Forest v Tablelands Regional Council
[2009] QDC 169
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- Unreported Judgment
- Forest v Tablelands Regional Council[2009] QDC 169
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Forest v Tablelands Regional Council[2009] QDC 169
Forest v Tablelands Regional Council[2009] QDC 169
DISTRICT COURT OF QUEENSLAND
CITATION: | Forest v Tablelands Regional Council (formerly Mareeba Shire Council) [2009] QDC 169 |
PARTIES: | CHE FOREST span style="">(Appellant) v TABLELANDS REGIONAL COUNCIL (formerly MAREEBA SHIRE COUNCIL) (Respondent) |
FILE NO/S: | 241 of 2008 |
DIVISION: |
|
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court Mareeba |
DELIVERED ON: | 19 June 2009 |
DELIVERED AT: | Cairns |
HEARING DATE: | 27 May 2009 |
JUDGE: | Bradley DCJ |
ORDER: | The order of the Acting Magistrate is set aside. The appellant is acquitted of the second offence. The appellant is convicted of the first offence and fined $150, ordered to pay $66.50 costs of court and $600 professional costs. No order made as to the costs of this appeal. |
CATCHWORDS: | ANIMALS – VARIOUS STATUTORY PROVISIONS – DOGS – REGISTRATION, IDENTIFICATION OF OWNERS AND SEIZURE AND DESTRUCTION – OFFENCES – whether the local law was in conflict with the Disability Discrimination Act 1992 (Cth) – whether findings of the Acting Magistrate were contrary to the evidence – whether costs excessive. Disability Discrimination Act 1992 (Cth) s 9 Justices Act 1886 (Qld) s 157, 158B Justices Regulation 2004 (Qld) sch 2 Mareeba Shire Council Local Law No.7 s 7, s 8, s 19 Queensland (Queensland Health) v Che Forest [2008] FCAFC 96 Sheehan v Tin Can Bay Country Club [2002] FMCA 95 (9 May 2002) |
COUNSEL: | Appellant in person |
SOLICITORS: | Appellant in person |
Background
- [1]On 5 September 2008, the appellant was found guilty in the Magistrates Court, Mareeba of two offences against the Mareeba Shire Council Local Laws. The first was that he failed to keep a dog under effective control in a public place and the second that he kept the dog at 40 Rob Veivers Driver, Kuranda without being the holder of a current Certificate of Registration for the dog. Both offences were said to have been committed on 29 July 2007 in Kuranda.
- [2]The applicant was fined a total of $300 and ordered to pay $1,200 professional costs and $66.50 costs of court.
- [3]The applicant has had a long history of psychiatric health problems and owns and trains dogs to assist him with his disability. The appellant is involved with an organisation called A.W.A.R.E., a national organisation which trains and provides assistance dogs to people with a mental health disability.
Grounds of appeal
- [4]The appellant represented himself in the Magistrates Court and in this Appeal. He states his grounds of appeal in his Notice of Appeal to this Court as follows:-
“1. That the Disability Discrimination Act and its provisions were not accounted for in full.
- That there was error in determining my place of residence affecting dog registration requirements.
- The order of costs was excessive under the circumstances (professional costs).”
- [5]It became clear in the hearing of this appeal that the appellant was also arguing that there was insufficient evidence to support convictions for each of the offences. The appellant also raised concerns that he was not given a fair hearing by the Acting Magistrate.
Evidence at trial relating to the failure to keep dog under effective control
- [6]The only witness for the respondent at trial was James McCafferty, a Senior Local Laws Officer from Kuranda. On 29 July 2007 he was detailed to enforce regulated parking in Kuranda. At some time between 11.20 and 11.30 am that day he was walking up Therwine Street towards the Information Centre when he noticed a dog which was off its lead. Mr McCafferty had had dealings with the appellant in the past and he recognised the appellant and the dog as one belonging to him.
- [7]Mr McCafferty’s evidence was that the appellant only had the one dog “Knuckles” with him at the time, whereas the appellant’s evidence was that he had four dogs with him. Mr McCafferty admitted that he had seen the appellant “just before” the incident with more than one dog at the BP Service Station. Mr McCafferty approached the appellant who told Mr McCafferty not to take his photograph. Mr McCafferty replied that he wasn’t going to take the appellant’s photograph but that he was going to take a photograph of Knuckles as the dog was off the lead. The appellant indicated his permission. The photograph taken by Mr McCafferty was tendered in evidence and shows Knuckles without a collar or leash.
- [8]It is somewhat difficult to follow the appellant’s evidence in this regard but his evidence appeared to be that either he had released Knuckles from his collar and leash (an all in one affair) and directed him over to Mr McCafferty to have his photograph taken or he had released Knuckles to enable the dog to toilet or have a short break from his constant duties as an assistance dog for the appellant. In any event the appellant’s evidence was that at all relevant times Knuckles remained under voice command.
Evidence relating to keeping unregistered dog
- [9]It was Mr McCafferty’s evidence that he had seen the appellant’s car outside the address 40 Rob Veivers Drive, Kuranda and spoken to the appellant a few times outside the premises. Mr McCafferty agreed that although he was aware there was some sort of dwelling at the property he could not dispute the appellant’s assertion that it was in fact an old Council water tank.
- [10]A document from the Tablelands Regional Council dated 1 June 2008 was tendered which indicated that a dog by the name of Ben was registered as at that date to the appellant and kept at 38 Rob Veivers Drive.
- [11]The appellant tendered a document from the Cairns City Council that stated that as at 30 August 2006 Knuckles had lifetime registration with that Council.
- [12]Documentary evidence was tendered by the appellant from his General Practitioner, Dr Cumming, indicating that the appellant has an “itinerant lifestyle” which assists in his mental health and that the appellant lives between Kuranda, Cairns and “National Care Conferences”. Dr Cumming, as at October 2004, describes the appellant as having “a complex medical history which centres around chronic psychological and emotional issues. Mr Forest remains vulnerable to the effects of stress and anxiety”.
- [13]A copy of a letter dated 15 June 2007 addressed to the CEO of the Mareeba Shire Council from Dr Cumming includes the following:-
“Mr Forest has a permanent chronic and complex past psychiatric history.
- Personality Disorder – mixed type,
- Autistic spectrum disorder,
- A non-verbal learning disorder,
- Difficulty coping with stress and conflict
- Social anxiety.
I have seen Mr Forest many times in the past 7 years with problems relating to the medical condition summarised above, including the stress of dealing with disruptive neighbours.
I have seen him again today with an exacerbation of his stress disorder precipitated by a new noisy access recently opened in a neighbouring house. I believe Mr Forest’s health would significantly improve if this noise and disturbance issue could be addressed by Council.”
The letter refers to the appellant and his date of birth and his address as “40 Rob Veivers Drive P.O. Box 883 Kuranda”.
- [14]In this appeal the appellant was given leave to produce new evidence in the form of a letter dated 3 November 2008 from Sensis which indicates a White Pages listing of A.W.A.R.E. at 40 Rob Veivers Drive, Kuranda.
- [15]In evidence on his own behalf the appellant in the lower court described his itinerant lifestyle as being necessary so as to enable him to cope with his disabilities and explained “if you’re continually moving and it’s not – the problems don’t build up. That’s how it works for me. So, that has been my lifestyle for a long time.” The appellant explained that he works with A.W.A.R.E. Dogs Australia which is a national group and his work takes him to Cairns and other cities. The appellant went on, “I am transient. I live lots of places. I have no fixed address. My property that I own is the office where A.W.A.R.E. dogs works out from.”
Provisions of the local law
- [16]Section 7 of the Mareeba Shire Council Local Law No. 7 Keeping and Control of Animals provides relevantly as follows:-
“Requirement to register animal
7(1)The local law policy may require the keeper of an animal of a particular species or breed to have the animal registered.”
- [17]Section 8 relevantly provides:-
“Obligation to register
8(1)A person must not keep an animal for which registration is required unless the person holds a current certificate of registration for the animal from the council.
Maximum penalty – 20 penalty units.”
- [18]Mareeba Shire Council Local Law No. 7 Section 19 provides as follows:-
“Dog must be under effective control
19(1)A person must not bring or permit a dog to be brought into a public place unless the dog is under the person’s effective control, except where the place is a declared free running dog exercise area.
Maximum penalty – 20 penalty units
- (2)A dog is not regarded as being under effective control unless –
- (a)a person who is physically able to control the dog is holding the dog by a leash or similar device; or
- (b)the dog is tethered to a fixed object and is under the continuous supervision of a person who is physically able to control the dog; or
- (c)the dog is participating in an obedience trial or training for an obedience trial, under the supervision of an organisation recognised by the Council for the purposes of this section; or
- (d)the dog is being exhibited at an exhibition under the supervision of an organisation recognised by the Council for the purposes of this section.
- (3)If a dog in a public place is not under effective control an authorised person may seize and impound the animal.”
- [19]Although no relevant “local law policy” (as referred to in s 7) was produced or referred to, there appears to be no dispute that if Knuckles was being “kept” by the appellant at the premises at 40 Bob Veivers Drive, Kuranda, then the appellant would be required to register him with the respondent.
The Acting Magistrate’s decision
- [20]With respect to the first offence the Acting Magistrate found that:-
“there was no evidence that Knuckles was participating in an obedience trial or being exhibited in accordance with s 19(2)(c) or (d).”
The Acting Magistrate, although not precisely stating so, clearly preferred the evidence of Mr McCafferty over that of the appellant regarding the circumstances in which Knuckles was observed without a leash or tethered.
- [21]With respect to the second offence the Acting Magistrate found that Mr McCafferty was “aware the defendant was a resident of Kuranda residing at the address later confirmed as No. 40 Rob Veivers Drive, Kuranda”. This was not in fact Mr McCafferty’s evidence as outlined above. The best that Mr McCafferty could say was that he had seen the appellant’s car outside the premises at 40 Rob Veivers Drive and had spoken to him “a few times outside those premises”.
- [22]The Acting Magistrate also found that the appellant had confirmed in cross-examination “the address where his dogs are registered to was [confirmed as] 40 Rob Veivers Drive”. The Acting Magistrate noted “all correspondence, including those tendered in evidence, provide a Kuranda address for the defendant. And the defendant has conceded that his dogs are normally kept at the Rob Veivers Drive address, although they will always travel with him”. That was not in fact the evidence of the appellant. In fact the appellant said in evidence in chief, “I don’t live in Kuranda”.[1] In cross-examination, referring to the address at 40 Rob Veivers Drive and it being the registered office of A.W.A.R.E. the appellant said, “When I’m there, the dogs are there. If I’m not there the dogs aren’t there”.
First ground of appeal
- [23]Section 9 of the Disability Discrimination Act (Cth) 1992 (“the Act”) deals with disability discrimination in relation to guide dogs, hearing assistance dogs and trained animals and provides as follows:-
“(1)for the purposes of this Act, a person (discriminator) discriminates against a person with:
- (a)a visual disability; or
- (b)a hearing disability; or
- (c)any other disability;
(aggrieved person) if the discriminator treats the aggrieved person less favourably because of the fact that the aggrieved person possesses, or is accompanied by:
- (d)a guide dog; or
- (e)a dog trained to assist the aggrieved person in activities where hearing is required, or because of any matter related to that fact; or
- (f)any other animal trained to assist the aggrieved person to alleviate the effect of the disability, or because of any matter related to that fact;
whether or not it is the discriminator’s practice to treat less favourably any person who possesses, or is accompanied by, a dog or any other animal.
(2)Subsection (1) does not affect the liability of a person with a disability for damage to property caused by a dog or other animal trained to assist the person to alleviate the effect of the disability or because of any matter related to that fact.”
- [24]By s 12 the Act applies throughout Australia. Section 13(3) of the Act states that the Act “is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with” the Act.
- [25]During the trial the solicitor for the respondent conceded that the appellant uses Knuckles as an assistance dog. The evidence was that the respondent recognised the A.W.A.R.E. organisation as one which trains assistance dogs and that the appellant’s dogs were assistance dogs. This recognition is reflected in the respondent not charging any fees for registration of the dogs. There was no evidence however that the respondent recognised A.W.A.R.E. as an organisation referred to in Local Law Section 19(2)(c).
- [26]The appellant referred to the decision of a Federal Magistrate in Sheehan v Tin Can Bay Country Club[2]. In that case a member took action against the club on the basis that the club effectively prohibited the member from attending the club premises with his assistance dog. The member was a Vietnam veteran who suffered psychological and social difficulties. The Federal Magistrate found that it would not have been reasonable in all the circumstances for the club to insist that the assistance dog be tethered when the dog was brought inside the club premises. The Federal Magistrate found that the conduct of the club did not pass the reasonableness test when the club required the dog to be tethered whilst under Mr Sheehan’s direct control. The Federal Magistrate therefore found that the club breached the Disability Discrimination Act by requiring Mr Sheehan to comply with a requirement (leashing his dog) with which a substantial proportion of persons without his disability are able to comply which is not reasonable having regard to the circumstances of the case and with which Mr Sheehan did not comply. This amounted to indirect disability discrimination in terms of s 6 of the Act, as well as discrimination regarding access to premises and less favourable treatment because of Mr Sheehan being accompanied by his assistance dog.
- [27]The respondent however referred me to the Federal Court decision of The State of Queensland (Queensland Health) v Che Forest[3]. This was a case involving the appellant in which he has been refused permission to be accompanied by his assistance dog when accessing medical or dental treatment and related services. The Federal Court in those circumstances found that the appellant had not been indirectly discriminated against.
- [28]The appellant’s argument in this regard, if I understand it correctly, is that because an assistance dog is, whenever on duty, under constant and onerous pressure, it is necessary that the dog be allowed to be untethered or unleased from time to time to allow it to, for example, toilet or have a moment of freedom and leisure and that a law preventing this offends against the Act.
- [29]There is no evidence in this case that indicates that the respondent was treating the appellant any less favourably because he was accompanied by an animal trained to assist him to alleviate the effect of his disability.
- [30]So far as the conviction for the first offence is concerned, the Acting Magistrate was entitled to prefer the evidence of Mr McCafferty over that of the appellant. Mr McCafferty’s evidence was that when he first saw Knuckles at the offence location, the dog was off the leash, not that the dog was released when he sought to take his photograph. In those circumstances, even if Knuckles remained under “voice command” by the appellant, he was not “under effective control” as defined by local law 19(2).
Second ground of appeal
- [31]The evidence at trial did not support a finding by the Acting Magistrate that he was satisfied beyond reasonable doubt that the dog Knuckles was kept at the premises at 40 Rob Veivers Drive, Kuranda and therefore needed to be registered with the respondent at that address. The Acting Magistrate misquoted the evidence in his decision (as noted above) which may well be the result, as the appellant pointed out, of his making his decision without the benefit of a transcript of the evidence.[4] The appellant should not therefore have been found guilty of the second offence.
- [32]The appellant argued that the granting of an adjournment on application by the respondent and an invitation by the Acting Magistrate on a previous date set for hearing for the appellant to discuss his case with the respondents in an endeavour to settle the matters, caused him prejudice. The appellant could not however point to any particular way in which his case was so prejudiced. The appellant also argued that he was unduly interrupted by the Acting Magistrate and prevented from properly presenting his case. A perusal of the transcript however does not reveal evidence of unnecessary or oppressive interruptions. Indeed, the Acting Magistrate took care to allow the appellant to present his case as best he could.
Third ground of appeal
- [33]The Acting Magistrate had a discretion under s 157 of the Justices Act 1886 to make an order upon the appellant’s conviction that the appellant pay the respondent’s costs as deemed “just and reasonable”. Section 158B provides that costs may generally be awarded for an item allowed under a scale of costs prescribed under regulation. The Justice Regulation 2004 provides that costs allowed for legal professional work including instructions and preparation for the hearing and attendance on day one of the hearing, may be up to $1,500. In the circumstances where the trial was conducted by a private solicitor on behalf of the respondent an award for professional costs of $1,200 was not excessive or inappropriate. As I have now found that the appellant should not have been convicted of the second offence and he has been partially successful in his appeal, the issue of costs needs to be revisited. Generally speaking, the evidence given at trial and the submissions were more or less equally given or made in relation to each of the offences. It is therefore appropriate to reduce the award for professional costs by 50% to $600.
- [34]In addition to the award of professional costs, the appellant was fined a total of $300 and ordered to pay $66.50 costs of court. The costs of court were the cost to the respondent of issuing and filing the complaint. This would have been necessary whether the complaint contained one charge or two and the Acting Magistrate’s order in this regard should stand. The Acting Magistrate imposed fines for each offence equivalent to the penalty stated on the offence notice issued by the respondent of $150 per offence.
- [35]I order that the order of the Acting Magistrate be set aside. The appellant is acquitted of the second offence. He is convicted of the first offence and fined $150, ordered to pay $66.50 costs of court and $600 professional costs. In the circumstances I will make no order as to the costs of this appeal.