Cleret v Sunshine Coast Regional Council

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SUPREME COURT OF QUEENSLAND

CITATION:

Cleret v Sunshine Coast Regional Council [2016] QSC 208

PARTIES:

DANIEL CLERET

(plaintiff)

v
SUNSHINE COAST REGIONAL COUNCIL

(first defendant)

AND

DENISE BROOKS

(second defendant)

FILE NO/S:

No 6701 of 2014

DIVISION:

Trial Division

PROCEEDING:

Civil Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 September 2016

DELIVERED AT:

Brisbane

HEARING DATE:

23 – 27 November 2015; 3 – 5 February 2016

JUDGE:

Peter Lyons J

ORDER:

The plaintiff’s action is dismissed.

CATCHWORDS:

TORTS – MISFEASANCE IN PUBLIC OFFICE – where first defendant had power under s 83 of the Food Act 2006 (Qld) (Food Act) to issue immediate suspension of food license – where the suspension could only be effected if the licensee was provided with a show cause notice – where plaintiff operated a restaurant – where plaintiff’s food license was suspended without the provision of a show cause notice – whether evidence demonstrates that first or second defendants were actuated by malice, or knew that they were acting beyond power

TORTS – TRESPASS – TRESPASS TO LAND AND RIGHTS TO REAL PROPERTY – where plaintiff operated a restaurant – where plaintiff’s food license was suspended without the provision of a show cause notice – where plaintiff alleges that second defendant entered plaintiff’s restaurant unlawfully – where second defendant was authorised by s 175 of the Food Act to enter food business premises    open for carrying on the food business, or otherwise open for entry – whether premises were otherwise open for entry

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – GOVERNMENT AND PUBLIC AUTHORITIES – where first defendant had power under s 83 of the Food Act to issue immediate suspension of food license – where the suspension could only be effected if the licensee was provided with a show cause notice – where plaintiff operated a restaurant – where plaintiff’s food license was suspended without the provision of a show cause notice – whether first defendant was under a duty to ensure officers acted within power – whether that duty was breached – whether alleged breaches of duty by defendants caused loss to plaintiff

Food Act 2006 (Qld) ss 8, 9, 20, 21, 35, 36, 49, 51, 78, 79, 80, 82, 83, 165, 167, 175, 176, 182, 209, 210, 211, 274, Part 6, schedule 3

Civil Liability Act 2003 (Qld) ss 11, 36

Uniform Civil Procedure Rules 1999 (Qld) r 149

Protection of the Environment Operations Act 1997 (NSW) s 91

Anns v Merton London Borough Council [1978] AC 728

Benning v Wong (1969) 122 CLR 249

Briginshaw v Briginshaw (1938) 60 CLR 336

Corkhill v Commonwealth [2015] ACTSC 216

Dunlop v Woollahra Municipal Council (1975) 32 LGERA 431

Dunlop v Woollahra Municipal Council(No 2) (1978) 40 LGERA 218

Dunlop v Woollahra Municipal Council [1982] AC 158

Fistar v Riverwood Legion and Community Club Ltd [2016] NSWCA 81

Halliday v Nevill (1984) 155 CLR 1

Holland v Saskatchewan [2008] 2 SCR…

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Details
Case
[2016] QSC 208
Decision Date

CaseChat Overview and Summary

Cleret v Sunshine Coast Regional Council is a case in which the plaintiff, Mr Cleret, brought claims against the Sunshine Coast Regional Council and two of its officers, Ms Brooks and Mr Brewer. The plaintiff operated a restaurant and alleged that his food licence was improperly suspended without the requisite show cause notice, and that Ms Brooks unlawfully entered his premises. The plaintiff further alleged that the defendants were malicious in their actions and that they acted beyond their power under the Food Act 2006 (Qld). The legal issues in this case included whether the defendants were actuated by malice or knew they were acting beyond their power, whether the second defendant entered the plaintiff's restaurant unlawfully, and whether the first defendant had a duty of care to ensure that officers acted within their power and whether that duty was breached, causing loss to the plaintiff.

The court found that Mr Cleret had failed to establish that Ms Brooks was actuated by malice in issuing the suspension report or that she knew she was acting beyond her power on 25 June 2010. The court also found that the allegations of fabricated evidence and harassment against Ms Brooks were improbable and did not support the plaintiff's claims. Regarding the alleged unlawful entry by Ms Brooks, the court found that the premises were otherwise open for entry, and thus her entry was not unlawful. Lastly, the court found that the first defendant did not have a duty of care to ensure that officers acted within their power and that even if such a duty existed, it was not breached. The court further found that the alleged breaches of duty by the defendants did not cause the loss claimed by the plaintiff.

The plaintiff's action was dismissed, and no orders were made in favour of the plaintiff.

Orders

Orders of the court

The plaintiff’s action is dismissed.

Background

Background to the litigation

It might also be observed that the defence does not raise the provisions of the Civil Liability Act 2003 (Qld). They were, however, relied upon in Defendants’ Submissions 1. No objection was taken to reference to them. It seems to me that, were it to become necessary, I should take them into account. The plaintiff has had an adequate opportunity to deal with them. The provisions seem to me to raise questions of law only, which are not dependent upon any evidence that might have been called if it was not. If I were not to take them into account, then it seems to me I would not be deciding the case according to law; though if I had thought there was any need to do so to ensure fairness to Mr Cleret, I would have provided him with a further opportunity to call evidence or make further submissions.Statutory background and licence There are a number of provisions of the Food Act which are of some relevance to Mr Cleret’s claims. The main purposes of the Food Act are identified in s 8, and include ensuring food for sale is safe and suitable for human consumption; and applying the Food Standards Code. The primary means of achieving these purposes are set out in s 9, and include providing for the licensing of particular food businesses; and providing for the monitoring and enforcement of compliance with the Act and the Food Standards Code. There are a number of offence provisions of potential relevance, but it is sufficient to note s 35, which makes it an offence to handle food intended for sale in a way that will make, or is likely to make, the food unsafe, or to sell food that is unsafe; and s 36, which makes it an offence to sell food that is unsuitable[14].[14] The terms “unsafe” and “unsuitable” in relation to food are defined in ss 20 and 21 of the Food Act. Section 49 prohibits a person from carrying on a licensable food business, unless the person holds a licence to carry on the business. There is no suggestion that the restaurant was not a licensable food business. Section 51 prohibits a licensee from contravening a condition of the licence. Part 6 of the Food Act makes provision for the suspension or cancellation of a licence. Grounds include that the licensee has contravened a condition of the licence[15]. Where a local government which had issued a licence believes that a ground exists to suspend or cancel the licence, s 79 then provides as follows:-[15] See s 78; there is an exception which is of no present relevance.“79 Show cause notice(1)This section applies if—(a)the local government that issued a licence believes a ground exists to suspend or cancel the licence; and(b)either the licensee—(i)has not been given, and it is not intended to give the licensee, an improvement notice about a matter to which the ground relates; or(ii)has been given an improvement notice about a matter to which the ground relates and the licensee has failed, without a reasonable excuse, to comply with the notice.Note—Under section 209, an authorised person may give a person an improvement notice requiring the person to remedy, or have remedied, a contravention of a provision of this Act.(2)The local government must give the licensee a notice under this section (a show cause notice).”

Evidence

Evidence Before The Court

Mr Cleret’s Reply generally repeated the allegations in the FASC, with some factual elaboration.Allegations of fabricated evidence and harassment The allegations I am about to consider relate to the conduct of Ms Brooks. It will become apparent that the claim for damages for misfeasance in public office based upon a purported exercise of power by Ms Brooks would fail, whatever my conclusions about these allegations. Nevertheless, given their nature and the prominence they were given in the trial, it seems to me appropriate to deal with them in some detail. I also propose to deal briefly with the question whether Ms Brooks knew she was acting beyond power when she purported to suspend Mr Cleret’s licence on 25 June 2010. The allegation of fraud in the present case arises in somewhat unusual circumstances. It is not a cause of action, or an element of a cause of action, relied upon by the plaintiff. Rather it is conduct from which it is said Ms Brooks’ state of mind can be inferred, that is to say, it is evidence of the extent to which she was motivated to do Mr Cleret harm. It is also directed to the reliability of the photographs. I doubt whether the latter circumstance is caught by the rules requiring a party to plead fraud. On the other hand, if it be a basis for inferring malice, a pleading of the facts would be required under r 149 of the Uniform Civil Procedure Rules (Qld) (UCPR); or possibly under the same rule, to avoid surprise. It is, however, apparent that the defendants anticipated the issue[36], and it was fully litigated. In those circumstances, I would not be prepared to refuse to allow the plaintiff to advance this allegation.[36] See for example the Affidavit of Mr Diefenbach, Ex 37. Here, Mr Cleret seeks to prove fraudulent conduct on the part of Ms Brooks. In such a case, the evidence must be “clear and cogent”; as the degree of satisfaction which is required, even when the standard of proof is the balance of probabilities, may vary according to the gravity of the fact to be proven[37]. That reflects the view that, ordinarily people do not engage in fraudulent conduct[38]. There are other matters which I shall later identify, which support the view that Mr Cleret’s allegations are improbable.[37] See Briginshaw v Briginshaw (1938) 60 CLR 336; Rejfek v McElroy (1965) 112 CLR 517, 521; Neat Holdings Pty Ltd v Karajin Holdings Pty Ltd (1992) 67 ALJR 17; and see the discussion in Fleming’s The Law of Torts (10th Ed) at [13.30].[38] See Rejfek; Neat Holdings at 170. It is convenient to commence with a consideration of Report 11244. Ms Brooks gave evidence that she commenced to write this report during her inspection on 25 June 2010 but was unable to complete it because Mr Cleret spilt water on it when she placed it on a bench underneath a microwave oven[39]. She said that she felt that she needed some support. She made phone calls, unsuccessfully. She then went around to the police station and spoke to a police officer. Although he was off duty, she asked him whether Mr Cleret had a liquor licence for the restaurant. She wrote the time 1.15 on this report because she had “probably looked at my watch on that particular occasion … or my mobile phone …”[40].[39] T 5-48.[40] T 5-55.

Decision

Reasons for decision

The Information Notice of 25 May 2010 permitted Mr Cleret a period of twelve months in which to provide the required hand washing facilities. The Information Notice of 6 July 2010 required immediate compliance. This represented a change from the position in the earlier notice, and, it may be accepted, from what was required of other licensees. It is apparent that requirement was changed as a result of the inspection by Ms Brooks[80]. There is no reason to think that this was harassing conduct; nor that it demonstrates malice on the part of Ms Brooks. The location and condition of the handwash basin were far from satisfactory; and Ms Brooks identified good reason for thinking that those working at the restaurant did not have good hand washing practices.[80] T 7-22 to 23.Conclusion on allegation of malice against Ms Brooks The major point in Mr Cleret’s case appears to be that it should be inferred that Ms Brooks was actuated by an intention to cause him harm when she issued Report 11246, which included a requirement that the restaurant cease operating immediately, and not open until there had been a satisfactory inspection. This inference was to be drawn from the fact that she fraudulently altered photographs to demonstrate that her action was justified. Mr Cleret’s contention was also said to be supported by the fact that Report 11244 had not been produced in the course of the inspection, but was manufactured subsequently. I have rejected both of these propositions. I accept generally Ms Brooks’ evidence about the condition of the restaurant on 25 June 2010, and that the photographs provide a satisfactory indication of its state. The evidence demonstrates that on that occasion the kitchen was disorganised and in places dirty, with substantial evidence that there had been insufficient attention to maintaining cleanliness and avoiding food contamination. Even making allowance for the fact that a plumbing problem had arisen on that day, and that to some limited extent the condition of the kitchen might be attributable to that occurrence, it is not possible to infer simply from the state of the kitchen that the actions taken by Ms Brooks were motivated by malice. Accordingly, Mr Cleret has failed to satisfy me that, in issuing Report 11246, Ms Brooks was actuated by malice.Did Ms Brooks know she was acting beyond power on 25 June 2010? The defendants appeared to accept that Ms Brooks did not have power to suspend the food licence, or to direct Mr Cleret to cease trading, on 25 June 2010[81]. Ms Brooks gave evidence that she believed she had the power temporarily to suspend the licence on 25 June 2010[82]. No reason has been advanced for rejecting this evidence. In addition, Mr Cleret has not referred to evidence establishing that Ms Brooks knew she was acting beyond power on this occasion.[81] T 8-35/10; 8-36/25.[82] T 7-31/20-30. It follows that Mr Cleret has failed to establish that Ms Brooks knew that she did not have power to direct Mr Cleret to cease trading, or to suspend the food licence, on 25 June 2010.Notices of 6 and 7 July 2010

Ratio Decidendi

Legal Principle Established

For the defendants, it was submitted that, Mr Cleret’s loss being purely economic, a duty to exercise statutory powers in a lawful manner will only arise in exceptional circumstances. The loss claimed by Mr Cleret being of that character, the existence of a duty of care is to be determined by reference to the five principles identified by McHugh J in Perre v Apand Pty Ltd[118]. Mr Cleret was not vulnerable. The defendants did not have actual knowledge of the risk of the loss, nor of its magnitude. Moreover, the relevant powers were conferred for the protection of public health and safety. The duty to protect the public from an unhygienic kitchen was said to outweigh any duty owed to Mr Cleret in relation to the procedure to be adopted at the time of suspension of the licence. The test set out in s 36 of the Civil Liability Act was not met. It was not appropriate, by reference to s 11 of that Act, for the scope of the liability of the defendants to extend to the harm alleged. [118] (1999) 198 CLR 180, 220.Some preliminary considerations relating to the allegations of negligence and other breach of duty The reference to s 165 of the Food Act in paragraph 6 of the FASC is both obscure and unexplained. Accordingly, I propose to ignore it. Under s 167(c) of the Food Act, one of the functions of an authorised person is to help achieve the purposes of the Act by providing advice and information on how the purposes might be achieved. I shall leave to one side any question as to the existence of an obligation arising from this provision, breach of which might sound in damages. If Mr Cleret was intending to suggest that performance of the function set out in s 167 would have meant that he would have been given advice which would have avoided the issue of a suspension notice, he has not shown that he was not given such advice. He was given advice about steps to be taken to maintain proper standards in the reports which Ms Brooks issued to him; and in the Information Notices served on the premises in July. He has not shown that if he had received further advice and information, the loss he claims would have been avoided. It might be noted that he did not respond to the invitation of Ms Brooks on 16 July to telephone her, or that of Mr Mulder on 23 August. The allegation that each defendant “consciously wrongfully” exercised powers under the Food Act was particularised by reference to the inspections of Ms Brooks between October 2006 and 25 June 2010; by the issue of the notice in July 2010; and by the letter from Mr Brewer of 23 August 2010. I have already found that Ms Brooks did not knowingly act in excess of her powers; and that the letter of 23 August 2010 was not an exercise of any relevant power. The allegation that the Council owed Mr Cleret a duty of care to ensure that the provisions of the Food Act were complied with, seems to be an allegation of some obligation by the Council in relation to its supervision of Ms Brooks. The alleged breach does not relate to the conduct of Mr Brewer (save, perhaps, in relation to s 167, already dealt with). It is unnecessary at this point to consider whether the alleged duty existed, in relation to the conduct of Ms Brooks up to and including 25 June 2010. Mr Cleret did not cease trading as a consequence of the conduct of Ms Brooks particularised in paragraph 3(a) to (i) of the FASC. He gave no evidence to show that this conduct played a role in his decision to cease trading, and the subsequent loss which he alleges that he suffered; nor is it an inference I would be prepared to draw from the sequence of events, in light of his evidence about continuing to trade, and the significance of the notices served in July 2010. The loss claimed by Mr Cleret could not be said to be caused by the conduct of Ms Brooks, prior to 25 June 2010. Accordingly, his claim on this basis is not made out.