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Sunshine Coast Regional Council v Thomas[2019] QDC 55

Sunshine Coast Regional Council v Thomas[2019] QDC 55

DISTRICT COURT OF QUEENSLAND

CITATION:

Sunshine Coast Regional Council v Thomas [2019] QDC 55

PARTIES:

SUNSHINE COAST REGIONAL COUNCIL

(appellant)

v

NATHAN EDWARD THOMAS

(respondent)

FILE NO/S:

Maroochydore Registry 150/18

DIVISION:

Civil

PROCEEDING:

Appellate

ORIGINATING COURT:

Caloundra Magistrates Court

DELIVERED ON:

18 April 2019

DELIVERED AT:

District Court at Brisbane

HEARING DATE:

12 April 2019

JUDGE:

Reid DCJ

ORDER:

  1. [1]
    Appeal allowed
  1. [2]
    Set aside the order of 13 September 2018 striking out the complaint and summons and consequential orders as to costs

CATCHWORDS:

APPEAL – COMPLAINT – SUMMONS - where a learned acting Magistrate struck out a complaint and summons in which the appellant sought to prosecute the respondent for breach of s 194 of the Animal Management (Cats and Dogs) Act 2008 (Qld) – where appellant seeks an order that the Magistrate’s decision be set aside and the matter be sent to trial before a different Magistrate - whether or not a Justice of the Peace in issuing the summons is required to consider evidence in determining to issue a complaint and summons.

Animal Management (Cats and Dogs) Act 2008 (Qld) s 194

Justices Act 1886 (Qld) s 53

Electronic Rentals Pty Ltd v Anderson & Ors (1970) 92 WN (NSW) 672

Electronic Rentals Pty Ltd v Anderson & Ors (1971) 45 ALJR 302

Forrest v Commissioner of Police (2017) QCA 132

Madsen v Appo; ex parte Appo (unreported, Full Court of the Supreme Court of Queensland, 20th December 1973) No 46-50 of 1973

R v Joice; ex parte Tsay Wann Fure [1981] Qd R 550

R v Peacock; ex parte Whelan [1971] Qd 471

COUNSEL:

MD Nicolson for the appellant

IA Munsie for the respondent

SOLICITORS:

Heiner and Doyle for the applicant

Aitken Whyte for the respondent

Introduction

  1. [1]
    An acting Magistrate sitting at Caloundra, on an application by the respondent, struck out a complaint and summons in which the appellant sought to prosecute the respondent for breach of s194 of the Animal Management (Cats and Dogs) Act 2008 (Qld). The appellant sought an order before me that the decision striking out the complaint be set aside. It also sought an order that the matter be sent to trial before a different Magistrate in the Caloundra Magistrates Court.
  1. [2]
    In my view the appeal should be allowed and the decision of the learned acting Magistrate be set aside. Because the matter was not raised in argument before me I will hear submissions as to whether or not the matter should proceed before a different Magistrate or whether it should be remitted to the same Magistrate.

Nature of Appeal

  1. [3]
    I am mindful that an appeal under s 223(1) of the Justices Act is by way of re-hearing. In Forrest v Commissioner of Police (2017) QCA 132, Sofronoff P, with whom Gotterson and Morrison JJA agreed, set out the nature of such an appeal. In coming to the conclusion I have about this matter I have conducted my own review of the evidence and made up my own mind about the case of this kind, having due regard to the determination below. Although, ultimately, I have concluded the Magistrate was in error in his understanding of the applicable law and its application to the facts of this case. I recognise that proof of such an error is not a prerequisite to success in the appeal.

Background

  1. [4]
    The complaint, dated 30 August 2017, was under the hand of Guy Lalor, an authorised officer of the appellant. The complaint alleged that on 18 December 2016 the respondent “failed to take reasonable steps to ensure that a dog did not attack another animal”. The complaint sets out the following particulars of the charge:

“Particulars

  1. On the date alleged, the defendant was the owner of, and responsible for a female boxer-cross dog called Bones;
  1. On the date alleged, the defendant was also the owner of, and responsible for a female bull arab-cross dog called Brick;
  1. The defendant was a relevant person for the dogs, in terms of Animal Management (Cats and Dogs) Act, s.194;
  1. The defendant released the dogs, or allowed them to run free, on a public walkway near Sycamore Drive, Currimundi; they ran off and one of them attacked a maltese terrier being walked by a 12-year old girl, causing fatal injuries to the terrier;
  1. The defendant failed to take reasonable steps to ensure the attack did not happen in that:
  1. (a)
    he failed to ensure that the dogs were under effective management within the meaning of Local Law No.2 (Animal Management);
  1. (b)
    the walkway near the Sycamore Drive, Currimundi is a public place, popular with members of the public and frequently used to walk and exercise their dogs;
  1. (c)
    he released the dogs, or allowed them to run free, such that he was not in a position to immediately regain control of the dogs;
  1. (d)
    the defendant knew, or ought to have known, that his dogs were likely to come into contact with other dogs;
  1. (e)
    he failed to take account, or sufficient account, of the aggressive propensity of the dogs, which were used for hunting; and
  1. (f)
    he failed to take account, or sufficient account, of the likelihood that the dogs would behave in an aggressive manner, especially when they were together.”

The complaint then asserts that the defendant “did thereby commit offences contrary to the acts in such case made and provided.”

  1. [5]
    The trial of the matter came before the learned acting Magistrate for determination. After the first day of the hearing, the matter appears to have been adjourned. On the resumed hearing, Counsel for the respondent brought an application to strike out the complainant and summons. Counsel for the appellant did not demur to the application being brought at that stage, but of course opposed the making of the order.
  1. [6]
    Having heard evidence from both Mr Lalor and the Justice of the Peace (“JP”) who swore the summons, Barry Richardson, the learned Magistrate determined to strike out the complaint and summons. I shall consider his reasons for doing so shortly.
  1. [7]
    The notice of appeal provides that the grounds of appeal are:
  1. The Magistrate erred in finding that the justice of the peace who issued the summons had:
  1. (a)
    not satisfied himself as to the evidence to substantiate the allegations by way of a complaint; and/or
  1. (b)
    not performed his duties properly in issuing the summons;
  1. The Magistrate erred in finding that the complaint was not validly issued.

Hearing below

  1. [8]
    It is first necessary to note that s 53(1) of the Justices Act provides:

“When a complaint is made before a justice that any person is guilty of or is suspected of having committed any indictable offence, simple offence, or breach of duty, within the jurisdiction of such justice, then such justice may issue the justice’s summons.”

  1. [9]
    It appears that after the first day’s hearing, but before the resumed hearing the respondent’s solicitor, Spencer Wright, spoke to Mr Richardson twice, on 6 and 7 September 2018. He recorded those conversations. They were played before me. Subsequently a statement of Mr Richardson was prepared and executed on 12 September. I think it reasonable to assume that this statement was prepared by the appellant’s solicitors. In his statement Mr Richardson said he has “a note in my diary for 30 August 2017”, being the date that the complaint and summons were issued. The note indicates, he said, that the complainant “asked for my signature on about 12 different documents” on that day. He said the process took him about 30 minutes and said in his evidence that “it takes two or three minutes to look at each one properly”. He appears to have assumed there were 12 different complaints and summons because in his log book he had a number, 12, “circled”.
  1. [10]
    The complainant, Mr Lalor, in his statement gives greater particularity about this matter. He said that on the day he had four complaints and summons, two of which were against Mr Thomas, (one of which was subsequently withdrawn) and four “oaths of service” requiring the JP to witness his signature. I also note that for each complaint and summons the JP had to sign twice – to witness the complainant’s signature to the complaint, and to himself execute the summons if he issued it.
  1. [11]
    Mr Richardson was asked by the respondent’s counsel what he looked for prior to issuing a complaint. He replied that “in the complaint there’s got to be some reason why you are going to issue a summons”. He then said he was referring to “the statement of fact of what’s happened and why…the summons should be issued” and “if there’s nothing there…you can’t do anything”.
  1. [12]
    He was cross-examined about his recollection of the matter. He said it “stood out more than the others”. He remembered reading about how “this attack occurred” in the paper in 2016. He said “I believe there’s been a lot of dog attacks on the coast, and some of these dogs are very dangerous and need to be put away”. He said however that the newspaper article did not influence his actions on the day the summons was issued. Rather, he said “(t)he details in the complaint was what inspired me to issue the summons.”
  1. [13]
    He was cross-examined about the extent to which he followed the practice suggested in a document described as the Justice of the Peace Handbook. He was asked what questions he had asked Mr Lalor about the complaint in relation to which he had issued the summons. He said “in this particular instance most of the questions are answered in the complaint”. He also said “I would have asked him ‘is this true and correct?’”. Later he said he would have asked “Is this complaint true and correct with what the occurrences were?”. He said Mr Lalor replied that they were “all documented there”. In my view that is clearly a reference to the particulars in the complaint that I’ve earlier set out. In such circumstances Mr Richardson said there was no need to ask any other questions.
  1. [14]
    He was asked by Counsel how he would know the particulars “have been founded reasonably by Mr Lalor based on that document”. He said he did so by putting Mr Lalor under oath. Consistent with his knowing that when issuing a summons he exercised his discretion to do so, Mr Richardson said in evidence that he had refused to issue a number of summons “where the information has been ridiculous”. He referred to a particular person who “was trying to sue everybody” and said he “could tell the thing was absolutely ridiculous”.
  1. [15]
    In relation to exercising the discretion to refuse to issue a summons he said he must “consider the contents, and if you feel that they are without any sort of proper information or whatever or it seems ridiculous you may reject it”. In such circumstances he said he would record in his log book that it was “rejected”. He described a complaint and summons as “a very serious document”.
  1. [16]
    Mr Richardson was then stood down at 10:59am so he could go home to obtain his log book which he had referred to but did not have with him. He said the round trip to home and back to court would take about one hour.
  1. [17]
    Mr Lalor, the complainant, then gave evidence. He indicated that whilst he had no independent memory of doing so on this occasion, it was “my practice for every summons” to attach a summary of facts or brief of evidence to the back of every complaint and summons. The brief of evidence in this case became Exhibit 8 before the learned acting magistrate. Mr Lalor’s contemporaneous notes confirmed, as I earlier said, that on 30 August he had Mr Richardson witness four complaints and summons and four oaths of service of documents. He also said he didn’t “necessarily present the summary of facts to the justice” and didn’t recall if he had done so on this occasion. In circumstances in which Mr Richardson did not give evidence of ever having seen such a document it is reasonable to proceed on the basis that he did not.

Application below

  1. [18]
    Despite the fact that Mr Richardson was to return with his log book to complete his evidence, counsel for the respondent made application, at 12:05pm, to strike out the complaint “without further hearing evidence” from Mr Richardson.
  1. [19]
    He did so on the basis, as expressed by him (at T 1-35 l 18/19):
  1. That Mr Richardson had not considered any evidence in the matter; and
  1. After reading the complaint he had asked only one question of Mr Lalor.
  1. [20]
    In support of his application, counsel for the respondent relied in particular on observations of Matthews J in R v Peacock; ex parte Whelan [1971] Qd R 471 where at 479 his Honour, after indicating that a JP in issuing a summons is not called upon to perform a judicial act but is required to exercise his discretion in a judicial manner said:

“It is for this reason that I agree with respect with the comments of Asprey JA in ex parte Electronic Rentals Pty Ltd v Anderson [1970] 92 WN. (NSW) 672 upon the use which has been made of the phrase “prima facie case” in similar contexts. To say that a person is to be satisfied that a prima facie case has been made out against the person against whom a summons is sought carries implications of a duty cast upon the justice of satisfying himself that there is evidence to substantiate the allegations made by way of complaint.”

  1. [21]
    Counsel submitted that because Mr Richardson had considered only the complaint, including the particulars, and not evidence, and asked Mr Lalor only if it was “all true”, he had not “engaged in that judicial function”.
  1. [22]
    He then submitted “I take absolutely no pleasure in cross-examining this man, no pleasure at all. If I’m required to proceed, it’s only likely to get worse. I don’t wish to do that. If I am pushed I’ll have to. But this man, obviously, took umbrage at some of the questions. They weren’t meant to upset him. And I just think it would be an abuse of process to allow this to proceed in circumstances where the crown case is simply in the state of complete disrepair where it cannot be repaired. It just can’t be. The man has indicated he didn’t have regard to any evidence. He just looked at the complaint and moved on.” He referred also to “a whole bunch of other issues” including “the media article and so forth” and said “If we need to, I’ll continue to cross-examine him, but I make that application.”
  1. [23]
    Counsel for the appellant also relied on Peacock v Whelan (supra) and also on R v Joice; ex parte Tsay Wann Fure [1981] Qd R 550. He referred to observations of Skerman J in the earlier of those cases where his Honour relied on observations of Windeyer J in Electronic Rentals Pty Ltd v Anderson & Ors (1971) 45 ALJR 302 at pp 306-307 that;

“…whenever an information is laid before a justice, against any person, he may issue his summons for the appearance of such person. He is not bound to issue a summons. Before doing so he should consider the information to see what it alleges. “A summons”, said Lord Goddard C.J., “is the result of a judicial act. It is the outcome of a complaint which has been made to a magistrate and upon which he must bring his judicial mind to bear and decide whether or not on the material before him he is justified in issuing a summons” (citation omitted)…This does not mean that the issuing of a summons is a judicial act in the same sense as is an adjudication to determine the rights of parties. Probably it would be better described as an administrative or ministerial act, or, as this court said in Donohue v Chew Ying (citation omitted), as a matter of procedure. But, however described, a Justice who receives an information must decide whether or not he should issue a summons. He has a discretion and he must exercise it in a judicial manner… A Justice must not arbitrarily refuse to issue a summons. If, without some good and sufficient reason, he refuses to do so after he has received and considered an information or complaint duly laid, mandamus will lie.” (My underlining).

  1. [24]
    Counsel for the appellant also relied on the judgment of Macrossan J in the Full Court decision of R v Joice; ex parte Tsay Wann Fure (supra) where his Honour said:

“It must be accepted that objection on the ground of bias lies in respect of the discharge of functions by a person who acts in a judicial capacity and this includes acting in the course of administrative duties not performed in court “but in respect of which it is necessary to bring to bear a judicial mind” (citations omitted).” 

  1. [25]
    Macrossan J then referred to the decision of Windeyer J in Electronic Rentals Pty Ltd v Anderson to which I have just referred, and then continued:

“It is to be observed that there is nevertheless a dividing line to be regarded in deciding whether a case involves something which is no more than undesirable practice or whether it does involve more and raises a reasonable suspicion of bias.”

  1. [26]
    Counsel also referred to observations of Matthews J in R v Peacock ex parte Whelan (supra) in considering issues of bias. He submitted that there was no basis for a finding of bias because there was no relationship between the complainant and Mr Richardson.  Counsel for the respondent then intervened indicating “I don’t advance this application on (the basis of) bias.” 
  1. [27]
    Counsel for the respondent also emphasised in reply that the matter concerned the failure of Mr Richardson to consider the evidence the complainant was “basing the complaint on” and the fact that the complaint did nothing “further than showing (the justice) the complaint.”

Decision below

  1. [28]
    The learned acting Magistrate then delivered his decision. In doing so he noted that counsel for the respondent “is suggesting that the complaint is not validly before the court, because the Justice of the Peace, in considering the complaint and whether to issue his summons, had no regard to any evidence, did not consider any evidence and referred to Mr Richardson’s evidence that he only asked one question… whether the complaint was true and correct. Mr Munsie is suggesting that the Justice of the Peace, Mr Richardson, has not considered whether a prima facie case has existed. He has not made any enquiry.” (My underlining).
  1. [29]
    The learned Magistrate said:

“It is clear to me that a Justice of the Peace must be satisfied that a prima facie has been… made out against a person to whom a summons is bought, carrying implications of a duty cast upon the Justice of satisfying himself there is evidence to substantiate the allegation.”

  1. [30]
    He referred to the fact that in the circumstances of this case, Mr Lalor did not present a summary of the evidence to the Justice of the Peace to substantiate the complaint that he was making. He noted that Mr Richardson did not give any evidence that he looked at any additional information other than what was in the complaint, which I note includes the particulars I have set out. He then concluded:

“So to my mind I do not think Mr Richardson, the Justice of the Peace who issued the summons, had satisfied himself as to evidence to substantiate the allegations made by way of a complaint. So I consider that he has not performed his duties properly to issue a summons as he did. So I will uphold the application… that the complaint was not validly issued and that it be struck out.”

Consideration

  1. [31]
    The critical question is whether or not the Justice of the Peace in issuing the summons, was required to consider evidence, that is, statements or summaries of witnesses’ evidence, in determining whether to issue a summons in response to a complaint. The Magistrate as I have said referred to the fact that the Justice did not look at “any additional information other than what was in the complaint”. That is not disputed.
  1. [32]
    Madsen v Appo; ex parte Appo is an unreported decision of the Full Court of Queensland (OSC 46-50 of 1973, delivered 20th December 1973). Williams J with whom Wanstall SPJ and Andrews J agreed said that:

“It can be seen therefore that the issue of the summons is by no means equivalent to the witnessing of the signature of the complainant or the affixing of the Justice's signature as a matter of formality. It is far from that. I agree with my brother Matthews when he says in Peacock's case that the exposition of what constitutes a “prima facie case” is well set out by Asproy J.A. in the Electronic Rentals case at page 681 of 92 Weekly Notes New South Wales. The learned Judge said:—

“The question is: what must a Justice of the Peace do in the exercise of his discretion in order to satisfy himself that it is a proper case for him to receive the information laid before him and issue the summons thereon? It seems to me, however, that the expression ‘prima facie case’ is not a wholly satisfactory one to use in this context. The expression ‘a prima facie case is made out’ is commonly used to indicate that material admitted in evidence discloses a case which, if uncontradicted and if believed, would be sufficient to entitle a tribunal of fact to hold that a claim made by one party has been established against another. An information is in the nature of a pleading. It is a statement by the informant to a Justice of the Peace that some named person has by the matters averred therein committed an offence, which must be described clearly in the statement. The offence need not be stated in the precise language of the statute, provided that in similar words sufficient facts are stated to bring the case within the provisions of the statute, (s. 145A) (1) of the Justices Act 1902, as amended). The fact that, in order to avoid unfairness to a defendant, it may be desirable to provide the defendant separately from the information with further particulars of the offence does not of itself impugn the legal sufficiency of the information (Davies -v- Ryan (1933) 50 C.L.R. 379 at p. 386; ex parte Graham; re Dowling (1968) 88 WN (Pt. 1) (N.S.W.) 270 at pp. 279-280). When an information is laid before a Justice of the Peace it is in most instances an ex parte proceeding and its contents do not require to be verified by oath unless required by some statutory provision or unless a warrant is required “in the first instance (Justices Act 1902 as amended ss. 55, 59) and no evidence in required by statute to be tendered to prove any facts in relation to the ingredients of the offence, although in the exercise of his discretion the Justice of the Peace may wish to be satisfied by the introduction before him of evidence that it is a proper case for him to issue a summons and, if the informant tenders such evidence, he would be bound to hear it (R. v. Adamson (1875) 1 Q.B.D. 201; R. v. Paddington Valuation Officer; ex parte Peachey Property Corporation Ltd. (1966) 1 Q.B. 380 at p. 403). If the Justice, after reading the information, is satisfied that no legal offence is alleged in it, he may decline to issue the summons. In the exercise of his discretion, he may also decline to issue a summons upon other grounds, even though a legal offence is averred in the information, as, for instance, where he considers that the issue of a summons would be vexatious or improper. A number of authorities relevant to cases where a summons has been refused are referred to in ex parte Qantas Airways Ltd.; re Harsington (1969) 90 WN (Pt. 2) (N.S.W.) 55. On the other hand, if the Justice is satisfied that a legal offence is averred in the information and no other matter appears to him to justify a refusal to issue the summons, he may in the exercise of his discretion receive the information and issue the summons thereon.”

  1. [33]
    I have set out this lengthy passage because it is determinative of this dispute. It appears to me absolutely clear, from what was said by Asprey JA in the Electronic Rentals case, relied on in that passage in Madsen v Appo, that it is not necessary for the Justice of the Peace to consider evidence in the sense that the learned acting Magistrate determined was necessary, and as was submitted by counsel for the respondent.
  1. [34]
    In my view, there is no reason to think that the information contained in the complaint supported by the significant particulars set out in it was not sufficient to justify the Justice in issuing the summons as he did.
  1. [35]
    In my view, the learned acting Magistrate was not justified in coming to the conclusion he did. Instead, the application ought have been refused by him. His failure to do so means that the appeal should be allowed and the order of the Magistrate setting aside the complaint and summons ought be set aside.
  1. [36]
    Because argument was not advanced by the respondent’s counsel as to whether in such circumstances, the matter should be remitted to the Magistrate’s Court to be determined by a different Magistrate, I will, upon delivery of these reasons, hear argument about that issue. I will also hear arguments as to costs.
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Editorial Notes

  • Published Case Name:

    Sunshine Coast Regional Council v Thomas

  • Shortened Case Name:

    Sunshine Coast Regional Council v Thomas

  • MNC:

    [2019] QDC 55

  • Court:

    QDC

  • Judge(s):

    Reid DCJ

  • Date:

    18 Apr 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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