Edwards v Jenkins & Ors[2017] QDC 135

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal against an order made in the Magistrates Court at Charleville on an application to determine ownership of disputed cattle made under s 694 of the Police Powers and Responsibilities Act 2000 (the “PPRA”). 

2. [2]
   The application was heard on 1 September 2016 with evidence being received by way of affidavit with no cross-examination. The learned magistrate found he could not be satisfied as to the ownership of the disputed cattle and made an order pursuant to s 694(5) of the PPRA for disposal of the cattle. His Honour ordered that the cattle and any progeny be sold and the proceeds used to firstly, pay for the upkeep of the cattle from the time of their seizure by the police up to their sale, and secondly, for the balance to be divided equally between the appellant and each of the second, third and fourth respondents.

The original application

3. [3]
   The application under s 694 of the PPRA was brought by Chad Douglas Jenkins, the first respondent, a police officer. Section 694 provides:

“Application by police officer for order if ownership dispute 

1. (1)
   This section applies if there is a dispute about the ownership of a relevant thing, whether the dispute is between— 

1. (a)
   two or more persons, each of whom claims to be the owner of the thing; or

2. (b)
   a police officer and a person who claims to be the owner of the thing.

2. (2)
   A police officer may apply to a magistrate for an order declaring who is the owner of the thing. 

3. (3)
   The police officer must give anyone the police officer reasonably believes has a legal or equitable interest in the thing a copy of the application and notice of the day, time and place fixed for hearing the application. 

4. (4)
   The magistrate may make the order the magistrate considers appropriate. 

35. (5)
    If the magistrate can not decide who owns the thing, the magistrate may make the orders the magistrate considers appropriate for the disposal of the thing.” 

Background

4. [4]
   The application was brought in respect of 23 cleanskin cattle that were located during the muster of a property known as “Elverstone Station”. The muster was conducted by order of the District Court following civil proceedings between the appellant and Brodie Agencies Pty Ltd, a company whose principal is Mr Tom Brodie. Brodie Agencies Pty Ltd was successful in a contractual dispute with Mr Edwards and obtained orders from the court for the recovery of cattle the subject of a contract of sale. Mr Edwards contended that some of those cattle had strayed onto Elverstone Station and the court therefore made an order for the muster of cattle on that property so that any cattle the subject of the sale found there could be sold and the proceeds paid to Brodie Agencies Pty Ltd.^[1]  The order of the District Court relevantly provided:

“Subject to the consent of the owner of Elverstone: 

a.  The plaintiff will muster Elverstone, remove from there any of the Disputed Cattle (being cattle the subject of the contract between the Plaintiff and the Defendant dated 6 July 2013, as varied) that are situated on that property and deliver the said cattle to the Defendant’s Property;

b.  Such muster shall take place in the presence of the Defendant; 

c.   Such muster shall take place in the presence of a representative of the Stock Squad. 

d.   The Plaintiff will ensure only reasonable costs were incurred in the muster and removal of the cattle from Elverstone, and the Defendant shall pay the reasonable cost of that muster.”^[2] 

The order provided for Tom Brodie, with the consent of the owner of Elverstone, Mr Warrick Stiller, to conduct the muster in the presence of Mr Edwards. 

5. [5]
   The evidence is that Mr Stiller did not run any cattle on Elverstone and was an absentee owner. There was evidence that Mr Stiller requested that adjoining property owners be present for the muster. Elverstone consisted of two adjoining blocks surrounded by other properties. Mr Edwards’ property, Warana, has a long boundary with Elverstone. The second, third and fourth respondents are each property owners whose properties also adjoin Elverstone. There is evidence that the boundary fences of Elverstone were in a poor state of repair so that cattle from adjoining properties strayed onto Elverstone. It was Mr Edwards’ contention that a large number of cattle had strayed from his property onto Elverstone and that formed the basis for the court order that the muster of Elverstone be carried out.

6. [6]
   The muster was carried out on 13 January 2016 by Mr Brodie in the presence of the second, third and fourth respondents or their representatives and two police officers. The respondents and the police had been given ample notice of the event. Unfortunately, Mr Edwards was only advised two or three days prior to the date arranged for the muster. When advised he immediately indicated he was not available on that day because of another commitment. Notwithstanding this advice, the muster went ahead contrary to the requirement in the court order that it be conducted in the presence of Mr Edwards.

7. [7]
   Senior Constable Douglas Robertson of the Charleville Stock and Rural Crime Investigation Squad was present at the muster. His evidence is that Mr Brodie drafted off mustered cattle into separate groups. There were cattle the subject of the District Court order, branded stranger cattle, calves and unbranded cattle. The calves were later mothered up to their mothers. There were 37 animals identified as belonging to Mr Edwards and 23 head of cleanskins which are the subject of this appeal. A small number of cattle, probably 14 in all, were identified as belonging to adjoining neighbours including Mr Ward, Mr Williams and Mr Tomlinson. The 37 cattle nominated for return to Mr Edwards, consisted of cattle the subject of the court order along with some other cattle owned by him. Mr Edwards was not advised about the 23 cleanskins that had been located as part of the muster. Senior Constable Robertson’s evidence is that during the muster Mr Ward, Mr Williams and a Raymond Nolan representing Mr Tomlinson each stated that their properties had similar cattle to the unbranded cattle but they were unable to confidently identify any of the unbranded cattle as being theirs. They and Mr Brodie agreed that the unbranded cattle should be sold and the profits go to the Royal Flying Doctor Service. Edwards’ cattle were loaded and transported back to his property, Warana and the 23 unbranded cattle were transported to the Roma sale yards by Mr Brodie.

8. [8]
   On 17 January 2016, Mr Edwards phoned Senior Constable Robertson and advised that he had learnt that 23 unbranded cattle had been transported to Roma and told the officer that he claimed those cattle as his. The officer phoned Mr Brodie and informed him the cattle could not be sold as Mr Edwards had laid claim to them. On 18 January Mr Ward advised the officer that he also wished to claim the unbranded cattle. On 18 January 2016 police officers went to the Roma sale yards and photographed the 23 cattle and took descriptions of them. They consisted of 13 Droughtmaster, 7 Brahman and 3 Brangus cattle.^[3]

9. [9]
   Mr Edwards leased Elverstone from 2009 to 2013 and ran cattle there on agistment during those years. In August 2013 he mustered and removed his cattle. It was subsequent to that, he says, that cattle strayed from his property onto Elverstone. In May 2014 he wished to muster the property but was not allowed to do so by the owner and on his account no musters occurred between 2014 and January 2016. In addition to the 37 head returned to him, Mr Edwards said that he had 50 Heifers and 47 Steers missing which he asserted were still on Elverstone. He claimed that the cleanskin cattle could be the progeny of cattle from his property.

10. [10]
    In submissions on this appeal, Mr Edwards argued that among the branded cattle located in the muster were 20 breeders belonging to him and only 5 breeders belonging to others. It followed, in his submission, that the unbranded cattle would on the balance of probabilities be progeny of those breeders.

11. [11]
    In police interviews of Tomlinson, Ward and Williams each said that many of the 23 unbranded cattle were similar to cattle run on their properties and could well be the progeny of their stock.

The grounds of appeal

12. [12]
    The grounds of appeal filed 29 September 2016 are as follows:

“1.  The magistrate erred by not allowing the Appellant to place all evidence he wished to place before the court; 

2. The magistrate erred by not allowing the Appellant to cross-examine witnesses on the affidavit material they had filed in the proceedings;

3. The magistrate erred by not giving appropriate or any weight to the documentary evidence placed before the court by the Appellant;

4. The magistrate erred by making findings for fact which were not open on the weight of the evidence;

5. The magistrate erred by making a cost order against the Appellant where the magistrate was unable to determine ownership;

6. The Appellant seeks a hearing de novo of the proceedings the subject of the appeal.” 

13. [13]
    In oral argument on the appeal Mr Edwards primarily directed his submissions to two grounds: the ground relating to the loss of opportunity to cross-examine and the ground alleging error in the cost order being made against the appellant.

14. [14]
    The appellant sought to rely upon a fresh affidavit on the appeal. The affidavit primarily outlined submissions based upon evidence before the magistrate but also exhibited some additional documents, one of which was the subject of objection by the second, third and fourth respondents. I received the affidavit and deferred ruling on the admissibility of the document the subject of objection until full argument had been heard.

Appeal principles

15. [15]
    The appeal is brought under s 45 of the Magistrates Courts Act 1921 (Qld).  Section 45 relevantly provides: 

“(1)  Subject to this Act, any party who is dissatisfied with the judgment or order of a Magistrates Court—

1. (a)
   in an action in which the amount involved is more than the minor civil dispute limit;

…

may appeal to the District Court as prescribed by the rules. 

2. (2)
   Provided that—

1. (a)
   where in any of the cases above referred to in subsection (1) the amount is not more than the minor civil dispute limit, an appeal shall lie by leave of the District Court or a District Court judge, who shall not grant such leave to appeal unless the court or judge is satisfied that some important principle of law or justice is involved; 

…”

16. [16]
    The respondents contend that the amount involved is under the minor civil dispute limit of $25,000 and therefore s 45(2)(a) applies. The appellant claims the amounts involved exceed the limit and s 45(1)(a) should apply.

17. [17]
    Dispute as to the amount involved arises because on the evidence before the learned magistrate the market value of the 23 cattle totalled $13,857. There was evidence that Rod Turner, a valuer appointed by the Department of Justice, had assessed the value of each individual beast to arrive at that total.^[4]  On 1 September 2016, his Honour made an order for sale of the cattle and upon their sale on 6 September and 13 September 2016 they fetched a total price of $25,271.49.  The parties disagree as to which of those totals regard should be had in determining if leave to appeal is required. 

18. [18]
    In my view, the resolution must turn upon the meaning given the words of s 45. The relevant “amount” under the section is the amount involved “in an action”. The relevant action, an application for a determination of ownership, reached completion upon delivery of the judgment of the court. From that point in time there was no “action” in existence. Here property in the form of cattle, not money, is involved. The value of cattle varies from time to time depending on market forces. The “amount involved” in the action must relate to the value of the property prior to delivery of judgment. The only evidence as to the value of the cattle prior to judgment is to be found in the valuer’s opinion.

19. [19]
    It is the value of $13,857 contained in the evidence before the magistrate which, in my view, constitutes “the amount involved” within the meaning of s 45(1)(a). It follows that under s 45(2)(a) an appeal may only be brought with the leave of the court.

20. [20]
    The court may not grant leave to appeal unless it is satisfied that some important principle of law or justice is involved. That, at the very least, requires that the applicant demonstrate prima facie error in the decision of the magistrate.^[5] 

21. [21]
    This appeal will result in an order which will be the final decision in the proceeding. Accordingly, r 765(1) of the Uniform Civil Procedure Rules 1999 (the “UCPR”) applies to make this an appeal by way of rehearing. The High Court in Robinson Helicopter Co Inc. v McDermott summarised the longstanding basis for conducting an appeal by rehearing:

“A court of appeal conducting an appeal by way of rehearing is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences.’”^[6]

22. [22]
    The powers of the court on this appeal are set out in s 47 of the Magistrates Court Act 1921 where it is stated:

“47  Jurisdiction of the District Court

On the hearing of an appeal or special case, the District Court may do any of the following—

1. (a)
   draw inferences of fact from facts found by the Magistrates Court, or from admitted facts or facts not disputed;

2. (b)
   order a new trial on such terms as it thinks just;

3. (c)
   order judgment to be entered for any party;

4. (d)
   make any other order, on such terms as it thinks proper, to ensure the determination on the merits of the real questions in controversy between the parties;

5. (e)
   as regards any special case, remit the matter to the Magistrates Court with the opinion of the District Court thereon;

6. (f)
   make such order with respect to the costs of the appeal or special case as it thinks proper.”

23. [23]
    In addition, s 113 of the District Court of Queensland Act 1967 (Qld) provides:

“113  Power of District Court on appeal from Magistrates

The District Court has, for an appeal from a Magistrates Court, the same powers as the Court of Appeal has to hear an appeal.”

Grounds 1 and 2: Denial of cross-examination

24. [24]
    On 29 August 2016, the learned magistrate heard an application from the appellant to cross-examine the second, third and fourth respondents and two police officers at the hearing of the application before the Magistrates Court. When asked by the magistrate to provide the reason why he wished to cross-examine, Mr Edwards struggled to provide a clear basis. On my assessment what Mr Edwards said to the learned magistrate, he wished to cross-examine the police officer and the respondents on what had occurred subsequent to the muster. So far as I can glean from correspondence and other material before me, the appellant placed considerable weight on what he saw to be the initial failure by the adjoining landholders to claim ownership of the cattle and his belief that the police officers had been involved in a cover-up in respect of that.

25. [25]
    The learned magistrate, in delivering his decision on the preliminary application, pointed out that it was a late application to cross-examine but nevertheless accepted that Mr Edwards was entitled to make an oral application. His Honour considered that application on its merits. He summarised his understanding of the submissions before him as follows:

“When pressed by the court as to the reasons why the application is brought Mr Edwards says he wants to cross-examine all of the other respondents on what they have done since the 13^th of January 2016, and when his application was broadened to include the applicant police officer and other police officers it was for two reasons: to cross-examine what the police have done, and also, the second reason was to discover or bring out what the police are trying to cover-up.”^[7] 

26. [26]
    The learned magistrate ruled that Mr Edwards may make an oral application and dispensed with the requirements for notice but concluded that the basis for cross-examination advanced by Mr Edwards went beyond the scope of the court’s function. His Honour emphasised that the court’s inquiry was only directed to the issue of who was the owner of the cattle. His Honour concluded that cross-examination on what the other respondents and the police had done since 13 January 2016 was not relevant to the court’s purpose and refused the application. On the submissions before the magistrate I am satisfied his Honour was correct in concluding as follows:

“This is not a general inquiry by this court as to the actions, motivations, reasons, legality or illegality in relation to how 25 head of unbranded cattle mustered on the rural property known as Elverstone at 5391 Elmina Road, Wyandra on about the 13^th of January got to be at the Roma sale yards at this particular time.”^[8] 

27. [27]
    I detect no error in his Honour’s exercise of discretion in this regard. The UCPR provides for evidence on an application to be received by way of affidavit. However, a request to cross-examine will ordinarily not be refused if a relevant basis is advanced for the questioning of the witnesses. No adequate basis was advanced to the learned magistrate. Of course, were I persuaded that the appellant lost a real opportunity to advance his case because of an inability to cross-examine then that would be an important consideration on the appeal. For reasons that will become apparent later in my reasons for decision, I do not consider the appellant lost any worthwhile opportunity due to the magistrate’s ruling on his application to cross-examine.

Grounds 3 and 4: Findings of fact

28. [28]
    Upon review of the four affidavits the appellant provided in the proceedings below and his further affidavit on appeal, it is notable there is a focus on the conduct of the police, Mr Brodie and the neighbouring property holders during and following the muster. As is evident from the accusations of collusion and dishonesty made by Mr Edwards, he clearly harbours some deep suspicions about the conduct and motives of all those people. There is a history of earlier conflict between the parties which has contributed to Mr Edward’s attitudes and may also explain apprehension on the part of the others in dealing frankly with Mr Edwards.

29. [29]
    Focusing upon the circumstances of the muster, it is understandable that Mr Edwards might be left with suspicions in circumstances where he was advised much later than the other parties as to the time the muster was planned, where the muster went ahead in his absence contrary to court order and where he was not told 23 cleanskin cattle had been found and sent to the sale yard. It follows that Mr Edwards was denied the ability to monitor the muster as was provided for by the order and denied the ability to assess at that time whether the cattle located may belong to him. That the muster proceeded contrary to the court order in the presence of police officers may also have contributed to Mr Edwards’ suspicions. It seems likely the officers never viewed the court order and were therefore unaware that the muster was not compliant.

30. [30]
    That the conduct of the muster did not fully comply with the order of the court may explain Mr Edwards’ concerns but it had no obvious relevance to the issue to be decided by the magistrate in these proceedings. His Honour’s task was to determine, if possible, the ownership of each of the 23 cleanskin cattle. Any grievance the appellant had about non-compliance with the order made in the civil proceedings could not be resolved in proceedings to determine ownership brought under the PPRA.

31. [31]
    It was necessary in the proceedings before the magistrate for the appellant to demonstrate on a balance of probabilities that each beast he claimed to be his was indeed owned by him. The appellant’s positive case for ownership was not fully developed in the court below. Before me the appellant submitted there is a higher probability of the animals being progeny of his branded cattle. The appellant asserts that a large number of his missing cattle, in excess of 100, had strayed onto Elverstone Station. He submits that the 37 head of cattle mustered and returned to him on 13 January 2016 included 20 head of breeders.^[9]  The appellant argues there is a high probability the 23 cleanskins were progeny of these breeders, especially considering that only five head of breeders belonging to other neighbours were located in the muster.  Applying this reasoning he submits that on the balance of probabilities the 23 cattle are his property. 

32. [32]
    While that argument has a certain attractiveness, in my view the best that can be said is that there is a possibility a number of the 23 cleanskins were the progeny of animals owned by Mr Edwards. The difficulty with the argument is that the learned magistrate was required to adjudicate on the ownership of each particular animal. On the facts of this case he was not entitled to have regard to the 23 animals as a group when applying the standard of proof. There is nothing in the evidence to allow a conclusion that all 23 cattle formed a common group or that all 23 emanated from the same source. Indeed, from their descriptions, they vary across three different breeds. Any one animal could have been the offspring of a cow from a number of adjoining properties. In circumstances where it was not possible to mother up the individual cleanskins or to identify a possible mother of each individual for the purposes of DNA comparison, there was insufficient evidence allowing the ownership of an individual animal to be determined on the balance of probabilities.

33. [33]
    The appellant submits that as the other neighbouring property owners did not claim ownership at the time of the muster, that strengthens his claim of ownership of the 23 cleanskins. I gather that his argument probably goes beyond that to suggest any claims from the other property holders that the animals may have been sourced from their stock are false and motivated by animosity towards him. However, even in circumstances where there was no competing claim of ownership the magistrate would still be required to satisfy himself on the evidence that the sole claimant did indeed own a particular animal. Moreover, Mr Edwards’ submissions in this regard are predicated on a generalisation and are not supported by the evidence placed before the court.

34. [34]
    In summary, the evidence is that the neighbours or their agents present at the muster all noted that some at least of the cleanskin cattle could be progeny of cattle owned by them but conceeded they could not assert that with absolute certainty. That this was so is supported by the affidavit of plain clothes Constable Douglas Robinson who was present at the muster. PC Robinson said that Mr Ward stated that some of the cleanskins were consistent with the type of cattle he has and could be from his property.^[10]  The Constable said that Mr Williams and Mr Nolan acting for Mr Tomlinson also stated they had similar cattle to the unbranded cattle but could not 100 percent identify they were the progeny of their breeding cows.^[11]  The evidence of all those present is that they agreed that the unbranded cattle should be sold and the proceeds go to the Royal Australian Flying Doctor Service. 

35. [35]
    There is evidence from each of the adjoining property holders of poor boundary fencing and of cattle straying between their properties and Elverstone. Each provides evidence of having stock of similar breed and characteristics to individual beasts in the group of 23 cleanskins. While each did not make a positive claim of ownership at the time of the muster, being content for the animals to be gifted to the Royal Flying Doctor Service, when they learnt that Mr Edwards was claiming the animals each took the position that they had at least as good a claim as him. Before the magistrate the argument presented on behalf of the second, third and fourth respondents was that although they had similar animals and that the cleanskins could be the progeny of their stock, it was not possible to demonstrate ownership of any individual animal to the necessary standard. They all contested the appellant’s claim to ownership on the same basis, namely that ownership cannot be determined and an order should be made that and the animals be sold and the proceeds provided to the Royal Flying Doctor Service.

36. [36]
    While it is possible that the 23 cleanskins were the progeny of the appellant’s cattle, there are competing inferences to be drawn that some or all the cleanskins are the progeny of cattle belonging to others. To succeed on this appeal the appellant has to demonstrate that the magistrate fell into error in concluding that ownership of the animals could not be determined on the balance of probabilities. I detect no such error in his Honour’s decision. In a lengthy and carefully reasoned judgment his Honour had regard to all the relevant evidence. His Honour outlined in detail the evidence given by each of the significant players. The reasons for decision recognised that Mr Edwards had a justifiable grievance about not being advised about the 23 unbranded cattle. The decision identified in respect of each of the individual 23 animals that two or more persons claimed possible ownership. In my view, his Honour correctly identified the arguments advanced by Mr Edwards in support of his ownership of the cattle.^[12]  His Honour reasoned that the location on Elverstone of branded cattle belonging to each of the neighbours was proof, on the balance of probabilities, that cattle had travelled from respondents’ properties adjoining Elverstone.  His Honour ultimately accepted the evidence of the adjoining property owners that determination of ownership of the disputed cattle would be little more than guess work.  He concluded that none of the respondents was capable of proving their ownership of the cattle. 

37. [37]
    I do not consider that the learned magistrate overlooked any relevant evidence or took into account any irrelevant considerations. I detect no error in his reaching the conclusion of fact that ownership of each of the 23 cleanskin cattle could not be established.

Denial of cross-examination

38. [38]
    The conclusion I have reached in respect of the magistrate’s findings of fact has relevance for the appellant’s ground of appeal challenging the denial of his application to cross-examination. The matters upon which he indicated he wished to cross-examine, namely the conduct of the police officers and the second, third and fourth respondents both at and following the muster, could not have assisted his case in proof of ownership of the cattle. As observed earlier, it was necessary for the court to determine ownership even if there was only a sole claimant. The evidence that fencing was poor and allowed movement of cattle between all of the neighbouring properties and Elverstone was not in dispute. Animals from those neighbouring properties were located on Elverstone in the course of the muster. Those facts alone are enough to throw doubt upon the appellant’s claim to own of all the 23 animals. In the absence of more specific information about the parentage of each particular animal, the Magistrates Court was never going to be able to conclude to the necessary standard who owned a particular unbranded beast. The refusal to allow cross-examination did not deny the appellant any reasonable prospect of making out his case.

Order for disposal of proceeds

39. [39]
    The learned magistrate having concluded that ownership of the animals could not be determined, then turned to make an order under s 694(5) of the PPRA. That provision allows a magistrate, where it cannot be decided who owns the property, to make orders the magistrate considers appropriate for the disposal of the thing. His Honour reasoned as follows:

“In my view, the public purse should be recompensed for all proper, necessary and reasonable costs for the maintenance of the disputed cattle.  As none of the respondents have been able to prove their claim, in my respectful view, on a balance of probabilities, the only just and equitable outcome that is clearly apparent to this court is for each of them to share equally in any net commercial value of the subject matter of the application after necessary and proper and reasonable costs of the maintenance of the disputed cattle have been conducted”.^[13]

40. [40]
    The magistrate had a broad discretion to exercise under the subsection. That discretion needed to be exercised judicially. In my view, his Honour was entitled to have regard to the fact that considerable public cost had been expended in maintaining the cattle in the period up until the hearing. It was within the discretion of the learned magistrate to make an order in favour of recompensing the Crown. In addition, it may be observed that the appellant was earlier offered an opportunity to agree to the sale of the cattle with the proceeds to be placed into trust and at that time did not agree to that option.

41. [41]
    While the learned magistrate may have taken a different course in terms of distributing the remaining proceeds, for example by assessing the overall probability of ownership of the animals, I consider it was within the scope of his discretion to make the order that he did. After payment of maintenance of the animals only the relatively small sum of $1,198.56 was available for distribution to each party.^[14]  Any one of the animals could have been sourced from a neighbouring property other than the appellant’s property. 

42. [42]
    I detect no error in his Honour’s exercise of discretion in this regard.

Ground 5: Costs

43. [43]
    The learned magistrate made an order for the appellant to pay the second, third and fourth respondents’ costs on the standard basis. The police did not seek costs. The appellant submits that where the magistrate was unable to determine ownership, a costs order should not have been made against him.

44. [44]
    In support of his submissions the appellant referred to alleged unsatisfactory features of what happened at and after the muster. He pointed to the involvement of others in the transporting of the cleanskin cattle to the Roma saleyards. It is not apparent on the material before me what justification there was for this occurring in circumstances where no one was claiming ownership in the animals. Mr Edwards pointed out that under the court order he had to pay for the cost of the muster, yet it was conducted in his absence. He also submitted the police delayed in filing the application thus contributing to additional costs to maintain the cattle over that period. I accept that in bringing the appeal the appellant is motivated by a genuine belief that he had been denied justice in the process. However, I do not consider the matters pointed to by the appellant required that the discretion be exercised differently.

45. [45]
    The learned magistrate, after setting out the competing submissions, observed that under r 689 of the UCPR costs follow the event unless the court considers another order is appropriate. The orders made were contrary to those sought by the appellant and consistent with those sought by the other parties. His Honour noted that his discretion was unfettered but nevertheless made an order for costs against Mr Edwards. His Honour was of the view that the proceedings would have been unnecessary but for the actions of Mr Edwards. Each of the second, third and fourth respondents came before the court conceding that they could not establish with the necessary degree of certainty their ownership of the cattle. Had Mr Edwards taken a similar position, a full hearing before the Magistrates Court would not have been necessary. His Honour refused a submission on behalf of the respondents for costs to be awarded on an indemnity basis. In the circumstances I am satisfied that his Honour did not err in exercising his discretion to make the costs order against the appellant.

Conclusion

46. [46]
    In my view, the appellant has failed to establish error in the decision of the court below, or to establish that an important principle of law or justice is involved. Leave to appeal should not be granted.

Costs of appeal

47. [47]
    The respondents seek an order for their costs of the appeal on the indemnity basis. In support of that submission they refer to the fact that an offer of compromise was sent to the appellant in accordance with the decision in Calderbank v Calderbank,^[15] requesting that the appellant discontinue his appeal and advising that they would not seek a costs order in the event he did so.  The appellants cite in support of their submission the decision of the Court of Appeal in Verhagen & Anor v Millard^[16] where the court held on appeal that an indemnity costs order was appropriate.  A Calderbank offer had also been made in that case.  The court noted that it was conceded that the offer to settle, of itself, did not justify an order for indemnity costs because Chapter 9, Part 5 of the UCPR has no application to appeals and only special or unusual features will warrant a departure from the usual order that appeal costs are assessed on the standard basis.^[17] The Court of Appeal observed that if indemnity costs were routinely ordered in appeals, this would have the unfortunate consequence of discouraging parties from pursuing appeals which may incrementally develop the law.  In the circumstances of the case before them, their Honours considered that there was a remarkable combination of circumstances which justified a grant of indemnity costs in that case.^[18]

48. [48]
    It is the case that the appellant brought this appeal due to a genuine belief that he had been unjustly dealt with and legitimately believed he had a better claim to the cattle than the respondents. The respondents did not claim ownership in the animals and did not seek an award in their own favour in the Magistrates Court. On the appeal the appellant appeared as a self-represented litigant and the Police Service was represented on the appeal in order to support the magistrate’s decision. In those circumstances the respondents had little need to appear to defend the small awards made in their favour but nevertheless chose to brief counsel.

49. [49]
    It is appropriate that the costs should follow in the result but I am not satisfied, notwithstanding the Calderbank offer, that there are special or unusual features in this case such as to justify an award of indemnity costs. 

Orders

50. [50]
    The orders of the court will be:

1. Leave to appeal is refused.

2. The appeal is dismissed.

3. The appellant will pay the respondents costs of and incidental to the appeal on the standard basis.