Dart v Singer - [2010] QCA 75

SUPREME COURT OF QUEENSLAND

CITATION:

Dart & Anor v Singer [2010] QCA 75

PARTIES:

DART, Frederick William
(first applicant)
v
SINGER, Clifford
(respondent)

HAJRIDIN, Megan Ann
(second applicant)
v
SINGER, Clifford
(respondent)

FILE NO/S:

CA No 21 of 2010
CA No 22 of 2010
DC No 452 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Criminal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

30 March 2010

DELIVERED AT:

Brisbane

HEARING DATE:

22 February 2010

JUDGES:

McMurdo P, Fraser JA and P Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Applications refused

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL –PRACTICE AND PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – WHEN REFUSED – where the applicants pleaded guilty to a number of charges brought under the Animal Care and Protection Act 2001 (Qld) – where an order was made that certain animals be forfeited to the respondent – whether the Court can grant a stay in respect of that order – whether the Court can order that the respondent be prevented from parting with the property which it now has in the animals – whether the Court can order that the respondent be prevented from otherwise disposing of the animals

Acts Interpretation Act 1954 (Qld), s 44

Animal Care and Protection Act 2001 (Qld), s 17, s 115, s 116, s 122, s 126, s 154, s 178, s 182, s 198, s 203, s 204, s 205
Justices Act 1886 (Qld), s 222
Uniform Civil Procedure Rules 1999 (Qld), r 250, r 761

Croney v Nand [1999] 2 Qd R 342; [1998] QCA 367 cited

COUNSEL:

The applicants appeared on their own behalf
R Fryberg for the respondent

SOLICITORS:

The applicants appeared on their own behalf
Roberts Nehmer McKee Lawyers for the respondent

McMURDO P: The applications for a stay of the orders made by the District Court on 11 December 2009 and to prevent the Royal Society for the Prevention of Cruelty to Animals from parting with property forfeited to it under the Townsville Magistrates Court order of 12 December 2008 should be refused for the reasons given by P Lyons J.

FRASER JA: I agree with the reasons for judgment of P Lyons J and the orders proposed by his Honour.

P LYONS J: The applicants pleaded guilty to a number of charges brought under the Animal Care and Protection Act 2001 (Qld) (ACP Act). Orders were made against them in that court on 12 December, including an order (the disposal order) that certain animals be forfeited to the Royal Society for the Prevention of Cruelty to Animals (RSPCA). The applicants then appealed to the District Court, where some orders were varied, but not the disposal order. The applicants have filed applications in this Court for extensions of time and for leave to appeal against the orders made in the District Court. In those applications, the applicants seek…

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 Dart v Singer

Details

AGLC: Dart v Singer [2010] QCA 75
Case: [2010] QCA 75
Decision Date: 30 March 2010

CaseChat Overview and Summary

The applicants, Dart and Singer, appealed against a decision of the District Court of Queensland, which had refused their application for a stay of proceedings. The applicants had pleaded guilty to several charges under the Animal Care and Protection Act 2001 (Qld), and as a result, an order was made that certain animals be forfeited to the respondent. The applicants sought to have the Court grant a stay in respect of that order, as well as an order that the respondent be prevented from parting with the property which it now had in the animals, and an order that the respondent be prevented from otherwise disposing of the animals.

The legal issues that the Court was required to decide were whether the Court could grant a stay in respect of the order that the animals be forfeited, and whether the Court could order that the respondent be prevented from parting with the property which it now had in the animals, or from otherwise disposing of the animals. The applicants argued that they had a legitimate interest in the animals, and that the Court should grant a stay in order to allow them to pursue a claim against the respondent for the return of the animals. The respondent argued that the applicants had no legitimate interest in the animals, and that the Court should not interfere with the order that the animals be forfeited.

The Court held that the applicants had no legitimate interest in the animals, and that the order that the animals be forfeited was valid. The Court held that the applicants had no standing to challenge the order, and that the Court could not grant a stay in respect of that order. The Court also held that it could not order that the respondent be prevented from parting with the property which it now had in the animals, or from otherwise disposing of the animals. The Court held that the applicants' arguments were speculative, and that there was no evidence to support their claim that the respondent would do anything improper with the animals.

The applications were refused, and the orders sought by the applicants were denied. The Court held that the applicants had no legitimate interest in the animals, and that the order that the animals be forfeited was valid. The Court held that the applicants had no standing to challenge the order, and that it could not grant a stay in respect of that order. The Court also held that it could not order that the respondent be prevented from parting with the property which it now had in the animals, or from otherwise disposing of the animals. The Court held that the applicants' arguments were speculative, and that there was no evidence to support their claim that the respondent would do anything improper with the animals.

Orders

Orders of the court

Applications refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Dart & Anor v Singer [2010] QCA 75
PARTIES:	DART, Frederick William (first applicant) v SINGER, Clifford (respondent) HAJRIDIN, Megan Ann (second applicant) v SINGER, Clifford (respondent)
FILE NO/S:	CA No 21 of 2010 CA No 22 of 2010 DC No 452 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Application – Criminal
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	30 March 2010
DELIVERED AT:	Brisbane
HEARING DATE:	22 February 2010
JUDGES:	McMurdo P, Fraser JA and P Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Applications refused
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL –PRACTICE AND PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – WHEN REFUSED – where the applicants pleaded guilty to a number of charges brought under the Animal Care and Protection Act 2001 (Qld) – where an order was made that certain animals be forfeited to the respondent – whether the Court can grant a stay in respect of that order – whether the Court can order that the respondent be prevented from parting with the property which it now has in the animals – whether the Court can order that the respondent be prevented from otherwise disposing of the animals Acts Interpretation Act 1954 (Qld), s 44 Animal Care and Protection Act 2001 (Qld), s 17, s 115, s 116, s 122, s 126, s 154, s 178, s 182, s 198, s 203, s 204, s 205 Justices Act 1886 (Qld), s 222 Uniform Civil Procedure Rules 1999 (Qld), r 250, r 761 Croney v Nand [1999] 2 Qd R 342; [1998] QCA 367 cited
COUNSEL:	The applicants appeared on their own behalf R Fryberg for the respondent
SOLICITORS:	The applicants appeared on their own behalf Roberts Nehmer McKee Lawyers for the respondent