Mills v Perras

[2005] NSWSC 1184

CITATION:	Mills v Perras [2005] NSWSC 1184
HEARING DATE(S):	16 November 2005
JUDGMENT DATE :	24 November 2005
JURISDICTION:	Common Law Division
JUDGMENT OF:	Associate Justice Harrison
DECISION:	(1) The appeal is dismissed; (2) The decisions of his Honour Magistrate Gould dated 8 March 2005 and 24 March 2005 are affirmed; (3) The summons filed 7 April 2005 is dismissed; (4) The plaintiff is to pay the defendant's costs as agreed or assessed.

CATCHWORDS:

Appeal decision of Local Court Magistrate - Dog - Inclosed Lands Protection Act 1901 - Justice is a german shepherd

LEGISLATION CITED:

Crimes (Local Courts Appeal and Review) Act 201 (NSW) - s 56(1)(c)
Inclosed Lands Protection Act 1901 (NSW) - s 4(1)

CASES CITED:

Allen v Kerr & Anor (1995) Aust Torts Reports 81-354
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Devries v Australian National Railways Commission (1993) 177 CLR 472
Gorczynski v Beilby [2005] NSWSC 884
Holloway v McFeeters [1956] 94 CLR 470
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd (11983) 3 NSWLR 378
Jung v Son [1998] NSWCA 698 (18 December 1998)
Pettitt v Dunkley (1971) 1 NSWLR 376
R L & D Investments Pty Ltd v Bisby [2002] MVR 479
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588
Swain v Waverley Municipal Council [2005] HCA 4

PARTIES:

Mervyn Thomas Mills
(PLaintiff)

John Perras
(Defendant)

FILE NUMBER(S):

SC 11298/2005

COUNSEL:

Mr A Naylor
(Plaintiff)

Mr D Pullinger
(Defendant)

SOLICITORS:

Mr G Williamson,
K O'Malley Jones & Williamson
(Plaintiff)

Mr J Gaitanis,
Gaitanis Lawyers
(Defendant)

LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	209912/04
LOWER COURT JUDICIAL OFFICER :	Magistrate Gould

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

THURSDAY, 24 NOVEMBER 2005

11298/2005 - MERVYN THOMAS MILLS v
JOHN PERRAS

JUDGMENT (Appeal decision of Local Court Magistrate;
Dog- Inclosed Lands Protection Act 1901;
Justice is a german shepherd)

1 HER HONOUR: By summons filed 7 April 2005 the plaintiff seeks firstly, an order that the time for instituting these proceedings be extended up to and including the date of filing of this summons; secondly that the determination by Local Court Magistrate Gould on 8 March 2005 and 24 March 2005 (at the Local Court at Burwood) in favour of the defendant was erroneous in point of law; and thirdly, that the matter be remitted to the Local Court at Burwood to be determined according to law. The plaintiff is Mervyn Thomas Mills (Mills). The defendant is John Perras (Perras). The plaintiff relied on two affidavits of Geoffrey Burnett Williamson sworn 2 and 17 August 2005.

2 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 56(1)(c) of the Crimes (Local Courts Appeal and Review) Act 2001 (NSW) (the Act) permits a party to appeal to this Court against dismissal of summary proceedings on a question of law alone. The onus lies on the plaintiff to demonstrate that there has been an error of law. What is a question of law (as opposed to a question of fact) was considered, inter alia, in Allen v Kerr & Anor (1995) Aust Torts Reports 81-354; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156; Carr v Neill [1999] NSWSC 1263 and R L & D Investments Pty Ltd v Bisby [2002] 37 MVR 479; [2002] NSWSC 1082. It cannot be said that the judicial officer acted on evidence inconsistent with facts incontrovertibly established by the evidence - see Devries v Australian National Railways Commission (1993) 177 CLR 472 per Brennan, Gaudron and McHugh JJ at 479 and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588.

3 Recently, in Swain v Waverley Municipal Council [2005] HCA 4, the Chief Justice at [2] reiterated that in the common law system of civil justice, the issues between the parties are determined by the trial process. The system does not regard the trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal.

4 Section 59(2) of the Act provides that the Court may determine an appeal by setting the judgment or order aside and making such an order as it thinks just or by dismissing the appeal.

Grounds of appeal

5 The plaintiff appeals the whole of the decision of the Magistrate on the grounds firstly, that the evidence was not capable of supporting a finding that the defendant had a lawful excuse within the meaning of s 4(1) of the Inclosed Lands Protection Act 1901 (NSW) (ILP Act) for entering into the inclosed lands of the plaintiff; and secondly, that the learned Magistrate failed to give adequate reasons for his finding that the defendant had a lawful excuse for such entry into the inclosed lands of the plaintiff. At the hearing of the appeal, it was accepted that retrieving a dog from inclosed land constituted a lawful excuse, provided there was reliable evidence for that finding to be made.

Extension of time

6 The appeal was lodged two days late. The plaintiff’s solicitor Mr Geoffrey Williamson gave evidence that he ordered the transcript but there was a delay in its receipt. The transcript was not received until after this summons was filed. On the last day that the summons was to be filed he was without the assistance of his secretary so typed the summons and grounds of appeal himself. He gave the documents to the plaintiff to personally as he was to file these documents in this Court. The plaintiff filed the summons two days later. There is no prejudice caused to the defendant by the delay. In these circumstances, it is my view that an extension of time in which to lodge the appeal should be granted. I do so.

The appeal

7 On 8 March 2005 his Honour Magistrate Gould dismissed a private prosecution brought by the plaintiff (Mills) against his next door neighbour Perras for a breach of s 4(1) of the ILP Act. On 24 March 2005 his Honour ordered the plaintiff to pay the defendant’s costs of the private prosecution in the sum of $8,826.30. For convenience I shall refer to the parties by name.

8 Section 4(1) of the ILP Act reads:

“Unlawful entry on inclosed lands

(1) Any person who, without lawful excuse (proof of which lies on the person), enters into inclosed lands without the consent of the owner, occupier or person apparently in charge of those lands, or who remains on those lands after being requested by the owner, occupier or person apparently in charge of those lands to leave those lands, is liable to a penalty not exceeding:


(a) 10 penalty units in the case of prescribed premises, or

(b) 5 penalty units in any other case.”

The Magistrate’s decision

9 It has been necessary to read the transcripts of evidence as the plaintiff submitted that there was no basis upon which the Magistrate could have made a finding that Perras went onto Mills’ property with the belief that he was retrieving his dog. Mr Mills, Mr Yasim and Mr Perras gave evidence and were cross examined during the hearing in the Local Court, which took place over three days. Perras gave evidence by means of a Greek interpreter.

10 Evidence was given by Perras that he saw his dog in Mills’ backyard before he left his house heading towards, in the first instance, the footpath outside Mills’ property [t 5.20, 15.1 – 8/3/05]. Perras “believed that his dog was in the backyard” [t 21.44 – 8/3/05]. He has reason to believe this because “I see the dog on the other side of the fence and I call the dog “Justice come” he no come.” Mills observed Perras enter his property [t 4.20 – 8/12/04] Mills’ friend Mr Yasim observed “the guy next door firstly on the Council driveway and then in the middle of Mr Mills’ front yard” [t 33.29; 36.55 – 8/12/04]. Mr Yasim heard Perras call out “Watch out for the dog” [33.50; 38.44 – 8/12/04] or “There’s a dog” [t 37.14 – 8/12/04]. Perras was “very anxious on this occasion to retrieve this dog of yours weren’t you to get it back into your property” [t 12.39 – 8/3/05]. After conversing with Mr Yasim, Perras “went back to [his] backyard where [he was] able to retrieve [his] dog [t 16.8 – 8/3/05].

11 The plaintiff’s counsel drew the court’s attention to the following question and answer by Perras.

“Q. You see what I suggest to you sir happened is that when you initially couldn’t get your dog to come back into your back yard you decided that you would try to get the dog by going into Mr Mills property?
A. No I did not.” [t 16.15 – 8/3/05]

12 The Magistrate in his reasons for judgment recorded that the defendant denies entering the property at all and that he says he was at all relevant times out on the footpath or in his own property.

13 On the issue of witnesses’ credibility, the Magistrate was of the view that nothing turned on discrepancies between the prosecutor (Mills) and the prosecutor’s witness’s (Yasim) evidence as to the sequence of the conversation and the alleged observations as to entry and exit of the defendant. The Magistrate made a finding that there was nothing in the demeanour of any of the witnesses or on the plausibility of their evidence, which would make him prefer or reject a witness’s credibility on that account. These comments appear to be directed at the prosecuting witnesses namely Mills and Yasim. The Magistrate did not make any comments in his judgment about the demeanour and credibility of Perras’ evidence.

14 The Magistrate in his reasons stated:

“The legislation provides that the onus is on the defendant or the defendant bears the onus as to proving lawful excuse that is proving the facts to found lawful excuse and it is for that reason and that reason only that I am [not] (sic) satisfied that the defendant has discharged that onus as to the facts and I find that he entered the enclosed lands, that he entered two or three steps sometime immediately before or at least contemporaneously with those acts he had a conversation with the plaintiff’s visitor as to the presence of the dog on the plaintiff’s property, back property in the back yard and that he then turned around and the words of the plaintiff retreated, I am satisfied I accept that the defendant believed that his dog was in the back yard. That the photograph tendered in evidence which shows the back portion of the back fence in a state of disrepair such that a dog, all be it a large dog, could get in and out.
…
I am satisfied that having regard to the legislation that as a matter of law in the facts of this case to go onto the premises in the belief of retrieving you dog not having been given a warning not to come onto the premises I find as a matter of fact that he was not when he went onto the premises he did go on in the full consciousness that he was acting against the will of the owner or that he had been warned not to go onto the premises.
In those circumstances I am [not] (sic) satisfied on the balance of probabilities that the defendant in those circumstances had a lawful excuse at that time to go onto the premises and for that reason
THE INFORMATION IS DISMISSED.”

15 Later, a number of matters referred to by the Magistrate in his reasons were clarified. Firstly, the Magistrate was satisfied that Perras went onto Mills’ property; secondly, Perras did so without Mills consent; and lastly Perras had discharged the onus of proof to establish lawful excuse [t 23.40-24.6 8/3/05].

16 The Magistrate in reaching his decision has rejected that part of Perras’ evidence where Perras said that he did not go onto Mills’ land. However Perras had admitted that he was concerned and very anxious to retrieve his dog which was on Mr Mills’ property [t 12.40-50]. He called the dog and it did not come back. He thought the dog had gone into Mills’ backyard because of the cats who lived there. Perras’ answer (quoted earlier in this judgment) that he did not decide to go onto Mills’ property to try to get his dog back referred to his state of mind when he initially could not get his german shepherd Justice to come back into his backyard. At this point in time Perras was in his own backyard.

17 Perras then went to the front of his yard and at least onto the footpath in front of Mills’ property. Perras’ state of mind when in the front yard and footpath is not clear from the evidence. Despite Perras denying that he went onto Mills’ property there is independent evidence from Yasim that Perras did go onto Mills’ front yard. Perras warned Yasim to ”Watch out for the dog”. Mills also gave evidence that he saw Perras enter his (Mills) property.

18 It is my view that there was evidence to support a finding that Perras did go onto Mills’ property. There was also evidence from which the Magistrate could infer that Perras intended to enter Mills’ property to retrieve his german shepherd “Justice”. An inference must be at least a deduction which may reasonably be made from the facts – see Dixon CJ in Holloway v McFeeters [1956] 94 CLR 470 at 477. That evidence from which an inference could be made was that Perras was aware Justice went there because of the cats and he saw Justice in the backyard, called him, and Justice did not come back. He was very anxious and concerned that Justice was on Mills’ property

19 It is my view that it was open to the Magistrate to make this finding that Perras went onto Mills’ property to retrieve his dog. There is no error of law.

Duty to give sufficient reasons

The duty of a judicial officer to give reasons for his or her decision is uncontroversial (see Pettitt v Dunkley (1971) 1 NSWLR 376; Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 at 385–6 per Mahoney JA; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247). While a judgment need not be a detailed exposition of the minutiae of every aspect of evidence adduced in a particular case, of necessity, a judicial officer should turn their mind to and articulate the core aspects of a matter - see Gorczynski v Beilby [2005] NSWSC 884 Kirby J at [96-97].

The duty does not require the trial judge to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings.

20 In Jung v Son, [1998] NSWCA 698 (18 December 1998), Stein JA stated:

“While a judge does not have to state reasons for every aspect of the case, his reasons must be sufficient to satisfy the requirements of Pettit v Dunkley [1971] 1 NSWLR 376. The reasons must be sufficient to enable an appellate tribunal to gain a proper understanding of the basis of the verdict. Not to do so is an error of law (Asprey JA at 382 and Moffitt JA at 388). Failure to give reasons also makes it impossible for an appellate tribunal to give effect to a plaintiff’s right of appeal. Issues critical to the case, as these were, must be dealt with by reasons (Samuels JA in Mifsud v Campbell (1991) 21 NSWLR 725 at 728).”

21 The Magistrate can accept all of the evidence of a witness, some of the witnesses’ evidence or none of it. There was evidence from Perras that initially he did not decide to get the dog back by going onto Mills’ property and that at all times he denied that he actually did go onto Mills’ property. Perras did give evidence that he went out to the footpath and told Yasim to watch out for the dog. There was also evidence from Perras that he was concerned and very anxious to get Justice back onto his property. The Magistrate did make findings that Perras went onto to Mills’ property, Perras did so without Mills’ consent and that Perras had a lawful excuse, namely that he went in the belief that he was retrieving his dog. It is my view that the Magistrate has given sufficient reasons for his decision. There was evidence to support his findings. The Magistrate was not obliged to set out every step by which he came to find every particular fact and finding.

22 On the preponderance of evidence given it would be most unlikely that Perras from his backyard would have seen his dog in the next door neighbour’s backyard, called the dog without success, come out to the front of his property and onto the footpath, warn a male bystander on Mills’ property to watch out for the dog and then have gone onto Mills’ property for some other purpose or no purpose at all.

23 There is no error of law. The appeal is dismissed. The decisions of his Honour Magistrate Gould dated 8 March 2005 and 25 March 2005 are affirmed. The summons filed 7 April 2005 is dismissed.

24 Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant’s costs as agreed or assessed.

The Court orders:

(1) The appeal is dismissed.

(2) The decisions of his Honour Magistrate Gould dated 8 March 2005 and 24 March 2005 are affirmed.

(3) The summons filed 7 April 2005 is dismissed.

(4) The plaintiff is to pay the defendant’s costs as agreed or assessed.
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