Kaus v Coaker

[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 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

4. 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.  

5. 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;

6. 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.

7. 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;

8. The annotations to section 694 PPRA in Carter’s Criminal Law of Queensland are also silent on this issue.

9. 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

10. 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;

11. 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. 

12. 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;

13. 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; 

14. 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;

15. The second respondent exhibited other documents to her affidavit to support her evidence that since separation she paid for veterinary expenses and nearly all expenses before separation, dog training classes and the like.

On the other hand the first respondent describes a different scenario based largely on the fact that they were in a de facto relationship having regard to what each party contributed to the relationship and that they made joint decisions about sharing expenses and generally about their joint financial and property situation. He said that they always consulted each other over these matters[10]. Examples were given in the purchase of two motor vehicles and a boat. One vehicle and the boat were registered in his name and the other vehicle was registered in her name. Upon separation they paid each other out in respect of them. However, there was no payout in respect of “Mia”.

[10] For example at paras [6] – [12] & Exhibit RC-B (facebook entries) in affidavit of the first respondent;

1. The first respondent said they both discussed buying a dog many times. They researched the topic and they jointly agreed to purchase “Mia” from Saving Animals From Euthanasia (SAFE). The first respondent describes the decision to buy, pay for and collect the dog as a joint exercise. He said at paragraphs [16] & [17] of his affidavit that “we paid SAFE $200” and that “we arranged for Mia to be micro chipped”. However, he provided no financial records or other records to support the view that he had financially contributed to the purchase price.

2. The first respondent referred to dog training classes. Unfortunately the scanned copy of “Mia’s” training record from the training facility in Western Australia exhibited to his affidavit (RC-C) is difficult to read. It names both respondents as “Members” of that organisation with an address at Scarborough. It appears both parties contributed to dog training to some extent or other. 

3. The first respondent said he had bought a range of things for the dog pre and post separation. He exhibited some invoices for items he bought for the dog. For example, on 12 April 2011 he was billed $39.90 for one dog “Futon Bedding Pack”, $23.75 in February 2012 for a “Hound Pet Saver Dog Life Jacket Vest” and $89.90 on 19 August 2010 for a “Plastic Pet Door”. He says he also paid for items post separation with the second respondent and on 27 September 2013 he paid $338.65 for a vet bill. The second respondent was still living in Wickham then.  

4. After separation in September 2012 the second respondent remained in Wickham living separately from the first respondent until moving to New South Wales in October 2013. The dog lived with her. In the context of there being some attempts to resurrect the relationship in the early part of that period the parties spent shared time with the dog “Mia” such contact persisting after those attempts had failed. The second respondent says the first respondent had “Mia” a couple of days a week although not in the period 1 June 2013 to 12 August 2013 when the first respondent was holidaying in Europe. The first respondent says they had equal time with “Mia”. Clearly, both parties had developed an attachment to “Mia”.   

5. The second respondent said the first respondent had no objections to her taking “Mia” on a permanent basis upon separation. I note there was no payout as the parties had done in respect of the motor vehicles. On the other hand, the first respondent says he agreed that the second respondent could take the dog to keep her company in that remote town Wickham while she remained single and did not re-partner. This was in the context that, at the time of separation, he suspected the second respondent of having formed a relationship with his neighbour and ex friend prior to their separation[11] and attempted reconciliation thereafter.

   [11] Paragraphs [22] & [23] to affidavit of first respondent;

6. Once the second respondent left Western Australia for New South Wales in October 2013, the first respondent said he made a number of requests “by phone and electronic communications” for the return of “Mia” to him[12]. No emails, texts, facebook messages or other documentary evidence since October 2013 has been exhibited to his affidavit in that respect[13].      

   [12] Paragraph [40] to affidavit of first respondent;  

   [13] He managed to exhibit a facebook exchange in 2007 (Ex RC-B) prior to coming to Australia;

7. At the start of his evidence the first respondent corrected a statement he made at paragraph [44] of his affidavit where he said “I did not step inside the residence” when he went from Western Australia to Kempsey New South Wales to retrieve the dog from the second respondent’s premises. During evidence in chief, he said he did step inside. The second respondent submits this affects the first respondent’s credit.   

8. The first respondent became very emotional while giving evidence and he seemed very upset that the second respondent had formed a relationship with his then neighbour and friend at an earlier time than when either she disclosed it to him or when it became patently apparent. The second respondent says she only formed that relationship seven or eight months after they broke up.

9. I do not accept the first respondent’s version of events upon separation. I find on balance that the second respondent was to have the dog. They remained living in a small town and there were attempts initially at reconciliation.

10. The task of this court on this application is to establish, on the available evidence, the owner of the dog if possible. The first respondent submits that the “appropriate” order under section 694 PPRA is a declaration that both respondents own the dog and that it should be returned to him. The second respondent submits that she is the sole owner of the dog and that it be returned to her.

11. In determining what an “appropriate” order is, it appears to me the first respondent is seeking this court to either take into account contributions each party had made during a relationship in order to adjust their property entitlements post separation or to take his contributions into account as evidence of ownership. It is not the function of this court to do the former. That is a matter for a court exercising jurisdiction under the Family Law Act 1975 (C’th) (FLA). As a starting position one must establish who owns what on basic principles.    

12. This approach is consistent with comments made in Stanford v Stanford [2012] HCA 52 when considering adjusting property rights between parties after marriage breakdown under the FLA by altering the interests of those parties.

13. In the context of whether a property settlement should be made under the FLA that is just and equitable the first step was “identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property”[14]. And later at paragraph [39] (footnotes omitted):

    39.      Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is "just and equitable" to make the order is not to be answered by assuming that the parties' rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the [FLA] must be applied keeping in mind that "[c]ommunity of ownership arising from marriage has no place in the common law". Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be "decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses". The question presented by s 79 is whether those rights and interests should be altered. (my emphasis)

    [14] Paragraph [37] in the joint judgement of French CJ., Hayne, Kiefel and Bell JJ;

14. And later at paragraph [42]:

    42.       In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79 (4).

    43.       By contrast, the bare fact of separation, when involuntary, does not show that it is just and equitable to make a property settlement order. It does not permit a court to disregard the rights and interests of the parties in their respective property and to make whatever order may seem to it to be fair and just. (my emphasis)

15. The first respondent’s financial contributions to, and common enjoyment of “Mia” do not of themselves, necessarily point to his ownership of “Mia”. On the available evidence, the second respondent has outlaid much more and the adoption papers bear her name as the new owner and the pet insurance which she has paid for a number of years describes her as the insured. The first respondent’s contributions are, in my view, analogous to a non owner contributing to the maintenance of a chattel e.g. putting fuel in a car or paying for a service for the owner in circumstances where there may have been some arrangement between the parties as to the use of the car. Those contributions may have some bearing under the FLA.    

16. Based on the evidence I am satisfied that the appropriate order is to declare the owner of the dog “Mia” to be the second respondent. The evidence she has provided is more compelling and probative than the evidence provided by the first respondent. Documents she has provided are more consistent with the view that the second respondent is the owner e.g. the adoption papers, annual pet insurance details, bank records etc. Further, I accept that upon separation, the parties agreed that the second respondent should take the dog.  

17. I declare that the second respondent is the owner of the female dog described as a white Labrador Cross called “Mia”.