Foxwell v Ive

[2005] QDC 281

DISTRICT COURT OF QUEENSLAND

CITATION:	Foxwell –v- Ive [2005] QDC 281
PARTIES:	Peter Norman FOXWELL (Appellant)
-v-
Edwin Martin IVE (Respondent)
FILE NO/S:	D.2 of 2004
DIVISION:	Appellate
PROCEEDING:	Appeal from decision by Magistrate
ORIGINATING	Magistrates Court
COURT:
DELIVERED ON:	1 April 2005
DELIVERED AT:	Townsville
HEARING DATE:	30 August 2004
JUDGE:	PACK D.C.J.
ORDER:
Appeal dismissed. I order the appellant pay the Respondent’s costs to be agreed or assessed.
CATCHWORDS:	APPEAL- Whether private casino car park a “public place” when note being used as a car park. Local Law, Local Government Act,

1. This is an appeal against the decision of a Magistrate to dismiss a charge by complaint and summons alleging the respondent was “the keeper of an animal and brought or permitted the animal to be brought into a public place and failed to keep the animal under effective control contrary to s.17.1 of the Townsville City Council Local law No10 Keeping and Control of Animals”. The particulars were that “at about 7.30 a.m. on Thursday 15th May 2003 the defendant brought a desexed male, black/tan in colour, German Shepherd type dog and an entire male, black/tan in colour German Shepherd type dog into a public place, namely the Breakwater Casino car park, Townsville, and failed to keep the dogs under effective control in that the defendant was not at all times holding the dogs by a chain, cord or leash”.

2. Local law 10 provides “A keeper must not bring or permit an animal to be brought into a public place unless the animal is under effective control.” In the context of control, it was not controversial on the evidence that one of the German Shepherds was not on a leash and because of protection 17(2) of the local law the question of how obedient or how well trained the dogs were is irrelevant because the only issue is whether one of them was off the leash.

3. Whilst there was some dispute before the learned magistrate as to whether the definition of “public place” as it appears in s.17(1) of the local law or that of “public place” under the Local Government Act should apply is agreed for the purpose of this appeal that the Local Government Act definition should have application.

4. The Magistrate found that the respondent had for many years exercised his dogs early in the morning and late in the afternoon at the Breakwater Casino car park, with the express permission of the casino management.

5. The Breakwater Casino and the relevant car park, other car parking areas and other land in the immediate vicinity, all results from reclamation.

6. It is not in issue that the relevant car park area is privately owned.

7. As one approaches the casino site from the city the relevant car park is to the left.

8. At material times it was not possible to drive a motor vehicle into the car park because of a closed gate. The road is divided so that as one turns further to the left approaching the casino, the car park is on the left with the casino on the right. There is an adjuncted parking area which would provide parking space for a few fishermen who use charter boats moored on a wharf which is adjacent to the car park area. Patrons of a tavern, patrons of the casino and from time to time some overflow parking from the entertainment centre which is in the vicinity, could be expected to use the relevant area at times when such activity is in progress.

9. At the times the car park was used to exercise his dogs, it would not be expected that any more than a few cars would be parked there over night. There was no evidence of vehicles being parked. Car parking capacity would probably cater for several hundred cars.

10. I am familiar with the car park area. I take judicial notice of the fact the car park area is illuminated. Surveillance cameras are in place. Fishing from the breakwater walls is policed at night by security personnel from the casino occasionally patrolling the breakwater walls. Access to the rock walls can be gained in the area by walking beside the car park on a strip of land which separates the water from the car park.

11. Photographs tendered before the Magistrate show that whilst vehicular access is restricted, there is a capacity to leave and enter the car park as a pedestrian. Whilst the car park area is fenced there are gaps at the end of the sections of fences. On the evidence there were approximately seven such gaps simplifying access to and from vehicles for drivers and passengers.

12. At the outset of the hearing of the Appeal the Respondent raised the question with regard to the validity of the appeal. The appeal had been commenced, before amendments to the Justices Act in 1886 by way of section 75 of the Evidence (Protection of Children) Amendment Act of 2003 which came into effect on 5th January 2004, and it is submitted the Court ought to exercise discretion to strike out the appeal because the appellant had not lodged a notice of recognisance pursuant to section S.222(2)(a)(ii) of the Justices Act relying on the provisions of s.229 of the Justices Act. The respondent gave notice in the appropriate form of an application to strike out the appeal in the absence of a recognisance being filed, that notice being dated 14th May 2004. The appellant purported to file a notice of recognisance after formal notice had been given.

13. The amendments that came into force of 5th January 2004 do not require recognisance to be entered into by an appellant. Since Double Time Pty Ltd v Ryan (2001) QCI 57 it has been clear that failure to enter a recognisance is something which should be regarded as an irregularity which the court has a capacity to cure.

14. Section 75 of the Evidence (Protection of Children) Amendment Act deals with the situation concerned appeals that had been commenced but not completed as at the commencement date and provides “if at the commencement of the appeal, the appeal is not ended, then from the commencement, (a) the appeal continues to be valid, (b) each step taken before commencement continues to be effectual and (c) subject to paragraph (b) the provisions of this Act as they exist after the commencement apply to the appeal including for any step that must or may be taken after the commencement.”

15. Whilst there may be many matters to be taken into account when the discretion is exercised, one of the important considerations is whether prejudice can be claimed to have arisen. There was no such claim here. I think in the circumstance that a recognisance is no longer required is a further factor which persuades me that it would be inappropriate to deprive the appellant of the opportunity to argue this appeal based solely on the ground that a recognisance had not been entered into in accordance with the former legislation.

16. The second matter raised on behalf of the respondent concerned a challenge to the appellant’s right to have local laws applied to the reclaimed area.

17. Under the Local Government Acts the State has the capacity to declare parts of the State a local government area. The respondent submitted that the reclaimed area is not within the boundary of the State of Queensland and therefore cannot be made a local government area.

18. Chapter 8 of the Breakwater Casino Act, clause 56, provides that “the State … and declares that the site …” (other than some areas) … “shall be land deemed to be within the Parish of … and within the area of the city of Townsville within the meaning of the Local Government Act”.

19. The Court was referred to sections 5,9,11 and 127 of the Land Act of 1994. Particularly the last two mentioned sections provide the State with the capacity to acquire and grant land of the kind involved here. I reject the respondent’s submission that clause 56 deeming the area to be within the appellant’s local authority area should be considered to be for limited purposes only related to the Casino or like operations.

20. At the trial a solicitor who instructed upon the hearing gave evidence. It is submitted his evidence should be struck out. The solicitor is employed by the council. After evidence had been given objection was taken to the evidence being given at the trial. The solicitor was active in the prosecution of the matter before the Magistrates Court and remained active thereafter. The case is one in which a maximum fine was 20 penalty units or $75.00 and having regard to the fact that the Magistrate was satisfied that the respondent had permission to use the area for the exercise of his dogs and there was no issue it was private land, one could be almost certain that no penalty would have been applied even if the prosecution had been successful.

21. The circumstances included that the Council inspector had sought advice as to whether an offence had been committed and the Council’s legal department advised the inspector to issue the infringement notice. An impartial observer could draw an inference that the solicitor concerned had a personal interest in the outcome, and for myself, I think that possibility should have been kept in mind

22. The Council inspector had entered the car park area, not because it was part of his general area of patrol, but only because another dog which he and another officer had been pursuing, had entered the car park area. It was in those circumstances that the respondent was seen with his dogs in the car park area. There was no suggestion that the respondent’s dogs were not obedient or controllable on command. The Magistrate was informed that it was proposed to call a solicitor for formal matters. Non-controversial photographs were tendered through him. He gave evidence of using the car park as a car park when attending basketball at the Entertainment Centre and gaining access, I assume as a pedestrian, to land at least adjacent to the car park on a few occasions for other reasons. The evidence was of a kind that could, I think, be classified as formal and I accept there was no perceived likelihood of it being controversial. At the end of the day, the Magistrate gave little or no weight to the evidence on the basis that he concluded that if public usage was to be an issue there were better ways of proving it than had been applied in the prosecution of the case.

23. I do not think the Magistrate erred in admitting the evidence of the instructing solicitor or for that matter, in his conclusion that the evidence was of little assistance.

24. On appeal, the focus of attention has not been upon whether the solicitor had been in the vicinity of the car park on a few occasions, or whether when the car park was not open as a car park, identified persons other than the respondent, had access to the area. What is suggested is that the car park is a “public place” because persons, whether trespassers or not, have the capacity to enter the car park as pedestrians.

25. The appellant submits that the court should take the view the car park is a “public place” because although it is fenced, there are gaps in the fence and some walkways which allow pedestrians to enter it.

26. As I mentioned at the outset, it is conceded that the magistrate correctly concluded that the relevant definition of “public place” is as defined in s.3 of the Act and Schedule. This provides:- “public place” means any place that the public is entitled to use, is open to the public, or used by the public whether or not on payment of money.” For the appellant it is submitted that the magistrate should have been satisfied that the car park was open to the public or used by the public.

27. The learned Magistrate found the dogs were not in a “public place”.

28. The Magistrate made a number of findings which included reference to the private ownership of the car park, that vehicular access to the car park was restricted at the time of the alleged offence and indeed prevented by the presence of a closed gate, that the car park was surrounded by a substantial fence which prevented pedestrian access apart from about seven entry points, and that the car park was not be used for any identifiable purpose at the relevant time, other than the respondent’s permitted use.

29. In terms of “public place” the learned magistrate said that in order to succeed the Council had the obligation to show that at the relevant time, the public were entitled to use the car park without permission of the owner and/or the car park was open to or being used by the public. As to “entitlement” within the definition, the learned magistrate said that there must be some licence or permission granted before a person or persons could be said to have an entitlement to be within the car park. I think the magistrate reasoned correctly it had not been established that there was an entitlement for any person to be present other than the respondent. As to being “open to or used” the Magistrate was not satisfied the case was proved. The evidence did not establish that at the time the car park was used by the public, so the question to be addressed is whether the car park should be regarded as a “public place” because at times it is used by the public and/or because pedestrians can walk into it at all times.

30. The definition of “public place” in the New South Wales legislation is very similar to that in the Local Government Act. The Appellant submitted that assistance would be gained from a decision of the New South Wales Court of Appeal in Re Camp, 1975, 1 NSWLR at 452 in which an ambulatory which had to be used to gain access to entry doors of home units in a large block of home units was defined to be a “public place”. There were lifts and stairways to the relevant floor level. The ambulatory was illuminated at night and milk vendors, a baker and tradesman use the ambulatory to access units. The public had the capacity to enter in the sense that if they were desirous of visiting the owner or occupier of a unit they had the capacity to do so. In issue in that case was whether causing of a disturbance on the ambulatory with the intention of disturbing or distressing an occupant or occupants of a unit could be said to have taken place in a “public place”. As has been noted, visitors and occupants of the units needed to use the ambulatory for access and egress to the units. The resident of one unit might well need to go past another unit in order to gain access to a lift or stairway. To my mind, the ambulatory should be seen as being something similar to a footpath that provides access to a number of residences in a conventional housing estate.

31. I was also referred to another case in which private land was determined to be a “public place” upon the basis that a large gathering of persons regularly used the subject land for gambling purposes. I did not find the reference persuasive.

32. I have no difficulty accepting within the definition usage of private land can in certain circumstances can lead it to be appropriately defined as a “public place”. This can, I think be so, even in situations in which a landowner has the capacity to control or restrict access but chooses not to do so.

33. I conclude that the question of whether an area is totally fenced off is only one consideration. I do not think that the mere absence of a fence or gate of relevance converts private to a “public place”. Usage to my mind is of greater importance.

34. I think it is relevant to consider the purpose for which a parcel of land is used from time to time. A grazier, for example, may allow a paddock contiguous to a gazetted road to be used for a folk festival over several days once or twice a year, but for the remainder of the year, graze cattle in the paddock. I do not find it appealing as a matter of principle to look only to the fact that access to that paddock might be by way of a grid which a person or persons could drive over without restriction, as being a feature converting private land into a “public place” when the only purpose at the time is grazing. The notion a contract musterer engaged by the grazier would commit an offence unless and could only muster cattle in that paddock unless using dogs that were restrained by a leash, because the paddock did not have a locked gate or closed gate is unpalatable.

35. The better view is to conclude that the classification of land should change according to the circumstances and particularly useage at the time of the alleged offence.

36. There is no evidence here that the car park was used at relevant times for any other purpose. It was not used by sporting teams, joggers, walkers, skateboarders or for any purpose conflicting or potentially conflicting with the respondent’s permitted use.

37. The circumstances in each case will determine whether or not there has been a breach of local law. The evidence here does not support a breach. The appeal is dismissed. I order the appellant pay the Respondent’s costs to be agreed or assessed.