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Evans v NBN Co. Limited[2021] QDC 227

Evans v NBN Co. Limited[2021] QDC 227

DISTRICT COURT OF QUEENSLAND

CITATION:

Evans v NBN Co. Limited [2021] QDC 227

PARTIES:

DAVID EVANS

(Appellant)

v

NBN CO. LIMITED (ACN 136 566 741)

(Respondent )

FILE NO:

D30/2020

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 222 of the Justices Act 1886 (Qld)

ORIGINATING COURT:

Magistrates Court at Maroochydore

DELIVERED ON:

16 September 2021

DELIVERED AT:

Maroochydore

HEARING DATE:

24 August 2020

JUDGE:

Long SC, DCJ

ORDER:

In respect of the orders made in the Magistrates Court in Maroochydore on 23 January 2020:

  1. (a)
    The order that the complaint be dismissed is confirmed; and
  2. (b)
    The order that the complainant pay the costs of the respondent is varied so that the amount to be paid is $1,750.00 instead of $136,000.00.

CATCHWORDS:

APPEAL AGAINST FINDING OF MAGISTRATE – where the appellant filed a complaint against the respondent in the Magistrates Court and sought orders pursuant to the Peace and Good Behaviour Act 1982 – where the Magistrate dismissed the complaint pursuant to s 7(3)(a) of the Act and ordered that the appellant pay the costs of the respondent – whether the Magistrate failed to conduct a hearing of the evidence before dismissing the complaint – whether the conduct of the respondent is amenable to a peace and good behaviour order – discussion as to whether the meaning of “assault” in s 5(1)(a) and (b) of the Peace and Good Behaviour Act 1982 is as defined in s 245 of the Criminal Code (Qld)

COSTS – where the respondent concedes that the order for costs made by the Magistrate was inappropriate

LEGISLATION:

Acts Interpretation Act 1954 (Qld), s 14B, 32D

Criminal Code Act 1899 (Qld), ss 4, 6, 74, 245, 335

Environmental Protection Act 1994 (Qld), ss 10, 11

Justices Act 1886 (Qld), ss 158, 158B, 222, 223, 225, 226

Justices Regulation 2014 (Qld)

Peace and Good Behaviour Act 1982 (Qld), ss 5, 7, 9

Planning Act 2016 (Qld)

Radio Communications Act 1992 (Cth)

Radio Communications Licence Conditions (Apparatus Licence) Determination 2015 (Cth), s 8

Safety Rehabilitation and Compensation Act 1988 (Cth)

Telecommunications Act 1997 (Cth), s 56

CASES:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27

Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256

Brady v Schatzel; ex parte Brady [1911] St R Qd 206

Briginshaw v Briginshaw (1938) 60 CLR 336

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384

Darby v Director of Public Prosecutions (NSW) (2004) 61 NSWLR 558; 150 A Crim R 314

Fagen v Commissioner of Metropolitan Police [1969] 1 QB 439

Grehan v Kann [1948] QWN 40

Haystead v DPP [2000] 2 Cr App R 339

Jones v Sherwood [1942] 1 KB 127

Kaporonovski v The Queen (1973) 133 CLR 209

King v Crow [1942] St R Qd 288

Laidlaw v Hulett; ex parte Hulett [1998] 2 Qd R 45

McDonald v Comcare [2013] AATA 105

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445

Optus Mobile Pty Ltd v Sunshine Coast Regional Council & Ors [2020] QPEC 15

Origliasso v Vitale [1952] St R Qd 211

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355

R v A2 (2019) 373 ALR 214

R v Agius [2015] QCA 277

R v Knight (1988) 35 A Crim R 314

Rejfek v McElroy (1965) 112 CLR 517

Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550

Slaveski v Victoria [2010] VSC 441

Wilson v Pringle [1986] 2 All ER 440

COUNSEL:

AG Melick SC and R Broomhall for the appellant

MJ Copley QC and AI O'Brien for the respondent

SOLICITORS:

Butler McDermott Lawyers for the appellant

Corrs Chambers Westgarth for the respondent

Introduction

  1. [1]
    By notice of appeal filed on 21 February 2020, the appellant seeks relief in respect of orders made in the Magistrates Court at Maroochydore on 23 January 2020.  First, in respect of the order of dismissal of a complaint made by the appellant against the respondent pursuant to s 5 of the Peace and Good Behaviour Act 1982 (“PGBA”) and secondly, as made pursuant to s 9 of the PGBA and s 158 of the Justices Act 1886, that the appellant pay the costs of the respondent in the total amount of $136,000.00, more specifically identified as sums of $20,000.00 for experts, $80,000.00 for solicitors and $36,000.00 for counsel.
  2. [2]
    The grounds of appeal are set out in the notice, as follows:
  1. “1.The learned Magistrate erred in law by failing to hear the evidence before dismissing the complaint as is required pursuant to section 7(3) of the Peace and Good Behaviour Act 1982. 
  2. 2.The learned Magistrate erred in law and in fact by failing to apply and sufficiently consider the complainant’s fear of damage to his property as outlined in the complaint and its supporting affidavits and as provided for by section 5(2) of the Peace and Good Behaviour Act 1982.
  3. 3.The learned Magistrate erred in law and in fact by failing to apply and sufficiently consider the evidence of a threat as he is required to do on an application or complaint under section 7(3)(a) of the Peace and Good Behaviour Act 1982.
  4. 4.The learned Magistrate erred in law by ruling that the defendant is not a person for the purposes of the Peace and Good Behaviour Act 1982.
  5. 5.The learned Magistrate erred in law by dismissing the complaint without first accepting and then considering the evidence as is required to make an order for dismissal pursuant to section 7(3)(a) of the Peace and Good Behaviour Act 1982.
  6. 6.The learned Magistrate erred in law by failing to find and sufficiently consider that the complainant who fairly and honestly laid the facts on which he relied in his complaint and on which he based his suspicions before a justice who then ordered the issue of a summons is not liable for the exercise of the justice’s discretion.
  7. 7.The learned Magistrate erred in law by over failing to find and sufficiently consider that the summons that was issued and ordered by a justice of the peace was reasonable and made in good faith after the complaint was made before the said justice and substantiated to the justices satisfaction pursuant to s 5(2A) of the Peace and Good Behaviour Act 1982.
  8. 8.The learned Magistrate erred in law and in fact by failing to consider that the complainant acted in good faith as he was legally represented by both a solicitor and counsel.
  9. 9.The learned Magistrate failed to give sufficient reasons for the making of the order as to why the complaint proceeding was not brought and continued in good faith and that it was an abuse of process.
  10. 10.The learned Magistrate erred in law in that the complainant was denied procedural fairness when the learned magistrate made the decision to dismiss the complaint before potentially relevant evidence could be admitted and/or tested.
  11. 11.The learned Magistrate erred in law in that the complainant was denied procedural fairness as the complainant’s counsel was repeatedly interrupted and diverted from his submissions by the learned Magistrate, effectively rendering him unable to complete the submissions he was attempting to make to the Court.
  12. 12.The learned Magistrate erred in law by failing to give sufficient reasons as to what is just and reasonable in the making of the order as to costs adverse to the complainant.
  13. 13.The learned Magistrate erred in law and in fact by awarding costs that were unnecessary and inappropriate in the circumstances, costs at a level beyond those that the defendant was seeking.
  14. 14.The learned Magistrate erred in law and in fact in that the costs order was grossly excessive given the facts of the case and the material before his honour.”
  1. [3]
    The appeal is brought pursuant to s 222(1) of the Justices Act 1886.[1]  Pursuant to s 223 of that Act, such an appeal is, subject to the admission of “new evidence”, to be conducted as a “rehearing on the evidence …given in the proceeding [below]”, often described as a rehearing upon the record of those proceedings. The primary obligation of an appellate court in respect of such an appeal was described in Robinson Helicopter Co Inc v McDermott:

“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”.[2] (citations omitted)

Ultimately, such review is for the purpose of determining whether any remedy should be allowed by exercise of the powers of the Court pursuant to ss 225 and 226 of the Justices Act 1886.

  1. [4]
    A starting point is in ascertaining the record which is to be reviewed and here there was some necessity, at the outset and in the circumstances as to how the hearing on 23 January 2020 was conducted, to identify what comprised the relevant record. That was also necessary because of the application flagged in the notice of appeal for admission of “new evidence” or “to put further evidence before the Court”, being affidavits identified as having been filed in the Magistrates Court on or before 23 January 2020. Before turning to what occurred in the proceedings below and by way of explanation of the complications involved, it suffices to note that ultimately there was agreement between the parties that indexes marked as Exhibits 1 and 2 identified the composition of the record for the hearing of this appeal.[3] In addition to the primary court documents including the complaint and summons, filed 25 November 2019 and an application for directions hearing, filed 13 December 2019, transcripts of the proceedings conducted on 19 December 2019 and 23 January 2020, a copy of the Verdict and Judgment Record   for 23 January 2020 and the notice of appeal and outlines of argument originally filed in this Court, that included all of the affidavits filed by the parties in the Magistrates Court on or before 23 January 2020. Accordingly, there remained no necessity for any application for new evidence.

The complaint

  1. [5]
    The complaint which was filed by the appellant in the Magistrates Court on 25 November 2019, alleged that the respondent company:

“ … has threatened:

  1.  
  1. (a)
    to assault or to do any bodily injury to the complainant or to any person under the care or charge of the complainant
  1. (b)
    to procure any other person to assault or to do any bodily injury to the complainant or to any person under the care or charge of the complainant
  1. (c)
    to destroy or damage any property of the complainant
  1. (d)
    to procure any other person to destroy or damage any property of the complainant

and the complainant is in fear of the person complained against, namely, NBN Co Limited (ACN 136 533 741) (the defendant). 

OR

  1. 2.that the intentional conduct of NBN Co Limited (ACN 136 533 741) (the Defendant) directed at the complainant has caused the complainant to fear that the defendant will destroy or damage any property of the complainant.”[4]

It may be noted that these contentions simply adopt the terms of s 5(1) and (2) of the PGBA and which provide:

  1. “(1)A person (the complainant) may make a complaint to a justice of the peace that a person has threatened—
  1. (a)
    to assault or to do any bodily injury to the complainant or to any person under the care or charge of the complainant; or
  2. (b)
    to procure any other person to assault or to do any bodily injury to the complainant or to any person under the care or charge of the complainant; or
  3. (c)
    to destroy or damage any property of the complainant; or
  4. (d)
    to procure any other person to destroy or damage any property of the complainant;

and that the complainant is in fear of the person complained against (the defendant).

  1. (2)
    A person (also the complainant) may make a complaint to a justice of the peace that the intentional conduct of a person (also the defendant) directed at the complainant has caused the complainant to fear that the defendant will destroy or damage any property of the complainant.”
  1. [6]
    The grounds of that complaint are initially expressed in terms that:

“1. On or about 3 July 2019, the Defendant in conjunction with, Singtel Optus Pty Limited (ACN 052 833 208), Vodafone Hutchison Australia Pty Limited (ACN 096 304 620) and their respective subsidiaries and agents (the Carriers) had formed the common intention to install and operate a mobile telecommunications facility known as the proposed wireless mobile base station to be erected at Peachester, Road Reserve (near Junction of Old Peachester Rd, PEACHESTER QLD (the facility) and as cited in the Radio Frequency National Site Archive (the RFNSA) site number 4519005.”[5]

And are subsequently elaborated in reference to various legal principles and matters of fact, including in the latter respect:

  1. (a)
    References to the appellant’s observations as to work being undertaken in the construction of the mobile telecommunications facility, between June and November 2019;
  2. (b)
    Contentions as to concern in respect of the health implications of the installation, in the following terms:

“37. If the Complainant is exposed to electromagnetic radiation he usually suffers adverse health symptoms after exposure. The exposure time usually occurs in short half hour bursts. The symptoms after exposure to these short bursts of electromagnetic radiation can last at least two days or more depending on the length of exposure to the electromagnetic radiation. 

38. The Complainant is of the belief and is in fear that his children and himself will be permanently subjected to electromagnetic radiation exposure 24 hours a day, every day when the defendant and its fellow Carriers turn on the Facility. When that occurs he has a rational fear that the following symptoms he usually experiences with short term exposure will remain and not abate and be exacerbated. 

a. Debilitating migraine headaches (lasting more than 4 days)

b. Right-sided and left sided tinnitus

c. Nausea

d. Extreme fatigue

e. Insomnia

f. Cognitive impairment inclusive of Aphasia (inability to speak or think clearly)

g. Co-ordination problems

h. Pain in the face

i. Heart palpitations

j. Feelings that his brain is inflamed or burning

k. Intense eye pain

l. Change in temperament and personality (outburst of anger or tears)

m. Tingling and numbness to the face

n. Anxiety

o. Depression.”[6]

  1. (c)
    Contentions as to the appellant’s home being rendered “uninhabitable”, in the following terms:

“39. Pursuant to section 11(d) of the Environmental Protection Act 1994, electromagnetic radiation is classed as a contaminant and pursuant to section 10 of the said Act contamination of the environment would occur if electromagnetic radiation were to be released into the environment and upon the Complainant’s land. 

40. An EME Report concerning of the Facility published by the Defendant on the RFNSA website indicates that the Complainant’s residence (which is situated 350 metres from the Facility) will be irradiated and contaminated by the Defendant and the other Carriers with an electrical field of 4.021 volts per square metre and with a power density of 42.89mW per square metre. 

41. The Complainant fears that if his house and land is contaminated with electromagnetic radiation he will not be able to use it for the purpose it was built and purchased for.  To be suitable for habitation a house must be a safe shelter to protect the occupants from bad weather and danger.  His house has a roof, walls, doors, windows and locks designed to shield himself, his children and goods from harm.  However, the Complainant’s house and land will no protect his family from a neighbour’s intentional attack on their persons from electromagnetic radiation. 

42. The Complainant’s rational fear is that his neighbour, namely the Defendant intends to irradiate and contaminate his property with electromagnetic radiation which will cause his home to become harmful to his health and wellbeing and also his children and thus render it uninhabitable.”[7]; and

  1. (d)
    Contentions as to interference with the enjoyment of his land, in the following terms:

“43. The Complainant has the legal right to the enjoyment of his land without the interference of neighbours (such as the Defendant) and he fears that the Defendant in conjunction with its fellow Carriers intends to create an unlawful nuisance against him. 

44. The Complainant fears that the Defendant will interfere with his enjoyment of his land by applying no [sic] consensual force against his person and his land in the form of electrical energy which he rationally believes will cause him to suffer harm and damage.”[8]

Finally, and under the heading “Prayer for Relief”, it is contended:

“49. From the time the Complainant became aware of the Defendant’s intention he has suffered great anxiety, distress and fear, on the understanding that electromagnetic radiation has such a deleterious effect on him and knowing that this radiation is harmful because of that effect.

50. The Complainant’s distress has been exacerbated by the fact that his two young children (under his care) who will be effected [sic] by the radiation from the facility and who are also at real and ration [sic] risk of suffering bodily harm at the hands of the Defendant.

51. The Complainant is of the belief that the Defendant has the intention and the means to carry out the threats as raised above.

52. It is for these reasons and as mentioned above that he is in fear of the Defendant and its fellow Carriers, that the Defendant has procured to assist and therefore he seeks the following orders:

a. That the Defendant keep the peace and be of good behaviour for a period of two years.

b. That the Defendant not assault, threaten violence or threaten to assault, the complainant.

c. That the Defendant not release electromagnetic radiation from the mobile telecommunications facility known as proposed wireless mobile base station to be erected at Peachester, Road Reserve (near Junction of Old Peachester Rd, Peachester, Queensland and as cited in the Radio Frequency National Site Archive site number 4519005 onto the complainant’s property at 45 Neill Road, Peachester, Queensland.”[9]

  1. [7]
    The orders sought by the appellant may be seen as referable to the powers given to a court pursuant to s 7 of the PGBA, in the following terms:

“7. Magistrates Court may make order

  1. (1)
    The court before which the defendant appears in obedience to the summons or is brought pursuant to the warrant, as the case may be, shall hear and determine the matter of the complaint.
  1. (2)
    Without limiting any other evidence given by or on behalf of the defendant, the defendant may produce evidence that the complaint is made from malice or for vexation only.
  1. (3)
    Upon a consideration of the evidence, the court may—
  1. (a)
    dismiss the complaint; or
  1. (b)
    make an order that the defendant shall keep the peace and be of good behaviour for such time, specified in the order, as the court thinks fit.
  1. (4)
    The order made by the court may contain such other stipulation or conditions as the court thinks fit.”

The proceedings in the Magistrates Court

  1. [8]
    When the complaint first came before the Magistrates Court, on 19 December 2019, in accordance with the summons issued by a Justice of the Peace on 25 November 2019, counsel for the respondent drew attention to an application for permanent stay of the proceedings, which had been filed by the respondent on 16 December 2019.  As was then explained to the Court and has remained at the position of the respondent, the application for stay of the proceedings was premised upon a contention that the proceedings on the complaint were inevitably doomed to fail as being an inappropriate attempt to engage the PGBA and were in that sense, an abuse of the process of the Court.[10]
  2. [9]
    In the context of the appellant otherwise pressing the urgency for determination of his complaint, the matter was then adjourned to 23 January 2020 for hearing including as a preliminary issue, the application for the stay of proceedings.[11] 
  3. [10]
    However, and providing some understanding of the extent of the grounds of appeal which have been noted, when the matter came before the Magistrates Court on 23 January 2020, the hearing in respect of the matter was conducted somewhat perfunctorily and irregularly.  Immediately after appearance for the parties had been announced, the presiding Magistrate had the following exchange with counsel for the appellant:

“BENCH:    It’s your application; you’re the complainant.

MR BROOMHALL: Yes, your Honour.

BENCH:    Yes.

MR BROOMHALL: Yes, but there’s actually been interlocutory application made by my friend in regards to have the matter stayed.  So the substantive matter is – hasn’t really been addressed yet so it’d be just the – my friend’s issue to start with.  I ---

BENCH:  Where’s the threat?

MR BROOMHALL: Your Honour?

BENCH:  Where’s the threat?

MR BROOMHALL:  The threat is that there’s medical evidence that indicates that my client, Mr Evans ---

BENCH:  That’s his perception. 

MR BROOMHALL: The threat is the ---

BENCH:   There’s no real identifiable threat. 

MR BROOMHALL:  With respect, your Honour, I can embrace that in my submissions in regards to ---

BENCH:  Keep going. 

MR BROOMHALL:  Yes. Your Honour, would you like me to commence ---

BENCH:  Just talk to me about the threat.”[12]

Counsel then proceeded to draw attention to s 245 and s 74 of the Criminal Code (Qld) and also the process whereby the Justice of the Peace had considered the complaint and determined to issue the summons.  There followed this further exchange:

“BENCH:   Let’s talk about person. 

MR BROOMHALL: Yes, your Honour. 

BENCH:    Okay.  You say that this – the entity ---

MR BROOMHALL: Yes.

BENCH:    --- NBN, a corporation, can be ---

MR BROOMHALL: That’s right.

BENCH:  --- is defined as a person because of the provisions in the Criminal Code.

MR BROOMHALL: That’s correct, your Honour. 

BENCH:  Again, you’re wrong, like you are with respect to the threat, for these reasons: in those provisions, they’re provisions or definitions and law about holding corporations accountable for offences, okay.  Criminal responsibility.  The NBN in this situation is not a person. 

MR BROOMHALL: With respect, your Honour ---

BENCH:    They haven’t been charged with an offence. 

MR BROOMHALL: No, they haven’t been charged but there’s certainly been summons to appear by a justice, your Honour.  And the issue is ---

BENCH:   Mr ---

MR BROOMHALL: Broomhall.

BENCH:  --- Broomhall, well, just sit down for a sec.  What do you want to say to me about what I’ve been talking about?”[13]

Counsel for the respondent then commenced by contending “it’s an obvious abuse of process”[14], drew attention the fact that the appellant had “made a properly-made submission under the Planning Act[15] and had rights of appeal under that Act.  However when specifically asked by the Magistrate about “the submission from the complainant about the NBN being a person”[16] it was expressly conceded that “the expansive definition of person under the Acts Interpretation Act … could capture a corporation”[17].  There was then the following exchange:

“BENCH:   Maybe.

MR O'BRIEN:  But in terms of – a corporation actually committing an assault, it obviously acts through other persons. 

BENCH:  But that Acts Interpretation Act runs off the back of a definition in the Code. 

MR O'BRIEN:  Quite so. So what – your Honour is right to ---

BENCH:   So you got to get through that first.

MR O'BRIEN:  A company can’t commit an assault.  It acts through someone to commit the assault.  But if the company are - for example, own infrastructure, which this is, then we accept that for the purposes of an application under the Peace and Good Behaviour Act, an order could theoretically be made against NBN. 

BENCH:  Well, I don’t believe that it could because of the issue to do with the threat.

MR O'BRIEN:   Assault. Yeah, 100 per cent about the threat. 

BENCH:   For a start. 

MR O'BRIEN:  Yes. You know, if this were a charge of assault, it would confront many problems, not the least of which is establishing the mens rea so as to commit a deliberate assault against Mr Evans. This is conduction the tower under the lawful authorities of the Planning Act through a process by the local democratically elected shire council. We say the neater argument to it, your Honour, is this, your Honour, is this: is that he’s got implied consent that he can’t revoke because he lives in the community.  He uses email.  He has a mobile phone. 

BENCH:  Mr Broomhall, you can respond if you like to me in any way you want about what we’ve just been talking about. 

MR O'BRIEN:  Your Honour, I have some written submissions.  Would it help if I handed those up or ---

BENCH:  You can hand them up and Murphy’s Law applies. My clerk’s not here. You’ve obviously received these---”[18]

Counsel for the respondent was then called upon for response. In the course of those further submissions, the Magistrate sought to clarify what order could be made on the complaint, as follows:

“BENCH:  ... what if an order was made?  What would the order say?

MR BROOMHALL: To restrain the – to stop them from – well, the – exactly what says in the actual complaint, your Honour, to restrain for a period of time for emitting electro-mag radiation onto my client’s property – nowhere else, just on the property.  It’s not for walking down ---

BENCH:   Where’s the ---

MR BROOMHALL: ---- the street. 

BENCH:  Where does that – that part of the order that is required if a court is satisfied on the balance of probabilities that the – that a person has threatened a – to either assault or damage property to the complainant? 

MR BROOMHALL: Well, it’s by their conduct. 

BENCH:  Where does the usual order that then follows that the respondent’s to be of good behaviour to the complainant for a period of 12 months?

MR BROOMHALL: Yes. 

BENCH:  So are you saying that if an order was made that the respondent be of good behaviour towards the complainant for 12 months?

MR BROOMHALL: Yes. 

BENCH:  That means that the complainant is prohibited from emitting electro-magnetic waves from the tower.

MR BROOMHALL: Onto their property, your Honour.

BENCH:   Onto their property. 

MR BROOMHALL: They can emit it anywhere else but the issue is he does not consent to his home and to his family, including himself to be eradiated by a contaminant – which it technically is a contaminant – electro-magnetic radiation, which is electrical energy, onto his person. 

BENCH:   Okay. 

MR BROOMHALL: And he’s – and onto his property because it – he is actually hypersensitive to this stuff, your Honour.  And that’s it. 

BENCH:   Alright.

MR BROOMHALL: And he’s come to Court to seek some [indistinct] or some remedy to this, your Honour.

BENCH:   Well, if that’s it, you can take a seat.

MR BROOMHALL: Well, there is a lot more I’d like to ---

BENCH:  Well, I’ve got – I’ve been through a lot of the material.  It’s voluminous. And ---

MR BROOMHALL: Not on our part, your Honour. 

BENCH:   --- I think – sorry?

MR BROOMHALL: Not on our part.  We’ve only given you some affidavits and some evidence, your Honour.

BENCH:  I don’t need to hear anything else, okay. Take a seat.”[19]

Albeit belatedly and at the instigation of counsel for the respondent, there then followed some identification of the materials which had been filed by the parties.  And following that, the Magistrate announced his order, with some brief reasons, as follows:

“I’m not of the opinion that the construction – the approved construction of the NBN tower amounts to a threat. I’m not of the opinion the respondent, NBN, is a person for the purposes of the Peace and Good Behaviour Act.  I’m of the view that the filing of the compliant effectively acts or is an abuse of process.  I am satisfied, given that, there is, in my view, an absence of a threat, be it direct or indirect or in any other way.  And as I’ve said, I am not satisfied that the respondent is a person for the purposes of the Act.  The filing of it, the process, itself, is, in my view, incompetent and it’s dismissed.”[20]

  1. [11]
    The issue of costs was then addressed, with the Magistrate bringing that to a conclusion without then ruling upon or admitting a document tendered for the respondent and objected to for the appellant, as follows:

“I have already made my decision and unfortunately for the complainant, I’ve made some findings or an opinion that this is an abuse of process.  It is, indeed, complex, made complex by the complainant.  It is, as I have already found, in my view, an incompetent process for the reasons that I’ve given and I will reiterate them now: (1)              there’s no evidence, in my view, of the threat that’s required pursuant to – consider an application or the complainant of a Peace and Good Behaviour Act to make an order, and secondly, I’m of the firm belief that as an entity, despite – and upon consideration of the definition within section 1 of the Criminal Code as to what constitutes a person, and in the circumstances – some circumstances, because of criminal responsibility, offences and prosecutions under the Criminal Code, corporations, proprietary limited companies, can be punished as person could. 

And so there’s then a connection to the Acts Interpretation Act from that point to that definition contained in the – that Act about the definition of a person.  But I have found it and I am of the firm belief that for the purposes of the Peace and Good Behaviour Act, that the respondent, the NBN, and the company is not a person as defined. In respect to the application to adjourn the issue of – or consideration of costs, it’s refused.  In respect of the application for costs pursuant to s 158 of the – A of the Justices Act, there’s some considerations as to the amount of costs that a court would order in the circumstances. Importantly, of course, in deciding what is proper to make the order for costs, there are issues to take into account.  

The first item to consider is found in subsection (2)(a), whether the proceeding was brought and continued in good faith. I have made a decision that it was an abuse of process. In that regard, I’m making orders in respect of costs that the – upon dismissal, that the complainant pay to the respondent costs in the amount of $20,000 for experts, 80,000 for solicitors and counsel, 36,000.  There’s a total of $136,000 in costs…”[21]

The issues

  1. [12]
    By his appeal to this Court, the appellant seeks not only the setting aside of the orders made on 23 January 2020 but also the hearing and determination of his complaint upon the materials that were filed for that purpose in the court below.
  2. [13]
    For the respondent, it is appropriately conceded that the Magistrate erred in respect of the amount of the costs awarded. Whilst it is maintained that the Magistrate was correct to award costs of the hearings on 19 December 2019 and 23 January 2020, to the respondent and at a “higher amount”, having regard to grounds of special importance and complexity,[22] it is only pressed that it have its costs in accordance with the scale contained in the Justices Regulation 2014 and in the amount of $1,750.[23] And no contrary contention was raised by the appellant, should the appeal otherwise not succeed.
  3. [14]
    It is also conceded that other errors might be found in the conduct of the proceedings below, including that:-
    1. (a)
      although there were express references to the Magistrate having considered the filed material, there was only belated acknowledgment as to what those materials were and a failure of any findings as to the factual basis upon which the Magistrate acted to make the findings which he so briefly articulated as foundation for the orders made; and
    2. (b)
      there was an absence of any expressed conclusion in respect of the alternative matter of complaint, being the additional allegation pursuant to s 5(2) of the PGBA, that the respondent had engaged in intentional conduct directed at the appellant causing him to fear that the respondent will destroy or damage his property.
  4. [15]
    For the respondent, it was also appropriately conceded, as it had before the Magistrate, that the use of the word “person” in s 5 of the PGBA does not exclude the operation of s 32D of the Acts Interpretation Act 1954, so that a corporation may, where appropriate, be such a person.[24]
  5. [16]
    Otherwise, the respondent contends that the Magistrate was correct to dismiss the complaint, effectively because of what it maintains are fundamental misconceptions as to the applicability of the PGBA to the appellant’s complaint. It is correctly pointed out that s 7(3)(a) of the PGBA expressly provides such a power, exercisable in respect of the function set out in s 7(1) to “hear and determine the matter of the complaint”.  As noted in Laidlaw v Hulett; ex parte Hulett:[25]

“Although s. 4 refers to a defendant ‘answering’ the complaint, the procedure contemplated by s. 6(1) at the second stage is a hearing and determination of the ‘matter of complaint’.  That expression is used in s. 4 to describe the pre-requisites for jurisdiction specified in paras (a) to (c) along with the further requirement that the complainant be shown to be ‘in fear’ of the defendant.”[26]

  1. [17]
    Although the Magistrate expressed a conclusion that the complaint involved “abuse of process” his determination was ultimately expressed in terms of “dismissal” of the complaint rather than “staying” it.  That is, in terms of the exercise of the function to hear and determine that complaint, which necessarily should entail the identification of the factual basis for the legal conclusion involved.
  2. [18]
    Further and in terms of the hearing and determination of that complaint, as ultimately sought by the appellant in this Court, it was understood that it was expected that such would occur upon the evidence in the filed affidavits and it was expressly indicated on both sides, that no cross-examination of any deponent was required.  This was despite acknowledgment of there being an evidential dispute, as is noted below, as to the implications and effect of the appellant’s hypersensitivity to electromagnetic radiation and further, without any attention, in the submissions, as to how any such evidential conflict was to be resolved. Nor was there particular attention paid to a matter left open and undecided in Laidlaw v Hulett; ex parte Hulett, as to whether the “matter of the complaint” to be heard and determined does or does not require any consideration of reasonableness of the fear of the complainant.[27] It may be noted that in the course of submissions, the position for the respondent was expressed as follows:

“Now, there may well be ample evidence to suggest that the complainant is fearful.  Whether his fears are rationally based or not perhaps is not even relevant for the purposes of the section.  It might be sufficient if a person subjectively and, indeed, fervently holds a fear about someone.”[28]

Nor was there any submission directed at any discretionary consideration, as might arise pursuant to s 7(3)(b), as to the relief sought by the appellant or the terms of any such order.

  1. [19]
    Rather, the issues joined upon the appeal were those in respect of the respondent’s contention that the ultimate conclusion of the Magistrate, to dismiss the complaint, should be upheld.  In the first instance, that was contended upon the basis that the Magistrate was correct in the identification of the first and main issue which concerned him and as reflected in his decision as to the absence of a relevant threat. But the contentions extend further to encompass the following issues or questions:
    1. (a)
      Has the respondent threatened to do any of the things identified in s 5(1)(a) to (d) of the PGBA?;[29]
    2. (b)
      Has the respondent engaged in intentional conduct directed at the complainant and caused fear that it will destroy or damage any property of the complainant?; and
    3. (c)
      Whether there is a requirement or implication in s 5(1) and (2) of the PGBA that a respondent has threatened to act in an unlawful way?[30]
  2. [20]
    As may be seen, these questions are not directly reflective of the express grounds of appeal, save for grounds 2 and 3.  They are nevertheless a distillation of the issues arising as the oral submissions made on the appeal hearing were developed, and calculated to advance what the parties sought as to the hearing and determination of the complaint in this Court.[31]  In short, there is no necessity to traverse or deal with each of the separately expressed grounds of appeal, mainly because of what has been noted as the conceded errors in the conduct of the hearing below and some of the Magistrate’s conclusions. 
  3. [21]
    In order to determine the identified questions, it is, however, necessary to understand the facts in respect of which they arise. In the circumstances and consistently with the approach of the parties, that must necessarily be upon the basis of the facts upon which the appellant relies and upon which his complaint is premised. As it is properly understood, the respondent’s position is that these facts simply do not allow for answers to the identified questions such as to allow for any order to be made pursuant to s 7(3)(b) of the PGBA. Although and as will be noted, there are also substantial contests as to aspects of this material which are raised by the respondent.

The factual basis of the complaint

  1. [22]
    As it was identified for the hearing of this appeal, in the appellant’s written submissions and elaborated in reference to the grounds set out in his complaint and the supporting evidence, the factual basis for his complaint is that:
    1. (a)
      He residence at 45 Neill Road Peachester and resides there with his two young daughters.[32]
    2. (b)
      The effect (the appellant contends it is the intention of the appellant) of the appellant’s construction and proposed use of a telecommunications facility, being a fixed wireless facility to enable provision of fixed wireless coverage to the hinterland village of Peachester and its rural surrounds and parts of rural Beerwah, consisting of the erection of a 40 metre high pole, radio transmission equipment and a shelter,[33] is to irradiate the appellant’s land and residence with non-ionising electromagnetic radiation via an electrical field of 5.88 volts per square metre and a power density of 91.82mW per square metre.[34]
    3. (c)
      On 10 May 2019 the appellant was examined by an independent psychiatrist, Dr Quentin Mungomery. The appellant presented with a history of having experienced psychological difficulties consistent with an adjustment disorder of mixed anxiety and depressed mood, due to various managerial actions taken in his workplace in 2017.  It was identified that this was associated with accommodating his firmly held concerns about being physically harmed by excessive exposure to Wi-Fi electromagnetic radiation in his workplace.[35] 
    4. (d)
      In his affidavit sworn 25 November 2019 and in support of his complaint, the appellant identified that on or about 3 July 2019 he became aware of the proposed construction of a mobile telecommunications facility to be located about 350 metres from his residence.[36]  He then states that:

“I am aware that the Facility is being installed for the purpose of releasing microwaves (electromagnetic radiation) into the environs, onto my person, my children, and onto my residence.”[37]

He refers to a published “EME Report concerning … the Facility on the RFNSA website”,[38] which indicates his residence “will be irradiated and contaminated by the Defendant with an electrical field of 4.021 vaults per square metre with a power density of 42.89mW per square metre.[39] (That report is exhibited as “DE-1” to his affidavit).  He then states:

“It is my belief that the Defendant intends to prosecute an unlawful common purpose with the Carriers to assault me and my children in our home by applying force without our consent by irradiating with non-ionising electromagnetic radiation.”[40] (Specific reference is then made to the provisions of s 245 of the Criminal Code (Qld)).

  1. (e)
    In the context of his references to his awareness of commencement of work at the site from 11 June 2019 and the continuation of that work, he refers to sending, on 20 June 2019 to the defendant and others, an objection notice in which he stated that he did not give consent to them releasing electromagnetic radiation onto his residence or his person.[41]  The exhibit marked “DE-2” to his affidavit comprises copies of email correspondence in this respect, which includes supporting materials including a report prepared by Dr Cooper, dated 3 June 2019,[42]  which after setting out the genesis of that report, describes as follows:

“You have specifically consulted me acting on advice from the ARPANSA website section Electromagnetic Hypersensitivity where it states: ‘ARPANSA acknowledges that the health symptoms experienced by affected individuals are real and can be a disabling problem, and advise those affected to seek medical advice from a qualified medical specialist.’

You suffer symptoms related to exposure to radiofrequency electromagnetic radiation (RF-EMR). These symptoms became apparent about 5 years ago after constant work exposure to radio-frequency electromagnetic radiation (RF-EMR) emitting WIFI routers which transmit in the low GHz frequency bands (2.4 GHz and 5.0GHz).

You describe your symptoms as headaches, prickling scalp neuralgia, extreme fatigue, feeling unwell and loss of cognitive function where previously simple tasks became impossible to manage. When exposed to the WIFI router transmissions you describe becoming very anxious and agitated. You had difficulty ‘interacting with your children. Leaving work, the symptoms would slowly disappear only to return the next day. The situation became untenable and you had to leave work permanently. Your home has been the only place you have felt safe, as you can completely control your exposure to RF-EMR in your home.  The proposed wireless base station transmissions have eroded your sense of safety and privacy and feel the RF-EMR will violate the sanctity of your home. 

You advise me that you are experiencing extreme anxiety and emotional distress which you feel is due to the impending erection of another RF-EMR emitting device so close to where you and your family live. You are concerned that the close proximity to the wireless base station, may jeopardize your health further and the health of your children as well.

In this context, you are deeply concerned that the additional RF-EMR just 350 metres from your home could damage your fragile health.”[43]

After some extensive review of the technicalities involved and what is available as research in relation to the effects of electromagnetic radiation, it is stated:

“In conclusion, it is my professional opinion, that placing the proposed wireless base station for Peachester, Road Reserve (near Junction of Old Peachester Road, PEACHESTER QLD 4519), would increase the Power Density to 42,890uw/m3 and the field strength to 4.021V/m.  The Power Density and the Field Strength proposed calculations of the additional NBN Co transmitters up to 19.59GHz are not forthcoming, but is likely to increase the ambient Power Density and Field Strength many fold. 

It is my professional opinion that you, and children are at risk of an array of health hazards due to the immediate proximity of the RF-EME radiation emitting device and the highest power densities as per the Environmental EME (Electro Magnetic Energy) Report provided by NBNCo, dated 02-02-2018 RFNSA Site No. 4519005.  It is likely that it will be inside at least 42,890 times the Austrian Medical Association recommendations along with the German Building Biologist recommendation that residents should not sleep in more than 10 microwatts per metre squared and should endeavour to live in 1uW/m2 or less and tha even stricter BioIniative recommendation of 0.3uW/m2.  To account for the vulnerability of children and their additional risks of proven higher brain absorption of RF-EMR, as well as for chronic long term exposure, a further factor reduction of approximately 10 fold is applied lowering the maximal BioInitiative level for children to 0.03uW/m2.”[44]

The conclusion to the report is stated as follows:

“In line with the above it is incumbent upon the purveyors of the RF-EME technology and equipment and activation of such RF-EME systems, in your case NBNCo, and the carrier NBNCo and Optus to ensure the proposed wireless base station transmitters, proposed for Peachester, Road Reserve (near Junction of Old Peachester Road, PEACHESTER QLD 4519, do not represent a risk to the health and safety of third parties (residents) who may be affected by them.

Since you suffer from EHS, and have specially chosen to live long term in the sanctity of your home at 45 Neill Rd, PEACHESTER QLD. it would be a disaster for you, if you or your children any member fell unwell as a result of RF-EMR exposure. This is particularly relevant to you, being electromagnetically hypersensitive. 

Applying the Precautionary Principle, I cannot envisage the current and proposed RF-EMR emitting antennae being safe for you living at 45 Neill Rd, PEACHESTER QLD. In fact, quite the opposite, it is my professional opinion that the radiation will endanger your health. 

Should the erection and activation of the 3G, 4GX and 5G wireless mobile based station go ahead, in my professional opinion with 15 years of specialized practice caring for sufferers of Electromagnetic Hypersensitivity, that the emissions from this proposed base station will injure the fragile health which you have worked so hard to attain and maintain. The proposed erection and activation of these transmitters ranging 0,7GHz to 19.59GHz frequency band transmitters, is a non-consensual ‘invasion’ of your health in the sanctity and peace of your appointed place of residence.  There may well be medical and legal ramifications.

My conclusion that you, Mr Evans, an Electromagnetic Hypersensitivity sufferer, and your children living in close proximity of the proposed wireless mobile base station to be erected at Peachester, Road Reserve (near Junction of Old Peachester Rd, PEACHESTER QLD 4519, are at extreme risk of harm to your health due to your hypersensitivity to RF-EMR and the immediate proximity of your home to the proposed and existing base stations.”[45]

  1. (f)
    In the context of the appellant’s reference to his observations of ongoing construction work in respect of the tower, he exhibits, a bundle of correspondence with the respondent, as Exhibit DE-3 to his affidavit, and for present purposes it may be noted that particular emphasis is placed upon the ultimate response of the respondent on 26 July 2019, which states that after consideration of the appellant’s objection:

“However, unfortunately, the objection does not warrant the removal or relocation of the tower that has commenced construction.”[46]

Further and in the context of reference to the respondent’s understanding of aspects of the public health and safety standards applicable to their conduct and scientific research upon which such standards are based, the stated position was that:

“The citation of individual papers does not undermine the rigorous, weight-of-evidence, approach that is undertaken by public health authorities when establishing safety limits.”[47]

Specific reference is made to the following:

“Further, while the current standard, Radiation Protection Standards for Maximum Exposure Levels to Radiofrequency Fields – 3 kHz to 300 GHz (RPS3), was introduced to Australia in 2002, in June 2014 an independent, expert Review Panel reconfirmed the adequacy of the standard following a detailed assessment of recent scientific literature.  ARPANSA advises that its Review Panel considered more than 1300 separate pieces of scientific literature as well as the results of 72 major panel reviews.  ARPANSA states:

‘Based on the assessment of the scientific evidence from January 2000 till August 2012, the Expert Panel find that the underlying basis of the ARPANSA RF Exposure Standard remains sound and that the exposure limits in the Standard continue to provide a high degree of protection against the known health effects of RF electromagnetic fields.’

ARPANSA also constantly evaluates emerging science, publishing a Literature Survey which is updated monthly, and is available on their website…”[48]

In conclusion it was recommended that the appellant raise his concerns with ARPANSA and with the Australian Communications Media Authority (ACMA) “who are more appropriate bodies to consider your concerns regarding the health effects of EME and the adequacy of its regulation”.

  1. [23]
    It is convenient, at this point, to note that on the basis of materials filed by the respondent, it maintains a position that it is acting within lawful parameters in respect of the telecommunications facility:
    1. (a)
      On 25 July 2018, the development, in terms of the use of such a facility, was approved by the Sunshine Coast Regional Council, subject to conditions including that:

“The Telecommunications facility must at all times comply with licence conditions imposed by the Australian Communications and Media Authority relating to the limitation of radiofrequency electromagnetic energy emissions in accordance with the Radiation Protection Standard for Maximum Exposure Levels to Radiofrequency Fields -3kHz to 300 GHz (2002), or as amended.”[49]

  1. (b)
    In the planning report accompanying the development application for the proposed Fixed Wireless Facility, it is noted that the proposal is described as being for the purpose of providing “fixed wireless coverage to the hinterland village of Peachester and its’ rural surrounds, as well as parts of rural Beerwah”.[50]
  2. (c)
    An electromagnetic energy report (EME Report) also accompanying the development application stated that:
    1. The Australian Radiation Protection and Nuclear Safety Agency, a Commonwealth Government agency, had established a Radiation Protection Standard specifying limits for general public exposure to radio frequency electromagnetic energy (EME), used by wireless base stations.
    2. Using the procedure for calculations provided by that agency, the maximum EME level calculated for the proposed systems at the site was equivalent to 0.1% of the public exposure limits,[51] which was 1000 times below the maximum available safety limit.[52] 
    3. The EME level at places 300 to 400 metres from the site was 0.096% of the public exposure limit.[53]
  3. (d)
    Further, and pursuant to s 56(1) of the Telecommunications Act 1997 (Cth), the respondent was granted a carrier licence, subject to various conditions.[54]  The respondent was licenced to operate various apparatus from the site at Peachester, subject to the conditions set out in the Radio Communications Act 1992 (Cth).[55]  It is pointed out that pursuant to s 107 of the Radio Communications Act, it is provided that an apparatus licence is subject to various conditions, including pursuant to ss (1)(f) such conditions (if any) as the ACMA may by a legislative instrument determine in relation to that particular type of apparatus licence.  Further, s 8 of the Radio Communications Licence Conditions (Apparatus Licence) Determination 2015 provide that it is a condition of all apparatus licences that the holder complies with the ARPANSA standard.[56]  It is then contended that the facility would operate well within the ambit of its licences and as authorised by law, upon the basis of the evidence that electromagnetic energy produced on 12 November 2019 demonstrated that the maximum predicted level of electromagnetic energy at the site was 2.99% out of the 100% of the public exposure limit 163 metres from this site and even less than this 300-400 metres from the site.[57]
  1. [24]
    The appellant also relies upon the report of Dr Barry, a physician, dated 2 August 2019.[58]  Relevantly that doctor’s report is expressed as follows:

“Mr Evans has demonstrated that exposure to radiation levels, much less than those that would emanate from the proposed building, have caused you to suffer the classical syndrome of Electromagnetic Hypersensitivity. Mr Evan’s house would be exposed to these levels of irradiation and would consequently effect his wife and children.”[59]

In that report and after noting an invitation for his opinion “regarding the anticipated medical disadvantages of exposure to electromagnetic radiation emissions from the proposed NBN fixed facility”[60], notation of Mr Evans’ past demonstration of “the classical syndrome of Electromagnetic Hypersensitivity” with symptoms including “headaches, fogginess of the thought process, pain in the side of the head, burning of the skin and an extreme anxiety reaction”[61], a noted history of having experienced psychological difficulties consistent with an adjustment disorder of mixed anxiety and depressed mood due to various managerial actions taken in his workplace in 2017 “associated with accommodating his firmly held concerns about being physically harmed by excessive exposure to Wi-Fi electro-magnetic radiation in his workplace”[62], Dr Barry states:

“In the absence of a national electromagnetic hypersensitivity standard, now that ARPANSA has inserted a disclaimer of responsibility, saying that they provide provision of education and research information only, the decision of when and how to treat electro-hypersensitivity is being left to ‘professional advice’. At present, we have no test that correlates symptoms with the changes induced by electromagnetic irradiation.  As such, we are dealing with the likelihood of the symptoms relating to levels of non-ionising radiation that has been shown in many cause neurological damage at much lower levels than those previously accepted by ARPANSA.

From the clinical information available, and scientific information that has now been proven, I believe that Mr Evans is at great risk of suffering severe anxiety, fear and electro-sensitivity symptoms should the tower being erected by NBN at Peachester be completed.

As Mr Evans is aware, NBN has rejected his complaint that the Peachester tower will cause any damage from electromagnetic irradiation.  I note that NBN also said that they have complied with ARPANSA’s regulations but ARPANSA has disclaimed any responsibility. They have large amounts of hardcore scientific data showing that its original safety levels may not be correct.  At a scientific level, this is an argument between ARPANSA and progressive electro-magnetic science physiology and on the other hand between the adaption or damage that can be accrued by the expanding flow of electromagnetic energy in our society.

I believe that Mr Evans will suffer marked psychological damage at least, and probably electromagnetic damage if he is exposed to the irradiation emanating from the tower. NBN have refused to acknowledge that Mr. Evans and his family will be at any health risk from the installation of the tower. NBN has willingly and knowingly disregarded modern scientific evidence - for example - Dr Russell Cooper’s report, and the risk imposed on Mr Evans, his family and home.

Mr Evans is extremely distressed and fearful of the impending tower.”[63]

  1. [25]
    By way of contrast, the respondent’s material in the record also includes a report affirmed in an affidavit of a professor of health psychology at the University of Wollongong and Commissioner of the International Commission on Non-Ionizing Radiation Protection.[64]  The summary of conclusions reached in that report is as follows:

“1. After considering the scientific literature (described in Appendix B), in conjunction with the complaint proceedings under the Peace and Good Behaviour Act 1982 (Qld) brought by Mr David Evans against NBN, it is concluded that:

  1. There is no evidence that anyone, including those reporting electromagnetic EHS, can be adversely affected by EME emissions that are compliant with the ARPANSA RPS3 Standard;
  2. There is strong evidence that those reporting EHS experience both physical and psychological symptoms due to their belief that EME is harmful;
  3. The report provided by Dr Cooper makes a range of claims relating to EME exposure and health, including the claim that Mr Evans experiences symptoms that are caused by exposure to EME, but the claims are not consistent with current scientific knowledge and the report does not provide any evidence to suggest limitations with the current scientific knowledge;
  4. On the evidence, it appears that Mr Evans responds to EME in the same way that other people do, save his belief that he will experience adverse health effects in response to the EME;
  5. Mr Evans will likely continue to be physically and/or psychologically affected by his beliefs about EME exposure, but this will be completely independent from EME exposure itself;
  6. Neither Mr Evans nor his family will be adversely affected (either physically or psychologically) by the EME resulting from the planned nbn wireless mobile base station at Peachester.”[65]

Discussion

  1. [26]
    As may be particularly noted from this outline of the circumstances evidenced in the material:
    1. (a)
      Whilst the approach of the respondent does not seek, nor require, any determination of it, there may be some difficulty in discerning the extent to which the appellant’s concerns as to the effects of emission of electromagnetic radiation are based upon any objectively discerned factors, rather than the subjective considerations arising from his identified hypersensitivity to such emissions; that is as to whether there is sensitivity in any pathological rather than psychogenic sense.  And the respondent’s position is that it is wholly based in subjective or psychogenic considerations; and
    2. (b)
      The respondent’s position also places particular emphasis upon the development approval it has obtained for the construction and use of the telecommunications facility to emit the electromagnetic radiation. Such approval being obtained through a lawful process, specifically provided pursuant to the Planning Act 2016 and in which the appellant participated and obtained rights of challenge as a submitter.[66] As may be noted from the, albeit brief, reference to such issues in Optus Mobile Pty Ltd v Sunshine Coast Regional Council & Ors,[67] contemporary planning schemes typically make provision for consideration of benchmarks relating to human exposure to electromagnetic radiation from telecommunications facilities, having regard to “accepted precautionary limits” and the nomination of acceptable outcomes in terms of applicable standards.  As further noted the use of the facility to emit the electromagnetic radiation is also the subject of licensing pursuant to Commonwealth legislation, upon the basis of emission within standardised public exposure limitation.
  2. [27]
    Whilst again not made an issue requiring discreet determination in the hearing of this matter, the contention in the appellant’s complaint that the respondent has threatened to destroy or damage his property, may be difficult to sustain, in the sense of any identification of any threat to do so in any objectively, rather than subjectively, discernible respect. Further and despite s 5(2) of the PGBA proceeding upon the basis of “caus…[ing] the complainant to fear that the defendant will destroy or damage any property of the complainant”, fear of destruction or damage which could only be characterised as identified subjectively by the complainant or perhaps others with a similar hypersensitivity to electromagnetic radiation, rather than in some more objective sense, may not suffice.  Moreover, it can be observed that s 5 of the PGBA is not directed at providing the foundation for remedy for any claim in respect of nuisance or interference with the enjoyment of the use another person’s property. 
  3. [28]
    Neither is it necessary to determine whether what is alleged to be threatened by the respondent would constitute “bodily injury” within the meaning of s 5(1)(a) and (b) of the PGBA. For the respondent, it is contended that there is significance in the addition of the word “bodily”, rather than the use of a broader expression such as “injury” or “harm”. That is, the contention is that the addition of the qualification “bodily”, limits the ambit to injury in a physical rather than mental sense.
  4. [29]
    It is correctly pointed out that an authority particularly relied upon for the appellant: McDonald v Comcare[68], is of no assistance because it is dealing with a completely different statutory regime and the application of what was acknowledged to be the “very broad” definition of the term “ailment” in the Safety Rehabilitation and Compensation Act 1988 (Cth), which expressly included “any physical or mental ailment, disorder, defence or morbid condition”. And as was acknowledged there,[69] the breadth of the applicable definition meant that it was unnecessary to determine any evidential differences as to whether the physical symptomology of the claimant was traceable to a pathological cause or a purely psychogenic cause.
  5. [30]
    In this case, there may be noted to be some lack of clarity, in the appellant’s material, as to whether any symptomology which the appellant attributes to his exposure to electromagnetic radiation has any pathological cause or is of purely psychogenic genesis. However and in the absence of fuller exploration of the issues through cross-examination and notwithstanding that it is “bodily injury” which is the requisite, what may not be simply ignored are the appellant’s contentions as to his physically experienced symptomology. However, there is no evidence of any such effect on his children, as opposed to the appellant’s concerns in that regard
  6. [31]
    Accordingly and as the appeal was primarily argued, it is necessary to focus upon the allegation as to threatened assault of the complainant and his children. 
  7. [32]
    It will be necessary to bear in mind and later return to the purpose of the PGBA, in being protective of apprehended breach of the peace in the community and particularly in regulating the interpersonal relationships of individuals.  Relevantly, the main object of the PGBA is set out, in s 4, as follows:

“4 Objects of Act

(1) The main object of this Act is to protect the safety, welfare, security, and peace and good order of the community from risks presented by people engaging in antisocial, disorderly or criminal conduct.”

That statement of objects was inserted into the Act in 2016.[70]  However, the statement is consistent with the legislative history of similar legislation, as noted in Laidlaw v Hulett; ex parte Hulett, by McPherson J, as follows:

“The Act is a modern restatement of a part of the very ancient power of justices of the peace in England to bind persons over to keep the peace. The jurisdiction was originally conferred by 34 Edw. 3, c. 1, and was recognised by the Full Court in 1882 as being exercisable by justices of the peace in Queensland. See O'Kane v. Sellheim (1882) 1 Q.L.J. 85, where the terms of the old statute of 1361 are set out. In 1886 a statutory jurisdiction to bind over was incorporated in Part VIII of the Justices Act 1886; but it, for some reason, was repealed in 1964, which then left only the procedure under O. XI of the Criminal Practice Rules of 1900 for exhibiting articles of the peace in the Supreme Court.

Binding over to keep the peace was, as Blackburn J. described it in ex parte Davis (1871) 35 J.P. 551, ‘a precautionary measure to prevent a future crime, and is not by way of punishment for something past”. Consistently with this approach to the jurisdiction, evidence of past events, although admissible, was relevant only as suggesting reasons why a breach of the peace was apprehended in the future’.”[71]

Further and in the context of explaining his agreement with the common conclusion of all three of the Judges constituting that Court of Appeal, that the proceedings were not criminal in character and therefore not attracting the requirement of the standard of proof beyond reasonable doubt,[72] his Honour also observed:

“There are other considerations tending to confirm that the statutory procedure in Queensland is not intended to be criminal in character or to attract the criminal standard of proof. One is that it has obvious points of resemblance with injunctive relief commonly granted to restrain conduct of a comparable kind. It would surely be an odd result if an order restraining threatened behaviour of the kind specified in s. 4 could be obtained by injunction in civil proceedings on a balance of probabilities but, under the Act, only on satisfying the criminal standard of proof. Another consideration is that, although some of the acts specified in paras (a) to (d) of s. 4 might also constitute offences under chap. 38 of the Criminal Code if accompanied by the requisite intent, s. 4 of the Act is concerned not with the criminality of the acts in question, but simply with their tendency to promote breaches of the peace. The Act of 1982 sets out to restrain or deter such conduct independently of any legal justification there might be for it. Criminality is not necessarily the object, or the only object, to which the legislation is directed.”[73]

  1. [33]
    A central aspect of the appellant’s contentions is as to the capacity of the conduct of the respondent in construction of the communications tower to allow for the emission of electromagnetic radiation, as constituting conduct whereby the respondent “has threatened to assault” the complainant and his children.  That is, in reading the reference to “assault” in ss 5(1)(a) and (b) of the PGBA as reference to an assault as defined in s 245 of the Criminal Code (Qld).  Particular attention is then drawn to the extent of the definition of the term “applies force”, so as to extend the concept, as follows:

“applies force includes the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort.”

  1. [34]
    For the respondent, it is contended that the meaning of “assault” in s 5 of the PGBA, is to be drawn from an ordinary meaning of the word, such as may be found in the Macquarie Dictionary:

“1. The act of assailing; an attack; onslaught.

  2. Military the stage of close combat in an attack;

  3. Law an unlawful physical attack upon another; an attempt or offer to do violence to another, with or without battery, as by holding a stone or a club in a threatening manner.”

  1. [35]
    Three reasons are postulated for concluding that the definition in s 245 of the Criminal Code does not apply:
    1. (a)
      First, because there is no expression of that intention anywhere in the PGBA;
    2. (b)
      Secondly, because “the chapeau ‘has threatened’ in section 5 would be rendered otiose if the code definition were applied because the Criminal Code definition includes physical assault or a threat to physically assault;” and
    3. (c)
      Thirdly by regard to context, in that the Criminal Code definition of assault is expressly picked up in s 55 of the PGBA and this is contended as a strong indication against the submission that the intention in s 5 of the Act is to pick up the Criminal Code definition of assault.[74]
  2. [36]
    It is correct that there is no expression of intention to adopt the meaning of assault in s 245 of the Criminal Code, for the purposes of s 5 of the PGBA.  However, it does not follow that the contrast with such expression of adoption in s 55 tells strongly against such an implication in s 5.  Section 55 was introduced when the 2016 amendments were made to significantly extend the scope of this Act, to encompass proceedings relating to Public Safety Orders (Part 3), Restricted Premises Orders (Part 4) and Fortification Removal Orders (Part 5).  As has already been noted, by the same amending legislation, the objects section renumbered as s 4, was also introduced.  In addition to the main object of the Act specified in s 4(1), that was also to provide the following:
  1. “(2)
    Other objects of this Act are to—
  1. (a)
    disrupt and restrict the activities of criminals; and
  1. (b)
    deter criminals from establishing, maintaining or expanding a criminal network; and
  1. (c)
    ensure premises in which criminals habitually gather are unable to be used for antisocial, disorderly or criminal conduct; and
  1. (d)
    ensure premises habitually used by criminals, or connected with serious criminal activity, do not become excessively fortified; and
  1. (e)
    prevent intimidation of the public by criminals; and
  1. (f)
    protect the community’s enjoyment of safe and secure neighbourhood environments and public spaces.
  1. (3)
    The objects are achieved by—
  1. (a)
    giving jurisdiction to magistrates to make orders that—
  1. (i)
    require a person to keep the peace and be of good behaviour; or
  1. (ii)
    prevent a person, or group of persons, from doing particular things in relation to a particular area or event, or particular premises; or
  1. (iii)
    prevent disorderly activities from taking place at particular premises; or
  1. (iv)
    require the removal of excessive fortifications from particular premises; and
  1. (b)
    giving power to commissioned officers to make orders, of a duration of no more than 7 days, to prevent a person, or group of persons, from doing particular things in relation to a particular area or event, or particular premises; and
  1. (c)
    giving powers to the police service to ensure the effectiveness of the orders mentioned in paragraphs (a) and (b).”

And it is to be noted that ss (5) defines the term “criminal”, as it is used as a noun in the section.

  1. [37]
    An interpretation of s 5 which best achieves the purpose of the Act, is to be preferred.[75]  And it is recognised that in statutory interpretation or construction “much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision”.[76]  In R v A2,[77] it was next observed:

“[37] None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd, that in a particular case, “if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance”. When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred.” (citations omitted)

Earlier in the same judgment, it was observed:

“[32] The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.

[33] Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. “Mischief” is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.”[78] (citations omitted)

  1. [38]
    The majority determination in R v A2 was mainly through the general agreement of Nettle and Gordon JJ with the reasons of Kiefel CJ and Keane J,[79] but with some additional observations as to the interpretation of the provision in issue, rather than the approach to that interpretation. And in the albeit dissenting reasons of Bell and Gageler JJ, similar principles of interpretation were noted.[80]  That decision exemplifies an approach premised upon determination of the purpose of a provision by reference to extrinsic material, including the heading to the provision in issue.[81]  That was explained in the judgment of Kiefel CJ and Keane J as follows:

“[40] A modern approach to statutory construction may take account of headings. Whilst headings of a provision are not always reliable and do not form part of a statute, and so may not govern what follows in the provision, headings may be used in a similar way to extrinsic materials. They may point the way towards and be used to identify the mischief to which the provision is directed and its purpose. The heading of s 45 does just that.” (citations omitted)

  1. [39]
    That modern approach to statutory construction or interpretation was earlier noted in CIC Insurance Ltd v Bankstown Football Club Ltd[82], as follows:

“It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901  (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.” (citations omitted) 

  1. [40]
    In Project Blue Sky v Australian Broadcasting Authority[83], the obligation was described in the following terms:

“However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. In Statutory Interpretation, Mr Francis Bennion points out:

‘The distinction between literal and legal meaning lies at the heart of the problem of statutory interpretation. An enactment consists of a verbal formula. Unless defectively worded, this has a grammatical meaning in itself. The unwary reader of this formula (particularly if not a lawyer) may mistakenly conclude that the grammatical meaning is all that is of concern. If that were right, there would be little need for books on statutory interpretation. Indeed, so far as concerns law embodied in statute, there would scarcely be a need for law books of any kind. Unhappily this state of being able to rely on grammatical meaning does not prevail in the realm of statute law; nor is it likely to. In some cases the grammatical meaning, when applied to the facts of the instant case, is ambiguous. Furthermore there needs to be brought to the grammatical meaning of an enactment due consideration of the relevant matters drawn from the context (using that term in its widest sense). Consideration of the enactment in its context may raise factors that pull in different ways. For example the desirability of applying the clear literal meaning may conflict with the fact that this does not remedy the mischief that Parliament intended to deal with. (footnotes omitted)’”

  (citations omitted)

  1. [41]
    Also, in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue[84], it was reiterated that:

“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.” (citations omitted)

  1. [42]
    Accordingly, whilst resort to historical considerations and extrinsic material may occur from the outset and so as to inform the purpose or mischief to which a legislative provision is directed and to provide context for an interpretation to best achieve that purpose, that is to be distinguished from allowing such materials to provide the preferred interpretation. At least that is so, without regard being had to the ordinary meaning of the words used in the provision. And particularly in respect of the use of extrinsic materials, that follows from s 14B of the Acts Interpretation Act 1954 (Qld), which by ss 1(a) and (b) only permits of resort to extrinsic materials to “provide an interpretation” of a provision of an Act, if “the provision is ambiguous or obscure” or “the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable.” Otherwise and subject to s 14B(2) and pursuant to s 14B(1)(c), “consideration may be given to extrinsic material capable of assisting in the interpretation in any other case – to confirm the interpretation conveyed by the ordinary meaning of the provision.” By s 14B(3), “ordinary meaning means the ordinary meaning conveyed by a provision having regard to its context in the Act and to the purpose of the Act.”
  2. [43]
    Reference has already been made to the history and provenance of s 5 of the PGBA,[85] as particularly noted by McPherson JA in Laidlaw v Hulett. In the context of all three judges constituting that Court of Appeal determining that the proceedings under the PGBA were not criminal in character, his Honour specifically noted that the PGBA is not concerned with the criminality of the threatened acts but rather with their tendency to promote breaches of the peace.
  3. [44]
    An obvious difficulty with the objects inserted into the PGBA in 2016, is that this accompanies the substantial enlargement of the scope of the Act beyond the provisions in respect of Peace and Good Behaviour orders in Part 2. It is discernible that the “other objects” set out in s 4(2) are particularly directed at the provisions introduced to so enlarge the scope of the PGBA. And whilst the statement of “main object” in s 4(1) is capable of being viewed as directed at the whole Act, including Part 2, it is notable that it is expressed in terms of protection of “the safety, welfare, security, and peace and good order of the community from risks presented by people engaging in antisocial, disorderly or criminal conduct.”
  4. [45]
    At the time of the introduction of the PGBA, the Criminal Code contained the definition of assault in s 245. For the appellant, reference is made to the following extracts from the Queensland Parliamentary Debates in the Legislative Assembly on 14 September 1982:

“The purpose of this Bill, entitled the Peace and Good Behaviour Bill, is, in the main, one of preventative justice.  The contents of the Bill are short but are designed to provide some remedy for actual or threatened breaches of the peace, such as the ever – present problem of actual or threatened violence occurring in the community … the caution is such as is intended merely for prevention, without any crime actually committed by the party, but arising only from a probable suspicion that some crime is intended or likely to happen.  It is not meant as any degree of punishment unless, perhaps, for a man’s imprudence in giving just ground for apprehension …  Injunctions to restrain unlawful conduct such as an assault may be sought also from the court, but both procedures are costly and difficult to obtain … the basic function and purpose to which the proposal relates is a form of preventative justice by which a person in threatening or causing actual violence for other such breach of the peace to another through his behaviour or conduct may be dealt with by means of a readily accessible, speedy and inexpensive process.”[86]

  1. [46]
    Particular attention is drawn to the statement of the intended caution in the Bill being that “arising only from a probable suspicion if some crime is intended or likely to happen”.[87]  The problem however remains in understanding the reference to “assault or to do any bodily injury” in s 5(1)(a) and (b), if the reference to “assault” is to be taken as a reference to the definition in s 245 of the Criminal Code.  That is, in the sense that it is difficult to understand how there could be bodily injury done to another person without some application of force which would constitute an assault under s 245 of the Criminal Code.  However, and whilst it might be noted that the Criminal Code does provide for an offence of unlawfully doing grievous bodily harm to another,[88] which does not involve proof of an assault as an element,[89] a simple explanation may lie in understanding the different ways in which relevant threats might be made and the primary concern of s 5(1) with threats as to the conduct set out in sub-paragraphs (a) to (d).
  2. [47]
    It is further contended that in “Queensland Courts, the Criminal Code definition of assault in s 245 applies to civil action for trespass to the person” or the tort of assault.[90]  However, what the cited cases are authority for is recognition of the application of various provisions in the Criminal Code which would justify, excuse or authorise, or make lawful, the conduct alleged to constitute the trespass or assault.  That is, in exemplification of the application of s 6(1) and (4) of the Criminal Code Act 1899 which provide:

Civil remedies

  1. (1)
    When by the Code any act is declared to be lawful, no action can be brought in respect thereof.

….

  1. (4)
    Except as aforesaid, the provisions of this Act shall not affect any right of action which any person would have had against another if this Act had not been passed, nor shall the omission from the Code of any penal provision in respect of any act or omission which before the time of the coming into operation of the Code constituted an actionable wrong affect any right of action in respect thereof.”

However, it is also necessary to note that s 4 of the Criminal Code Act 1899 also provides:

Construction of statutes, statutory rules, and other instruments

From and after the coming into operation of the Code, the following rules shall apply with respect to the construction of statutes, statutory rules, by-laws, and other instruments, that is to say—

….

  1. (d)
    when in any statute, statutory rule, by-law, or other instrument, public or private, reference is made to any offence by any specific name, it shall be intended that reference is intended to the offence which, under the provisions of the Code, is constituted by the act or omission that would heretofore have constituted the offence referred to; …..”

Whilst the reference has been to the definition in s 245, it suffices to note that a primary purpose of that definition is for the offences created by other provisions of the Code and of which an assault is an element, particularly in Chapter 30, under the heading “Assaults”, including the offence of common assault proscribed in s 335. But the problem which remains, lies in understanding the evident purpose of the PGBA in providing for precautionary remedies in protection against breaches of the peace, which may be, but is not necessarily, dependent upon proof of any commission of or threatened commission of any criminal offence. However, it is also to be noted that the provision in s 245(1) concludes in the following terms: “is said to assault that other person, and the act is called an assault”.

  1. [48]
    A difficulty with the respondent’s contention that “assault” in s 5 be given its ordinary meaning is that, as the suggested recourse to the Macquarie Dictionary definition exemplifies, such ordinary meaning will potentially encompass what is recognised as an assault in law. The reality is that the concept is one which is specifically recognised in the criminal law.  Further, and if the definition of the concept in the criminal law of Queensland is not to be the point of reference, as contended for the appellant, there are implications arising under the recognition of the concept of assault at common law, which, whilst now perhaps regarded as obsolete (particularly in the context of modern statutory modification),[91] traditionally distinguished between battery, being the application of force to another, however slight,[92] and assault, being an act intentionally or recklessly causing another to apprehend immediate and unlawful violence.[93] 
  2. [49]
    Whilst that distinction could be viewed as accommodating, the reference to “assault or to do any bodily injury”, it would particularly tend to engage the second point made for the respondent, in that the requirement would be that a person has threatened some future threatening act, in the sense of having capacity to intentionally or recklessly cause another to apprehend immediate and unlawful violence.  Although, the more obvious concern may be as to tendency to render otiose the additional requirement in s 5(1): “that the complainant is in fear of the person complained against”.  On the other hand, it does not follow that the second contention for the respondent necessarily arises, if the meaning of “assault” in s 5(1) is to be taken from s 245 of the Criminal Code.  There is nothing otiose in the addition of the requirement “that a person has threatened to assault”, in the sense of any threat of future application of force to another.  It is not necessary that such a threat must be an expressed one, as opposed to being implicit in some conduct and whilst a potentially difficult concept, conduct threatening some later threat or attempt to apply force with actual or apparent ability to carry out such a purpose, is not necessarily inconceivable.
  3. [50]
    It is also useful to note by way of some contrast that:
  1. (a)
    For an assault at common law, there is requirement of an act causing an immediate apprehension of unlawful personal violence[94], which may be seen to be reflected in that limb of s 245 of the Code which relates to any attempted or threatened application of force “by bodily act or gesture”, by requiring that “the person making the attempt or threat has actually or apparently a present ability to effect the person’s purpose.” However, under s 245 it is not necessary that the victim be put in fear;[95]
  2. (b)
    Pursuant to s 245 of the Code, words alone cannot amount to such a bodily act or gesture,[96] whereas the position in common law jurisdictions may be different as far as words being the actus reus of an assault;[97]
  3. (c)
    At common law, a battery (or assault by use of force) occurs where a person intentionally or recklessly causes force to be applied to the body or clothing of another.[98] Usually a battery is inflicted directly by the body of another or through the medium of some weapon or instrument controlled by the actions of the offender.[99] In circumstances where as a result of a punch to the woman’s face, the child she was holding fell from her arms to hit his head on the floor, it was held that it was not essential that the violence be directly inflicted, although in most batteries it would be.[100] Whereas s 245 of the Code expressly allows for direct or indirect application of force; and
  4. (d)
    It is, at least, unclear as to whether the full extent of the extended definition of “applies force” in s 245(2) of the Code would be recognised as constituting an assault or battery at common law. For instance, in terms of what is alleged here.
  1. [51]
    Moreover, what can also be observed is that if the appellant’s contention as to the adoption of s 245 of the Criminal Code were to be accepted, so as to specifically engage the extension of the concept “applies force” and whilst it is necessary to understand that the definition is expressly directed at the application of force “to the person of another either directly or indirectly”, it is extended to include “the case of applying … electrical force”,[101] only “if applied to such a degree as to cause injury or personal discomfort”.  Accordingly, it may be seen that what is critical to the operation of extended definition of “applies force” is the outcome of the application of the relevant force to another person and except perhaps where the objectively clear outcome of what is attempted or threatened by bodily act or gesture would have such an outcome, there may be difficulty in engaging this extended definition of “applies force” with that limb of the definition in s 245(1).  However these considerations do tend to bring into sharp focus the primacy of the relevant requirement in s 5(1) of the PGBA that “a person has threatened to” assault another person.
  2. [52]
    Whilst the considerations which have been discussed, particularly the implications of s 4 of the Criminal Code Act 1899 and the concluding terms of s 245(1), might tend towards a conclusion that the reference to “assault” in s 5(1) of the PGBA is intended to incorporate the definition of assault in s 245 of the Criminal Code, it is not necessary, for the reasons to follow, to come to any finally concluded view as to that proposition or whether and contrary to the view expressed by McPherson JA in Laidlaw v Hulettt; ex parte Hulett, there is also to be a conclusion that the threatened assault be capable of being regarded as an unlawful one.
  3. [53]
    Essentially, this is because of the active and past sense in which the verb “threaten” is used in the phrase “has threatened to”, as introducing a requirement of someone having made a threat or threats to do a relevant thing to “the complainant or to any person under the care or charge of the complainant”.  The sense in which there is a requirement of conduct specifically directed at a relevant person, in the nature of a threat, is made clear in s 5(2) of the PGBA, which allows for complaint and the prospect of a peace and good behaviour order, in the circumstances of “the intentional conduct of a person … directed at the complainant” and which has “caused the complainant to fear that the defendant will destroy or damage any property of the complainant”.  It may be seen that s 5(2) provides an alternative basis for remedy to that which is provided by s 5(1)(c) and (d).  The contextual implication is that it operates when it may not be established that a person has “threatened” to destroy or damage or to procure another to destroy or damage, any property of the complainant.  Or, at least, that it provides an alternative to such necessity of proof. 
  4. [54]
    The express requirements under s 5(2) of “intentional conduct”, “directed at” and which “has caused the complainant to fear that the defendant will destroy or damage any property of the complainant”, provides a powerful contextual support for no less requirement as to conduct particularly directed at the complainant in terms of the threatening conduct which is a requisite under s 5(1).  That is, in adoption of those meanings of “threaten” which incorporate a more directed or purposeful connotation:
  1. “1.To utter a threat against; menace…

  1. 3.To offer (a punishment, injury, etc.) by way of a threat.

  1. 5.To utter or use threats.”[102]

As opposed to the broader or more general meanings, which might more readily encompass a meaning predicated upon the effect or perceived outcome of some thing:

  1. “2.To be a menace or source of danger to.

  1. “4.To give an ominous indication of: the clouds threaten rain – verb (i)

  1. “6.To indicate impending evil of mis-chief.”[103]

That is, in also encompassing the more directional connotation in the first rather than second meaning of the noun “threat”, as follows:

  1. “1.A declaration of an intention or determination to inflict punishment, pain or loss on someone in retaliation for, or conditionally upon, some action or course; menace.
  2. 2.An indication of probably evil to come; something that gives indication of causing evil or harm”
  1. [55]
    Such an approach is consistent with adopting an interpretation which best achieves the purpose of the PGBA, in allowing for peace and good behaviour orders.  That is, so as to seek to prevent and avoid prospective breaches of the peace in the community and particularly in regulating the interpersonal relationships of individuals.
  2. [56]
    The conduct of the respondent in its construction of the telecommunications facility, so as to allow for the emission of electromagnetic radiation, is not conduct of such kind and is not conduct which is amenable to s 5 of the PGBA, as conduct which has threatened to effect any of the outcomes in sub-paragraphs (a) through (d).  It is in the characterisation of the respondent’s conduct that the lawfulness of its construction and intended use of the facility has particular resonance.  The intended use is to provide for a wide range of telecommunications across a broad spectrum of the community, extending around Peachester and connecting into a much broader telecommunications network.  Any suggestion that it is just the emission of electromagnetic energy into or upon the defendant’s property which is in issue, is patently artificial.  However, even if the issue was so limited, that result is not the issue and it must be concluded that the evidence relied upon by the appellant simply does not support or provide any basis for any conclusion that the respondent has:
    1. (a)
      threatened to assault (even if the definition in s 245 of the Criminal Code is applicable) or to do any bodily injury to the complainant or to any person under the care or charge of the complainant, or to procure any other person to do so; nor
    2. (b)
      threatened to destroy or damage any property of the complainant or to procure any other person to do so; nor
    3. (c)
      engaged in any intentional conduct directed at the complainant, which has caused him to fear that the respondent will destroy or damage any of his property.
  3. [57]
    Accordingly and notwithstanding what has been noted as the errors of the Magistrate in the primary hearing (largely as conceded by the respondent), it should be determined that, upon the independent review conducted by this Court, the Magistrate’s order to dismiss the complaint was in fact correct.

Conclusion

  1. [58]
    Therefore, the appeal will be dismissed, except in so far as it relates to the costs order.  The order of this Court will be that:

In respect of the orders made in the Magistrates Court at Maroochydore on 23 January 2020:

  1. (a)
    The order that the complaint be dismissed is confirmed
  2. (b)
    The order that the complainant pay the costs of the respondent is varied so that the amount to be paid is $1,750.00 instead of $136,000.00.
  1. [59]
    The parties will be heard as to any further or consequential order.

Footnotes

[1]  This would appear to follow from the provisions of s 9 of the PGBA, which generally makes applicable “the provisions of and proceedings and procedures under the Justices Act 1886 …. in the case of proceedings by way of complaint in respect of which an order … may be made pursuant to section 7 as if such complaint were a complaint in respect of “the prosecution of an offence in a summary way under that Act”, the provisions of s 7 of the PGBA empowering a Magistrates Court to make such an order and the breadth of the definition of “order” in s 222 of the Justices Act 1886, as is to be found in s 4 of that Act. Further and whilst the PGBA does contain provisions relating to appeals, in Division 4 of Part 6, by s 88, those provisions are made referrable to other determinations which are permitted by the PGBA.

[2]  (2016) 90 ALJR 679 at [43], noting, in particular, references to Fox v Percy (2003) 214 CLR 118 at [25] and [29], Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479-481 and Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357 at [76].

[3]  AT 1-16.9-38.

[4]  Complaint, filed 25/11/19, at p 1.

[5]  Complaint, filed 25/11/19, at p 1.

[6]  Complaint, filed 25/11/19, at [37]-[38].

[7]  Ibid, at [39]-[42].

[8]  Complaint, filed 25/11/19, at [43]-[44].

[9]  Ibid, at [49]-[52].

[10]  See the discussion of the concept of abuse of process in Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256, particularly at [21]-[26]. 

[11]  T 19/12/19: 1-7.20 – 1-9.25.

[12]  T 23/1/20: 1-2.33 – 1-3.19.

[13]  T 23/1/20: 1-5.31 – 1-6.18.

[14]  T 23/1/20: 1-6.20.

[15]  T 23/1/20: 1-6.21.

[16]  T 23/1/20: 1-6.36.

[17]  T 23/1/20: 1-6.40-42.

[18]  T 23/1/20: 1-7.1-40.

[19]  T 23/1/20: 1-9.22 – 1-10.39.

[20]  T 23/1/20: 1-13.1-8.

[21]  D 23/1/20: 1-2.1-29.

[22]  See s 158B(2) of the Justices Act 1886.

[23]  See s 158B(1).

[24]  Respondent’s written submissions at [20] and AT 1-22.1-10.

[25]  [1998] 2 Qd R 45 at 50-51 per McPherson JA; see also at 47.26-27 and noting that there has been subsequent renumbering of the relevant provisions.

[26] As noted below, at [32] and [36], since this decision there has been a renumbering of the sections to which reference is made, to accommodate the addition of s 3A, which was then renumbered as s 4.

[27]  Cf :[1998] 2 Qd R 45 at pp 47.26-35 and 51.2-6.

[28]  AT 1-49.36-39.

[29]  As conceded for the respondent, at AT 1-47.17-46, because of the respondent’s control of the installation and its operation (notwithstanding that it might allow the emission of electromagnetic radiation by others using that installation), this means, consistently with the approach for the appellant, that attention should be upon paragraphs (a) and (c) rather than (b) and (d).

[30]  See Respondent’s written submissions, filed 21/4/21, at [27].

[31]  A prospect expressly acknowledged for the respondent in its written submissions at [25], with reference to s 223 and s 225(1) of the Justices Act 1886.

[32]  Affidavit of D Evans, sworn 25/11/19, at [2].

[33]  Affidavit of L A Caldwell, filed 7/1/20 at LAC-1.

[34]  Affidavit of D Evans, sworn 25/11/19, at DE-1.

[35]  Affidavit of H Barry, filed 22/1/20, at HB-1 p1.

[36]  Affidavit of D Evans, sworn 25/11/19, at [3].

[37]  Ibid, at [4].

[38]  Ibid, at [5].

[39]  Ibid, at [5].

[40]  Ibid, at [6].

[41]  Ibid, at [13].

[42]  This report is also exhibited to the affidavit of that deponent, filed 22/1/20, and describes the author’s qualifications as “Master of Science Preventative Medicine, Board Certified Physician American Board Anti-Aging and Regenerative Medicine, Fellow Australian Colleges of Nutritional and Environmental Medicine, Herbal Medicine and Medical Acupuncture, Diploma European Society Anti-Aging Medicine, Diploma European Institute of Personalised Prevention and Certification Chelation Therapy”.

[43]  Affidavit of D Evans, sworn 25/11/19, at DE-2 p 2.

[44]  Affidavit of D Evans, sworn 25/11/19, at DE-2 p 9. Emphasis as in original and noting that ARPANSA is an acronym for The Australian Radiation Protection and Nuclear Safety Agency.

[45]  Affidavit of D Evans, sworn 25/11/19, at DE-2 pp 13-14.

[46]  Ibid, at DE-3 p 2.

[47]  Affidavit of D Evans, sworn 25/11/19, at DE-3 p 3.

[48]  Ibid, at DE-2 pp 3-4.

[49]  Affidavit of L A Caldwell, filed 7/1/20, at [16]. It is further noted that the appellant was, as a submitter to the development application, notified of the outcome  and reference is also made to a later minor change application relating to the physical construction of the facility, at [17] – [22].

[50]  Ibid at LAC-1 at p 5.

[51]  Ibid at LAC-1 at p 220.

[52]  Ibid at LAC-1 at p 92.

[53]  Affidavit of L A Caldwell, filed 7/1/20, at LAC-1 p 221.

[54]  Ibid, at LAC-11 pp 683-684.

[55]  Affidavit of L A Caldwell, filed 22/1/20, at [2]-[4] and [5] and LAC-2. 

[56]  That standard, as referred to above in para [22] is attached to the affidavit of L A Caldwell filed 7/1/20, at LAC-12.

[57]  Affidavit of Z H Khalfan, filed 20/1/20 at [34]-[39] and ZK-9.

[58]  Affidavit of H Barry, filed 22/1/20, at HB-1.

[59]  Affidavit of H Barry, filed 22/1/20, at HB-1 p1.

[60]  Ibid.

[61]  Ibid.

[62]  Ibid.

[63]  Affidavit of H Barry, filed 22/1/20, at HB-1 pp 1-2.

[64]  Affidavit of R J Croft, affirmed 16/1/20.

[65]  Affidavit of R J Croft, affirmed 16/1/20, at RJC-1 pp 2-3.

[66]  See Planning Act 2016, s 53(6), s 230(3), Schedule 1 and definition of “submitter” in Schedule 2.

[67]  [2020] QPEC 15, at [8] and [19].

[68]  [2013] AATA 105.

[69]  Ibid, at [90].

[70]  As s 3A, by s 267 of Act 62 of 2006 and also re-numbered as s 4, by s 266 of that Act. 

[71]  [1998] 2 Qd R 45, at 50.

[72]  Although it was noted that ordinarily the character of the allegation will be such as to attract the reasoning in Briginshaw v Briginshaw (1938) 60 CLR 336, Rejfek v McElroy (1965) 112 CLR 517 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445.

[73] Laidlaw v Hulett; ex parte Hulett [1998] 2 Qd R 45, at 52.

[74]  Respondent’s supplementary outline of submissions, filed 9/9/20, at [5]-[7].

[75]  s 14A Acts Interpretation Act 1954 (Qld).

[76] R v A2 (2019) 93 ALJR 1106, at [36], per Kiefel CJ and Keane J.

[77]  Ibid, at [37].

[78]  Amongst other citations, particular reference is made to CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, at [408] and Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, at [69] and [78].

[79]  (2019) 93 ALJR 1106, at [148].

[80]  Ibid, at [124].

[81]  That was because of the position pursuant to s 35(2) of the Interpretation Act 1987 (NSW), which may be contrasted with the somewhat different provisions in the Acts Interpretation Act 1954 (Qld), s 14(2) and s 35C, as far as headings to provisions are concerned. However, and in this instance, and because the heading to s 5 of the PGBA was not enacted, amended or inserted after 30 June 1991, it is not to be regarded as part of that Act. That heading is: “Complaint in respect of breach of the peace”.

[82]  (1997) 187 CLR 384, at 408.

[83]  (1998) 194 CLR 355, at [78].

[84]  (2009) 239 CLR 27, at [47].

[85]  It may also be noted that prior to the process of renumbering in 2016, this had been s 4 of the PGBA.

[86]  Upon the second reading speech of the Peace and Good Behaviour Bill, by the Hon. S.S. Doumany, Minister for Justice and Attorney-General.

[87]  Appellant’s supplementary submissions, filed 31/8/20, at [2].

[88]  s 320.

[89] Kaporonovski v The Queen (1973) 133 CLR 209.

[90]  Appellant’s supplementary submissions, filed 31/8/20, at [3], with reference to Origliasso v Vitale [1952] St R Qd 211; Grehan v Kann [1948] QWN 40; King v Crow [1942] St R Qd 288.

[91]  See: Bronitt and McSherry, Principles of Criminal Law, 4th Edition at [10.15].

[92] Jones v Sherwood [1942] 1 KB 127.

[93]  See Darby v Director of Public Prosecutions (NSW) (2004) 61 NSWLR 558; 150 A Crim R 314, at [71]-[72]. 

[94] Fagen v Commissioner of Metropolitan Police [1969] 1 QB 439, at 444; Wilson v Pringle [1986] 2 All ER 440; R v Knight (1988) 35 A Crim R 314, at 316-317.

[95] Brady v Schatzel; ex parte Brady [1911] St R Qd 206, at 208.

[96] R v Agius [2015] QCA 277.

[97]  See: R v Knight (1988) 35 A Crim R 314, at 317-318; Slaveski v Victoria [2010] VSC 441, at [229]-[240].

[98] Fagen v Metropolitan Police Commissioner [1969] 1 QB 439, at 444.

[99]  Archbold Criminal Pleading, Evidence and Practice, 2019 Edition, at 19-229.

[100] Haystead v DPP [2000] 2 Cr App R 339.

[101]  In the context of the inclusion of “heat, light, electrical force, gas, odour or other substance or thing whatever”, there is understandably no contention for the respondent that the electromagnetic radiation to be emitted by the constructed tower, is not within the meaning of “electrical force”.

[102]  Macquarie Dictionary, Fifth Edition.

[103]  Ibid.

Close

Editorial Notes

  • Published Case Name:

    Evans v NBN Co. Limited

  • Shortened Case Name:

    Evans v NBN Co. Limited

  • MNC:

    [2021] QDC 227

  • Court:

    QDC

  • Judge(s):

    Long SC, DCJ

  • Date:

    16 Sep 2021

Appeal Status

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