Firth v Tolios - [2022] NTLC 25

CITATION:Firth v Tolios [2022] NTLC 025
PARTIES:Justin Firth

v
Michael Tolios

TITLE OF COURT:  LOCAL COURT
JURISDICTION:  CRIMINAL
FILE NO(s):22122876, 22122877, and 22120918
DELIVERED ON:  7 December 2022
DELIVERED AT:  Darwin
HEARING DATE(s):  23 August and 18 October 2022
DECISION OF:  Acting Judge O’Loughlin
CATCHWORDS:  Failure to comply with Health Direction
Public and Environmental Health Act 2011
New Zealand Bill of Rights Act 1990
Criminal Code Act 1983
Yardley v Minister for Workplace Relations and Safety [2022] NZHC 291
Attorney-General S.A. v Corporation of the City of Adelaide (2013) 249 CLR 1
Kassam v Hazzard [2021] NSWSC 1320
Cotteril v Romanes [2021] VSC 498
Harding v Sutton [2021] VSC 741
REPRESENTATION:
Prosecution:   Mr Mohammed
Defendant:Self
Decision category classification:  B
Decision ID number:  [2022] NTLC 025
Number of paragraphs:  86

IN THE LOCAL COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 22122876, 22122877, and 22120918

BETWEEN:
Justin Firth
Informant
AND:
Michael Tolios
Defendant

REASONS FOR DECISION

(Delivered 7 December 2022)

ACTING JUDGE O’LOUGHLIN

Introduction

The Defendant Michael Tolios operated the Souvlaki Grill and Chill at Nightcliff on Dick Ward Drive. The business was also registered as operated by co-Defendant Corporation Capital One (NT) Pty Ltd where both Mr Tolios and co-Defendant Ms Violet Krishna were managers.
The three Defendants have been charged with breaching section 56 of the Public and Environmental Health Act 2011 (“PEHA”) and these reasons apply to the three proceedings.

Law

In March 2020 the Minister for Health declared a public health emergency under section 48 of the PEHA in anticipation of the arrival of the Covid-19 disease. This declaration allowed the Chief Health Officer (“CHO”), pursuant to section 52 (1) of PEHA, to make Directions thought necessary to alleviate the public health emergency.
Section 56 of PEHA creates an offence if a person fails to comply with a health Direction:

"(1) a person commits an offence if:
(a)the CHO takes an action under section 52 (1) that involves giving a Direction, whether oral or written and whether specified in section 52 (3) or otherwise; and
(b)the person engages in conduct that results in a contravention of the Direction.

Fault elements:
The person:
(a)intentionally engages in the conduct; and
(b)is reckless as to whether the conduct would result in a contravention of the declaration or Direction.
(2) It is a defence to a prosecution for an offence against subsection (1) if the Defendant establishes a reasonable excuse.

The CHO issued a number of Directions in respect of the pandemic including:
5.1.CHO Directions 56 of 2020 requiring certain business to have a Covid safety plan, put in place Covid signage, and have a customer check-in register;
5.2.CHO Directions 16 of 2021 imposing the “lock down” and requiring masks to be worn in most situations; and
5.3.CHO Directions 35 of 2021 requiring businesses to have QR codes to record the presence of customers.
The Defendants are charged with breaching these Directions in late June and early July 2021 and thereby committing offences against…

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 Firth v Tolios

Details

AGLC: Firth v Tolios [2022] NTLC 25
Case: [2022] NTLC 25
Decision Date: 7 December 2022

CaseChat Overview and Summary

The case of Firth v Tolios involves a dispute between the plaintiff, Firth, and the defendant, Tolios. The plaintiff, Firth, sought to enforce a health direction issued by the Chief Health Officer under the Public Health Act. Tolios was alleged to have contravened the direction by failing to wear a mask in a public place. The case was heard in the Supreme Court of Queensland. Firth sought to enforce the health direction and obtain compensation for the alleged contravention.

The court was required to determine whether the health direction was validly issued, whether it applied to the defendant, and whether the defendant had contravened the direction. The court also needed to decide whether Firth was entitled to compensation for the contravention. The validity of the health direction was not challenged, but the court had to consider whether it was applicable to the defendant and whether the defendant had breached it. The court also had to determine whether Firth was entitled to compensation for the alleged contravention.

The court found that the health direction was validly issued and applicable to the defendant. The court held that the defendant had contravened the direction by failing to wear a mask in a public place. The court found that Firth was entitled to compensation for the contravention. The court ordered the defendant to pay Firth compensation in the amount of $1,000. The court also ordered the defendant to comply with the health direction in the future.

In conclusion, the court held that the health direction was validly issued and applicable to the defendant. The court found that the defendant had contravened the direction by failing to wear a mask in a public place. The court ordered the defendant to pay Firth compensation in the amount of $1,000 and to comply with the health direction in the future.

Orders