Kaus v Coaker

Case [2014] QMC 24

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Kaus v Coaker & Anor [2014] QMC 24

PARTIES:

CHRISTOPHER KAUS

(applicant)

v

ROBERT WESLEY COAKER

(first respondent)

and

JENNIFER FLORENCE HODDER

(second respondent)

FILE NO/S:

TOOW-MAG-5326/14

DIVISION:

Magistrates Courts

PROCEEDING:

Application for declaration of owner

ORIGINATING COURT:

Magistrates Court at Toowoomba

DELIVERED ON:

2 October 2014

DELIVERED AT:

Toowoomba

HEARING DATE:

17 September 2014

MAGISTRATE:

Lee GC

ORDER:

I declare the owner of the female dog described as a white Labrador Cross called “Mia” to be Jennifer Florence Hodder.

CATCHWORDS:

Personal property – ownership and possession – search, seizure and detention of property - where there is a dispute between two persons as to ownership after separation from a de-facto relationship - declaration as to ownership.

Police Powers and Responsibilities Act 2000, s 694

Anderson v Dunlop & Ors [2009] QMC 14 cited

Hale v Bray & Anor [2009] QMC 2 cited

Stanford v Stanford [2012] HCA 52 considered

Stephens v Williams [2008] QDC 320 cited

COUNSEL:

Windsor (senior constable) for the applicant

S Lynch for the first respondent

D J Burns (solicitor) for the Second Respondent

SOLICITORS:

Police prosecutions for the applicant

Bosscher Lawyers for the first respondent

David Burns Lawyers for the second respondent

  1. This is an application pursuant to section 694 of the Police Powers and Responsibilities Act 2000 (PPRA) seeking a declaration as to the ownership of a female dog described as a white Labrador Cross called “Mia” born December 2008.

  2. Section 694 PPRA[1] provides:

    [1] In Part 3 (Dealing with things in the possession of police service) of Chapter 21 (Administration);

    694 Application by police officer for order if ownership
    dispute

    (1) This section applies if there is a dispute about the ownership
    of a relevant thing, whether the dispute is between—

    (a) two or more persons, each of whom claims to be the

    owner of the thing; or

    (b) a police officer and a person who claims to be the owner

    of the thing.

    (2) A police officer may apply to a magistrate for an order
    declaring who is the owner of the thing.
    (3) The police officer must give anyone the police officer
    reasonably believes has a legal or equitable interest in the
    thing a copy of the application and notice of the day, time and
    place fixed for hearing the application.
    (4) The magistrate may make the order the magistrate considers
    appropriate.
    (5) If the magistrate can not decide who owns the thing, the
    magistrate may make the orders the magistrate considers
    appropriate for the disposal of the thing.    

  3. The evidence provided was by affidavit with cross examination of the two respondents who claim ownership post separation from a de-facto relationship[2]:

    ·     Affidavit of Constable William Kaus sworn 28 August 2014;

    ·     Affidavit of Constable Jean Christian Els sworn 26 August 2014;

    ·     Affidavit of Constable Shauna Webb undated.

    ·     Affidavit of Robert Wesley Coaker (first respondent) sworn 11 September 2014;

    ·     Affidavit of Jennifer Florence Hodder (second respondent) sworn 27 August 2014.    

    [2] The…

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Details
AGLC
Kaus v Coaker [2014] QMC 24
Case
[2014] QMC 24
Decision Date

CaseChat Overview and Summary

The case of Kaus v Coaker involved a dispute over the ownership of a dog named Mia, seized by the Queensland police after being reported stolen in New South Wales. The first respondent, Robert Wesley Coaker, was charged with possessing stolen property. The matter was brought before the court through an originating application under the Uniform Civil Procedure Rules 1999, filed on behalf of the first respondent due to the costs incurred from kenneling the dog. The legal issues before the court were whether an application under section 694 of the Property (Protection and Recovery Act) could be made before the conclusion of criminal proceedings and whether the evidence supported the claim of ownership by either party.

The court examined the affidavits and evidence provided by both parties, including documents such as an adoption agreement, a registration certificate, and pet insurance certificates, to determine ownership of the dog. The second respondent, Jennifer Florence Hodder, provided evidence of having purchased the dog and maintaining pet insurance, while the first respondent did not present any substantial evidence to counter these claims. The court found that the evidence supported the second respondent's claim of ownership, as she had maintained pet insurance and provided documents reflecting her ownership.

Based on the evidence, the court concluded that the dog Mia was owned by Jennifer Florence Hodder. The court made a declaration to this effect, resolving the ownership dispute. The first respondent was not granted any relief in relation to the costs incurred from kenneling the dog. The final orders of the court were that Jennifer Florence Hodder is declared the owner of the dog Mia.

Orders

Orders of the court

I declare the owner of the female dog described as a white Labrador Cross called “Mia” to be Jennifer Florence Hodder.

Background

Background to the litigation

The evidence provided was by affidavit with cross examination of the two respondents who claim ownership post separation from a de-facto relationship[2]:· Affidavit of Constable William Kaus sworn 28 August 2014;· Affidavit of Constable Jean Christian Els sworn 26 August 2014;· Affidavit of Constable Shauna Webb undated.· Affidavit of Robert Wesley Coaker (first respondent) sworn 11 September 2014;· Affidavit of Jennifer Florence Hodder (second respondent) sworn 27 August 2014. [2] The affidavits of the police officers relate to circumstances leading up to and the arrest of the first respondent on 31 July 2014; Background to the Application On 31 July 2014 Queensland police executed a search warrant on the first respondent’s property and seized the dog “Mia” which was reported as stolen from the second respondent in New South Wales. It was taken to a kennel incurring fees paid by the State. The first respondent was charged with an offence under section 406 of the Criminal Code (Q’ld):That on the 31st day of July 2014 at Toowoomba … [he] had in his possession in Queensland property namely a dog which he had obtained in New South Wales by an act which if it had been done in Queensland would have constituted the crime of stealing and which was an offence under the laws of New South Wales. This application was brought by way of Originating Application under the Uniform Civil Procedure Rules 1999. It was filed 29 August 2014 before criminal proceedings in relation to the above charge had ended. This was done at the request of the first respondent due to accruing kennel costs paid by the State. The applicant obliged[3]. [3] Email dated 11 September 2014 from Solicitors for the First respondent to police prosecutions; Section 694 PPRA is silent as to when an application can or should be made and there are few authorities on applications of this nature. In Anderson v Dunlop [2009] QMC 14, the application was commenced after committal proceedings had concluded and the criminal charges were not proceeded with against Dunlop. In Hale v Bray [2009] QMC 2 there appears to have been no criminal proceedings. In Stephens v Williams [2008] QDC 320 criminal proceedings against Stephens had concluded some years beforehand: see R v Stephens [2006] QCA 123[4]. The point as to when such applications can or should be made did not arise in those cases and was not argued in the present case. [4] The fine for insurance fraud in relation to the subject motor vehicle was reduced; The annotations to section 694 PPRA in Carter’s Criminal Law of Queensland are also silent on this issue. However, I will proceed to determine the matter for the following reasons:· section 694 PPRA is silent as to when an application can be made or ought to be made;· this application was made at the request of solicitors for the first respondent who is charged with the above offence; and· all the parties have conducted the matter on the basis that it is open to bring this application now. The Evidence and Discussion

Evidence

Evidence Before The Court

However, I will proceed to determine the matter for the following reasons:· section 694 PPRA is silent as to when an application can be made or ought to be made;· this application was made at the request of solicitors for the first respondent who is charged with the above offence; and· all the parties have conducted the matter on the basis that it is open to bring this application now. The Evidence and Discussion The respondents met in Canada in 2004, began a relationship and moved to Australia in 2008 after the first respondent finished his university course[5]. They resided together in Western Australia at various places until separation in September 2012. They maintained separate bank accounts at all times during the relationship although the first respondent says they obtained a joint American Express card to support their visa applications. [5] The first respondent says their families had known each other for years but nothing turns on this; They lived together in Scarborough Western Australia until January 2010. The first respondent then moved to Wickham in Western Australia, a remote town near his employment as an electrical engineer at Cape Lambert. The second respondent said she joined him in April 2010 after securing employment as a registered nurse there. After separation, the second respondent lived in a separate residence in Wickham until 30 October 2013 when she left Western Australia to live in Kempsey, New South Wales having formed a relationship with a male ex friend of the first respondent. On 14 February 2009 the second respondent said she purchased “Mia” and paid the price of $200. She exhibited various documents to her affidavit including an “Adoption Agreement” from an organisation called “Saving Animals from Euthanasia Inc.” (SAFE) in Western Australia, a “AAR Registration Certificate” issued by the Royal Agricultural Society of New South Wales[6], and a pet insurance certificate for “Mia”. [6] “AAR” – Australasian Animal Registry; The first of these documents names only the second respondent as the “new owner” with an address at Scarborough presumably the address of both respondents at the time. It also shows that $200 was received[7]. A receipt number is provided. The AAR Registration Certificate describes the second respondent as the owner although I note the address is Kempsey in New South Wales which indicates this certificate was obtained post separation. It records that a micro chip (number 978000001362700) was inserted inside “Mia”. [7] Exhibit JFH 1 to affidavit of the second respondent; The Certificate of Insurance issued 30 July 2012 discloses the second respondent as the “Policy owner” and her address at Wickham[8]. According to that certificate the policy was first taken out in August 2012 for 12 months. It was renewed for a further 12 months by the second respondent with a premium of $531.75 paid by her. Her bank statement[9] shows however that she paid pet insurance of $499.24 on 24 August 2011, $531.75 on 23 August 2012 and $569.07 on 27 August 2013. These appear to be annual renewals.[8] Exhibit JFH 8 to affidavit of the second respondent;[9] A Westpac account in the name of the second respondent only;

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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