MAY and RSPCA WA
[2014] WASAT 122
•19 SEPTEMBER 2014
MAY and RSPCA WA [2014] WASAT 122
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 122 | |
| 19/09/2014 | |||
| ANIMAL WELFARE ACT 2002 (WA) | |||
| Case No: | CC:296/2013 | 29 AUGUST 2014 | |
| Coram: | JUDGE D R PARRY (DEPUTY PRESIDENT) | 29/08/14 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application for strike out and referral of proceeding to Magistrates Court of Western Australia dismissed | ||
| B | |||
| PDF Version |
| Parties: | MARIANA ELIZABETH MAY RSPCA WA |
Catchwords: | Practice and procedure More appropriate forum Application for strike out and referral of proceeding to Magistrates Court of Western Australia Application for review of decision to seize animals Prosecution for cruelty to animals and application for forfeiture of animals pending before Magistrates Court Application for permanent stay of Magistrates Court proceedings Whether Magistrates Court has jurisdiction to entertain review application Interests of justice |
Legislation: | Animal Welfare Act 2002 (WA), s 19, s 19(1), s 42(1)(a), s 44(8), s 44(9), s 71(1), s 71(1)(a), s 74(1), s 74(1)(a), Pt 3 State Administrative Tribunal Act 2004 (WA), s 9, s 50, Div 3 Pt 3 |
Case References: | AB v State of Western Australia [2011] HCA 42; (2011) 244 CLR 390 Retirement Care Australia (Hollywood) Pty Ltd and Turpin (2012) WASAT 125; (2012) 82 SR (WA) 103 |
Summary | The applicant sought review by the Tribunal of a decision of an inspector to seize 138 animals. The State subsequently commenced a prosecution against the applicant in the Magistrates Court of Western Australia for cruelty to animals and also applied to that Court for the forfeiture of the animals. The applicant has sought a permanent stay of the Magistrates Court proceedings.,The respondent applied to the Tribunal pursuant to s 50 of the State Administrative Tribunal Act 2004 (WA) for the review proceeding to be struck out and referred to the Magistrates Court as a more appropriate forum.,The Tribunal refused to strike out and refer the review proceeding to the Magistrates Court, because the Magistrates Court does not have jurisdiction to conduct the review and, in any case, it would not be in the interests of justice to do so. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : ANIMAL WELFARE ACT 2002 (WA) CITATION : MAY and RSPCA WA [2014] WASAT 122 MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT) HEARD : 29 AUGUST 2014 DELIVERED : 29 AUGUST 2014 PUBLISHED : 19 SEPTEMBER 2014 FILE NO/S : CC 296 of 2013 BETWEEN : MARIANA ELIZABETH MAY
- Applicant
AND
RSPCA WA
Respondent
Catchwords:
Practice and procedure More appropriate forum Application for strike out and referral of proceeding to Magistrates Court of Western Australia Application for review of decision to seize animals Prosecution for cruelty to animals and application for forfeiture of animals pending before Magistrates Court Application for permanent stay of Magistrates Court proceedings Whether Magistrates Court has jurisdiction to entertain review application Interests of justice
Legislation:
Animal Welfare Act 2002 (WA), s 19, s 19(1), s 42(1)(a), s 44(8), s 44(9), s 71(1), s 71(1)(a), s 74(1), s 74(1)(a), Pt 3
State Administrative Tribunal Act 2004 (WA), s 9, s 50, Div 3 Pt 3
Result:
Application for strike out and referral of proceeding to Magistrates Court of Western Australia dismissed
Summary of Tribunal's decision:
The applicant sought review by the Tribunal of a decision of an inspector to seize 138 animals. The State subsequently commenced a prosecution against the applicant in the Magistrates Court of Western Australia for cruelty to animals and also applied to that Court for the forfeiture of the animals. The applicant has sought a permanent stay of the Magistrates Court proceedings.
The respondent applied to the Tribunal pursuant to s 50 of the State Administrative Tribunal Act 2004 (WA) for the review proceeding to be struck out and referred to the Magistrates Court as a more appropriate forum.
The Tribunal refused to strike out and refer the review proceeding to the Magistrates Court, because the Magistrates Court does not have jurisdiction to conduct the review and, in any case, it would not be in the interests of justice to do so.
Category: B
Representation:
Counsel:
Applicant : Mr R Christoforou
Respondent : Ms MB O'Connell
Solicitors:
Applicant : N/A
Respondent : RSPCA WA
AB v State of Western Australia [2011] HCA 42; (2011) 244 CLR 390
Retirement Care Australia (Hollywood) Pty Ltd and Turpin (2012) WASAT 125; (2012) 82 SR (WA) 103
Introduction
1 The respondent, RSPCA WA, has made an application to the Tribunal for this proceeding to be struck out and referred to the Magistrates Court of Western Australia pursuant to s 50 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Section 50 of the SAT Act states as follows:
(1) The Tribunal may at any time make an order striking out all or any part of any a proceeding if it considers that the matter, or any aspect of it, would be more appropriately dealt with by another Tribunal, a court, or any other person.
(2) The Tribunal's power to make an order under sub-section (1) is exercisable only by a judicial member.
(3) If the Tribunal makes an order under sub-section (1) it may refer the matter or any aspect of it to the relevant Tribunal, court or person if it considers it appropriate to do so.
(4) The Tribunal may make an order under sub-section (1) on the application of a party or on its own initiative.
Background
2 On 14 and 19 December 2012 the respondent seized 138 animals from premises in Maylands. The respondent contends that it did so pursuant to s 42(1)(a) of the Animal Welfare Act 2002 (WA) (AW Act). Section 42(1)(a) of the AW Act enables an inspector to seize an animal if the inspector reasonably believes that an offence under Pt 3 of the AW Act is being, or has been, committed in respect of the animal. Part 3 of the AW Act concerns offences against animals including an offence of cruelty to an animal contrary to s 19 of the AW Act.
3 On 8 March 2013 the applicant commenced this proceeding pursuant to s 74(1)(a) of the AW Act. Section 74(1)(a) of the AW Act states as follows:
A person aggrieved by a reviewable decision may apply to the State Administrative Tribunal for a review of that decision if the person
(a) has not lodged an objection to the decision[.]
4 The term 'reviewable decision' is defined in s 71(1) of the AW Act, relevantly, to include a decision made by an inspector to exercise, or the manner of exercising, a power under s 42(1)(a) of the AW Act.
5 At a directions hearing on 17 April 2013, the matter was listed for final hearing on 17 and 18 June 2013 and programming orders were made for statements of issues, facts and contentions, documents and summaries of evidence to be given at the hearing to be filed.
6 However, on 19 April 2013, two days after the directions hearing, the applicant was charged with an offence of animal cruelty contrary to s 19(1) of the AW Act and the final hearing in the Tribunal proceeding was vacated. The Tribunal proceeding has been adjourned on a number of occasions since that time to await the finalisation of the criminal proceeding.
7 On 16 May 2014 the applicant applied for a permanent stay of the prosecution in the Magistrates Court. The Magistrate who will be considering the application for a permanent stay will determine in September 2014 whether an oral hearing will be required or whether that application can be determined on the documents. If an oral hearing is required, then the respondent has indicated that it will not occur prior to 24 November 2014.
8 Meanwhile, on 20 May 2014 a forfeiture application was filed under s 44(8) of the AW Act which enables an inspector to apply to the Magistrates Court for an order that 'seized property' be forfeited to the Crown. Relevantly the 'seized property' is the animals or such of the animals as remain alive in the possession of the respondent. Counsel for the applicant has informed me that the application for a permanent stay in the Magistrates Court proceeding now extends to the application for an order for forfeiture of the animals.
Application for strike out and referral of proceeding
9 On 18 August 2014 the respondent applied to the Tribunal pursuant to s 50 of the SAT Act for the proceeding to be struck out and referred to the Magistrates Court as a more appropriate forum.
10 The respondent contends that the Magistrates Court is a more appropriate forum to deal with all issues arising in relation to the seizure and welfare of the animals simultaneously while having regard to the health, welfare and safety of animals. The respondent also submits that having the matters dealt with by the Magistrates Court will save resources and costs to the parties and to the Tribunal.
11 The applicant opposes the application for the Tribunal proceeding to be struck out and referred to the Magistrates Court.
12 In the course of the applicant's submissions counsel for the applicant raised a legal issue as to whether s 42(1)(a) of the AW Act bestows upon the respondent the power to seize the animals at all. It is unnecessary and, in my view, not appropriate to address that question in the course of determining the respondent's application under s 50 of the SAT Act. It is unnecessary because irrespective of the outcome of that determination I do not consider that the Tribunal proceeding can or should be referred to the Magistrates Court for determination. It is inappropriate because the respondent should have full opportunity to address that issue if it is raised in the SAT proceeding.
Relevant principles in relation to s 50 of the SAT Act
13 I addressed the proper interpretation of s 50 of the SAT Act in the decision of Retirement Care Australia (Hollywood) Pty Ltd and Turpin [2012] WASAT 125; (2012) 82 SR (WA) 103 (Retirement Care) at [16] to [19]. It is unnecessary to set that analysis out in these reasons. Suffice it to say that in order for the Tribunal to have power to strike out and refer this proceeding to the Magistrates Court, it must be satisfied that the Magistrates Court has jurisdiction concurrently with this Tribunal to entertain the review proceeding. If the Tribunal is satisfied that the Magistrates Court has jurisdiction to entertain the review proceeding then a discretion would arise in which the overriding consideration is whether a strike out and referral is in the interests of justice.
Does s 74(1)(a) of the AW Act confer exclusive jurisdiction on the Tribunal to review a decision made by an inspector to exercise, or in the manner of exercising, a power under s 42(1)(a) of the AW Act?
14 In AB v State of Western Australia [2011] HCA 42; (2011) 244 CLR 390 at [10] the High Court of Australia confirmed the following in relation to statutory interpretation:
What is comprehended by [a legislative provision] falls to be determined by construing its terms in the context of the [legislation] as a whole and by reference to its evident purposes. …
15 In my view, on its proper interpretation, s 74(1)(a) of the AW Act confers exclusive jurisdiction on this Tribunal to review a decision made by an inspector to exercise, or in the manner of exercising, a power under s 42(1)(a) of the AW Act. This follows from the principle of interpretation referred to and applied in Retirement Care that when, by statute, a new right is created, it is enforceable only by the means and before the tribunal, if any, specified for that purpose in the statute.
16 In the circumstances of this case, the right and remedy are integrated under the statute to such an extent that a person may only be permitted to pursue the right by means of the remedy provided. Put another way, the Parliament has, in one legislative breath, as it were, conferred both the right to seek review of a reviewable decision and the remedy of review by the Tribunal.
17 The correctness of this interpretation, in my view, is confirmed by the fact that neither s 74(1)(a) nor any other provision of the AW Act gives any indication of what is meant by 'review' of a reviewable decision. That is plainly because Div 3 of Pt 3 of the SAT Act contains extensive provisions in relation to the nature of review proceedings and the powers of the body conducting or entertaining an application for review. The absence of any such indication in the AW Act or any other legislation conferring jurisdiction on the Magistrates Court as to the nature of review proceedings and the powers of the body entertaining an application for review is a further clear legislative indication that s 74(1)(a) confers exclusive jurisdiction on this Tribunal.
18 Furthermore, although in reviewing a decision of an inspector to exercise, or in the manner of exercising, a power under s 42(1)(a) of the AW Act, the body conducting the review must determine whether it reasonably suspects that an offence under Pt 3 of the AW Act hasbeen, or is being, committed in respect of an animal, that is not the same thing as determining whether an offence under Pt 3 of the AW Act hasbeen committed in respect of the animal. Further, although if an offence is found to have been committed under Pt 3 of the AW Act by the Magistrates Court, it may be suggested that the Magistrates Court would also have implicitly found that it reasonably suspects that an offence has been committed, the converse is not the case.
19 The respondent also refers to the forfeiture application under s 44(8) of the AW Act. Section 44(9) of the AW Act provides that, on an application under s 44(8) of the AW Act, a court may 'make the order sought on such terms and conditions as the court thinks fit', and s 44(10) of the AW Act provides that, on an application under s 44(8) in relation to a seized animal, the court 'must have regard to the welfare, safety and health of the animal.' In consequence of these provisions, if the application for forfeiture of the animals proceeds in the Magistrates Court to determination, the Court will necessarily have to consider the welfare, safety and health of the animals and may impose terms and conditions on an order for forfeiture. If the Magistrates Court does so, it may have a consequence in terms of whether the review proceeding under s 74(1)(a) of the AW Act continues to have substance. However, that does not, in my view, have the consequence that the Magistrates Court has jurisdiction to undertake the review under s 74(1)(a) of the AW Act.
20 It follows that as the Magistrates Court does not have jurisdiction, in my view, the Tribunal does not have power to refer the matter to the Magistrates Court.
Exercise of discretion
21 However, even if the Tribunal were satisfied that the Magistrates Court had jurisdiction, I would decline to strike out and refer the matter to the Magistrates Court in the exercise of discretion. As I mentioned earlier, the overriding consideration in the exercise of discretion, if discretion arises, is the interests of justice. In my view, having regard to the interests of justice, it would not be appropriate to refer the matter to the Magistrates Court for the following reasons.
22 First, the question currently before the Magistrates Court is whether a permanent stay should be granted not only in respect of the prosecution but, in effect, in relation to the application for forfeiture of the seized animals. If the proceedings in the Magistrates Court are permanently stayed and if the Tribunal transfers this proceeding to the Magistrates Court, then, at the very least, a question would arise as to whether the Magistrates Court could proceed to address the review application. It may well be, as was submitted on behalf of the applicant, that the current proceeding would be left in a state of limbo. That can hardly be in the interests of justice.
23 Secondly, this Tribunal has specialist experience and expertise in administrative review proceedings whereas the Magistrates Court does not.
24 Thirdly, as noted earlier, the Magistrates Court has jurisdiction in relation to the welfare, safety and health of animals which are the subject of an application for forfeiture. However, the scope of a review proceeding under s 74(1)(a) concerns the seizure of animals and the manner of seizing animals.
25 Fourthly, the Tribunal's statutory objectives under s 9 of the SAT Act include 'to act as speedily … as is practicable, and minimise the costs to parties'. As noted earlier, the application for review was listed for final hearing within two months after the application was the subject of a directions hearing. That was now some 16 months ago. The proceeding has been adjourned on a number of occasions because of the Magistrates Court proceeding. The application for a permanent stay may well not be determined, or even heard, until November 2014.
26 Although the Tribunal's proceeding has been adjourned on a number of occasions because of the primacy of the criminal matter, I am concerned that referring the SAT matter to the Magistrates Court assuming that the Magistrates Court has, or had, jurisdiction to entertain it would only lengthen the delay in the finalisation of the review proceeding. Once the Magistrates Court criminal proceeding is determined either by permanent stay or determination of the substantive prosecution one way or the other, the Tribunal will proceed to resolve the review application promptly.
Orders
27 For these reasons I make the following orders.
1. The application made by the respondent for an order striking out and referring the proceeding to the Magistrates Court of Western Australia pursuant to s 50 of the State Administrative Tribunal Act 2004 (WA) is dismissed.
2. The matter is adjourned to a directions hearing before Senior Member Raymond at 9 am on 25 September 2014 in order to review the matter and to list any legal issue either party wishes to raise for hearing.
3. Mr Christoforou may appear at the directions hearing by telephone on his office number.
I certify that this and the preceding [27] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE D R PARRY, DEPUTY PRESIDENT
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