Evans v Nbn Co. Limited

Case [2021] QDC 227

DISTRICT COURT OF QUEENSLAND

CITATION:

Evans v NBN Co. Limited [2021] QDC 227

PARTIES:

DAVID EVANS

(Appellant)

v

NBN CO. LIMITED (ACN 136 566 741)

(Respondent )

FILE NO:

D30/2020

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 222 of the Justices Act 1886 (Qld)

ORIGINATING COURT:

Magistrates Court at Maroochydore

DELIVERED ON:

16 September 2021

DELIVERED AT:

Maroochydore

HEARING DATE:

24 August 2020

JUDGE:

Long SC, DCJ

ORDER:

In respect of the orders made in the Magistrates Court in Maroochydore on 23 January 2020:

(a)   The order that the complaint be dismissed is confirmed; and

(b)  The order that the complainant pay the costs of the respondent is varied so that the amount to be paid is $1,750.00 instead of $136,000.00.

CATCHWORDS:

APPEAL AGAINST FINDING OF MAGISTRATE – where the appellant filed a complaint against the respondent in the Magistrates Court and sought orders pursuant to the Peace and Good Behaviour Act 1982 – where the Magistrate dismissed the complaint pursuant to s 7(3)(a) of the Act and ordered that the appellant pay the costs of the respondent – whether the Magistrate failed to conduct a hearing of the evidence before dismissing the complaint – whether the conduct of the respondent is amenable to a peace and good behaviour order –discussion as to whether the meaning of “assault” in s 5(1)(a) and (b) of the Peace and Good Behaviour Act 1982 is as defined in s 245 of the Criminal Code (Qld)

COSTS – where the respondent concedes that the order for costs made by the Magistrate was inappropriate

LEGISLATION:

Acts Interpretation Act 1954 (Qld), s 14B, 32D
Criminal Code Act 1899 (Qld), ss 4, 6, 74, 245, 335
Environmental Protection Act 1994 (Qld), ss 10, 11
Justices Act 1886 (Qld), ss 158, 158B, 222, 223, 225, 226
Justices Regulation 2014 (Qld)
Peace and Good Behaviour Act 1982 (Qld), ss 5, 7, 9
Planning Act 2016 (Qld)
Radio Communications Act 1992 (Cth)
Radio Communications Licence Conditions (Apparatus Licence) Determination 2015 (Cth), s 8
Safety Rehabilitation and Compensation Act 1988 (Cth)
Telecommunications Act 1997 (Cth), s 56

CASES:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256
Brady v Schatzel; ex parte Brady [1911] St R Qd 206
Briginshaw v Briginshaw (1938) 60 CLR 336
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Darby v Director of Public Prosecutions (NSW) (2004) 61 NSWLR 558; 150 A Crim R 314
Fagen v Commissioner of Metropolitan Police [1969] 1 QB 439
Grehan v Kann [1948] QWN 40
Haystead v DPP [2000] 2 Cr App R 339
Jones v Sherwood [1942] 1 KB 127
Kaporonovski v The Queen (1973) 133 CLR 209
King v Crow [1942] St R Qd 288
Laidlaw v Hulett; ex parte Hulett [1998] 2 Qd R 45
McDonald v Comcare [2013] AATA 105
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445

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Details
AGLC
Evans v Nbn Co. Limited [2021] QDC 227
Case
[2021] QDC 227
Decision Date

CaseChat Overview and Summary

Evans, the appellant, filed a complaint against Nbn Co. Limited, the respondent, in the Magistrates Court under the Peace and Good Behaviour Act 1982. Evans sought orders against Nbn Co. Limited, alleging that they had engaged in conduct that warranted a peace and good behaviour order. The Magistrate dismissed the complaint and ordered Evans to pay the costs of Nbn Co. Limited. Evans appealed this decision, arguing that the Magistrate had failed to properly conduct a hearing of the evidence and that the conduct of Nbn Co. Limited was indeed amenable to a peace and good behaviour order. Additionally, the respondent conceded that the order for costs made by the Magistrate was inappropriate.

The court was required to decide whether the Magistrate had failed to conduct a proper hearing of the evidence before dismissing the complaint, and whether the conduct of Nbn Co. Limited fell within the ambit of the peace and good behaviour order. The court also needed to determine the appropriate interpretation of "assault" under the Peace and Good Behaviour Act 1982, specifically whether it should be defined by reference to s 245 of the Criminal Code (Qld). The court found that while the Magistrate had made some errors in the primary hearing, the dismissal of the complaint was ultimately correct. The court varied the costs order from $136,000.00 to $1,750.00, as conceded by the respondent.

The appeal was dismissed in all respects except for the costs order, which was varied. The order that the complaint be dismissed was confirmed, while the order that Evans pay the costs of Nbn Co. Limited was reduced to $1,750.00. The parties were directed to be heard on any further or consequential orders. The court's decision highlights the importance of proper procedure in court hearings, while also providing clarity on the interpretation of the relevant legislation.

Orders

Orders of the court

In respect of the orders made in the Magistrates Court in Maroochydore on 23 January 2020:

(a) The order that the complaint be dismissed is confirmed; and

(b) The order that the complainant pay the costs of the respondent is varied so that the amount to be paid is $1,750.00 instead of $136,000.00.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Accordingly and notwithstanding what has been noted as the errors of the Magistrate in the primary hearing (largely as conceded by the respondent), it should be determined that, upon the independent review conducted by this Court, the Magistrate’s order to dismiss the complaint was in fact correct.Conclusion Therefore, the appeal will be dismissed, except in so far as it relates to the costs order. The order of this Court will be that:In respect of the orders made in the Magistrates Court at Maroochydore on 23 January 2020:(a) The order that the complaint be dismissed is confirmed(b) The order that the complainant pay the costs of the respondent is varied so that the amount to be paid is $1,750.00 instead of $136,000.00. The parties will be heard as to any further or consequential order.

Ratio Decidendi

Legal Principle Established

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