frigo- Applicant Mr B.N. Carey- Respondent |
SOLICITORS: | Mortimore and Associates – Applicant Primrose Couper Cronin Rudkin - Respondent |
HIS HONOUR: This is an appeal from a decision of a Magistrate at Southport on 27th of March, 2006, dismissing a complaint by the Gold Coast City Council, alleging that the between the 9th and the 25th of November, 2004, at Southport, the respondent kept an unregistered dog at his residential premises contrary to section 9 of Local Law No. 12 (Keeping and Control of Animals).
The Magistrate concluded that there was no evidence of any statutory or legislative scheme dealing with fees payable to register a dog or of how long registration lasts and in the absence of such evidence, he was not able to conclude that the respondent was keeping an unregistered dog.
So far as relevant, the particulars provided with the complaint, allege that the Council's Local Law 12 applied to the dog and that the dog required registration from the local government pursuant to sections 8 and 9 of that local law.
Sections 8 and 9, (1) and (2) of Local Law 12, (Keeping and Control of Animals), provide as follows:
"Requirement to register animal
8. A local law policy may require the keeper of an animal of a particular species or breed to register the animal.
Obligation to register
9.
(1) A person must not keep an animal for which registration is required unless the person holds a current registration receipt for the animal from the local government.
Maximum penalty: 20 penalty units.
(2) a person who keeps a registered animal must ensure that the animal wears the identifying tag required under the local law policy.
Maximum penalty: 20 penalty units.
The relevant provisions of Local Law Policy No. 12 (Keeping and Control of Animals) provide as follows, so far as is relevant:
"Authorising provision of Local Law (section):
8. Requirement to register animal
Subject:
Specification of animals which may only be kept if registered with the Council
Policy:
Dogs
The keeper of a dog over the age of 6 months must register the dog".
There are no other statutory or regulatory provisions of relevance to the charge here apart possibly from section 1071A of the Local Government Act 1993 which provides:
"A local government may by local law or resolution fix a fee (a regulatory fee) for the issue of registration under a local government Act".
There was no evidence here of any local law or resolution fixing a fee for dog registration.
The parties proceeded on the basis that the complaint in fact alleged an offence against section 9(1) of Local Law 12, even though it does not follow the wording of that section.
The Magistrate concluded, correctly, in my view, that neither Local Law 12 or its Policy, contain any reference to any fee payable to register a dog or how long registration is to last.
The dog here was registered before the 9th of November, 2004 (the Magistrate, I think, incorrectly said 1994 (in fact it was registered on the 27 November 2002) and the Magistrate concluded that absent some provision of the local law indicating when registration was to terminate, that registration continued and he could not find that the dog was unregistered as alleged in the complaint.
The appellant Council concedes that there is no statutory or regulatory provision or evidence of any Council resolution dealing with dog registration fees, how and when fees are paid, when registration terminates or any system of animal registration. It also concedes that there is no definition of "current registration receipt" in either Local Law 12 or Local Law Policy 12 or any local law policy in relation to section 9(1) of Local Law 12, as there is in relation to sections 9(2) and 9(3).
The appellant argued before me that the finding by the Magistrate was wrong and that "the dog was unregistered because there had not been a payment of the annual Dog Registration Renewal".
The appellant submitted that the absence of any statutory or regulatory provisions of the type already mentioned was not fatal to the prosecution.
Paragraphs 16 and 17 of the appellant's written submissions are as follows:
"16. Respectfully the Magistrate ignored the evidence of the relevant Council Officer, Mr Morrison, to the effect that once the dog is registered an annual registration renewal is sent out in the post and that upon payment of that registration renewal Council then provides the dog owner with a receipt. Clearly if the receipt relates to the then current dog registration renewal it is a 'current registration receipt'.
- The registration renewal which was relevant in this case was addressed to the defendant and identified the particulars of the dog and claimed for a fee (sic). In particular the form noted:
"Dog registration fees for the period ended 31 August 2005 are now due. Please note that the failure to register the dog is a breach of Council local law, which may result in a $150.00 on the spot fine".
The Registration renewal form also provided for a pre-printed bank deposit slip so that payment could be made direct to an account to the credit of "Gold Coast City Council".
Mr Morrison gave the following evidence before the Magistrate.
"Can you just detail to the Court please, how the registration process works?‑‑ The registration process for a new dog owner, a new dog owner needs to go to a Licensing Department for the Gold Coast City Council, therefore giving a description of the dog, the sex and their residence and their name."
"And at that time, is a fee paid?‑‑ Yes.
Okay. And what happens upon the payment of the fee?‑‑ They are given a receipt.
Okay. any other documentation or items given to them in response?‑‑ A dog registration tag.
Okay, thank you. Now, after one first registers a dog, what happens then on an annual basis?‑‑ Once the dog is first registered, it is then - Council sends a renewal at the end of July every year. On that renewal they're sent the registration tag and the fee for the dog to be paid…
…Okay, and upon the payment of the renewal, the registration renewal, what does Council do?‑‑ Council gives the person a receipt.
How is that issued?‑‑ That is issued either to the person if they go to our offices or it's sent out.
Okay then. And again, the - you'll see in the base of the form there, the dog registration renewal form, is there something to assist, in this case the addressee in identifying what's to be paid and to whom it's to be paid?‑‑ That's correct.
Now you're aware - I should say have you conducted, recently conducted a search of Council's records concerning any payments in response to these dog renewal registration - dog registration renewals?‑‑ Yes. Yep.
And what was the status as at the time of your most recent review of Council‑‑‑‑‑?‑‑ That the dogs are still unregistered…".
The Dog Registration Renewal notice issued on the 2nd of August, 2004, states that "dog registration fees for the period ending 30th August, 2005 are now due", and states that the, "due date" is the 3rd September, 2004 and a one year fee of $16.50 or a three year fee of $33 is payable.
In paragraph 12 of his judgment, the Magistrate said:
"12. The Council made reference to the term, "current registration receipt" in section 9 of Local Law 12 as meaning a receipt for a monetary amount. I can find nothing in the documentation referred to me that supports that argument. Given what I have been referred to, it seems to me that the term means nothing more than registration of a dog has been effected and the registration has not been terminated for any reason. There is nothing that I can see in the local laws that have been referred to me that indicates under what circumstances a registration may be terminated or not renewed. A simple resolution of the Council that the registration fee of $x per annum is payable would not in my opinion be sufficient to overcome this problem. There should be something in the local law that says that registration expires at the end of each year and must be renewed".
The appellant submits that for the reasons it set out in paragraphs 16 and 17 of its written submissions, the Magistrate was wrong in the conclusions he reached in this paragraph of his judgment.
The appellant also relies on section 25(4) of Local Law 12 and the rebuttable presumption applied by the High Court in McLean Bros & Rigg Ltd v. James (1906) 4 CLR 835, to the effect that "where an act is done which can only be done legally after the performance of some prior act, proof of the latter is presumptive evidence that the prior act was done". See Williams v. McCarthy (1979) 44LGRA 58 at 64.
Section 25(4) provides as follows:
"In addition, where a dog has been declared dangerous under subsection (1) and the local government has made a registration fee for dangerous dogs which is different from the registration fee for dogs which are not dangerous dogs, the keeper of the dog must within the time notified to the keeper in writing by the local government pay the additional amount of the registration fee for a dangerous dog (apportioned pro rata to the period between the date of declaration and the end of the period for which the fee is paid).
Example: Assume that the standard registration fee for a dog is $50.00 per annum and that the registration fee for a dangerous dog is $250.00 per annum. The fee is paid for a period from 1 July to 30 June. If a dog is declared dangerous on 1 November, the keeper must pay an additional $133.33 being the additional amount of the fee for a dangerous dog ($200.00) applied pro rata to the 8 month period between 1 November and the next 30 June. The figures given are used for illustration only. The actual fees are set by the local government from time to time".
The appellant submits that this supports the existence of a registration fee for dogs which are not dangerous such as the present dog. In my view, it does not have this effect without there first being evidence of a statutory or regulatory scheme or framework or resolution providing for registration fees and registration periods. Subsection (4) refers to the local government making registration fees and to a period for which the fees are paid and the example refers to the local government setting fees from time to time. In the present case there is no evidence of the appellant making or setting fees for a stated period.
It is conceded that the dog here was, under section 8 of Local Law 12 and section 8 of Local Law Policy 12, required to be registered. It is accepted that the dog was registered on the 27th of November, 2002.
The respondent submits that the decision reached by the Magistrate was correct. Alternatively, he submits that if in fact there exists a valid system of registration fees and registration periods (as the appellant contended was apparent from the documentary evidence), the dog was in fact registered and this is the effect of the Dog Registration Renewal form.
It is submitted that whilst the respondent may owe a fee to the appellant for registration, that is not the same thing as the offence being made out.
By reference to dictionary definitions, the appellant submits that a current receipt is a document in force at present acknowledging or expressing the receipt of money and that "current registration receipt" must mean a receipt for the payment of dog registration fees for the present registration period, whatever that period may be, and that, I perceive, as did the Magistrate, is the appellant's difficulty.
The appellant's argument effectively requires the conclusion that the Dog Registration Renewal form, coupled with evidence from a Council officer is sufficient to attract penal consequences.
In my view, the form and the evidence of Mr Morrison, do not and cannot have this effect. The form is internally inconsistent or at least ambiguous. It mentions registration fees for the period ending 31st August, 2005, a one year or a three year fee, and a due date of 3 September, 2004. The reference to "failure to register a dog", does not add anything if registration is a once only act, and in my view, that interpretation has not been excluded by the form and the evidence of Mr Morrison, which was effectively the conclusion reached by the Magistrate.
The lack of an evidentiary regulatory framework about dog registration as opposed to an equivocal extra-judicial factual foundation made it, in my view, extremely difficult to reach the findings which the Magistrate was required to make before he could find the charge proven.
In relation to the presumption relied on by the appellant, in McLean Brothers, Griffith CJ said at pages 849-851, and
"There is also a presumption which arises from the ordinary course of business. In regard to that, I will read two passages from Starkie on Evidence, 10th ed., at p.741. First:- 'A presumption may be defined to be an inference as to the existence of one fact, from the existence of some other fact, founded upon a previous experience of their connection. To constitute such a presumption, it is necessary that there be a previous experience of the connection between the known and inferred facts, of such a nature, that as soon as the existence of the one is established, admitted or assumed, the inference as to the existence of the other immediately arises, independently of any reasoning upon the subject'… Another statement of some authority on the same point is found n the judgment of Mr Justice Brewer in Knox County v. Ninth International Bank 147 US 91 AT 97:- 'It is a rule of very general application, that where an act is done which can be done legally only after the performance of some prior act, proof of the later carries with it a presumption of the due performance of the prior act'…There is high authority for saying that this presumption is applicable to the proceedings of corporations. In the case of the Bank of United States v. Dandridge (12 Wheat., 64, at p.70), already cited, it was said:- 'The same presumptions are, we think, applicable to corporations. Persons acting publicly as officers of the corporation are to be presumed rightfully in office; acts done by the corporation, which presuppose the existence of other acts to make them legally operative, are presumptive proofs of the latter.
. . .If officers of the corporation openly exercise a power which presupposes a delegated authority for the purpose, and other corporate acts show that the corporation must have contemplated the legal existence of such authority, the acts of such officers will be deemed rightful, and the delegated authority will be presumed. . . . In short, we think, that the acts of artificial persons afford the same presumptions as the acts of natural persons. Each affords presumptions, from acts done, of what must have preceded them, as matters of right, or matters of duty."
There is, in my opinion no sufficient evidentiary basis for the application of this presumption in the present case. The fact from which to infer to the other facts has not been sufficiently "established, admitted or assumed" nor is there sufficient evidence to establish a "previous experience of their connection". And, the presumption is prima facie or presumptive only and in my view there is not a sufficient evidentiary foundation for it.
Whatever the Dog Registration Renewal form and the evidence of Mr Morrison mean, they cannot be said to provide proof of a statutory or regulatory framework or basis establishing a dog registration regime, which, in my view, is necessary to be proved before there could be a conviction on the present charge.
The Magistrate was, in my opinion, correct to conclude in effect that the evidence led by the appellant was not sufficient to prove that there must be a legislative or regulatory framework or a resolution establishing an annual dog registration regime, registration fee, registration period/s, and the effects of non payment of registration fees.
The appellant also relies on the certificate of its Chief Executive Officer under section 1117(3) of the Local Government Act 1993, in particular, paragraphs 5, 9 and 11. That certificate does not prove any more than the documents referred to in it and they are not, in my view, for the reasons I have already stated, sufficient to establish the absence of dog registration. They go no further than establishing that that was the view of officers of the Council and not the legal basis for that view.
In my view, the appellant has not established that the Magistrate was wrong in the decision he reached and the appeal will be dismissed.
...
HIS HONOUR: I order that the appellant pay the respondent's costs of and incidental to the appeal, fixed at $1,800.