Griffiths v Ferguson
[2008] QMC 5
•4 March 2008
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Griffiths v Ferguson [2008] QMC 005
PARTIES:
PETER GRIFFITHS
(appellant)
v
FIONA MAREE FERGUSON
(respondent)
FILE NO/S:
MAG97484/07(4)
DIVISION:
Magistrates Court
PROCEEDING:
Appeal against Review Decision
ORIGINATING COURT:
Atherton Magistrates Court
DELIVERED ON:
4 March 2008
DELIVERED AT:
Atherton
HEARING DATE:
7 February 2008
MAGISTRATE:
Braes TJ
ORDER:
Review decision confirmed
CATCHWORDS:
ADMINISTRATIVE LAW – APPEALS FROM ADMINISTRATIVE AUTHORITIES – SIEZURE OR FORFEITURE OF ANIMAL – was review decision unreasonable or unlawful
APPEAL – PRACTICE AND PROCEDURE – APPEAL AGAINST REVIEW DECISION – how to conduct an appeal by way of rehearing
COUNSEL:
Appellant on their own behalf
S Afzal for the respondent
SOLICITORS:
Appellant on their own behalf
Crown Law for the respondent
Peter Griffiths is the appellant against a forfeiture order made by Ms Fiona Ferguson. I have copied to the rear the legislative provisions relevant to this appeal.
The relevant legislation is to be found in the Animal Care and Protection Act and the Uniform Civil Procedure Rules.
The onus of satisfying me that the forfeiture decision should be set aside (see s 203 for power of Magistrates Court on the appeal) is upon the appellant. The standard of proof required is the civil standard that being on the balance of probabilities.
[4]The appellant was not legally represented. The respondent was represented by Ms Afzal, Solicitor.
[5]In the filed material the appellant had included a notice of a constitutional matter pursuant to s 78B of the Judiciary Act. At the commencement of the proceeding the appellant withdrew the notice. Also the appellant’s notice of appeal originally included a claim for defamation. The defamation claim was not pursued on the appeal.
[6]It is a person’s right to appear without representation. Regrettably today many people adopt that course of action. It is, I think, false economy and deprives the individual even when given a good measure of latitude by the Court, of a properly presented case.
[7]There is a matter about the conduct of this appeal that concerns me.
[8]This appeal is by way of a re-hearing, unaffected by the review decision. A re-hearing is generally understood as an appeal based on the transcript of the evidence given at trial. It does not involve calling oral evidence at the appeal. No submissions were received as to the procedure to be adopted on appeal although I recall that at an early mention of the matter the process of filing affidavits was raised by me and the process was adopted by the parties. The matter was referred to a directions conference with the Registrar. It is apparent that one or two conferences were held. The parties filed affidavits and other material and called witnesses to be cross-examined. The hearing was a hearing de novo. I have, I expect, more information available to me than was available to Ms Ferguson.
[9]I have reviewed the Act and the Justices Act looking for guidance on this subject. I have found little assistance. Queensland Civil Practice PG 17-50 at page 2-2012 notes “the nature of a right of appeal from a decision of a statutory tribunal is determined by the statute which creates the right of appeal: Builders Licensing Board –v- Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616. This is not an appeal from a statutory tribunal. See also the Law Book Company Magistrates Court Queensland Summary Offences page 7126 paragraph 3.525 where Douglas J is reported at page 7127 as saying in the matter of Director of Public Prosecutions –v- Philippa (2004) QSC 470 “it seems to me, however that the decisive issue is the one previously identified, namely the provision of s 19B(6) ( of the Bail Act ) that on the review additional and substituted evidence or information may be given and the reviewing Court may make any order it considers appropriate. That appears to me to make the application one that should be treated as a re-hearing de novo; see Powell –v- Streatham Manor Nursing Home (1935)AC243 at 263 referred to in Scrivener –v- DPP (2001) 125 Aust Crim R279 at 281-282. Accordingly it is my view that the matter should proceed as a re-hearing de novo and that the admissibility of the evidence relied upon by the Director should be tested by reference to s 15 of the Act rather than r 430 of the Uniform Civil Procedure Rules”.
[10]The scope of s 202 of the Animal Care and Protection Act is not as broad as the Bail Act provision referred to. The provisions of s 202 however would appear broad enough to allow the matter to proceed as a hearing de novo. There is of course no transcript of the forfeiture proceeding. By proceeding de novo the appellant has I believe been afforded the greatest opportunity to present his case. If the appeal was otherwise conducted “on the papers” as a “re-hearing” the appellant would have been limited to the material lodged on the review decision to forfeit the cattle, being a document lodged by the appellant on 13 April 2007 which appears in the form of a statutory declaration of Mr Griffiths possibly supported by some other statements of other persons referred to elsewhere herein as being attached to the appellant’s affidavit.
[11]So far as background is concerned I can do no better to summarise the relevant events than to refer to the respondent’s outline of submissions and I refer the reader to those submissions.
[12]Evidence was received by way of affidavit. The appellant filed a notice of appeal and affidavit. He also relied upon the evidence of Mr Buglar who gave oral testimony as well as the short statement attached to the appellant’s affidavit. The respondent filed a bundle of documents pursuant to UCPR784 as well as the following affidavits:
Renata Johnson, Biosecurity Inspector
John Shield, Veterinarian
Kevin Shaw, Senior Extension Officer
Troy Whittle, Detective Senior Constable of Police
Deborah Malone, Detective Senior Constable of Police
Daniel Hogarth, Biosecurity Inspector
Fiona Ferguson, Manager Legislative Support Unit DPI&F
[13]All, except Whittle and Malone, were called and cross-examined by the appellant.
[14]As well as all the documentary evidence received two pathology reports by Mr B Robinson from the Tropical and Aquatic Animal Health Laboratory of the DPI&F in Townsville in respect of the four relevant cattle were received. These documents according to their face and the evidence of Mr Shield show cattle suffering hypoalbuniaemia as a consequence of malnutrition.
[15]None of the evidence presented by the respondent was successfully challenged or discredited.
[16]There were some discrepancies between Johnson and Hogarth on some points but these discrepancies do not discredit their evidence. For instance Johnson said that she saw a tarpaulin wrapped around the hay rack. Hogarth did not see this. Johnson confirmed that the tarpaulin was insufficient to keep the weather off any hay that may have been in the hay rack.
[17]Mr Buglar gave evidence of his experience with cattle mainly to the effect that cattle coming off dry lands onto fresh green pasture could suffer scouring. There was, as I commented on at least once, no evidence of where the cattle had come from. It appeared that the appellant was suggesting that the “dry” or “drought” was locally at his property in Tolga. There is reference in the complaints received by the Department from the public to the cattle possibly being there for six months. There is some evidence that the appellant bought the cattle as lawn mowers and they had simply multiplied suggesting they had been there for some time. Four head were said to be dropped there by the appellant’s brother in law. No time frame was given.
[18]It does not appear to me to be a matter where it is necessary to decide a contest between the evidence of one party and the other, other than to determine as is denied by the appellant that the cattle were in need of additional care to that which he was providing. The facts upon which that and all other matters are to be decided do not appear to any meaningful extent to be contested.
[19]I only intend referring to a few matters of evidence from my notes of the cross-examinations.
[20]It was put to Mr Griffiths that between 4 February and 2 March the condition of the cattle did not improve, in fact their condition deteriorated and that the cattle required more care than he was providing them. He disagreed with this proposition.
[21]Mr Hogarth in cross-examination confirmed that “if you had been providing extra that was sufficient these cattle would have been improving not going backwards”.
[22]I accept that the appellant’s care and attempted compliance with the directions given to him were insufficient to reverse the effects of over-grazing that manifested themselves in the poor condition of the relevant cattle.
[23]Mr Shield also when discussing the relevant cattle said that one in particular, a cow was in very low condition, condition score one, with bones and ribs showing. It had been under-nourished for some time. It spent a lot of time lying down. It had deteriorated since he saw it weeks before.
[24]Mr Shield also gave evidence under cross-examination about the nature of the pasture or feed available to the cattle in the paddock. He said that there “was not enough good pasture in your paddock to feed these animals” and “what these cattle needed was hay or good food”. He said that the property was “grossly over-stocked” that if “weaned and looked after properly the mothers would have been relieved” that “before my first visit I was advised that Mr Griffiths was advised to wean. But when I got there they had been weaned merely by putting through a three barbed wire fence. So effectively not weaned at all”. And Mr Shaw when asked by Mr Griffiths “what else could I have done” replied “my recommendation in the first email still stands. The main thing was to wean the cows from the weaners. At that time the breeders needed to be weaned off the calves”.
[25]The appellant in his conduct of the appeal canvassed factual issues but he failed to clarify or expand these facts or to properly introduce factual evidence that would be relevant. For instance:
Where did the cattle come from?
How long had they been on his property?
Did he own them?
What was the condition of the cattle when they were delivered to his property?
Had they calved, if so, when?
Had he sought agistment or made inquiries or arrangements for the removal of the stock to better pasture?
[26]The evidence presented by the appellant was not only lacking in vital areas but it was most irregular. The undated document filed on 14 September 2007 and headed “Affidavit of Peter Griffiths” contains numbered pages (not all are numbered) ending with the document numbered 33/7. This bundle of documents thought to be the affidavit of the appellant contains all manner of material that would ordinarily be inadmissible. Section 202(1)(b) provides this Court is not bound by the rules of evidence. Section 202(1)(c) provides that this Court must comply with natural justice.
[27]The appellant’s lack of material may also be seen in the Notice of Appeal (which would strictly not comply with the Act) and the request to review the forfeiture decision.
[28]It should have been obvious to Mr Griffiths (as it was to Mr Shield and other witnesses) that the pasture was insufficient to sustain the cattle. If the cattle did not take the lucerne hay the appellant could have tried something else. He could have contacted the inspectors and discussed the situation. The cattle obviously reacted to proper care (except for the one that was destroyed) when removed from the appellant’s pasture.
[29]I accept the evidence presented on behalf of the respondent.
[30]The appellant has adopted an attitude towards the cattle and the authority of the inspectors that is evident in his demeanour and presentation of the appeal.
[31]In considering this matter I was mindful of the fact that only four of the original 19 head of cattle were seized. How could the forfeiture order be upheld when a number of other cattle were left in the appellant’s care? The facts are though that the relevant cattle were very poor. The other’s were not so.
[32]The stronger cattle were in a different paddock and had supplement and their number had been reduced. Whereas, in respect of the relevant cattle the appellant’s attitude was that they would select what they wanted to eat, there was plenty of grass, there was no need to call a vet to inspect the cattle and that the cattle could be given a lead pill and cut up for dog meat.
[33]The underlying problem that the appellant exhibits is that he did not grasp that the pasture on which the relevant cattle were grazing was too poor to sustain them. The cattle had to be removed (as has been proven to be effective in respect of three of the relevant cattle) or the cattle required sound management.
[34]The appellant’s attitude is also evident in his line of questioning about the “weight” loss occasioned to a cow when a calf is born. This is obvious. It is, however, not a question of weight loss. The relevant cattle were poor beyond having calved.
[35]The appellant’s attitude to the inspectors and the stock as referred to is such that one could have no confidence that if the cattle were returned to the appellant there would be any further recognition by him of the problem or action to remedy it.
[36]I have read in the appellant’s material claims that although not extending to constitutional matters raise the question of the rights of the individual as the holder of freehold title. A further document, number 23, attached to the appellant’s affidavit contains reference to a number of decisions of the High Court of Australia. It is not my place to write a paper on the statute law or common law of this country. The arguments have not otherwise been argued or raised. I find no merit in this argument and it is rejected.
[37]To the extent that the argument of validity of the statute law of Queensland law is raised it is rejected.
[38]The appellant in his material has provided the Court with a number of statements of people praising the appellant and his family and denying any failure to properly maintain the stock in question. The appellant’s credibility is not an issue. It is as already stated regrettable that the appellant elected not to be represented. I find it impossible to reconcile these various statements regarding the state of the cattle given the overwhelming evidence of the photographs and of the respondent’s witnesses.
[39]In determining the forfeiture order Ms Ferguson relied upon the statement of Renata Johnson. This statement, exhibit FMF-3 to the affidavit of Ms Ferguson clearly raises justifiable concerns regarding the appellant’s ability or willingness to properly care for the cattle. The report also states at paragraph 3.6 that:
“Currently Mr Griffiths is the subject of an investigation into a number of serious breaches of the Animal Care and Protection Act 2001 in relation to this matter. It may potentially undermine our credibility with the Court if we pursued prosecution but gave the cattle back. A Court may consider there is no animal welfare issue if we return the seized cattle to Mr Griffiths”
[40]This matter is of concern to me. It suggests that the cattle may have been forfeited to protect or enhance other prosecutions. It is similar to the argument that I raised earlier that all the cattle were not seized. There is on my reading of the material only one reference to this matter. None of the witnesses were challenged about this matter. Ms Ferguson was not cross-examined about it. There is no suggestion by the appellant that the forfeiture order was made to protect or enhance other prosecutions. I am not able to find any evidence to support such a finding.
[41]Primarily in deciding this matter I have reference to the legislation referred to above but particularly s 154(2)(c). The animal welfare offence relied upon is found in s 17(3), a person breaches the duty of care only if the person does not take reasonable steps to provide the animal’s needs for food and water in a way that is appropriate. It is not necessary for me to find that an animal welfare offence has been committed. Ms Ferguson made the forfeiture order on the findings that “there is sufficient evidence to support a reasonable belief that it is necessary to keep the animals to prevent them from being used in committing or becoming the subject of an animal welfare offence”. I am not asked to make an order in respect of the appellant’s attitude today, nor with regard to the condition of the cattle today. I expect that the appellant would gladly receive the now well-nourished cattle, even if only for sale purposes.
[42]I am asked to make a decision as to whether the forfeiture order should be confirmed (see s 203).
[43]The stated grounds of appeal have no merit.
[44]The appellant has for the reasons that I have expressed failed to persuade me that the decision was not lawful or that it was unreasonable. The on going poor state of the cattle, the appellant’s behaviour towards the inspectors and his response to the directions was such as to provide grounds for making the forfeiture order.
[45]I confirm the review decision appealed against.
Animal Care and Protection Act
17 Breach of duty of care prohibited
(1) A person in charge of an animal owes a duty of care to it.
(2) The person must not breach the duty of care.4
Maximum penalty—300 penalty units or 1 year’s
imprisonment.
(3) For subsection (2), a person breaches the duty only if the
person does not take reasonable steps to—
(a) provide the animal’s needs for the following in a way
that is appropriate—
(i) food and water;
(ii) accommodation or living conditions for the
animal;
(iii) to display normal patterns of behaviour;
(iv) the treatment of disease or injury; or
4 See also section 9 (Act does not affect other rights or remedies).
(b) ensure any handling of the animal by the person, or
caused by the person, is appropriate.
(4) In deciding what is appropriate, regard must be had to—
(a) the species, environment and circumstances of the
animal; and
(b) the steps a reasonable person in the circumstances of the
person would reasonably be expected to have taken.
Examples of things that may be a circumstance for subsection
(4)(b)—
• a bushfire or another natural disaster
• a flood or another climatic condition
animal welfare offence—
1 An animal welfare offence means an offence against—
(a) this Act, other than chapter 6, part 2, divisions 2, 3,
4 and 7 and chapter 8, part 1; or
(b) the Criminal Code, section 468.39
2 However, an offence by an executive officer of a
corporation against section 209(2) is only an animal
welfare offence if the relevant offence by the
corporation is an animal welfare offence.
142 General power to seize evidence
(1) An inspector who has, under this part, entered a place may
seize an animal or other thing at the place if the inspector—
(a) reasonably suspects it is evidence of an offence against
this Act; or
(b) reasonably believes the seizure is necessary to prevent it
being—
(i) destroyed, hidden or lost; or
(ii) used to commit, continue or repeat, an offence.
(2) Also, an inspector may seize an animal or other thing at the place—
(a) if the inspector reasonably believes it has just been used
in committing, or is the subject of, an animal welfare
offence; or
(b) with the written consent of a person as follows or a
person the inspector reasonably believes is a person as
follows—
(i) for an animal—a person in charge of the animal;
(ii) for another thing—the owner or person in
possession of the thing.
(3) A consent under subsection (2)(b) given by an owner may
also include the owner’s agreement to transfer ownership of
the animal or other thing to the State or a prescribed entity.
(4) Despite subsections (1) and (2), if an entry to a place was
made after obtaining the necessary consent of a person, the
inspector may seize a thing at the place only if the seizure is
consistent with the purpose of entry as told to the person when
asking for the consent.23
(5) This section does not limit a power to seize under section 144
or 145.
144 Seizure for welfare of animal
(1) An inspector who has, under this part, entered a place may
seize an animal at the place if the inspector reasonably
believes—
(a) the animal—
(i) is under an imminent risk of death or injury; or
Examples of imminent risk of death or injury—
1 A prohibited event is being conducted at the place.
2 The animal is being beaten or tortured.
(ii) requires veterinary treatment; or
(iii) is experiencing undue pain; and
(b) the interests of the welfare of the animal require its
immediate seizure.
(2) The inspector may also seize the animal if the person in
charge of the animal has contravened, or is contravening, an
animal welfare direction or a court order about the animal.
154 Power to forfeit
(1) This section applies if an animal or other thing has been
seized under this Act or the Police Powers and
Responsibilities Act 2000, section 146(2)(d).26
(2) The chief executive may decide to forfeit the animal or thing
to the State if an inspector or police officer—
(a) after making reasonable efforts, can not return it to its
owner; or
(b) after making reasonable inquiries, can not find its owner
or, for an animal, any other person in charge of it; or
26 Police Powers and Responsibilities Act 2000, section 146 (Power in relation to
offences involving animals)
(c) reasonably believes it is necessary to keep the animal or
other thing to prevent it from being used in committing,
or becoming the subject of, an animal welfare offence.
(3) For subsection (2)—
(a) the period over which the efforts or inquiries are made
must be at least 4 days; and
(b) the inspector or police officer is not required to—
(i) make efforts if it would be unreasonable to make
efforts to return the animal or other thing to its
owner; or
Example for subparagraph (i)—
The owner of the thing has migrated to another country.
(ii) make inquiries if it would be unreasonable to make
inquiries to find the owner.
(4) Regard must be had to an animal or other thing’s condition,
nature and value in deciding—
(a) whether it is reasonable to make inquiries or efforts; and
(b) if inquiries or efforts are made—what inquiries or
efforts, including the period over which they are made,
are reasonable.
155 Information notice about forfeiture
(1) If the chief executive decides, under section 154(2), to forfeit
an animal or other thing, other than a seized thing mentioned
in section 150(1)(c),27 the chief executive must promptly give
the person who owned it immediately before the forfeiture
(the former owner) an information notice about the decision.
(2) However, subsection (1) does not apply if—
(a) the decision was made under section 154(2)(a) or (b);
and
(b) the place where the animal or other thing was seized
is—
27 Section 150 (Information notice and receipt for seized property)
(i) a public place; or
(ii) a place at which the notice is unlikely to be read by
the former owner.
(3) The information notice must state that the former owner may
apply for a stay of the decision if he or she appeals against the
decision.
(4) If the decision was made under section 154(2)(a) or (b) the
information notice may be given by leaving it at the place
where the animal or other thing was seized, in a conspicuous
position and in a reasonably secure way.
197 Review decision
(1) The chief executive must, within 20 days after receiving a
review application made under section 195—
(a) conduct a review of the original decision the subject of
the application; and
(b) make a decision (the review decision) to—
(i) confirm the original decision; or
(ii) amend the original decision; or
(iii) substitute another decision for the original
decision.
(2) The application must not be dealt with by—
(a) the person who made the original decision; or
(b) a person in a less senior office than the person who
made the original decision.
(3) Subsection (2)—
(a) applies despite the Acts Interpretation Act 1954, section
27A;35 and
(b) does not apply to an original decision made by the chief
executive personally.
(4) If the review decision confirms the original decision, for the
purpose of an appeal, the original decision is taken to be the
review decision.
(5) If the review decision amends the original decision, for the
purpose of an appeal, the original decision as amended is
taken to be the review decision.
198 Notice of review decision
(1) The chief executive must, within 10 days after making a
review decision, give the applicant notice (the review notice)
of the review decision.
(2) If the review decision is not the decision sought by the
applicant, the review notice must also state the following—
35 Acts Interpretation Act 1954, section 27A (Delegation of functions or powers)
(a) the reasons for the decision;
(b) that the applicant may, within 28 days after the review
notice is given, appeal against the decision to the
Magistrates Court;
(c) how to appeal;
(d) that the applicant may apply to the court for a stay of the
decision.
(3) If the chief executive does not give the review notice within
the 10 days, the chief executive is taken to have made a
review decision confirming the original decision.
Division 2 Appeals
199 Who may appeal
If an interested person has applied for a review of an original
decision, any interested person for the decision may appeal
against the review decision to the Magistrates Court.
200 Starting appeal
(1) An appeal is started by—
(a) filing notice of appeal with the clerk of the Magistrates
Court; and
(b) serving a copy of the notice on the chief executive; and
(c) complying with rules of court applicable to the appeal.
(2) The notice of appeal must be filed within 28 days after the
appellant receives notice of the review decision appealed
against.
(3) However, the court may, at any time, extend the time for
filing the notice of appeal.
(4) The notice of appeal must state fully the grounds of the appeal
and the facts relied on.
202 Hearing procedures
(1) In deciding an appeal, the Magistrates Court—
(a) has the same powers as the chief executive in making
the review decision appealed against; and
(b) is not bound by the rules of evidence; and
(c) must comply with natural justice.
(2) An appeal is by way of rehearing, unaffected by the review
decision.
203 Court’s powers on appeal—general
(1) In deciding an appeal, the Magistrates Court may—
(a) confirm the review decision appealed against; or
(b) set aside the decision and substitute another decision; or
(c) set aside the decision and return the matter to the chief
executive with directions the court considers
appropriate.
(2) If the court substitutes another decision, the substituted
decision is taken, for the purposes of this Act, other than this
part, taken to be the review decision.
204 Further powers for appeal about seizure or forfeiture
(1) This section applies if an appeal is about a review decision to
seize or forfeit an animal or other thing.
(2) If the Magistrates Court confirms the forfeiture, it may also
give directions about the sale or disposal of the animal or
other thing.
(3) If the court sets aside the seizure or forfeiture, it may also—
(a) order the return of the animal or other thing; or
(b) make another order it considers appropriate for its
disposal; or
(c) make an order under section 191.36
(4) However, the court must not order the return to a person of
any of the following seized things—
(a) an animal or other thing that may be evidence in a
proceeding started in relation to the thing seized;
(b) a thing that has been destroyed because it has no
intrinsic value;
(c) a thing that has been disposed of because it was
perishable;
(d) a thing the person may not lawfully possess.
205 Appeal to District Court
An appeal lies to a District Court from a decision of the
Magistrates Court, but only on a question of law.
Uniform Civil Procedure Rules 1999
784 Procedure for appeals to a court from other entities
(1) An appeal to a court from an entity other than a court is started
by filing a notice of appeal with the registrar of the court.
(2) The appellant must also, as soon as practicable, serve a copy
of the notice of appeal on the registrar, secretary or another
officer of the entity or, if there is no registrar or officer, on the
person or 1 of the persons constituting the entity.
(3) On the service of the copy of the notice of appeal, the person
served with the copy must arrange to send immediately to the
registrar of the court in which the appeal is started copies of
all documents used in or relevant to the proceeding from
which the appeal is brought, including, but not limited to, the
following documents—
(a) initiating documents;
(b) anything in the nature of pleadings;
(c) affidavits or written statements of evidence;
(d) transcripts or notes of oral evidence;
(e) exhibits;
(f) any documents embodying the formal decision,
including the reasons for the decision.
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