Egerton v. Purtill

[2007] QDC 61

DISTRICT COURT OF QUEENSLAND

CITATION:	Egerton v Purtill [2007] QDC 061
PARTIES:	William John Egerton
Appellant v
James Purtill as Chief Executive of the Department of Environment and Heritage in the State of Queensland
Respondent
FILE NO/S:	D169 of 2006
PROCEEDING:	Appeal
ORIGINATING  COURT:	Magistrates Court Southport
DELIVERED ON:	11 April 2007
DELIVERED AT:	Southport
HEARING DATE:	23 February 2007
JUDGE:	Newton DCJ
ORDER:	Appeal allowed. The Magistrate’s order staying the appeal is quashed. The matter is remitted to the Magistrates Court to permit the appeal to be heard and determined according to law.
The respondent is to pay the costs of the appeal on an indemnity basis.
Nature Conservation Regulation 1994 Vexatious Proceedings Act 2005
CATCHWORDS:	APPEAL AND NEW HEARING – Mistake of law – duty of Magistrate to hear appeal against decision of Chief Executive of Department of Environment and Heritage – Hearing de novo
COUNSEL:	Mr F G Forde for the appellant Mr D J Lang for the respondent
SOLICITORS:	Fitz-Walter Lawyers for the appellant Crown Law for the respondent

1. Mr Egerton wants to conduct tours to the Natural Arch in the Gold Coast hinterland to view glow worms. To do this he needs a commercial activity permit issued by the chief executive of the Department of Environment and Heritage. An application was duly made by Mr Egerton for such a permit on 6 September 2005. The application was refused and an appeal against the refusal was lodged with the Southport Magistrates Court on 17 October 2005. The Magistrate refused to hear Mr Egerton’s appeal and ordered that it be “indefinitely stayed”. Mr Egerton now seeks to appeal to the District Court against the order of the Magistrate.

2. An application for a licence must be made in the approved form and be accompanied by the licence fee s.4(1) of the Nature Conservation Regulation 1994 (“The Regulation”). The word “licence” is defined by s.3c of the Regulation as including a permit.

3. Pursuant to s.5(1) of the Regulation the chief executive must consider an application for a licence and either grant the licence, with or without conditions, or refuse to grant the licence.

4. The chief executive may grant the licence only if the chief executive is satisfied the applicant is an appropriate person to hold the licence (s.5(4) of the Regulation). In deciding whether the applicant is an appropriate person to hold the licence, the chief executive must consider whether the applicant has the character, knowledge and ability relevant to the activities that may be carried out under the licence (s.5(5) of the Regulation).

5. If the chief executive decides not to grant the licence, the chief executive must promptly give the applicant a written notice stating

   (a)         the decision; and

   (b)        the reasons for the decision; and

   (c)         that the applicant may appeal against the decision within 28 days to a Magistrates Court. (s.5(9) of the Regulation)

6. Part 3 of the Regulation is headed Appeals. By s.17(1) an applicant for a licence may appeal against the chief executive’s decision to refuse to grant the licence. Pursuant to s.18(1) of the Regulation an appeal is started by filing a written notice of appeal with the clerk of the court of the Magistrates Court nearest the place where the applicant lives, carries on, or proposes to carry on, business. The clerk of the court must give the chief executive a copy of the notice (s.18(2)). The notice of appeal must be filed within 28 days after the appellant receives written notice of the decision appealed against (s.18(3)). The notice of appeal must state the grounds of the appeal.

7. In deciding an appeal, the Magistrates Court is not bound by the rules of evidence and must observe natural justice (s.20(2) of the Regulation).

8. In deciding an appeal, the Magistrates Court may -

   (a)         confirm the decision appealed against; or

   (b)        set aside the decision and substitute another decision; or

(c) set aside the decision and return the matter to the chief executive
with directions the Magistrates Court considers appropriate.
(s.21(1) of the Regulation)

A party dissatisfied by the decision of the Magistrates Court may appeal to the
District Court, but only on a question of law (s.22 of the Regulation).

1. The procedure for an appeal to the Magistrates Court is required by s.20(1) of the Regulation to be in accordance with –

   (a)         the rules of court applicable to the appeal; or

   (b)        in the absence of relevant rules – directions of the court.

2. It was accepted at the hearing of the appeal before me that an appellant in the Magistrates Court is not at all restricted in relying on materials placed before the chief executive in support of an application for a licence. The hearing in the Magistrates Court is a hearing de novo. The appellant is entitled to place before the Magistrate such materials as may be relevant (remembering that the Magistrates Court is not bound by the rules of evidence) in support of the application. This is important to bear in mind because until the evidence has been led or put before the Magistrate, no assumptions can be made as to its content.

3. In his decision the Magistrate stated:-

“3.	As a similar application had been made by the Appellant to the Respondent which in turn had been appealed to this Court only to be dismissed the Respondent now brings an application that the Appellant’s appeal be stayed on the basis of abuse of the process and/or the principle known as res judicata.
4.	In order to establish either ground the Respondent must establish that the same application had been brought by the Appellant and that the same appeal had been dismissed by the Court. When I say the same application and the same appeal, I do not mean identical in all respects, what I mean is that the application and the appeal traversed the same issues and facts.
5.	I have examined both of the Appellant’s appeals, i.e. the one made on 1st March 2004 and the other made on 17th October 2005. They are in almost identical terms and raise almost identical issues. …
12.	In summary he has a right to bring as many applications to the Respondent as he likes, but that does not give him the right to continue to have appeals litigated in this Court on the same grounds as appeals that have already been determined. To do so would in my view be oppressive and vexatious. It would be different of course were the grounds of appeal different from those previously argued.
13.	I am of the opinion that the Respondent’s submission succeeds on both of the grounds that I have outlined above and that I have the power to stay the proceedings. I therefore grant the application and order that the Appellant’s appeal be indefinitely stayed.”

1. A decision of one Magistrate is not binding on other Magistrates. The findings of the previous Magistrates were determinations made following the making of findings of fact which related to separate applications. The difficulty in this case in upholding the Magistrate’s decision to order an indefinite stay is that no-one knows what findings of fact may have been made because no-one (apart, presumably, from the appellant) knows what evidence it was intended to place before the Magistrate on the hearing of this appeal.

2. The Magistrate has in his decision described the appellant’s conduct in seeking “to continue to have appeals litigated in this court on the same grounds as appeals that have already been determined” as oppressive and vexatious. It may be noted that the Crown Solicitor or a person who has a sufficient interest in the matter may apply to the Supreme Court for a vexatious proceedings order pursuant to s.5 of the Vexatious Proceedings Act 2005.

3. I have a good deal of sympathy for the Magistrate who understandably was minded not to waste further valuable court time on embarking upon what was perceived to be a third appeal by Mr Egerton in respect of his failure to have a licence granted. It is regrettable that the Magistrate was deprived of the advantage of hearing from legal representatives acting for Mr Egerton – he having opted to act for himself. The Magistrate accepted the submissions of Counsel for the respondent and made his order accordingly. The order staying the appeal must be quashed and the matter remitted to the Magistrates Court to permit the appeal to be heard and determined according to law.

4. I am satisfied that the Magistrate ordered a stay as a result of being led into error by the Crown in applying what was said to have been the law relating to res judicata and abuse of process to these proceedings. The Magistrate did so over the opposition of Mr Egerton. Accordingly, in my view, the respondent should be ordered to pay the costs of the appellant on an indemnity basis.