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  4. Tseng v Brisbane City Council - [2021] QDC 293

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Tseng v Brisbane City Council[2021] QDC 293

Tseng v Brisbane City Council[2021] QDC 293

DISTRICT COURT OF QUEENSLAND

CITATION:

Tseng v Brisbane City Council [2021] QDC 293

PARTIES:

EN-TZU TSENG

(appellant)

v

BRISBANE CITY COUNCIL

(respondent)

FILE NO/S:

3358 of 2019

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

29 November 2021

DELIVERED AT:

District Court at Brisbane

HEARING DATE:

14 September 2020

JUDGE:

Sheridan DCJ

ORDER:

  1. Appeal dismissed.
  2. The appellant file and serve any submissions as to costs of no more than four pages in length by 10 December 2021.
  3. The respondent file and serve any submissions in reply as to costs of no more than four pages in length by 16 December 2021.

CATCHWORDS:

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where the appeal was brought pursuant to s 222 of the Justices Act 1886 (Qld) – where pursuant to s 7 of the Natural Assets Local Law 2003 (Qld) the appellant was convicted of 62 offences of having caused or permitted protected trees to be interfered with and two further offences of failing to comply with the Compliance Notice and failing to comply with the extended time for compliance – where  the appellant appeals against the decision – whether Magistrate was in error

City of Brisbane Act 2010 (Qld)

Evidence Act 1977 (Qld), s 95

Justices Act 1886 (Qld) s 222, s 223

Justices Regulation 2014 (Qld), sch 2

Natural Assets Local Law 2003 (Qld), s 2, s 3, s 7, s 35, s 39, s 40

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, cited

Brisbane City Council v Ashraf Ali Qureshi (unreported, Magistrate Cornack, Holland Park, 19 November 2018), cited

De Bray v Cohen; Macefield Pty Ltd v Cohen [2008] QDC 275, cited

Director General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137, cited

Dwyer v Calco Timbers [2008] HCA 13; (2008) 234 CLR 124, cited

Forrest v Commissioner of Police [2017] QCA 132, cited

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, cited

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, cited

McDonald v Queensland Police Service [2017] QCA 255; [2018] 2 Qd R 615, cited

Richard Thorn (Brisbane City Council) v 100% Treecycle Pty Ltd (unreported, Acting Magistrate Turra, Holland Park, 4 May 2018), cited

Richard Thorn (Brisbane City Council) v Southland Holdings Pty Ltd & Yi Lu (unreported, Acting Magistrate Turra, Holland Park, 21 June 2018), cited

S v The Queen [1989] HCA 66; (1989) 168 CLR 266, cited

Teelow v Commissioner of Police [2009] QCA 84; [2009] 2 Qd R 489, cited

Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77, cited

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, cited

White v Commissioner of Police [2014] QCA 121, cited

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, cited

SOLICITORS:

Self-represented for the appellant

M Thomas from City Legal for the respondent

Introduction

  1. [1]
    Ms Tseng, the appellant, is the registered proprietor of two adjacent parcels of land, purchased in April 2016 from the Brisbane City Council, at 151 and 161 Compton Road, Kuraby and described as Lot 22 on Survey Plan 285410 and Lot 19 on Survey Plan 125370, Parish of Yeerongpilly (the Property).  The Property is within the Rural Zone of the Brisbane City Council Local Government Area.
  2. [2]
    The Council contended that between 24 and 29 November 2016, 62 individual trees on the Property, which were ‘protected trees’ under the Natural Assets Local Law 2003 (Qld) (NALL), were uprooted and displaced, that Ms Tseng had engaged someone to uproot and displace the trees on her behalf and Ms Tseng had failed to obtain a permit from the Council prior to the interference as required by s 7(3) of the NALL.
  3. [3]
    The Council issued to Ms Tseng a compliance notice on 3 March 2017, requiring Ms Tseng to prepare and submit for approval a rehabilitation plan to rectify the interference to the protected vegetation.    Ms Tseng did not comply with the notice within the time stipulated, nor the extended period.
  4. [4]
    Ms Tseng was charged with 62 separate offences of having caused or permitted a protected tree to be interfered with, when that interference was not strictly in accordance with a permit issued by the Council, contrary to s 7(3)(a) of the NALL, and two separate offences of failing to comply with a compliance notice under s 35(7) of the NALL.
  5. [5]
    On 29 August 2019, Ms Tseng was convicted of all offences after a trial in the Magistrates Court in Brisbane.  Ms Tseng did not call or give evidence at the trial, which the Magistrate noted was her right; the defendant being entitled to insist that the prosecution prove its case against her, if it can.
  6. [6]
    By way of sentence, the learned Magistrate imposed a fine of $35,000 for charges 1 to 62 and $5,000 in relation to charges 63 and 64 together with costs in an amount of $139.05 for the costs of the summons, $277.60 for witness expenses and $4375 for professional costs.  Both the fines imposed, and the legal costs were referred to SPER.
  7. [7]
    The learned Magistrate also made a rehabilitation order, and an order that no conviction be recorded.
  8. [8]
    Ms Tseng appeals her conviction and sentence and the cost calculation of the rehabilitation order.

Nature of Appeal

  1. [9]
    Ms Tseng appeals pursuant to s 222 of the Justices Act 1886 (Qld) (the Justices Act).  Section 222(1) relevantly provides:

“If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge.”

  1. [10]
    Pursuant to s 223, the appeal is by way of rehearing on the original evidence, with any new evidence adduced only by leave.  Section 223 provides:

“(1)   An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.

  1. (2)
    However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.
  1. (3)
    If the court gives leave under subsection (2), the appeal is—
  1. (a)
      by way of rehearing on the original evidence; and
  1. (b)
      on the new evidence adduced.”
  1. [11]
    For an appeal by way of rehearing the powers of the appellate court are exercisable only where Ms Tseng can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some “legal, factual or discretionary error.”[1]
  2. [12]
    The rehearing requires this court to conduct a real review of the evidence (rather than a completely fresh hearing) and make up its own mind about the case.[2] 
  3. [13]
    The Court’s function is to consider each of the grounds of appeal having regard to the evidence and determine for itself the facts of the case and the legal consequences that follow from such findings.  In doing so it ought to pay due regard to the advantage that the magistrate had in seeing the witnesses give evidence, and attach a good deal of weight to the magistrate’s view.[3]

Grounds of Appeal

  1. [14]
    Ms Tseng appeals against the judgment and orders in reliance on the grounds of appeal provided in the Notice of Appeal which were detailed as follows:
  1. The convictions reached by the learned Magistrate were unjust, dangerous, unsafe and unsatisfactory.
  2. The learned Magistrate erred in not dismissing the unlawful complaint which was “bad for duplicity” pursuant to s 43 of the Justices Act, from charges 1 to 62 and charges 63 to 64.
  3. The learned Magistrate erred in the findings on the 62 charges on the disputed identification evidence.
  4. The learned Magistrate erred in admitting hearsay evidence tendered by the Council in the trial proceedings.
  5. There was no sworn or proved evidence for the prosecution to infer the defendant causing or permitting the interference with any of the protected native trees on the unsecured premises.
  6. The learned Magistrate erred in relying on unverified and unreliable vegetation information provided by Ms Tseng and the unaudited and uncorroborated “desktop vegetation mapping” provided by the Council.
  7. The evidence of the Council’s witnesses, namely the Council employees, contained various doubts and unreconciled conflicts.
  8. The premises, the subject of all charges, has been in a ‘no use’ status since 11 April 2016, and has been covered by weed vegetation as well as protected vegetation since that time.
  9. The learned Magistrate erred in drawing inferences which were not clearly proved and when the probative value of that evidence was insufficient to establish beyond reasonable doubt the case against Ms Tseng.
  10. It was a substantial miscarriage of justice for the learned Magistrate to approve the Council’s rehabilitation order and use it to determine the cost of rectifying damage to any ‘protected tree’ with reference to the “Council OS21 Tree Removal and Replacement Procedures” which were not acknowledged in the Queensland Government Gazette.
  11. The monetary order imposed by the learned Magistrate was manifestly excessive and the learned Magistrate erred in not taking into account the invalid complaint, uncontrolled unfenced premises, lack of probative identification evidence and the unemployment and mental disabilities of Ms Tseng.
  12. The learned Magistrate erred in exercising her discretion in the award of irrelevant costs outside the 64 charges presented at trial, and in the exercise of the discretion to award costs exceeding the scale of costs set out in sch 2 to the Justices Regulation 2014 (Qld).

The Legislative Regime

  1. [15]
    Under the City of Brisbane Act 2010 (Qld), the Council is given power to enact local laws. The local laws are intended to complement the provisions of a planning scheme made by Council under a Planning Act. 
  2. [16]
    The NALL is one such law.  The NALL creates a system of protected vegetation including a permit application system and enforcement regime and creates an offence where a person interferes with, or causes or permits interference with, protected vegetation without a permit.
  3. [17]
    Section 7 of NALL is headed “Restriction on interference with protected vegetation.” “Vegetation” is defined to include trees.  Subsection (1) and (2) of s 7 regulates interference with trees on a footpath of any Council controlled road, or any Council owned or occupied land or premises.  Section 7(3) extends to any ‘protected vegetation’ whether or not it is on land owned or occupied by Council.  Section 7(3) provides:

“A person must not, unless strictly in accordance with a permit issued by Council, interfere with, or cause or permit interference with –

  1. (a)
    any other protected tree;
  2. (b)
    any protected vegetation other than trees.”
  1. [18]
    Section 3 defines certain terms by reference to the dictionary in sch 4. 
  2. [19]
    The term, “interfere with” is defined as meaning “to engage in any activity damaging or leading to the death, disfigurement or mutilation of vegetation” and includes “to uproot or displace”. 
  3. [20]
    “Protected vegetation” means, so far as relevant:

“[A]ny or all of the following as set out in Column 2 of the Table in the Schedule 3 –

  1. (a)
    Council vegetation;
  2. (b)
    significant native vegetation;
  3. (c)
    significant urban vegetation;
  4. (d)
    waterway and wetland vegetation;
  5. (e)
    vegetation the subject of a vegetation protection order made under this or another local law”.
  1. [21]
    “Significant native vegetation” means:

“[N]ative vegetation with characteristics predominantly reflecting or promoting the objects stated in section 2(1)(a) and(b) and –

  1. (a)
    growing, subject to mapping anomalies identified by Council, in an area designated the SNV layer on Council’s geographic information system as amended from time to time; or
  2. (b)
    included in a register in a subordinate local law.”
  1. [22]
    Section 35 of NALL provides: “If, in the opinion of an authorised person, a person has contravened, or is contravening, a requirement of this local law, the authorised person may give to that person a notice (a compliance notice) under this section.” The section provides that a compliance notice may require the person to take specified action, within a time or times specified in the notice, to remedy the contravention.

The Evidence

Evidence as to vegetation

  1. [23]
    At the hearing before the Magistrate, a certificate by Ms Kelly dated 31 October 2018, spatial information specialist working in the Organisational Services section of the Council, was tendered pursuant to s 95 of the Evidence Act 1977 (Qld).  Ms Kelly certified that she was responsible for the maintenance of the NALL property flags in the computing device as part of the Council’s computer network system.  She certified that the device allows records of information to be stored and reports of that information to be generated, and that a flag was an entry in the database of the device which tags a property as being affected by a particular attribute such as a category of vegetation protected under the NALL.
  2. [24]
    Ms Kelly confirmed that the information contained in the system stated that the current NALL categories of protected vegetation over the Property were Significant Native Vegetation (SNV) and Waterway and Wetland Vegetation (WWV).  Ms Kelly certified that the SNV category in relation to the Property had been created in February and June 2016 respectively and the WWV category in January 2014 and there had been no amendments since they were created. 
  3. [25]
    Ms Kelly certified that she accessed the mapping system within the device and printed an aerial image of the Property which included the NALL mapping layers and confirmed the protective vegetation categories that were effective for the Property.
  4. [26]
    The validity of the certificate including the attachments to the certificate was not challenged either in this court or below.

Evidence as to commission of the offences

  1. [27]
    The alleged felling of a number of trees on the Property is said to have occurred over the weekend of 26 November 2016.
  2. [28]
    A complaint was made to the Council through the online system on 29 November 2016.  The complaint was made by Mr Pulley who was employed at the time by the Scenic Rim Regional Council, as a natural resource officer, Environmental Planning. Mr Pulley gave evidence of driving past the Property on Friday, 25 November 2016, and of the Property being heavily vegetated with gum trees and the like, and then of driving past the next day, Saturday, 26 November 2016, at around midday, and noticing that trees had been felled.  Mr Pulley’s evidence was that over the past two years he regularly drove past the Property on his way to and from work.  On the Saturday he was driving past on his way to a friend’s house.  In giving evidence, Mr Pulley confirmed that he did not witness the felling of any trees.
  3. [29]
    Evidence was also given by Ms Cruttenden, an employee of the Council working in the Natural Environment Team, of having observed early on Tuesday, 29 November 2016, all of the very large trees having been pushed over on the Property.  Ms Cruttenden was attending Council land, adjoining the Property, to conduct the monthly audit of the weed management program on that land. The officer gave evidence of having taken photographs of the trees; which were subsequently tendered. 
  4. [30]
    Evidence was given also by another Council officer, Ms Sciortino, who was dispatched by the Council on 29 November 2016 to attend the Property following receipt of the complaint.  Ms Sciortino gave evidence of having observed a number of trees knocked over and lying on the ground and of having taken photographs of the trees from the western side of the Property; though she said she did not know how long the trees had been on the ground.  The photographs were tendered as an exhibit.  At the time of attending the Property, the officer did not go on to the Property, nor observe anyone at the Property.
  5. [31]
    Two Council officers, Mr Morris and Ms Hume, gave evidence of attending the Property on 30 November 2016 and again on 6 December 2016.  Both Mr Morris and Ms Hume were senior natural environmental officers with bachelor’s degrees in environmental science and were authorised officers under NALL to carry out the investigation.  Mr Morris had a major in ecology and gave evidence of having undertaken botanical identification courses at university and plant identification courses at the Queensland Herbarium and of having previously worked as an ecologist.
  6. [32]
    Mr Morris gave evidence of having a conversation on 30 November 2016 at the Property with Ms Tseng.  Ms Hume was present but did not give any evidence as to the contents of the conversation. 
  7. [33]
    Prior to having any discussion with Ms Tseng, Mr Morris advised Ms Tseng of her right to silence and told Ms Tseng that any information which she provided verbally may be used as evidence in court.  Ms Tseng was told that they wished to discuss with her the recent works to cut the trees down.  Ms Tseng was told that based on the mapping there was protected vegetation and, despite the applications for a permit submitted by her, there was no valid permit to allow this interference and as such they thought that an offence has occurred under the NALL.
  8. [34]
    In the interview, Ms Tseng admitted that on Monday, 28 November 2016, a friend, who she did not want to identify, had used big machinery to knock down the trees on the Property over “roughly around one day”.  She denied that they used chain saws to cut the trees.
  9. [35]
    Ms Tseng said that she thought someone had illegally used chain saws to cut trees on the Property before she purchased the Property.
  10. [36]
    She explained she was the new owner of the Property and said, “I want to keep it clean and today and grow mango tree.  If I don’t knock it down, how can I go into, you know, grow mangoes.”  Ms Tseng added that “everywhere is rubbish and trees everywhere.”
  11. [37]
    Mr Morris then asked, “Why did you undertake the works?”  Ms Tseng answered, “Because I like to grow mango trees.” 
  12. [38]
    Later she said:

“That’s the reason I’m, you know – after waiting for 8 months from, you know, department, I still haven’t received any permits.  So I think, you know, because complaining… give me permits, so I think I can go ahead, because I wait for your department and then Matt, he told me that he can issue me the permit in the next following Friday, which became, you know, check with your telephone records.”

  1. [39]
    Following further discussion regarding the applications lodged by Ms Tseng with the Council and Ms Tseng confirming their latest proposal to grow mango trees and not seek to change the zoning of the land from rural, Mr Morris said to Ms Tseng that from his point of view Ms Tseng could still have done some farming but kept the tall trees.  Ms Tseng responded:

“But we need to be very, you know, practical.  If you, you know, hire machine, how would you going to expect that, you know… and…. their…it’s not possible.  How much are you going to spend on the machine to, you know, the clear the land on Monday and then later on when you put the fertiliser and then kill the weeds, you all need to use machine.  If there is tree here and there… how can you use machine?  Not possible.  And then how much expense and labour are you expect to, you know, maintain for the next eight to 10 years for the mango tree?  It’s not possible.”

  1. [40]
    Mr Morris then stated that there has never been an approval.  Ms Tseng asked what was meant by an approval and when Mr Morris referred to a valid permit, Ms Tseng responded by saying, “He talked to me over the phone, yes, we can, you know, cooperate and issue in the following Friday.  That’s what I received, and then he broke his promise.  And I still wait for another month.”
  2. [41]
    Mr Morris asked again whether she had received a valid permit and in response, Ms Tseng said:

“I really don’t know what it means, valid permit.  We have permit, but its not, you know, complete everything.  It’s all conditional, that you can clear the weeds, you know, dead tree, fallen tree, this kind of stuff.  So it’s all conditional, so what I request is unconditional.  And emphasis several times.  So…it takes such a long time.”

  1. [42]
    Ms Tseng added, “They all give me conditional, which I cannot… because how can you expect machine when you come in and then it – it’s just this one.  And then… one leave aside?  Not possible.  And in the future, next 10 years, am I going to do it this way?  Not possible.”
  2. [43]
    No site inspection was conducted that day as a storm was approaching.
  3. [44]
    At the inspection on 6 December 2016, Ms Hume gave evidence of having been tasked with measuring the felled trees and photographing the trees.  As explained by Mr Morris in evidence, the aim was to obtain for each fallen tree a Diameter at Breast Height (DBH) by placing a tape measure around the trunk of the tree at 1.4m above the roots which was the standard ecological measurement of a tree used to determine height and canopy size.  Some trees could not be measured as the manner in which they had been stockpiled on the ground made it too difficult to obtain a measurement.  In cross examination, Mr Morris said that they were able to measure most trees using the tape measure.  He said, given that they had measured 50 odd trees that day, any estimate that was required to be made would have been a fairly accurate estimate.
  4. [45]
    The inspection on 6 December 2016, took some four hours.  Ms Tseng was not present but had been told of the inspection and given her consent to the inspection occurring.  There were 12 separate locations where fallen trees were located; some stockpiled and some individual trees.  The evidence of Mr Morris was that they walked in a clockwise direction around the Property with the aid of a GPS and with both officers giving evidence of care being taken so as to ensure trees were not counted twice.  A series of number tags, or evidence tags, were used in photographing the trees, with care being taken to number each stockpile and mark each tree after it had been identified.
  5. [46]
    Each officer gave evidence of having recorded 62 native trees on the Property as having been interfered with by being pushed over in their entirety.  They each gave evidence that the damage observed was consistent with the trees having been pushed over, using heavy machinery.  Mr Morris referred to the fact that the root ball was still intact and said that none of the trees showed signs of having been interfered with by cutting with a chain saw. 
  6. [47]
    Mr Morris gave evidence that the 62 trees observed and photographed could be categorised as protected trees under the SNV and, in some cases also, WWV categories of protected trees, and that he had prepared a Vegetation Interference Summary Report which set out his findings.  His evidence was that all of the trees identified on the Property were common species known to him.  His evidence was that there was nothing rare, threatened or unique that he needed to seek advice upon.
  7. [48]
    Mr Morris explained that in determining the replacement value of protected vegetation there is an internal policy document called OS21.  He explained that the document, by reference to the area or canopy size of the tree in question, gives the number of replacement trees that would be required to cover the canopy lost within the three-year time period permitted in the policy, and on that basis gives to each tree an assigned dollar value.  The policy requires that there be no net loss of canopy within three years; it being accepted that it is not possible to translocate mature trees to replace the mature trees lost.
  8. [49]
    In cross examination, each agreed that on the occasions they were present at the Property they did not witness anyone felling the trees and that they could not confirm when the trees had been pushed over. 

Evidence relating to permit applications

  1. [50]
    Included in the evidence were a series of communications between Ms Tseng and the Council in relation to works to be carried out on the Property, including communications between Ms Tseng and Mr Matt Gordon, the person referred to by Ms Tseng in her conversation with Mr Morris.  There was no challenge to the admissibility or authenticity of these communications and Ms Tseng cross examined each of the Council officers about them on the basis that the communications had been made by or to her.
  2. [51]
    Following the purchase of the Property, Ms Tseng made a number of applications to carry out works to the protected vegetation on the Property.  The initial application dated 7 March 2016, described the proposed works as complete removal of 500 trees, the “total clearing of vegetation on part/all of the site,” and “removal of weeds (including weed tree species) not exempt under this Local Law”.  It was said that a bulldozer was to be used to “even off the whole block of land” and there would be the burning of vegetation to remove all bush and weeds to clear up the lands.  The application described as the reason for the proposed work as being “to enable construction of a building or other structure, to enable site works, ie. landscaping and to enable agriculture, horticulture or forestry practices.”
  3. [52]
    In responding to the application, by letter dated 9 March 2016, the Council told Ms Tseng that the vegetation on the Property fell under the protection categories of SNV and WWV.  The Council said that the application was considered to be pre-emptive clearing and, as such, could not be processed.  The letter explained the information the Council would require and commented that the application would need to be made by the registered owner.[4]
  4. [53]
    A subsequent application was made on 15 April 2016, with the major change being to reduce the number of trees to be removed to 100 and to attach a sketch of the proposed development for the site, which included the construction of a house, shop and service station.  By letter dated 13 May 2016, the Council again confirmed that the application to carry out works on protected vegetation was pre-emptive and should be made once Development Approval had been finalised.
  5. [54]
    A further application was made on 23 May 2016, reducing the number of trees to be removed to 77 and clearing of other vegetation with a change in the proposed plan to being a fruit and flower growing farm, namely Mango and Apple Tree Farm, a Rose, Lavender and Sunflower Farm, and a carpark for customers.  By letter dated 30 June 2016, the application was again said to be pre-emptive; though it was noted that an exemption exists for the removal of pest vegetation without a permit.
  6. [55]
    Ms Coutts, an environmental management officer with the Council, was the Council officer who assessed all three applications.  Ms Coutts gave evidence that a permit was never issued in relation to the clearing of vegetation on the Property.
  7. [56]
    On 5 July 2016, Ms Tseng sought a review of the 23 May 2016 application decision.  The application for review was conducted by Mr Gordon, Acting Senior Environmental Management Officer with the Council, at the relevant time.  By letter dated 1 August 2016, he advised Ms Tseng that her review was unsuccessful.  A separate detailed letter of the same date was sent, attaching the decision, and explaining the vegetation protection requirements including exemptions and permits and the development approval process. In that letter the existence of the vegetation protection orders in relation to the Property were confirmed. 
  8. [57]
    A letter dated 4 August 2016 was also sent from another department within the Council.  The letter confirmed the vegetation protection orders affecting the Property and stated that Ms Tseng “must obtain a permit from Council to interfere with vegetation protected under NALL”.  The letter contained an offer to work with Ms Tseng to identify pest vegetation and exotic species that may lawfully be removed and to permit maintenance pruning and removal of smaller dead trees, so that the Property could be utilised for the purposes of growing fruit trees.
  9. [58]
    Ms Tseng lodged a Development Assessment Enquiry Form on 25 September 2016.  Ms Tseng confirmed that she wished to clear the land to grow fruit trees.  That application was subsequently withdrawn and by email dated 19 October 2016, Ms Tseng was advised that approval had been granted for a full refund of fees paid for the above application.  Ms Tseng was told the payment of $550 would be refunded by B-Pay.
  10. [59]
    Mr Gordon gave evidence of having a conversation with Ms Tseng on 19 October 2016; that is the conversation referred to by Ms Tseng in her conversation with Mr Morris.  Mr Gordon said he had been requested by the Lord Mayor’s office to arrange a site visit to meet Ms Tseng and discuss the concerns she had in relation to the Property, usage of the Property and the nature of the type of work she was proposing to undertake on the Property.  He said that the purpose of his attendance at the Property would be to identify the pest vegetation on the Property because that would not be protected by NALL and would be able to be removed. 
  11. [60]
    Mr Gordon was asked whether, during the conversation, there was any discussion about the issuing of a permit.  He said that Ms Tseng had raised it because she was still seeking a permit to remove all the vegetation on the land.  Mr Gordon said that what had been previously noted in other applications and in other correspondence was the removal of pest vegetation which he said was considered a prudent and feasible alternative to the total removal of all vegetation.  He said that would allow some of the activities that were proposed to be undertaken “whilst still retaining the environmental and ecological values of the protected vegetation there.”
  12. [61]
    In answer to the question as to whether a permit to remove protected vegetation was discussed, Mr Morris said, “Certainly not a permit to clear the whole of the land.  That was something that – at this point, I was requested to just look at pest vegetation.”
  13. [62]
    Mr Gordon was asked as to whether he ever issued that permit at all and he responded, “No, never came to that stage, by way of issuing of any permits for the removal of protected vegetation on the property.”
  14. [63]
    Mr Gordon said that after that phone conversation, he had no further direct contact with Ms Tseng.
  15. [64]
    There was further email correspondence between Ms Tseng and the Council, in particular further correspondence with Mr Gordon.  Ms Tseng sent an email to Mr Gordon dated 20 October 2016, after the phone conversation in which she stated that she had received from the Town Planning Team unconditional approval to clear “the whole of the site”.  In that email, Ms Tseng attached and referred to the email of 19 October 2016, referred to above; that is the email giving the full refund of fees for the development assessment which was withdrawn.
  16. [65]
    Notwithstanding the email of 20 October 2016, Ms Tseng sent a further email to Mr Gordon and the NALL team dated 21 October 2016 in which she raised further facts for their consideration in relation to the proposed works, in particular referring to the benefits of the proposed agricultural activities and again requested the issue of an unconditional permit to clear the whole site.
  17. [66]
    Mr Gordon also gave evidence of having conducted a site inspection on 26 October 2016, one month prior to any alleged felling of trees, to undertake a survey in relation to pest vegetation or potentially other species that may or may not be protected by the Local Law.
  18. [67]
    In conducting the site inspection on 26 October 2016, Mr Gordon’s evidence was that he prepared a handwritten list of all the native species he observed on the Property and took photographs as he traversed around the boundary of the Property and through the site.  At the time of that inspection, his evidence was that he did not notice any native trees that had been knocked down or pushed over.  He said there was no fallen vegetation of any size that he noted on the Property at that point in time.  At the conclusion of his inspection, he reported his findings to the Lord Mayor’s office; though not to Ms Tseng.

Evidence as to Compliance Notice

  1. [68]
    A compliance notice was issued by Mr Morris, as an authorised officer on behalf of the Council on 3 March 2017 pursuant to which Ms Tseng, amongst other things, was required to engage the services of a natural area rehabilitation professional and have prepared and submit for approval a rehabilitation plan to rectify the interference to the protected vegetation.  A review of the notice was requested on 17 March 2017, and by letter dated 30 March 2017 the Council confirmed that no error had been made in the issue of the Compliance Notice and that the notice was correct.  By the letter, the date for compliance was extended.
  2. [69]
    Mr Millard, a team leader of the Environmental Management Team within the Council, gave evidence of being the officer responsible for conducting the review.  He confirmed that in undertaking the review, he reviewed information in the Council’s systems and mapping programs.  He reviewed the Local Law protections in relation to the Property, any previous permits or applications, and any advice sent back to the applicant.
  3. [70]
    He confirmed that on the Property there were two layers of protection; one significant native vegetation over the whole of the Property and the other waterway vegetation at the rear of the Property.  By reference to the mapping data tendered in evidence, he described the SNV as being over the entire Property and was the green hatching and the waterway vegetation over part of the Property and that being shown by the blue hatching.  He explained that the Council does not keep a record of all the trees that were on the Property.  He explained that the Council is not required to keep an inventory of all trees on a property.  The vegetation protection order covers all native vegetation within the area covered by the order.
  4. [71]
    He explained that the inventory that was done was in relation to the trees that had been felled.  On completion of his review, Mr Millard confirmed the Compliance Notice but extended the date for compliance with the notice.
  5. [72]
    Mr Millard gave evidence of not having received any documents from Ms Tseng as required by the Compliance Notice.  His evidence was that he would be the person within the Council who would receive such documents.  Mr Millard was not cross examined on this evidence.
  6. [73]
    Mr Morris gave evidence of having a conversation with Ms Tseng following the issue of the Compliance Notice on 3 March 2017.  Ms Tseng told him that she did not agree with the issuing of the Notice or its requirements and she did not intend to undertake the replanting works.  Mr Morris gave evidence that he had not received any documents as required by the notice.  Mr Morris was not cross examined as to the conversation.

Grounds of Appeal against Conviction

  1. [74]
    Whilst some of the grounds of appeal were distinct or appeared to be distinct, numerous arguments were often formulated in support of them.  There was a great deal of repetition in these arguments.  This judgment will deal with the appeal on the basis of the topics addressed, even if they are advanced on several grounds. 

Reliance on the admissions made in the Interview on 30 November 2016 – parts of grounds of appeal A and D

  1. [75]
    Ms Tseng submitted that the admissions upon which the prosecution relied took place during a casual conversation on a busy road under a very noisy and distracting environment, and accordingly it was impossible for her to have made any serious admissions.  Ms Tseng submitted that she did not have a lawyer present, nor was she warned.
  2. [76]
    A review of the transcript indicates that the admissions were made voluntarily in the exercise of free choice, in circumstances where each party could hear the other; even if the conversation was beside a busy road.  The purpose of the conversation was made clear to Ms Tseng, she was cautioned as to her right to silence, was told any answers given could be used in Court and was aware the interview was to be recorded.
  3. [77]
    Ms Tseng was not distracted, nor overborne or tricked.  The interview had significant probative value and there were no issues of unfairness.
  4. [78]
    Ms Tseng submitted also that the quality of the admissions was somehow affected by the fact that the admissions were not made by means of a walk-through the Property and that no direct questions were asked of her with respect to each one of the 62 trees. That was clearly not necessary in view of the extensive admissions made and the Magistrate was entitled to rely upon the admissions as a basis to convict Ms Tseng.
  5. [79]
    The challenge to the reliability and probative value of the admissions fails.

Identification of defendant – parts of grounds of appeal C, E and I

  1. [80]
    The focus of Ms Tseng’s submission was the lack of any direct evidence proving that she had caused or permitted anyone to interfere with the protected trees.  In particular, Ms Tseng submitted there was no evidence of any act done by her, nor of any witness having seen anyone pushing over any of the trees, nor any evidence as to when the trees died on the Property, which was unsecured, unfenced and unoccupied.  Ms Tseng submitted that she could not be responsible for monitoring the Property 24 hours a day, seven days a week to prevent trespassers from interfering.
  2. [81]
    There was ample evidence upon which it could be inferred that the pushing over and interference with the trees happened on or about 26 November 2016: the evidence of Mr Pulley of having driven past the Property on 25 November 2016, on his way to work and of there being no fallen trees, and then on 26 November 2016, of having noticed a number of fallen trees; the evidence of the Council officer, Mr Gordon of his inspection of the site on 26 October 2016 and of there being no fallen trees on the Property; the evidence of the Council officer, Ms Cruttensden, who was attending the adjoining property on 29 November 2016 for work, and who had attended the adjoining property on a monthly basis and had attended on Ms Tseng’s Property prior to the Council selling the Property to Ms Tseng, and had noticed fallen trees on the morning of 29 November 2016; and the evidence of the Council worker, Ms Sciortino, of attending the boundary of the Property on 29 November 2016, and having observed that some trees had been knocked over and were lying on the Property.
  3. [82]
    In relation to Ms Tseng, there were ample admissions made by her to Mr Morris from which it could be concluded beyond reasonable doubt that she had caused her friend to knock down the trees so that she could grow mangoes.   As previously held, there was no need for an admission to be sought or made with respect to each single tree.  It was clear that when Ms Tseng admitted that a friend had felled the trees and that she wanted that to happen, she was referring to all of the trees that were felled.
  4. [83]
    Although the particulars to each charge alleged that Ms Tseng was the owner of the land, contrary to the submissions, the convictions were not based upon the fact that she owned the land, but upon the fact that she admitted to her involvement in the felling of the trees.
  5. [84]
    The appeal on the ground that there was insufficient evidence connecting Ms Tseng to the felling of the trees fails.

Identification of vegetation information – parts of grounds of appeal A, E and F

  1. [85]
    It was submitted by Ms Tseng that the Magistrate had relied on the ‘unverified and unreliable’ vegetation information for the premises as prepared by the Council’s desktop computing devices which displayed the NALL SNV and WWV mappings but was unable to provide a ‘real-time’ comprehensive vegetation report of the premises.  Ms Tseng submitted that it was necessary for the prosecution to adduce evidence of the quantity, tree species, scientific name, DBH, canopy radius, width and area, and individual tree location.
  2. [86]
    The legislative scheme, however does not require individual trees to be identified.  Rather, the system provides for general orders to be made in respect of certain parcels of land and for the order to protect any species of vegetation covered by the terms of the order on that land.
  3. [87]
    The evidence presented established the existence of both SNV and WWV orders over the Property and the evidence of Mr Morris confirmed that the fallen trees inspected on the Property were native trees falling within the terms of the protection orders.
  4. [88]
    The evidence from Mr Morris and Ms Hume was that the trees pushed over were native vegetation and the certificate proved that it was growing in an area designated in the SNV layer on Council’s geographic information system.
  5. [89]
    The grounds of appeal, insofar as they relate to the identification of the vegetation, fails.

Conflicting evidence – ground of appeal G

  1. [90]
    Ms Tseng submits there is unreconciled conflicts in the evidence presented by Council officers, Mr Gordon and Mr Morris, referring in particular to the photographs taken at the time of their site visits.  Mr Gordon’s evidence was that he attended at the site on 26 October 2016, approximately one month before the alleged felling of trees, and took photographs of the site that day and Mr Morris attended the site and took photographs on 6 December 2016, shortly after the alleged felling of the trees.
  2. [91]
    Each gave evidence as to the purpose of their site visits; Mr Gordon was undertaking a survey as to the pest vegetation on the land which would not be subject to any protection order and could be removed, and Mr Morris gave evidence of attending to identify the fallen trees.
  3. [92]
    There is no conflict in their evidence. 
  4. [93]
    Mr Morris carefully explained how he counted the number of trees.  There was no need for him to ask Ms Tseng to verify the count, as Ms Tseng submitted.
  5. [94]
    This ground of appeal fails.

The applications for approval – parts of grounds of appeal C and H

  1. [95]
    During the course of her conversations with Mr Morris, Ms Tseng accepts that she made and refers to the fact that she had made applications to the Council for removal of the trees.  The evidence from Council officers also consisted of conversations with Ms Tseng after she made the applications and prior to the felling of the trees.
  2. [96]
    The fact that Ms Tseng had lodged applications for vegetation work to be carried out on the Property was not contested by her at the hearing.  No objection was taken at the hearing to the tendering of the applications and correspondence between Ms Tseng and the Council.
  3. [97]
    The evidence was obviously admissible and relevant to rebut the suggestion that Ms Tseng had a permit.  The evidence was also made relevant by the terms of the conversation between Ms Tseng and Mr Morris, and in particular her assertion that Mr Gordon had said that he would issue her a permit; albeit subsequent answers given by Ms Tseng in the interview indicated that at no time did she think she had been issued an unconditional permit to clear the land.
  4. [98]
    This evidence was used by the Magistrate at the end of the judgment as one of the pieces of evidence which justified the conclusion that Ms Tseng was guilty of the offences.  In my view the Magistrate was entitled to use the evidence as part of a circumstantial case against Ms Tseng.
  5. [99]
    Even if that evidence was excluded there was plenty of evidence, mainly her admissions, justifying the conclusion that Ms Tseng had committed the offences.
  6. [100]
    The appeal based upon the admission of the evidence of the applications fails.

  Duplicitous charges – ground of appeal B

  1. [101]
    Ms Tseng submitted on appeal, as she did before the Magistrate, that the 64 charges were bad for duplicity.  Although no specific submissions were made in relation to counts 63 and 64, Ms Tseng submitted that the allegation that she had caused or permitted 62 individual trees to be interfered with, amounted to two matters of complaint and hence was fundamentally flawed
  2. [102]
    It is well accepted that no count in any one complaint may charge a person with the commission of more than one offence.  The justification for the rule was discussed in two judgments of the High Court as resting on the concept of fairness to the accused: S v The Queen[5] and Walsh v Tattersall.[6]
  3. [103]
    The section under which Ms Tseng was convicted made provision for two types of offenses: it provided that a person must not “interfere with, or cause or permit interference with” a protected tree.
  4. [104]
    In this case Ms Tseng allegedly “did cause or permit a protected tree to be interfered with”.  Each charge contained extensive particulars with each relevantly stating that Ms Tseng “did cause tree [number] to be felled, in that it engaged someone to remove the tree on their behalf”.
  5. [105]
    In other words, the offence with which Ms Tseng was convicted was for one offence only.  It was not alleged that she interfered with the tree and caused or permitted interference with the tree.  It was not alleged that Ms Tseng interfered with the tree. The allegation is that she caused or permitted someone else to do so.
  6. [106]
    The charge would be duplicitous if the defendant was charged with interfering with protected trees and causing or permitting the interference with any protected trees. That was the position before Judge Wall QC in De Bray v Cohen[7] to which Ms Tseng referred.  That was not the case here.
  7. [107]
    This ground fails.

Rehabilitation order – ground of appeal J

  1. [108]
    The NALL grants a court, when any person is convicted of an offence under it, jurisdiction to order the person, if the offence included failure to comply with a compliance notice, to perform the works and other actions specified in the compliance notice.[8]  Section 35, which allows an authorised person to give a compliance notice, provides that a compliance notice may “require the person to take specified action, within the time or times specified in the order, to remedy the contravention.”
  2. [109]
    In this case, the prosecution sought an order almost completely identical to the Compliance Notice.
  3. [110]
    The order made required Ms Tseng to engage the services of a natural area rehabilitation professional to design a rehabilitation plan, provide the Council with the name of the person, submit a rehabilitation plan to the Council for approval and to implement the approved rehabilitation plan; all within specified dates.  Under the order the rehabilitation plan had to include a specified number, size and type of native plants.  If the replacement planting could not be accommodated on the Property, paragraph 5 of the order required Ms Tseng to make written representations to the Council stating the amount of the planting that cannot be accommodated.  Paragraph 5 of the order then stated:

“Council will then issue you with a Private Works Order (PWO) to recover the associated financial value for the replacement planting that cannot be accommodated. This money will be used by Council to carry out suitable replanting works on Council land within your local area.  The monetary value contained in the PWO is based on the Council’s OS21 Tree Removal and Replacement Procedure and amounts to $143,282.”

  1. [111]
    The Council’s OS21 was described in evidence by Mr Morris as an internal policy that guides decision-making when it comes to calculating and valuing the replacement value of protected vegetation.  Mr Morris explained that the policy allowed a person to calculate the number and size of trees to be planted and grown in order to replace the lost canopy within three years.
  2. [112]
    Ms Tseng submitted that there was insufficient evidence as to the trunk size and canopy size of the 62 trees, and no legal basis for the cost calculation in the rehabilitation order. 
  3. [113]
    In giving evidence, Mr Morris detailed his qualifications and experience.  He gave detailed evidence as to the methodology adopted in undertaking the survey on the Property, the process for identifying a felled tree as protected, the process adopted in photographing each tree and measuring the DBH of each tree.  Mr Morris’ evidence is supported by the evidence of Ms Hume, who also attended on the site inspection.
  4. [114]
    From those records, Mr Morris prepared his Interference Summary Report which included a summary table which listed each tree, the DBH for each tree, the calculation of the canopy loss and the monetary value to the replacement planting.  There is no basis to challenge the process undertaken by Mr Morris.
  5. [115]
    It is not suggested that OS21 has any legislative basis.  The NALL does make provision for valuing trees.  Section 7(1), (2) and (3) creates offences against interference with vegetation, with the penalty depending, in part, on the replacement value of the tree.  Section 7(4) provides that the replacement value of a tree is to be calculated by applying standards determined by Council.  Section 7(5) provides that the Council may specify by subordinate local law the standards for valuing amenity trees for the purpose of this local law.  The Council has not done so.
  6. [116]
    Section 40 permits the Court, at its discretion, in determining the value of vegetation in any proceedings under the law, to have regard to any subordinate local law made by Council specifying its standards for valuing amenity trees.  The section itself makes it clear that reference to any local law is a matter of discretion.
  7. [117]
    There is nothing in s 39 which requires that any order be based upon a local law or have some other legislative basis.  Indeed, as will be seen, it was really based on the evidence of Mr Morris.
  8. [118]
    The legal basis for the order more generally, is really confined to the question as to whether it was appropriate to require the convicted person to perform the works and other actions specified in the Compliance Notice.
  9. [119]
    It is clear from the evidence of Mr Morris that he issued the Compliance Notice after using an excel calculator created under the guiding principles of OS21.  It was implicit from his evidence that he accepted the appropriateness of the principles set out in OS21 and the method of calculation and the results which the computer program gave him.
  10. [120]
    The NALL provides a method of review of the Compliance Notice, and Ms Tseng exercised that right.  Her application for review contained an extensive history of interactions between Ms Tseng and the Council and her grievances against the Council.  The application complained about the method of calculation of the number and size of each tree and the cost of each tree.  It was reviewed by Mr Millard and rejected.  Mr Millard gave oral evidence at the hearing.  No challenge was made either to Mr Morris or Mr Millard at the hearing as to the contents of the Compliance Notice.
  11. [121]
    On the evidence, Ms Tseng was clearly aware that the vegetation on the land was protected and that she needed a permit in order to do anything to the trees.  It is equally clear from her admissions and correspondence with the Council that she considered that it was unfair for the Council to sell her the land, and that she not be entitled to develop it.  It is clear from the evidence that she decided to have the trees removed despite the absence of a permit.
  12. [122]
    It was entirely appropriate for the Magistrate to make a rehabilitation order.  The section, which grants jurisdiction to the court, anticipates that the order to be made include the works and other actions, as specified in the Compliance Notice.
  13. [123]
    Paragraph 5 of the order proceeds on the basis that Ms Tseng may not be able to have all the replanting done on the Property and allows the Council to issue a works order to recover the value of the replacement planting that cannot be accommodated.  Paragraph 5 of the order then says that the monetary value for the works order is based on OS21 and amounts to $143,282.00.  The method of calculation of that amount itself appears in a schedule which is appendix 6 to the report by Mr Morris.  This schedule sets out the DBH of each tree uprooted and, by reference to the canopy loss calculator referred to, but not contained in OS21, the canopy area and the number of replacement trees required.  Construing the Compliance Notice and the order having regard to its text, content and purpose, clearly any works order is therefore to start with the requirements of the schedule and then calculate backwards to work out the cost of replacement planting that cannot be accommodated on the Property but is to take place on Council land within the local area.  Understood in this way, the reference to OS21 is a distraction.  The important point is the Council officer has given evidence as to the quality, quantity and value of replacement trees which would be necessary to rehabilitate the area, and the Magistrate was entitled to accept that evidence in making the appropriate order.
  14. [124]
    The order stated that the cost was of replanting on Council land, whereas the power granted under s 35 was to issue a compliance notice to “remedy the contravention”; which, in this case, occurred on private property.  No submission, however, was made on this topic and it is therefore unnecessary to deal with it.
  15. [125]
    This ground of appeal fails.

Appeal against sentence – ground of appeal K

  1. [126]
    Ms Tseng submitted that the sentence was manifestly excessive and, what she described as, being at or close to the top of the scale.  Ms Tseng submitted that the Magistrate erred in referring to the three unsuccessful permit applications and failing to have regard to Ms Tseng’s financial hardship; her circumstances of being heavily reliant on Centrelink since July 2015, suffering from a chronic mental illness and being the recipient of Centrelink Pensioner medical support since May 2019. 
  2. [127]
    Ms Tseng also submitted that the Magistrate erred in having regard to the four cases to which the court was referred by the Council: Brisbane City Council v                  Ashraf Ali Qureshi,[9] Richard Thorn (Brisbane City Council) v 100% Treecycle Pty Ltd,[10] Richard Thorn (Brisbane City Council) v Southland Holdings Pty Ltd & Yi Lu[11] and Director General of the Department of Environment and Climate Change v Rae.[12] 
  3. [128]
    Finally, Ms Tseng submitted that the Magistrate erred in not having regard to whether the cost of rectifying the tree value was lower or higher than $4,000 or whether the offender was a corporation or individual.
  4. [129]
    The Council submits that the maximum penalty for the offences under s 7 was $2,462,380; having regard to the fact that 24 breaches carried a maximum penalty of $6,095 (being with respect to trees of a value of $4,000 or less) and the other 38 breaches had a maximum penalty of $60,950 per offence (for individuals).  The Magistrate was informed of the maximum penalty that applied to the offences, and the difference between the types of offences.
  5. [130]
    The calculated value of the tree was set out in the particulars of the relevant charges and appeared in the report by Mr Morris.  Although there is no subordinate local law dealing with the value of the trees, that is not required by the section under which the offences are created.  Section 7(4) simply requires that the replacement value be calculated by applying standards, as determined by Council, for valuing amenity trees that accord with best arboriculture practice.  Section 7(5) permits the Council to specify by subordinate local law that value, but it does not require it; and neither does s 7(4).  The inference from the report by Mr Morris is that the value he ascribed was the value determined by an internal Council programme.
  6. [131]
    In any event the penalty imposed was significantly below the maximum for each offence and consistent with the sentences imposed for similar offending.
  7. [132]
    Unfortunately, the submissions by Ms Tseng complained about the penalty on the basis that the offences had not been proven, whereas not only were the offenses proven, but, as the prosecution submitted, Ms Tseng was fully aware of the requirements for obtaining a permit, and sought a commercial benefit by removing protected vegetation.
  8. [133]
    In determining the relevant sentence, the Magistrate did not ignore the evidence given by Ms Tseng but rather commented that there was a copy of a Healthcare card and a pension concession card but no other financial information; including about what property she owned or any details of the mortgage over this Property.
  9. [134]
    On the hearing of this appeal, I permitted the tender of additional financial information but the only documents tendered were a Notice of Assessment for the year ended 30 June 2019 showing Ms Tseng’s taxable income was an amount of $14,332, updated Health Care and Pensioner Concession cards, and a Centrelink Medical Certificate.  The Court was not given any greater picture as to the financial position of Ms Tseng. 
  10. [135]
    The concept of a sentence being manifestly excessive was considered in Hili v The Queen[13] where the Court in referring to the plurality in Wong v The Queen stated:

“[A]ppellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate ‘is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases.’”[14]

  1. [136]
    Rather, it was said, again referring to the plurality in Wong:

“[I]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.”[15]

  1. [137]
    There is no basis for concluding that the sentence was manifestly excessive or that there was some misapplication of principle or error in the sentencing discretion.
  2. [138]
    The appeal against sentence is dismissed.  

Appeal against the costs order – ground of appeal L

  1. [139]
    Schedule 2 of the Justices Regulations 2014 (Qld) allowed for professional costs in the amount of up to $1,500 for instructions and preparation, including the first day of hearing, up to $875 for each day of hearing and up to $250 for court attendance, other than on the hearing.
  2. [140]
    Ms Tseng submits that legal professional fees using the maximum scale disclosed in sch 2, including allowing for two days of the hearing and other court attendances, should not be awarded beyond $2,625.
  3. [141]
    The Council argues there was a two-day hearing but submits there were eight court attendances, other than for the hearing, including the delivery of the court’s decision. The Council noted that it had also prepared and attended the court with numerous witnesses for a hearing in November 2018, when Ms Tseng was granted an adjournment.
  4. [142]
    The Magistrate awarded the Council, what was described as scale costs; being costs for a two day hearing and eight court attendances.
  5. [143]
    The wording of sch 2 does not impose a limit on the number of court appearances which may be included in the cost award.  The amount allowed for costs was not greater than that permitted by the scale and was entirely reasonable.
  6. [144]
    Ms Tseng points out that lower costs were awarded in the other cases relied upon by the prosecution, but each of those involved pleas of guilty and the award of costs did no more than indemnify the person entitled to the costs for the costs incurred.
  7. [145]
    This ground fails.

Conclusion

  1. [146]
    The appeal is dismissed.
  2. [147]
    The usual result of a decision to this effect is that costs will follow the event, meaning that Ms Tseng will be ordered to pay the costs of the Council, but I will give Ms Tseng an opportunity to file and serve submissions on the question.
  3. [148]
    At this stage I propose to make my decision as to costs in chambers without any further oral hearing.
  4. [149]
    The orders will be:
    1. (a)
      Appeal dismissed;
    2. (b)
      The appellant file and serve any submissions as to costs of no more than four pages in length by 10 December 2021; and
    3. (c)
      The respondent file and serve any submissions in reply as to costs of no more than four pages in length by 16 December 2021.

Footnotes

[1]Allesch v Maunz (2000) 203 CLR 172 at [23]; Teelow v Commissioner of Police [2009] 2 Qd R 489 at [4]; White v Commissioner of Police [2014] QCA 121 at [8], McDonald v Queensland Police Service [2018] 2 Qd R 615 at [47].

[2]Fox v Percy (2003) 214 CLR 118 at [22], [25]; Warren v Coombes (1979) 142 CLR 531; Dwyer v Calco Timbers (2008) 234 CLR 124; applied in Forrest v Commissioner of Police [2017] QCA 132, 5 and McDonald v Queensland Police Service [2018] 2 Qd R 615 at [47].

[3]White v Commissioner of Police [2014] QCA 12 at [6]; Forrest v Commissioner of Police [2017] QCA 132, 5; McDonald v Queensland Police Service [2018] 2 Qd R 615 at [47].

[4]The application was lodged by the appellant before becoming registered owner of the Property.

[5](1989) 168 CLR 266.

[6](1996) 188 CLR 77.

[7]De Bray v Cohen; Macefield Pty Ltd v Cohen [2008] QDC 275.

[8] s 39.

[9](unreported, Magistrate Cornack, Holland Park, 19 November 2018).

[10](unreported, Acting Magistrate Turra, Holland Park, 4 May 2018).

[11](unreported, Acting Magistrate Turra, Holland Park, 21 June 2018).

[12][2009] NSWLEC 137.

[13](2010) 242 CLR 520.

[14](2010) 242 CLR 520 at [59] quoting Wong v The Queen (2001) 207 CLR 584 at [58] (Wong).

[15]Hili v The Queen (2010) 242 CLR 520 at [59] quoting Wong at [58].

Close

Editorial Notes

  • Published Case Name:

    Tseng v Brisbane City Council

  • Shortened Case Name:

    Tseng v Brisbane City Council

  • MNC:

    [2021] QDC 293

  • Court:

    QDC

  • Judge(s):

    Sheridan DCJ

  • Date:

    29 Nov 2021

Litigation History

EventCitation or FileDateNotes
Primary JudgmentMC21865/18 (No citation)29 Aug 2019-
Primary Judgment[2021] QDC 29329 Nov 2021-
Primary Judgment[2021] QDC 32717 Dec 2021-
Notice of Appeal FiledFile Number: CA328/2114 Dec 2021-
Appeal Determined (QCA)[2022] QCA 22211 Nov 2022-
Application for Special Leave (HCA)File Number: B61/202205 Dec 2022-
Special Leave Refused (HCA)[2023] HCASL 9208 Jun 2023Special leave refused: Edelman and Jagot JJ.

Appeal Status

Appeal Determined - Special Leave Refused (HCA)

Cases Cited

Case NameFull CitationFrequency
Allesch v Maunz (2000) 203 CLR 172
2 citations
Jump To
Cite 1 - (2000) 203 CLR 172
Cite 2 - (2000) 203 CLR 172
Allesch v Maunz [2000] HCA 40
1 citation
Jump To
Cite 1 - [2000] HCA 40
De Bray v Cohen [2008] QDC 275
2 citations
Jump To
Cite 1 - [2008] QDC 275
Cite 2 - [2008] QDC 275
Dwyer v Calco Timbers Pty Ltd [2008] HCA 13
1 citation
Jump To
Cite 1 - [2008] HCA 13
Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124
2 citations
Jump To
Cite 1 - (2008) 234 CLR 124
Cite 2 - (2008) 234 CLR 124
Environment and Climate Change v Rae [2009] NSWLEC 137
2 citations
Jump To
Cite 1 - [2009] NSWLEC 137
Cite 2 - [2009] NSWLEC 137
Forrest v Commissioner of Police [2017] QCA 132
3 citations
Jump To
Cite 1 - [2017] QCA 132
Cite 2 - [2017] QCA 132
Cite 3 - [2017] QCA 132
Fox v Percy (2003) 214 CLR 118
2 citations
Jump To
Cite 1 - (2003) 214 CLR 118
Cite 2 - (2003) 214 CLR 118
Fox v Percy (2003) HCA 22
1 citation
Jump To
Cite 1 - (2003) HCA 22
Hili v The Queen [2010] HCA 45
1 citation
Jump To
Cite 1 - [2010] HCA 45
Hili v The Queen (2010) 242 CLR 520
4 citations
Jump To
Cite 1 - (2010) 242 CLR 520
Cite 2 - (2010) 242 CLR 520
Cite 3 - (2010) 242 CLR 520
Cite 4 - (2010) 242 CLR 520
McDonald v Queensland Police Service[2018] 2 Qd R 612; [2017] QCA 255
1 citation
Jump To
Cite 1 - [2017] QCA 255
McDonald v Queensland Police Service [2018] 2 Qd R 615
4 citations
Jump To
Cite 1 - [2018] 2 Qd R 615
Cite 2 - [2018] 2 Qd R 615
Cite 3 - [2018] 2 Qd R 615
Cite 4 - [2018] 2 Qd R 615
R v Henderson [2014] QCA 12
1 citation
Jump To
Cite 1 - [2014] QCA 12
S v The Queen (1989) 168 CLR 266
2 citations
Jump To
Cite 1 - (1989) 168 CLR 266
Cite 2 - (1989) 168 CLR 266
S v The Queen [1989] HCA 66
1 citation
Jump To
Cite 1 - [1989] HCA 66
Teelow v Commissioner of Police[2009] 2 Qd R 489; [2009] QCA 84
3 citations
Jump To
Cite 1 - [2009] QCA 84
Cite 2 - [2009] 2 Qd R 489
Cite 3 - [2009] 2 Qd R 489
Walsh v Tattersall (1996) 188 CLR 77
2 citations
Jump To
Cite 1 - (1996) 188 CLR 77
Cite 2 - (1996) 188 CLR 77
Walsh v Tattersall [1996] HCA 26
1 citation
Jump To
Cite 1 - [1996] HCA 26
Warren v Coombes (1979) 142 CLR 531
2 citations
Jump To
Cite 1 - (1979) 142 CLR 531
Cite 2 - (1979) 142 CLR 531
Warren v Coombes (1979) HCA 9
1 citation
Jump To
Cite 1 - (1979) HCA 9
White v Commissioner of Police [2014] QCA 121
2 citations
Jump To
Cite 1 - [2014] QCA 121
Cite 2 - [2014] QCA 121
Wong v The Queen (2001) 207 CLR 584
3 citations
Jump To
Cite 1 - (2001) 207 CLR 584
Cite 2 - (2001) 207 CLR 584
Cite 3 - (2001) 207 CLR 584
Wong v The Queen [2001] HCA 64
1 citation
Jump To
Cite 1 - [2001] HCA 64

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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