Director General, Department of Primary Industries v McDonald

[2007] NSWSC 1500

CITATION:	Director General, Department of Primary Industries v McDonald [2007] NSWSC 1500
HEARING DATE(S):	22 November 2007
JUDGMENT DATE :	22 November 2007
JURISDICTION:	Common Law
JUDGMENT OF:	Adams J at 1
EX TEMPORE JUDGMENT DATE:	22 November 2007
DECISION:	1. The order of the Local Court directing the Director General of the Department of Primary Industries to take action in relation to the approval for the exhibition of animals by Mr McDonald and the permit for the exhibition of prescribed species by Mr McDonald, is void and of no effect; 2. The defendant is to pay the plaintiff's costs.
CATCHWORDS:	Exhibition of animals - periodic permits - effect of renewal of cancelled permits after time of original permit expired - powers of Local Court - no jurisdiction to order new permits.
LEGISLATION CITED:	Exhibited Animals Protection Act 1986 ss30, 32, 33 Exhibited Animals Protection Regulation 1995 reg 12
CASES CITED:	Tsintris v Roads and Traffic Authority of New South Wales & Anor (1991) 25 NSWLR 68 Tsintris v Roads and Traffic Authority of New South Wales (No 2) unreported, NSWSC, Levine J, 20 August 1993
PARTIES:	Director General, Department of Primary Industries (Plaintiff) Bradley John McDONALD (Defendant)
FILE NUMBER(S):	SC 15698/07
COUNSEL:	Ms L M Richardson (Plaintiff) Mr J E Lazarus (Defendant)
SOLICITORS:	I V Knight (Plaintiff) Conditsis & Associates (Defendant)
LOWER COURT JURISDICTION:	Local Court
LOWER COURT JUDICIAL OFFICER :	Miszalski LCM

Ex tempore - checked

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

ADAMS J

THURSDAY 22 NOVEMBER 2007

15698/07 - DIRECTOR GENERAL, DEPARTMENT OF PRIMARY INDUSTRIES v Bradley John MCDONALD

JUDGMENT

1 HIS HONOUR: The essential facts in this matter are not in dispute. Mr McDonald held a permit and an approval issued under the Exhibited Animals Protection Act 1986 relating to a number of specified reptiles. These documents permitted him to exhibit or supervise the exhibition of the reptiles in accordance with their terms. The permit and approval were issued for the period from 1 July 2004 ending 30 June 2005.

2 I interpolate that regulation 12 of the Exhibited Animals Protection Regulation 1995 provides that the authority constituted by the permit and approval:

“remains in force (unless earlier cancelled or except during any period of suspension) until:

(a) 1 July following the date upon which the authority commences, or

(b) in the case of a renewed authority - 1 July following the date on which the renewed authority commences."

3 On 2 February 2005 the Director-General of the Department of Primary Industries cancelled the permits and approval under s 30 of the Act. Essentially, that section gives the Director General power, amongst other things, to cancel the authority at any time if the holder commits specified offences, fails to comply with terms or conditions of the authority, or fails to ensure that certain prescribed standards are maintained.

4 A right to appeal from such a cancellation is provided by ss 32 and 33 of the Act, both to the relevant Minister and to the Local Court. These appeals are independent and either or both may be undertaken. As it happened, there was an appeal to the Minister which was unsuccessful, although the decision on the appeal was some time in coming. Nothing, to my mind, depends on this. The appeal to the Minister is, for present purposes, irrelevant.

Section 33 relates to appeals to Local Court as in the following terms:

“1) A person aggrieved:
(a) by the refusal of an application for the issue, renewal, variation or transfer of, or by the suspension or cancellation by the Director-General of, any licence, approval or permit under this Act or the regulations, or
(b) by the terms or conditions specified in or imposed by the Director-General on any such licence, approval or permit or by the variation by the Director-General of any such term or condition, otherwise than with the written consent of the licensee, may, within the prescribed time, appeal to a Local Court.
(2) The decision of a Local Court on an appeal under this section is final and is binding on the Director-General and the appellant and shall be carried into effect accordingly.

5 Mr McDonald appealed to the Local Court under this provision on 14 October 2005. By that time the authority would have expired at all events by fluxion of time on 30 June 2005, whether or not it had been cancelled. On 8 November 2007 the Local Court upheld Mr McDonald's appeal and directed the Director-General to renew or issue "the actual approval or permit". These words are taken from the affidavit of the Director-General's solicitor, who was present in the Local Court at the time.

6 This matter has come before me quickly and the parties have not been able to obtain a transcript. Both approval and permit are necessary in order to provide the authority under the act for Mr McDonald to do what he wanted to do.

7 It appears that there may be some ambiguity in the order made by the court, but the parties are agreed that the purport of the court’s direction was that an approval and permit was to be either renewed or issued by the Director-General, giving authority to Mr McDonald to undertake his activities in relation to these reptiles to 1 July 2008.

8 The Director-General has undertaken proceedings in this Court for a declaration that the order of the Local Court directing the Director-General in the terms to which I have referred was beyond jurisdiction and was void. There is no contention that the Magistrate erred in upholding the appeal in respect of the cancellation.

9 Mr McDonald opposes the grant of a declaration upon two basic grounds. The first is that the appeal to the Local Court is an appeal de novo and, accordingly, the decision that the licence should not be cancelled operates as at the date of the order; and in order to effectuate that decision there must be implied a power to give the direction complained of.

10 The Director-General argues that, although the appeal to the Magistrate is a hearing de novo, it was concerned with whether the cancellation should stand. Accepting that the cancellation should not stand, the Director-General submits that the only effect of such a finding is that the authority subsisted during the specified dates of the permit and approval, with the consequence that as at 8 November 2007 the authority had long since expired. It is submitted that there was no power to direct renewal since there had been no application for renewal within the terms of s 27 of the Act: no fee paid and no preceding decision of the Director-General on the merits of the matter. The power of the Local Court in relation to renewals is merely one of appeal, which necessarily implies an adverse decision on the matter by the Director-General; ex hypothesi no decision had been made here.

11 Mr Lazarus of counsel for Mr McDonald argued that the power to direct renewal in the present circumstances must be implied because otherwise the power of the District Court to consider appeals would be frustrated. If (so the argument goes) the revocation of the cancellation operates from the date of the judgment of the Local Court, the authority must be taken to be in existence at that time or, if not, there must be an implicit power in the Local Court to require renewal from that time.

12 There are suggestions in the authorities that a decision on a de novo appeal operates from the time of the decision. See, for example, Tsintris v Roads and Traffic Authority of New South Wales & Anor (1991) 25 NSWLR 68, especially at 73; and Tsintris v Roads and Traffic Authority of New South Wales (No 2) unreported, NSWSC, Levine J, 20 August 1993, especially at 4.

13 I do not agree that the mere fact that the appeal to the Local Court under s 33 of the Act is a de novo appeal means that the order of the Local Court necessarily operates prospectively. The effect of the order necessarily depends upon the subject matter of the appeal and, in particular, the nature of the decision from which the appeal is taken.

14 In this case, the appeal was from a cancellation of an authority by the Director-General. Because the appeal is de novo, there is no presumption that the Director-General has rightly decided the matter. The question of whether the authority should have been cancelled is one entirely for the Local Court and must be based upon evidence admissible in that Court and relevant to that question. The effect of an order that the authority should not be cancelled must refer to the cancellation decision of the Director-General. In all respects, the applicant is entitled to be treated as though his authority was never cancelled. To that extent, it may be that the order of the Local Court is prospective.

15 In my view, however, the revocation of the cancellation decision - or perhaps to be more precise, the revocation of the cancellation - cannot extend the life of the authority. That authority had, as I have mentioned, expired on 30 June 2005. There had been no application to renew. There was no jurisdiction under s 33 that enabled the Local Court to direct renewals.

16 Mr Lazarus pointed out that, if a direction such as that given in this case could not be given by the Local Court, the jurisdiction relating to appeals from decisions such as that which affected Mr McDonald could be frustrated. Authorities are only issued for limited periods. The exigencies of the court lists might prevent hearing an appeal until after the authority had expired. The intention of the Parliament to permit an appeal to the Local Court could scarcely have been that that right should be expunged by events out of the control of the parties and which must necessarily be arbitrary or capricious.

17 There is much in this argument. The solution lies not, as I see it, in the somewhat capricious results that would occur if Mr Lazarus's submission were accepted, but rather in implying in the Local Court a power to make interim decisions where it is necessary to preserve the subject matter of the appeal providing, of course there was an arguable case and no good reasons for refusing to make such a decision. Powers to preserve the subject matter of litigation are widely implied, and I do not see any reason in principle why the Local Court would not have such a power when it is exercising the jurisdiction granted by s33 of the Act.

18 The capricious effect of the acceptance of Mr Lazarus's submission is demonstrated in this case. Here, the appeal was lodged three months after the authority had expired. Had there been no cancellation, the authority would have expired in the normal way on 30 June 2005. Even if the cancellation were wrongful, it is difficult to see why someone in Mr McDonald's position should be better off than he would have been had the Director-General not cancelled the authority. Nor am I much impressed with the contention that because of the cancellation Mr McDonald could not or did not apply for a renewal of a new authority effective from 1 July 2005. There was nothing preventing him from doing so. If that renewal had been wrongly refused by the Director-General, he could have appealed under s33. Again, in an appropriate case, an interim decision granting a renewal might have been made depending of course on the circumstances.

19 It follows that the declaration sought should be made. Accordingly, I make the following orders:

(1) The order of the Local Court directing the Director-General of the Department of Primary Industries to take action in relation to the approval for the exhibition of animals by Mr McDonald and the permit for the exhibition of prescribed species by Mr McDonald, is void and of no effect.

(2) The defendant is to pay the plaintiff's costs.

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