Ferguson v Wienert

Case [2019] QDC 1

DISTRICT COURT OF QUEENSLAND

CITATION: Ferguson v Wienert [2019] QDC 1
PARTIES:

Bruce James Ferguson

(Appellant)

v

Graham Wienert

(Respondent)
FILE NO: 10 of 2018
DIVISION: Appellate
PROCEEDING: Appeal
ORIGINATING COURT:

Magistrates Court, Mareeba
DELIVERED ON: 17 January 2019
DELIVERED AT: Cairns
HEARING DATE: 15 August 2018
JUDGE: Fantin DCJ
ORDER:

1.   Application for extension of time to appeal against conviction granted.

2.   Appeal against conviction allowed.

3.   Conviction set aside and verdict of not guilty entered.

4.   No order as to costs.
CATCHWORDS:

APPEAL – APPEAL AGAINST CONVICTION – LOCAL

LAW – application to extend time for filing an appeal – appeal pursuant to s 222 of the Justices Act 1886 (Qld) – where the appellant was convicted of an offence contrary to s 14(3) of the Tablelands Regional Council Local Law No. 2 (Animal Management) 2011 for failing to ensure his cattle were not wandering at large – whether the appellant established a defence under s 14(4)(a) of the Local Law that he maintained a proper enclosure for his cattle and could not, by the exercise of reasonable diligence, have prevented their escape – whether the exercise of reasonable diligence extended to preventing the ingress of rogue beasts

Legislation

Justices Act 1886 (Qld) ss 222, 223, 224

Local Government (De-amalgamation Implementation) Regulation 2013 reg 45
Tablelands Regional Council Local Law No. 2 (Animal Management) 2011 ss 2, 8, 14, Schedule Dictionary s 3 Tablelands Regional Council Subordinate Local Law No. 2 (Animal Management) 2011 ss 4, 12, 18, schedule 7

Cases
Allesch v Maunz (2000) 203 CLR 172

Carey v Commissioner for Consumer Protection [2013] WASCA 195

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 Commissioner of Police v Al Shakarji [2013] QCA 319 Fox v Percy (2003) 214 CLR 118

Hutton v RLX Operating Company Pty Ltd & Ors [2016] QSC 248

McDonald v Queensland Police [2018] 2 Qd R 612
Morris v R (1987) 163 CLR 454
R v DAQ [2008] QCA 75
R v Tait [1999] 2 Qd R 667

Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679

Rowe v Kemper [2008] QCA 175; [2009] 1 Qd R 247
Searle v Wallbank [1947] AC 341
Shambayati v Commissioner of Police [2013] QCA 57
Smith v Williams & Ors [2006] QCA 439

State Government Insurance Commission v Trigwell (1979) 142 CLR 617

Walker v Davlyn Homes Pty Ltd [2003] QCA 565

Whitehorn v The Queen (1983) 152 CLR 657

COUNSEL:

J Sheridan for the Appellant M Dalton for the Respondent
SOLICITORS: McDermid Law for the Appellant Preston Law for the Respondent

  1. The appellant is a 68 year old man living on rural acreage near Koah. He owned two docile Friesian cross cows, which he kept in a paddock with a molasses trough. One night, feral cattle broke through the fence and entered the paddock. When he approached them, they escaped through the broken fence and his cows followed. One of his cows wandered onto the Kennedy…

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Details
AGLC
Ferguson v Wienert [2019] QDC 1
Case
[2019] QDC 1
Decision Date

CaseChat Overview and Summary

In the case of Ferguson v Wienert, the appellant, Mr Ferguson, was convicted under s 14(3) of the Tablelands Regional Council Local Law No. 2 (Animal Management) 2011 for failing to ensure his cattle were not wandering at large. The dispute was taken to the local court, which subsequently found him guilty. Mr Ferguson sought to appeal this conviction on the grounds that he had maintained a proper enclosure for his cattle and could not, by the exercise of reasonable diligence, have prevented their escape. Furthermore, he argued that the exercise of reasonable diligence did not extend to preventing the ingress of rogue beasts.

The court was required to determine whether the appellant had established the defence set out in s 14(4)(a) of the Local Law. This involved examining the measures taken by Mr Ferguson to prevent his cattle from wandering and whether these measures constituted reasonable diligence. Additionally, the court had to interpret the scope of reasonable diligence in the context of preventing the ingress of animals that were not under the appellant's control.

In considering the appeal, the court found that Mr Ferguson had indeed maintained a proper enclosure and had exercised reasonable diligence in preventing his cattle from wandering. The court held that reasonable diligence did not extend to preventing the ingress of rogue beasts, which were outside of Mr Ferguson's control. Consequently, the appeal against conviction was allowed, the conviction was set aside, and a verdict of not guilty was entered. The court granted the application for an extension of time to appeal against the conviction but made no order as to costs.

Orders

Orders of the court

1. Application for extension of time to appeal against conviction granted.

2. Appeal against conviction allowed.

3. Conviction set aside and verdict of not guilty entered.

4. No order as to costs.

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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