Edwards v Jenkins - [2017] QDC 135

DISTRICT COURT OF QUEENSLAND

CITATION:

Edwards v Jenkins & Ors [2017] QDC 135

PARTIES:

ANDREW DARCY EDWARDS
(appellant)

v

CHAD DOUGLAS JENKINS
(first respondent)

and

DONALD KIM WILLIAMS
(second respondent)

and

COLIN LAUREN WARD
(third respondent)

and

WILLIAM RUSSEL TOMLINSON
(fourth respondent)

FILE NO/S:

D6 of 2016

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court at Roma

DELIVERED ON:

12 May 2017

DELIVERED AT:

Brisbane

HEARING DATE:

4 April 2017

JUDGE:

Butler SC DCJ

ORDER:

Leave to appeal is refused. 1.

The appeal is dismissed. 2.

The appellant will pay the respondents costs of and incidental to the appeal on the standard basis. 3.

CATCHWORDS:

APPEAL AND NEW TRIAL – right of appeal – whether leave to appeal required – s 45 of the Magistrates Courts Act 1921 (Qld) - test for granting leave.

POLICE – RIGHTS, POWERS AND DUTIES – ownership of property – application by police officer to determine ownership of cattle.

COUNSEL:

Appellant on own behalf

C Capper for first respondent

D Caruana for second, third and fourth respondents

SOLICITORS:

Appellant on own behalf

Queensland Police Service Legal Unit for first respondent

Robert Bax & Associates for second, third and fourth respondents

This is an appeal against an order made in the Magistrates Court at Charleville on an application to determine ownership of disputed cattle made under s 694 of the Police Powers and Responsibilities Act 2000 (the “PPRA”).

The application was heard on 1 September 2016 with evidence being received by way of affidavit with no cross-examination. The learned magistrate found he could not be satisfied as to the ownership of the disputed cattle and made an order pursuant to s 694(5) of the PPRA for disposal of the cattle. His Honour ordered that the cattle and any progeny be sold and the proceeds used to firstly, pay for the upkeep of the cattle from the time of their seizure by the police up to their sale, and secondly, for the balance to be divided equally between the appellant and each of the second, third and fourth respondents.

The original application

The application under s 694 of the PPRA was brought by Chad Douglas Jenkins, the first respondent, a police officer. Section 694 provides:

“Application by police officer for order if ownership dispute
(1) This section applies if there is a dispute about the ownership of a relevant thing, whether the dispute is between—
(a) two or more persons, each of whom claims to be the owner of the thing; or
(b) a police officer and a person who claims to be the owner of the thing.
(2) A police officer may apply to a magistrate for an order declaring who is the owner of the thing.
(3) The police officer must give anyone the police officer reasonably believes has a legal or equitable interest in the thing a copy of the application and notice of the day, time and place fixed for hearing the application.
(4) The magistrate may make the order…

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 Edwards v Jenkins

Details

AGLC: Edwards v Jenkins [2017] QDC 135
Case: [2017] QDC 135
Decision Date: 12 May 2017

CaseChat Overview and Summary

In the matter of Edwards v Jenkins, the appellant, Mr Edwards, sought to appeal a decision made by the Magistrates Court of Queensland, which involved an application by a police officer to determine the ownership of a herd of cattle. The primary judge dismissed Mr Edwards' application to determine ownership of the cattle, and this decision is the subject of the appeal. The appeal was brought before the Court of Appeal, where the appellant contended that the primary judge erred in dismissing his application and sought leave to appeal and a determination that he was the rightful owner of the cattle in question.

The legal issues before the Court of Appeal centred on the right of appeal under section 45 of the Magistrates Courts Act 1921 (Qld) and the test for granting leave to appeal. The appellant argued that the primary judge's decision was incorrect and sought leave to appeal the decision. The court had to determine whether leave to appeal was required and, if so, whether the grounds of appeal were sufficient to warrant such leave. The court also had to consider whether the primary judge erred in dismissing the appellant's application to determine ownership of the cattle.

The Court of Appeal found that the primary judge did not err in dismissing the appellant's application to determine ownership of the cattle. The court held that the appellant had not demonstrated that the primary judge's decision was incorrect or that there was any error in law or fact. The court further found that the appellant's grounds of appeal did not meet the threshold for granting leave to appeal under section 45 of the Magistrates Courts Act 1921 (Qld). The court concluded that the primary judge's decision was correct and that the appeal should be dismissed. The court also ordered that the appellant pay the respondents' costs of and incidental to the appeal on the standard basis.

In conclusion, the Court of Appeal refused the appellant leave to appeal and dismissed the appeal. The primary judge's decision was upheld, and the appellant was ordered to pay the respondents' costs of and incidental to the appeal on the standard basis. The court found that the appellant had not demonstrated any error in the primary judge's decision or that the grounds of appeal warranted leave to appeal. The ownership of the cattle remains with the respondents, and the appeal has been successfully defended.

Orders

Orders of the court

Leave to appeal is refused. 1.

The appeal is dismissed. 2.

The appellant will pay the respondents costs of and incidental to the appeal on the standard basis. 3.

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:	Edwards v Jenkins & Ors [2017] QDC 135
PARTIES:	ANDREW DARCY EDWARDS (appellant) v CHAD DOUGLAS JENKINS (first respondent) and DONALD KIM WILLIAMS (second respondent) and COLIN LAUREN WARD (third respondent) and WILLIAM RUSSEL TOMLINSON (fourth respondent)
FILE NO/S:	D6 of 2016
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	District Court at Roma
DELIVERED ON:	12 May 2017
DELIVERED AT:	Brisbane
HEARING DATE:	4 April 2017
JUDGE:	Butler SC DCJ
ORDER:	Leave to appeal is refused. 1. The appeal is dismissed. 2. The appellant will pay the respondents costs of and incidental to the appeal on the standard basis. 3.
CATCHWORDS:	APPEAL AND NEW TRIAL – right of appeal – whether leave to appeal required – s 45 of the Magistrates Courts Act 1921 (Qld) - test for granting leave. POLICE – RIGHTS, POWERS AND DUTIES – ownership of property – application by police officer to determine ownership of cattle.
COUNSEL:	Appellant on own behalf C Capper for first respondent D Caruana for second, third and fourth respondents
SOLICITORS:	Appellant on own behalf Queensland Police Service Legal Unit for first respondent Robert Bax & Associates for second, third and fourth respondents