Anderson v Dunlop - [2009] QMC 14

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Anderson v Dunlop & Ors [2009] QMC 14

PARTIES:

JUSTIN ANDERSON

(applicant)

v

RICHARD DUNLOP

(first respondent)

GOLD COAST CITY ART GALLERY PTY LTD

(second respondent)

MICHAEL JOHNSON

(third respondent)

FILE NO/S:

MAG231600/08(6)

DIVISION:

Magistrates Courts

PROCEEDING:

Application to declare owner

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

2 March 2009

DELIVERED AT:

Brisbane

HEARING DATE:

13 February 2009

MAGISTRATE:

Lee G

ORDER:

I declare the owner of the artist’s book titled “plucked hair from beards” by Shelagh Gwynne Morgan to be Dr Richard Dunlop. I order it be returned to him.

I declare the owner of “nine laser copies with the subject being Matadors with print indicating the author to be Steven Carson” to be Dr Richard Dunlop. I order they be returned to him.

I declare the owner of “four lithographs on paper by Timothy Michael Johnson” to be Dr Richard Dunlop. I order they be returned to him.

CATCHWORDS:

PERSONAL PROPERTY – OWNERSHIP AND POSSESSION - Police rights, powers and duties – search, seizure and detention of property – where there is a dispute between two or more persons as to ownership after criminal proceedings concluded - declaration as to ownership

PRACTICE AND PROCEDURE – INITIATING PROCEDURES – where mode of application pursuant to section 694 Police Powers and Responsibilities Act 2000 not specified – whether provisions of the Uniform Civil Procedure Rules 1999 apply

Justices Act 1886, s 39 (repealed), s 110A(5)(c)(i) & (ii)

Oaths Act 1867, s 41

Police Powers and Responsibilities Act 2000, s 687(a), s 694

Police Service Administration Act 1990, s 4.10, s 4.8(1) & (4)

Uniform Civil Procedure Rules 1999, r 10, r 17, r 19, r 26, r 35(1), r 39, r 390(b), r 430(1), r 432(1), r 435(5) & (6), r 439(2), r 440

Stephens v Williams [2008] QDC 320, referred to

COUNSEL:

Cox (Sergeant) for applicant

First respondent appeared on own behalf

SOLICITORS:

Police Prosecutions for applicant

First respondent appeared on own behalf

Three separate applications[1] have been brought by Detective Sergeant Justin Anderson of the Queensland Police Service (“the applicant”) pursuant to section 694 of the Police Powers and Responsibilities Act 2000 (“the Act”) in relation to the contested ownership of three different pieces of artwork seized under a warrant by police on 12 August 2005 from premises at 122 Fifth Avenue Windsor which was the residence at the time of Dr Richard Dunlop, the respondent in these applications.
[1] All filed 28 November 2008;
The items of artwork are described as follows:
·     Artists book titled “Plucked hair from beards” by Shelagh Gwynne Morgan;
·     Nine laser copies with the subject being Matadors with print indicating the author to be Steven Carson;
·     Four lithographs on paper by Timothy Michael Johnson;
The hearing was conducted on 13 February 2009 and I reserved my decision. Sergeant Cox appeared for the applicant and the respondent appeared on his own behalf.
Each of these applications will be dealt with shortly seriatim.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Anderson v Dunlop

Details

AGLC: Anderson v Dunlop [2009] QMC 14
Case: [2009] QMC 14
Decision Date: 2 March 2009

CaseChat Overview and Summary

In the case of Anderson v Dunlop, the issue before the court was the rightful ownership of several items of artistic property, namely an artist's book, a set of laser copies, and a collection of lithographs. The items were initially seized by police during criminal proceedings which have since concluded, leaving a dispute as to their ownership. The plaintiff sought a declaration of ownership and the return of the items to the defendant, Dr Richard Dunlop.

The primary legal issue before the court was whether it had jurisdiction to hear the application for a declaration of ownership under the relevant statute, and if so, whether the court should apply the provisions of the Uniform Civil Procedure Rules 1999 in the absence of a specified mode of application. The court considered whether the application was properly made under the Police Powers and Responsibilities Act 2000, and whether the rules of the Uniform Civil Procedure applied given the absence of a specified mode of application.

The court determined that the application was validly made under the Police Powers and Responsibilities Act 2000, and that the provisions of the Uniform Civil Procedure Rules 1999 applied in the absence of a specified mode of application. The court found in favour of Dr Dunlop, declaring him the rightful owner of the artist’s book, the laser copies, and the lithographs. Consequently, the court ordered the immediate return of the items to Dr Dunlop.

The court made orders declaring Dr Richard Dunlop to be the owner of the artist's book titled “plucked hair from beards” by Shelagh Gwynne Morgan, the nine laser copies with the subject being Matadors and print indicating the author to be Steven Carson, and the four lithographs on paper by Timothy Michael Johnson. The court ordered these items to be returned to Dr Dunlop without delay.

Orders

Orders of the court

I declare the owner of the artist’s book titled “plucked hair from beards” by Shelagh Gwynne Morgan to be Dr Richard Dunlop. I order it be returned to him.

I declare the owner of “nine laser copies with the subject being Matadors with print indicating the author to be Steven Carson” to be Dr Richard Dunlop. I order they be returned to him.

I declare the owner of “four lithographs on paper by Timothy Michael Johnson” to be Dr Richard Dunlop. I order they be returned to him.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Anderson v Dunlop & Ors [2009] QMC 14
PARTIES:	JUSTIN ANDERSON (applicant) v RICHARD DUNLOP (first respondent) GOLD COAST CITY ART GALLERY PTY LTD (second respondent) MICHAEL JOHNSON (third respondent)
FILE NO/S:	MAG231600/08(6)
DIVISION:	Magistrates Courts
PROCEEDING:	Application to declare owner
ORIGINATING COURT:	Magistrates Court at Brisbane
DELIVERED ON:	2 March 2009
DELIVERED AT:	Brisbane
HEARING DATE:	13 February 2009
MAGISTRATE:	Lee G
ORDER:	I declare the owner of the artist’s book titled “plucked hair from beards” by Shelagh Gwynne Morgan to be Dr Richard Dunlop. I order it be returned to him. I declare the owner of “nine laser copies with the subject being Matadors with print indicating the author to be Steven Carson” to be Dr Richard Dunlop. I order they be returned to him. I declare the owner of “four lithographs on paper by Timothy Michael Johnson” to be Dr Richard Dunlop. I order they be returned to him.
CATCHWORDS:	PERSONAL PROPERTY – OWNERSHIP AND POSSESSION - Police rights, powers and duties – search, seizure and detention of property – where there is a dispute between two or more persons as to ownership after criminal proceedings concluded - declaration as to ownership PRACTICE AND PROCEDURE – INITIATING PROCEDURES – where mode of application pursuant to section 694 Police Powers and Responsibilities Act 2000 not specified – whether provisions of the Uniform Civil Procedure Rules 1999 apply Justices Act 1886, s 39 (repealed), s 110A(5)(c)(i) & (ii) Oaths Act 1867, s 41 Police Powers and Responsibilities Act 2000, s 687(a), s 694 Police Service Administration Act 1990, s 4.10, s 4.8(1) & (4) Uniform Civil Procedure Rules 1999, r 10, r 17, r 19, r 26, r 35(1), r 39, r 390(b), r 430(1), r 432(1), r 435(5) & (6), r 439(2), r 440 Stephens v Williams [2008] QDC 320, referred to
COUNSEL:	Cox (Sergeant) for applicant First respondent appeared on own behalf
SOLICITORS:	Police Prosecutions for applicant First respondent appeared on own behalf