Armstrong v Buckland; Buckland v Armstrong

[1991] TASSC 164

Serial No B50/1991
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Armstrong v Buckland; Buckland v Armstrong [1991] TASSC 164; B50/1991

PARTIES:  ARMSTRONG, Vernon Brent
  v
  BUCKLAND, Jeffrey Robert
  BUCKLAND, Jeffrey Robert
  v
  ARMSTRONG, Vernon Brent

FILE NO/S:  LCA 77/1991

LCA 80/1991

DELIVERED ON:  16 September 1991
JUDGMENT OF:  Zeeman J

Judgment Number:  B50/1991
Number of paragraphs:  13

Serial No B50/1991
List "B"
File Nos LCA 77/1991

LCA 80/1991

VERNON BRENT ARMSTRONG v JEFFREY ROBERT BUCKLAND
JEFFREY ROBERT BUCKLAND v VERNON BRENT ARMSTRONG

REASONS FOR JUDGMENT  ZEEMAN J

16 September 1991

1. I had before me two notices to review, both of which arose out of the disposition by a magistrate sitting in the Court of Petty Sessions at Hobart of the complaint of Vernon Brent Armstrong (to whom I will refer as "the applicant", notwithstanding that he is the respondent to one notice to review) alleging that Jeffrey Robert Buckland (to whom I will refer as "the respondent") failed to comply with the provisions of an abatement notice served upon him pursuant to s600 of the Local Government Act 1962 ("the Act"). The learned magistrate dismissed the complaint, and the applicant sought to review the order of dismissal. Upon the learned magistrate dismissing the complaint, the respondent sought an order for costs. The learned magistrate refused to make such an order and the respondent sought to review that refusal.

1. I heard both matters on 9 September 1991. I dismissed the applicant's appeal, but declined to make any order as to the costs of that appeal. I upheld the respondent's appeal and made consequential orders. I then indicated that I would publish reasons for my orders in due course. I now do so.

1. The complaint alleged that there was served upon the respondent on 29 October 1990 an abatement notice in respect of premises situate at 316 Strickland Avenue, South Hobart and that the respondent had failed to comply with the terms of that notice. The complaint alleged an offence constituted by a breach of s600 and s821 of the Act. I do not consider that a failure to comply with the requirements of an abatement notice falls within the provisions of s821(b) of the Act having regard to the specific provisions of s602. The proceedings are to be taken as for a breach of duty under s602(1). Section 602 is to be taken as exhaustively providing for the manner in which an abatement notice is to be enforced and the circumstances in which a pecuniary penalty may be imposed for non–compliance. Section 821 does not apply to such non–compliance. Nevertheless, having regard to the way in which the case was conducted before the learned magistrate, any formal defects may be disregarded.

1. The applicant's notice to review set forth a number of grounds. I do not need to repeat them. None of them go to the question of the sufficiency of the abatement notice. If one or more of the stated grounds could be said to have been made out, it is still necessary to determine whether there was any evidence before the learned magistrate that the document relied upon as being the relevant abatement notice was in fact an abatement notice for the purposes of the Act. If it were not such a notice, then the applicant could never succeed on the complaint, so that the learned magistrate's dismissal of the complaint was right even if any of his expressed reasons indicated error. The existence of a valid abatement notice was a prerequisite to the learned magistrate making orders against the respondent under s602(2).

1. There was evidence before the learned magistrate that there had been served upon the respondent a document in the following terms:

"ABATEMENT NOTICE

LOCAL GOVERNMENT ACT 1962

YOU ARE HEREBY GIVEN NOTICE that pursuant to the provisions of Section 599 (1) (p) of the Local Government Act 1962, the Corporation is satisfied of the existence of a statutory nuisance on land known as 316 Strickland Avenue, South Hobart, namely:

'an accumulation of unsightly articles' to wit motor vehicle bodies, chassis and parts and pieces of motor vehicles, and mechanical equipment associated therewith in a suburban bushland setting.

AND YOU ARE FURTHER GIVEN NOTICE that the Corporation is satisfied that you are the person by whose acts or sufferance the nuisance arises and continues, pursuant to the provisions of Section 600(1) of the Local Government Act 1962,

YOU ARE GIVEN NOTICE that you are required to abate the nuisance by executing the following works:

1Remove all parts and pieces of motor vehicles from the property.

2Remove all motor vehicle bodies, chassis and mechanical equipment associated therewith from the said property

excepting that motor vehicle normally driven by you and registered in your name at the Motor Registry, Transport Tasmania, Hobart,

AND that you are required to complete this work within 28 days of the date of service upon you of this Notice.

(signed)

P ANGUS,

BUILDING SURVEYOR"

1. It is common ground, and apparent from the evidence which he gave before the learned magistrate, that it was Mr Angus and he alone who was satisfied of the existence of a statutory nuisance, that he determined to serve an abatement notice and that he prepared it and signed it. Whilst the notice records that the Corporation was satisfied of the existence of a statutory nuisance, it is common ground that the notice was given by Mr Angus in purported exercise of powers conferred pursuant to s600(3) of the Act based upon his state of satisfaction of the existence of a statutory nuisance. The question to be considered is whether there was any evidence before the learned magistrate that the council (i.e. the Council of the City of Hobart) had appointed Mr Angus as an officer to act on behalf of the Corporation for the purposes of s600. There was no such evidence. Mr Angus gave evidence that he was "a building surveyor and along with that abatement officer with the Corporation of the City of Hobart". He said that in answer to a question which asked him to state his occupation. No inference could be drawn from the fact that he described his occupation in part as being an abatement officer that he had been appointed under s600(3). One could imagine many duties which might be capable of being performed in relation to the abatement of nuisances which would fall short of having the particular authorities and powers referred to in s600(3).

1. The only other evidence relating to this matter consisted of photocopies of various pieces of paper said to be minutes of meetings of the council and of a committee of council and photocopies of what was said to be Mr Angus' letter of appointment and several certificates relating to qualifications held by him. I should say at once that none of those documents were admissible. In so far as the purported copies of minutes are concerned, no evidence was given about them and they were not certified in the manner referred to in s797(1)(b) of the Act. The other documents were tendered but no evidence was given about them. Before me, counsel for the applicant submitted that the learned magistrate could have received those documents pursuant to the provisions of s40A of the Evidence Act 1910. However, there was no evidence before the learned magistrate upon which he could possibly have been satisfied that the prerequisites for admission under that section existed. Surprisingly, counsel for the respondent did not take any objection before the learned magistrate to the admission of those documents. If the general rules applying to criminal proceedings could be said to apply to these proceedings, then the learned magistrate ought not to have admitted the documents, even in the absence of objection. However, I do not need to consider that matter because the documents in themselves do not advance the matter at all.

1. The letter of appointment advises Mr Angus of his appointment to the position of Assistant Director/Building. It makes no mention of any duties relating to the abatement of nuisances, let alone suggest that any appointment for the purposes of s600(3) of the Act had been made. The copies of various certificates are no more than indicative of Mr Angus having satisfied some of the conditions precedent to his appointment. The copy minutes do not contain any suggestion that Mr Angus was appointed under s600(3). Not only was there nothing in the documents tendered suggesting that Mr Angus had been appointed for the purposes of s600(3), counsel for the applicant quite frankly told me upon the hearing of the appeal that no document could be found suggesting that he had been so appointed. In fact, counsel conceded that no evidence could be located suggesting that Mr Angus had ever been appointed as "abatement officer". There having been no evidence before the learned magistrate that Mr Angus was appointed for the purposes of s600(3) and the applicant conceding that it could never prove that he was so appointed, the complaint was doomed to fail. No purpose can be served by giving any consideration to the grounds set forth in the applicant's notice to review, as the inevitable result must be that the learned magistrate's order for dismissal must stand.

1. Before the learned magistrate, counsel for the applicant contended that it was not necessary for the applicant to establish that Mr Angus had been appointed for the purposes of s600(3) because the provisions of s802(2) had the effect of presuming that the appointment had been made in the absence of proof to the contrary from the respondent. That submission has no merit whatsoever. Section 802 must be read as a whole. Section 802(1) relates to those persons who represent a corporation before a court or in any legal proceedings, and to those who institute and carry on any proceedings. It is as to those persons in those capacities that s802(2) applies. It has no further application and is of no assistance to the applicant in the present case.

1. However, I ought not to let this case pass without making one observation on what followed from counsel's submission as to the applicability of s802(2). The effect of the submission was that although it was known to the complainant and his solicitor that there was no evidence suggesting that Mr Angus had ever been appointed for the purposes of s600(3), it was nevertheless appropriate to proceed with the complaint, a necessary element of which was that Mr Angus had been so appointed, because the respondent bore the onus of disproving such an appointment. I do not consider that to be proper at all. The applicant is a public officer who has at all times been represented by a solicitor. It was incumbent upon the applicant and his solicitor upon becoming aware of the absence of a necessary ingredient of the matter alleged by the complaint not to seek any order upon it. It is quite wrong for a public officer acting in the performance of his duty to prosecute or proceed with a matter such as the present which may have penal consequences in the knowledge that a necessary legal ingredient is absent, even though the onus of proof is reversed. For an example as to how a Crown prosecutor ought to proceed in such circumstances, reference might be had to Faircloth v The Queen Serial No 28/1987, at pp6 and 8. I see no difference in principle between the duty of the complainant and his solicitor in this case and Crown counsel in a criminal case.

1. The complaint being doomed to fail in any event I dismissed the applicant's appeal. However, I declined to make any order for costs and I briefly state my reasons. Counsel for the respondent took no objection to the admissibility of the inadmissible evidence before the learned magistrate. Having let the evidence go in, no submission was addressed to the learned magistrate that in fact the material which had been admitted did not in any way tend to establish that Mr Angus had been appointed for the purposes of s600(3), although that was plain on the face of that material. Had counsel provided the learned magistrate with the assistance to which he was entitled, then the matter which I raised on the hearing of the appeal might well have been finally determined by the learned magistrate. Before me, counsel for the respondent very frankly admitted that he had given no consideration to the question of the evidence of Mr Angus' appointment and that he had not proposed addressing any argument to me on that question. In those circumstances, I considered that justice would be done if each party bore his own costs.

1. I now deal with the respondent's appeal which was against the learned magistrate's refusal to order that the applicant pay the respondent's costs of the proceedings before the learned magistrate. In essence, the learned magistrate dismissed the complaint because he was not satisfied beyond reasonable doubt that what was on the respondent's land constituted a statutory nuisance within the relevant paragraphs of s599(1) of the Act. Counsel for the respondent made an application for costs to the learned magistrate pursuant to s77(2) of the Justices Act 1959. That provision was the correct source of the learned magistrate's jurisdiction to make an order for costs. The proceedings were as for a breach of duty as provided for in s602(1) of the Act and not by way of a charge of an offence for the purposes of s4(1) of the Costs in Criminal Cases Act 1976. The application having been made, the learned magistrate did not hear counsel further, saying "I don't need to hear you about that Mr Carter because I think I should not make such an order for the defendant's costs. I found the complaint not proved but it may well have been capable of being proved. I don't think the defendant is entitled as a matter of fairness to an order for costs."

1. The learned magistrate was not referred to the decision of the High Court in Latoudis v Casey (1990) 170 CLR 534. In my view, the learned magistrate was bound by that case to determine an application under s77(2) of the Justices Act in accordance with the principles there laid down. As I construe the judgments of the majority, the prima facie position is that in a case such as the present, costs ought to follow the event unless there is a positive reason making it appropriate that costs ought to be refused. Counsel for the applicant was unable to point to any such reason. There was no such reason. It was beside the point that the complaint might have been capable of being proved (although it has now become apparent that it was never capable of being proved). Matters are dealt with on evidence put before a court. It is not for a court to say that a complainant might have been able to put further evidence before a court which would have led the court to conclude that the complaint was proved. For those reasons, I ordered that the magistrate's refusal to order costs be set aside and in lieu thereof ordered that the applicant pay the respondent's costs of the proceedings before the learned magistrate to be assessed by the Clerk of Petty Sessions at Hobart. I also ordered that the applicant pay the respondent's costs of and incidental to that appeal.