Ferguson v Reid - [2007] SASC 445

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
FERGUSON v REID
[2007] SASC 445
Judgment of The Honourable Justice Sulan
17 December 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - COSTS
Appeal against dismissal of charges and costs order - appellant, who was unrepresented, proceeded with private prosecution of respondent in the Magistrates Court - Magistrate dismissed all charges - Magistrate awarded costs to respondent on an indemnity basis in the amount of $30,000 - whether Magistrate erred in dismissing all charges - whether costs awarded manifestly excessive.
Held: Appeal against costs order allowed, quantum reduced to $18,000 - appeal dismissed on all other grounds.
Dog and Cat Management Act 1995 (SA) s 30, s 60; Supreme Court Civil Rules 2006 (SA) r 284, r 289; Magistrates Court Rules 1992 (SA) r 51.00, referred to.
Abram v Bank of New Zealand [1996] ATPR 42,340 (41-507); Ebner v Official Receiver in Bankruptcy (2000) 205 CLR 337; Moore-McQuillan v WorkCover Corporation SA [2007] SASC 219; Moore-McQuillan v Police (1998) 196 LSJS 488; Re JRL; ex parte CJL (1986) 161 CLR 342; SA Police v Murphy (Unreported, Supreme Court of South Australia, Debelle J, 9 January 1996), applied.
Police v Konieczka [2006] SASC 183, considered.

FERGUSON v REID
[2007] SASC 445
Magistrates Appeal

SULAN J: The appellant, Richard Ferguson, commenced a private action by complaint in the Magistrates Court of South Australia, alleging that the respondent, Mark Reid, committed 12 offences. The charge the subject of count 12 was withdrawn prior to trial. The appellant, who was unrepresented, conducted the prosecution of the remaining 11 charges against the respondent, who was represented by counsel. The complaint (as amended) is as follows:
The Complainant complains that Mark Reid, being a Dog Management Officers [sic] from the City of Charles Sturt:
1. on the 23^rd day of August 2002, unlawfully possessed a dog being a Staffishire-X CONTRARY to section 41, part 1, of the Summary Offences Act, 1953.
2. on the 23^rd day of August 2002, unlawfully possessed a dog being a Ridgeback-X CONTRARY to section 41, part 1, of the Summary Offences Act, 1953.
3. on the 23^rd day of August 2002, illegally interfered with a motor vehicle at Wood Ave, Brompton CONTRARY to section 86A, part 1, of the Criminal Law Consolidation Act, 1935.
4. on the 23^rd day of August 2002, was responsible for property damage to locks on a motor vehicle at Wood Ave, Brompton. Cost to replace the lock is $286.00. CONTRARY to section 85, part 3, of the Criminal Law Consolidation Act, 1935.
5. on the 23^rd day of August 2002, was on premises at 33 Wood Ave, Brompton, for an unlawful purpose CONTRARY to section 17, part 1, of the Summary Offences Act, 1953.
6. on the 23^rd day of August 2002,…

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 Ferguson v Reid

Details

AGLC: Ferguson v Reid [2007] SASC 445
Case: [2007] SASC 445
Decision Date: 17 December 2007

CaseChat Overview and Summary

Ferguson brought a private prosecution against Reid in the Magistrates Court for alleged breaches of the Dog and Cat Management Act 1995. The Magistrate dismissed all charges against Reid and awarded costs to Reid on an indemnity basis in the amount of $30,000. Ferguson appeals the dismissal of the charges and the amount of costs awarded. The appeal raises two main legal issues: whether the Magistrate erred in dismissing the charges and whether the costs awarded were manifestly excessive.

The court considered the evidence and found that there was no evidence to support Ferguson’s claims against Reid. The court also considered the amount of costs awarded and found that the amount was excessive. The court noted that the case had been lengthy and protracted and that a fair figure to award was $18,000. The court allowed the appeal against the costs order but dismissed the remaining grounds of appeal.

The appeal against the costs order imposed by the Magistrate is allowed. The order of the Magistrate is set aside and I order that the appellant pay the respondent’s costs of the trial in the Magistrates Court, fixed at $18,000. The remaining grounds of appeal are dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The appellant complains that the Magistrate erred in dismissing the charges against the respondent. He further complains the order for costs is excessive. Background The appellant resided at Unit 1, 33 Wood Avenue, Brompton and was, for the purposes of the Dog and Cat Management Act 1995 (‘the Act’), the owner of (the person responsible for) two dogs kept at those premises, being a ‘Staffishire‑X’ and a ‘Ridgeback-X’. Mr Reid was an authorised dog management officer, employed by the Council of the City of Charles Sturt (‘the Council’). The respondent’s immediate superior and supervisor was Mr Kingdom, who was also a dog management officer employed by the Council and the Team Leader of a team which included the respondent. The events giving rise to the proceedings occurred on 23 August 2002. Issues arising from the events of 23 August have been the subject of other judicial proceedings in both the Magistrates Court and this Court and are discussed later in these reasons. The appellant was also involved in disputes with the Council over his dogs prior to 23 August 2002, however, the appellant and respondent had not met and the respondent was unaware of any disputes between the appellant and the Council prior to 23 August 2002. On 23 August 2002, Mr Hartog, a civil construction worker employed by the Council, was carrying out construction work near the appellant’s residence on Wood Avenue. Between 8.00 am and 8.30 am that morning, Mr Hartog observed two dogs, later identified to be the two dogs owned by the appellant, roaming the footpath outside the appellant’s residence and behaving aggressively towards passer-bys, by barking, growling, snarling and bounding towards them. Mr Hartog contacted the Council and spoke to Mr Kingdom. Mr Kingdom subsequently attended the area in the company of the respondent, who was the dog management officer for that area. Mr Kingdom and the respondent attended the appellant’s property in the company of police, as their review of various databases, files and records indicated that the owner of dogs at those premises had been involved in altercations with council officers who had attended the premises on prior occasions in relation to disturbances involving the dogs. Mr Kindgom and Mr Reid, in the company of police, attended the appellant’s residence. There was no response, despite several knocks at the door and despite the officers announcing themselves to be police and council officers. Consequently, the officers left the premises. Mr Kingdom and the respondent went across the road to speak to Mr Hartog and the police officers resumed other duties. Whilst speaking with Mr Hartog, Mr Kingdom and the respondent saw one of the dogs previously sighted, the Ridgeback-X, roaming freely in a public reserve. They attempted to catch the dog. They chased it to the rear of the appellant’s residence where they came upon the appellant. Mr Kingdom introduced himself and the respondent to the appellant and explained what they were doing. Shortly after this, the appellant entered his unit from the rear door with his dog. Mr Kingdom and the respondent went to the front door and began knocking and asking the appellant to open the door. After a time, the appellant opened the door and pushed past Mr Kingdom and the respondent. The appellant was carrying the two dogs. He went to a van parked in the driveway, opened its side door, placed the dogs in the van, locked the side door and then left.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is desirable that this litigation be brought to finality. It has been lengthy and protracted. I propose to take a broad-brush approach to costs. I consider a fair figure to award in this case is $18,000.Conclusion The appeal against the costs order imposed by the Magistrate is allowed. The order of the Magistrate is set aside and I order that the appellant pay the respondent’s costs of the trial in the Magistrates Court, fixed at $18,000. The remaining grounds of appeal are dismissed.

Ratio Decidendi

Legal Principle Established

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