DISTRICT COURT OF QUEENSLAND

1. [1]
   The appellant, Gillian Rosalind Kenway, was charged pursuant to section 4.3.1(1) of the Intergrated Planning Act 1997 with carrying out assessable development without there being an effective development permit for the development. In general terms the prosecution related to the unauthorised removal of or damage to vegetation. The offence was alleged to have occurred on a date or on dates unknown between 22 August 2007 and 30 August 2007. A similar charge was bought against Brian Leigh Smith. In both cases the complainant was an officer of the Gold Coast City Council, John Norman Cohen.

2. [2]
   On 10 March 2009 both Ms Kenway and Mr Smith were found guilty as charged and were each fined $3,000 and ordered to pay the respondent council’s costs of the hearing in the amount of $4,898.10.

3. [3]
   Both Ms Kenway and Mr Smith appealed against the Magistrate’s decision to this Court pursuant to section 222 of the Justice Act 1886. The appeal of Ms Kenway was dismissed. The appeal of Mr Smith was allowed.^[1]

4. [4]
   On 16 March 2009 an application came before the Magistrate who had convicted Ms Kenway and Mr Smith in respect of a claim for compensation under section 4.4.5 of the Integrated Planning Act 1997. That section provides as follows:

“4.4.5 Order for compensation or remedial action

1. This section applies if—

1. a person is convicted of a development offence; and

2. the court convicting the person finds that, because of the commission of the offence, another person—

1. has suffered loss of income; or

2. has suffered a reduction in the value of, or damage to, property; or

3. has incurred costs or expenses in replacing or repairing property or in preventing or minimising, or attempting to prevent or minimise, a loss, reduction or damage mentioned in subparagraph (i) or (ii).

2. The court may order the person to do either or both of the following—

1. pay to the other person an amount of compensation the court considers appropriate for the loss, reduction or damage suffered or costs or expenses incurred;

2. take stated remedial action the court considers appropriate.

3. An order under subsection (2) is in addition to the imposition of a penalty and any other order under this Act.

4. This section does not limit the court’s powers under the Penalties and Sentences Act 1992 or another law.”

5. [5]
   The Magistrate refused to hear and determine the application for compensation which had been bought by Lynne Lucas, a neighbouring property holder whose property had been damaged, as the Magistrate found, by Ms Kenway and Mr Smith. Ms Lucas appealed against the refusal of the Magistrate to hear and determine compensation application under the provisions of section 222 of the Justices Act 1886. After the conviction of Mr Smith was quashed Ms Lucas withdrew her appeal in respect of the first respondent but maintains her appeal against the Magistrate’s order in respect of the second respondent, Ms Kenway.

6. [6]
   The Magistrate’s refusal to hear and determine the application for compensation brought by Ms Lucas was based on information placed before him that Ms Lucas had already commenced proceedings in the District Court seeking damages for trespass. That information was accurate in that a claim by Ms Lucas against Mr Smith and Ms Kenway was filed on 10 October 2008. The claim was brought in trespass, or, alternatively, negligence and sought damages in the sum of $76,026.49 together with interest. The Statement of Claim pleaded that the properties owned by Ms Lucas and Mr Smith and Ms Kenway were adjacent to each other and shared a common boundary. On 25 August 2007 Ms Lucas discovered that trees and rainforest had been severed from a large section of her property. Ms Lucas has pleaded in relation to trespass that:

• Without her knowledge or consent, Mr Smith and Mr Kenway, by their contractor entered her property.
• Without her knowledge or consent the contractor severed trees and rainforest from the cleared area.
• The contractor has admitted to severing the trees and rainforest in the cleared area.
• In the premises of the contractor’s conduct the defendants caused Ms Lucas loss and damage.

7. [7]
   Ms Lucas has pleaded in relation to negligence that:

• Mr Smith and Ms Kenway knew or ought to have known that the trees and rainforest in the cleared area did not form part of their property.
• Mr Smith and Ms Kenway owed Ms Lucas a duty of care to ensure that in the course of carrying out their work damage was not caused to her property.
• That duty was breached and loss and damage occasioned.

8. [8]
   This claim in all respects reflects the claim for compensation which the Magistrate refused to hear and determine. In his reasons for decision the Magistrate stated as follows:

“After a trial, I found the defendants guilty of breaching the Integrated Planning Act. Various trees were felled which should not have been felled, and there was evidence that some damage was caused to the neighbour’s property. I’m informed that Ms Lucas has commenced proceedings in the District Court seeking damages for trespass. She activates an application here, as I say, for an alternative basis of compensation under the Integrated Planning Act.

The amount sought under the Integrated Planning Act would be slightly different potentially from an order that might be made in the District Court, but not substantially, as far as I can perceive the submissions to be made by Mr Frigo and Mr Morgan, who act for the applicant.

I am concerned that, by going through a process before me, and having a hearing, and assessing compensation, that Ms Lucas might then go through the same process again before a District Court Judge to seek, potentially, a slightly increased amount.

The relevant section says that, “If the Court, upon convicting a person, finds that, because of the commission of the offence, another person has suffered various losses, the Court may order compensation, there is a discretion as to whether the Court should or should not order that compensation”. The Court does not have to, it seems to me, order compensation, it being a discretionary matter. It is, of course, desirable that Courts, having jurisdiction to entertain claims, should not shirk from their duty, and they should entertain claims when they are appropriately brought before it.

This case is slightly different in that there is a District Court claim presently pending, and it seems to me undesirable, in the interests of justice, that the same matter, or substantially the same matter, should be litigated twice, even though one is a summary jurisdiction and the other is in a higher Court.

The nature of the hearing that I undertook over two days was whether the defendants were guilty of a criminal offence. I’m now being asked to conduct a further hearing in the nature of a civil proceeding to determine loss and other matters specified in section 4.4.5. It seems to me undesirable that I should do this, especially in circumstances where the parties may very well meet again before a District Court Judge in the not too distant future.

I hasten to add that if the District Court proceedings had not been instituted, or if some indication were given to me that the applicant would abide by the decision of this Court and not seek further compensation in the District Court, then I might be persuaded to a different conclusion, but the applicant has made it perfectly clear that she wishes to have a second opportunity before a District Court Judge, and under those circumstances, I decline to award any compensation under section 4.4.5.

The application is dismissed.”^[2]

9. [9]
   It is clear from the Magistrate’s reasons that his Honour was concerned that the existence of the District Court action, the possibility of inconsistent results were the matter to proceed to the District Court after a determination in the lower Court and the necessary waste of Court time should both proceedings continue.

10. [10]
    The appellant, Ms Lucas, submits that the Magistrate erred in law by his refusal to hear and determine her application for compensation pursuant to section 4.4.5 of the Integrated Planning Act 1997. The respondent, Ms Kenway, submits that the Magistrate’s refusal to hear and determine the compensation application was within the proper exercise of his discretion.

11. [11]
    In Concrete Developments Pty Ltd v Queensland Housing Commission [1961] Qd R 356 Philp J, at p 364, stated:

“When a plaintiff invokes the jurisdiction of two courts in Queensland to determine the same question, he is prima facie acting vexatiously, and the Supreme Court will act by way of proceedings to prevent the vexation, McHenry v Lewis ([1882] 22 Ch. D. 397), but I see no suggestion that prohibition would lie.

It is the rule that when an inferior tribunal is informed that the question before it is also before the Supreme Court, the inferior tribunal should stay its hand, but it is nowhere suggested that its jurisdiction is irrevocably destroyed, by the mere existence of the proceedings in the Supreme Court.”

12. [12]
    Philp J referred to Hickson v Hickson^[3] as strong authority for the proposition that jurisdiction in an inferior Court is not destroyed by the pendency in a superior Court of proceedings involving the same issue as is before the inferior Court.^[4] His Honour further stated:

“It seems to me that at most, the jurisdiction of an inferior Court in relation to a matter is suspended only during the pendency of that matter in a superior Court. If the proceedings in the Supreme Court are terminated by discontinuance they cease to exist, and I can see no reason why the inferior tribunal cannot then proceed in the exercise of its jurisdiction.”

13. [13]
    In Henry v Henry^[5] the High Court considered the desirability of ordering a stay in an action for dissolution of marriage where proceedings had been commenced in two jurisdictions. In a majority judgment^[6] the Court stated:

“Parallel proceedings in another country with respect to the same issue may be compared with multiple proceedings with respect to the same subject matter in different Courts in Australia. In Union Steamship Co of New Zealand Ltd v The Caradale^[7], Dixon J observed of that latter situation that ‘[t]he inconvenience and embarrassment of allowing two independent actions involving the same question of liability to proceed contemporaneously in different courts needs no elaboration.’”

14. [14]
    In Re: B (an infant)^[8] Thomas J stated:

“If it happens that a superior Court and an inferior Court are seised of the same matter at the one time, or if a ruling in the inferior tribunal might embarrass the conduct of the proceedings in the superior Court, it is not uncommon for the lower Court to stay its hand until the other proceedings have taken place. (Knott v Knott [1935] P. 158; Hickson v Hickson [1953] 1 Q.B. 420; Concrete Developments Pty Ltd v Queensland Housing Commission [1961] Qd. R. 356, 364-5.)

15. [15]
    I do not understand any of the authorities to which I have referred to suggest that the jurisdiction of the Magistrate to hear and determine an application for an order for compensation pursuant to section 4.4.5 of the Integrated Planning Act 1997 was excluded by the commencement of the District Court proceedings. As was stated by McPherson J in Boyd v Halstead, ex parte Halstead^[9] in determining whether ejectment proceedings in the Magistrates Court were ousted by a writ claiming declaratory relief in the Supreme Court involving the same issues:

“The pendency of the Supreme Court action provided a ground for considering whether the proceedings by complaint in the magistrates court should be stayed. That was a matter which the magistrate was bound to consider in exercising his discretion whether or not to stay the proceedings before him.”

16. [16]
    The authorities referred to above, in my view, support the decision of the Magistrate in declining to hear and determine the application for an order for compensation pending the disposition of the proceedings in the District Court. However, the Magistrate erred in dismissing the application rather than ordering that it be stayed or adjourned until the District Court proceedings had been determined or discontinued.

17. [17]
    It cannot be assumed that a finding or decision of the Magistrate were the application to proceed in the lower Court before the District Court proceedings were determined could not create an issue estoppel. The Magistrate correctly referred to this possibility in reaching his decision to decline to hear the application.

18. [18]
    On the hearing of an appeal pursuant to section 222 of the Justices Act 1886 this Court may vary the appealed order or make any other order in the matter that the Court considers just.^[10] Accordingly, I order that the order of the Magistrate be varied by deleting that part of the order dismissing the application and substituting an order that the proceedings in the Magistrates Court be stayed pending the determination or discontinuance of the District Court proceedings.

19. [19]
    In the circumstances I make no order as to costs.