Quickshelf No. 1 P/L v Queensland Police Service

[2014] QMC 22

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Quickshelf No. 1 P/L v Queensland Police Service and Anor [2014] QMC 22

PARTIES:

QUICKSHELF NO. 1 PTY LTD

(appellant)

v

QUEENSLAND POLICE SERVICE

(first respondent)

and

DAVID GEORGE PRESTON

(second respondent)

FILE NO/S:

M282/14

DIVISION:

Magistrates Court

PROCEEDING:

Appeal pursuant to s 79J(1) Police Powers and Responsibilities Act 2000

ORIGINATING COURT:

Magistrates Court at Ipswich

DELIVERED ON:

29 July 2014

DELIVERED AT:

Ipswich

HEARING DATE:

22 July 2014

MAGISTRATE:

Simpson AP

ORDER:

Appeal allowed;1.          

The decision of the second respondent dated 24 June 2014 is set aside; and2.          

The application to release the Nissan Navara motor vehicle bearing registered number 047-RLZ and vehicle identification number JNIANUD22A0032328 (“the Nissan”) to the appellant is granted on the condition that the appellant, its directors, servants or agents do not allow Tony Bell to use the Nissan. 3.          

CATCHWORDS:

TRAFFIC LAW – FORFEITURE OF VEHICLE – Appeal against administrative decision – whether appeal can be heard afresh – whether the appellant would suffer severe hardship

Police Powers and Responsibilities Act 2000, s 79A, s 79B, s 79C, s 79D, s 79F, s 79G, s 79H, s 79K, s 79N, s 79O

Aldrich v. Boulton & Anor [2000] QCA 501

R v. Lake (1989) 44 A Crim R 63

COUNSEL:

N Bell (director of the appellant) for the appellant
K Carmont (Acting Senior Sergeant) for the first and second respondents

SOLICITORS:

Appellant on own behalf
Queensland Police Prosecution Corps for the first and second respondents

1. The appellant owns a Nissan Navara utility motor vehicle (“the Nissan”). This vehicle is used as part of a farming and grazing business that has been growing fodder crops for cattle for 50 years. The farm is situated at Tarome, southwest of Ipswich. Mr Neville Bell, a director of the appellant, conducts the farming activities with the assistance of his son Mr Tony Bell.

1. It is alleged that on 16 June 2014 Tony Bell was driving the Nissan whilst he was subject to a disqualification of his licence by a court. This disqualification was for a period of 2 years and was imposed by the Ipswich Magistrates Court on 29 October 2013. He was issued with a Notice to Appear for this new offence and it is yet to be finalised. As a result of this charge the Nissan was impounded by police.

1. This was not the first time the Nissan had been impounded. The affidavit of the second respondent at paragraph 12 sets out that Tony Bell has an extensive traffic history and the last 4 offences between 26 July 2013 and 16 June 2014 are offences known as type 2 offences under the Police Powers and Responsibilities Act 2000 “(PPRA”). It follows from s 74F of PPRA that upon the conviction of Tony Bell for this latest offence the Nissan will be forfeited to the state.

The application for release of the vehicle

1. On 18 June 2014 the appellant, through Neville Bell, made application for the early release of the Nissan pursuant to the PPRA. S 79A to s 79I PPRA allow for a process whereby an eligible person may apply to the Commissioner of Police for the release of a motor vehicle that has been impounded. These applications can be for the following reasons:

·             severe hardship to the applicant (s 79A)

·             the prescribed offence happened without the owner’s consent (s 79C)

·             the circumstances giving rise to the offence have been rectified (s 79E)

·             the grounds for impoundment are unreasonable (s 79G)

1. The appellant made the application under s 79A, s 79C and s 79G PPRA in the approved form. The elected grounds of application were indicated on the form by way of ticks in boxes provided. Neville Bell also made a declaration on the form as follows:

“This vehicle is used for farm, produce delivery purposes. The day of impoundment, the vehicle was transporting a child to stay with his grandmother owing to his mothers sudden ill health.

This vehicle performs small deliveries of produce to certain customers in the South East region on a regular basis.

At the time of the offence I was in conference with a fertilizer company and unable to give assistance to the childs well being. Without my permission and knowledge, Tony Bell drove the company vehicle to transport the child to his grandmother.

This vehicle is critical to our business to perform these small deliveries as soon as possible.”

That declaration was the extent of the information supplied by the appellant to the first respondent.

1. Following the process outlined above, a delegate of the commissioner is to decide the application. In this case the delegate was the second respondent who is an inspector of police.

1. Each of the grounds has to be decided according to separate considerations set out in s 79B, s 79D, s 79F and s 79H. The grounds of the application are independent of each and likewise are the considerations for the decisions. It follows that if an application succeeds on one ground for the early release of the vehicle it does not matter if it has not succeeded on other grounds.

1. On 24 June 2014 the second respondent issued an information notice to the appellant setting out that he had decided, on behalf of the commissioner, that he refused the application. His reasons for the decision were as follows:

“In coming to this decision I have taken into account the information contained in your statement including that:

§  the vehicle was taken without your knowledge or permission to transport a child to his grandmother due to his mother’s sudden ill health.

§  You were unable to assist with this transportation as you were in conference with a fertiliser company.

§  The vehicle is critical to your business and is used to perform small deliveries of produce in the South Eastern Region.

In determining this application I have also considered police records which confirm that Tony Bell has used Nissan Navara 047RLZ in the commission of 2 x disqualified driving offences and 2 x unlicensed driving offences since July 2013.

To be successful in your application you would need to establish, on the balance of probabilities that you were not the driver at the time of the offence and you did not give consent to the offence being committed.

On the information presented I am not satisfied that you have met this standard.”

1. I note that the second respondent considered material in coming to his decision, namely police records, which were not submitted by the appellant. The appellant was not informed about the existence, nature and content of these materials before the application was decided and was not given any opportunity to make a submission about the use of the records. The legislation does not provide a process or requirement by which an applicant must be informed of this kind of material prior to a decision being made. In my view the commissioner or his delegate should be able to consider police records in coming to a decision. The relevant sections allow for the receiving of “all necessary information relevant to the application”. Police records outlining matters such as the ownership and previous use of the vehicle could be included in this information.

1. However, s 79B, s 79D and s 79F do not allow for a decision maker to refuse an application based on a view taken about this material. The application can only be refused if an applicant has failed to show severe hardship, or that the offence occurred without the owner’s consent, or that the circumstances of the offence have been rectified. A decision under s 79H regarding the unreasonable nature of the impoundment may be a different matter.

1. In the present case the ultimate reason given for the refusal of the application seems plain enough; that the appellant failed to show that Neville Bell was not the driver and that the use of the vehicle was not without consent. The issues of severe hardship or unreasonableness do not form part of the final basis of the refusal. On the face of the decision it cannot be clearly seen whether or not the second respondent was satisfied about the proof of these grounds.

The appeal against the decision of the commissioner

1. An appeal from the decision lies to a magistrate and must follow s 79J to s 79O PPRA. At the hearing of this appeal the respondents raised two preliminary points. The first was regarding the appropriate form for the lodging of the notice of appeal and the other regarding the hearing procedure to be adopted in the appeal.

The notice of appeal form

1. An appellant may start an appeal by filing a notice of appeal and the notice must state fully the grounds of the appeal and the facts relied upon. See s 79K PPRA. The particular form to be used is not specified. The appellant here has used Form 96 from the Uniform Civil Procedure Rules 1999. The respondents say that this is not the appropriate form of the notice of appeal. It is a form used for an appeal to the District Court.

1. The legislation is silent as to the proper form of the notice and I have been asked for guidance on the proper form. In this regard I have had regard to s 57 Magistrates Court Act 1921 that provides:

“57 Procedure of court

The procedure for appeal to a Magistrates Court is, in the absence of relevant rules, as directed by a magistrate.”

1. The court should be flexible in circumstances where there are no rules set out and the use of a form generally in line with Form 96 seems appropriate to me. This form allows for the appellant to set out the entity from which the appeal comes, the grounds of the appeal and whether any new evidence or facts will be relied upon. These elements are what are required by s 79K PPRA.

1. Following from the court’s power under s 57 Magistrates Court Act, I will accept the notice of appeal in its current form for this matter. Other magistrates may come to a different view about this process and perhaps for consistency this issue can be resolved by amendments to the legislation or regulations.

The hearing procedure under s 79N

1. S 79N PPRA provides that:

(1)        An appeal must be decided on the evidence before the commissioner.

(2)        However, the court may order that the appeal be heard afresh, in whole or part.

1. It seems that this section has not been the subject of any published decisions by this or any other court. Acting Senior Sergeant Carmont, on behalf of the respondents, contended that it should be interpreted to be restrictive in nature and limit the material that I consider to the material before the commissioner. That material being set out in the declaration of Neville Bell. It was submitted that the reference to hearing the matter afresh in the section simply allows the court to consider new evidence but only if that material was not reasonably available at the time of the original application. The appellant did not make any submission on this point.

1. I consider the original decision here by the second respondent is an administrative one following the process set out above. In deciding how to interpret s 79N PPRA and the process of an appeal from such a decision I have considered the reasons of Thomas JA in Aldrich v. Boulton & Anor [2000] QCA 501. That matter related to an appeal from an administrative decision to dismiss a police officer. The original decision was appealed to the Misconduct Tribunal. It was the subject of a judicial review and appeal in the Supreme Court. Thomas JA provided helpful analysis of the nature of appeals from an administrative body to a court at paragraph [28]:

“However a deal of authority exists on the question whether an appeal is to be determined on the facts that exist at the time of the original decision or at the time of the appeal. (Horne v Locke [1978] 2 NSWLR 88; Strange-Muir v Corrective Services Commission (1986) 5 NSWLR 234; Ex Parte Australian Sporting Club Ltd: Re Dash (1947) 47 SR(NSW) 283; Re Coldham; ex parte Brideson [No 2] (1990) 170 CLR 267, 273 – “Brideson [No 2]”) On this question it has been said that when a court is given the power to hear an appeal from the decision of an administrative body there is a presumption that the court exercises original jurisdiction and should determine the matter on the evidence and law applicable as at the date of the appeal. Brideson [No 2] above at 273. ……..In Brideson [No 2], which was an appeal from an Industrial Registrar to the Full Bench of the Australian Industrial Relations Commission, the powers of the Commission to “take further evidence” and to “make such orders as it thinks fit” were held to point irresistibly to the conclusion that the Commission should decide the case on the facts and law which existed at the date of its decision. Brideson [No 2] above at 274. Deane, Gaudron and McHugh JJ observed:

"… it is well settled that, when the legislature gives a court the power to review or hear an 'appeal' against the decision of an administrative body, a presumption arises that the court is to exercise original jurisdiction and to determine the matter on the evidence and law applicable as at the date of the curial proceedings: see Ex parte Australian Sporting Club Ltd; Re Dash. Nevertheless, whether the right of appeal against an administrative decision is given to a court or to an administrative body, the nature of the appeal must ultimately depend on the terms of the statute conferring the right: BuildersLicensing Board v Sperway Constructions (Syd) Pty Ltd."

1. I have also considered the joint judgment of Gaudron, McHugh, Gummow and Hayne JJ in Allesch v Maunz (2009) 203 CLR 172 at 180 – 181:

“For the present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. And the critical distinction, for the present purposes, between an appeal by way of rehearing and an appeal in the strict sense is that, unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance whereas, on appeal by way of rehearing, an appellate court can substitute its own decision based on the facts and the law as they then stand.”

1. The powers conferred by s 79O PPRA in deciding an appeal of this type allow for a court to confirm the decision appealed against or set it aside and substitute another decision that it considers appropriate. There is no power to remit the matter to the commissioner for a rehearing of the application. After considering the passages in Aldrich v. Boulton & Anor and Allesch v Maunz I have determined that a magistrate hearing an appeal of this type may determine the matter based on the evidence and law applicable at the time of the appeal. This principle is reflected in the conferring statute as it allows for the appeal to be heard “afresh, in whole or part”. The plain meaning of this is that new evidence not available to the original decision maker can be received and considered as part of the appeal.

The matters considered in this appeal

1. Pursuant to s 79N(2) PPRA I have decided this matter afresh and considered the law and evidence available to me at the time of the appeal. Following from that approach, the appellant’s material in this appeal included the original application and the affidavit of Neville Bell sworn 3 July 2014. The respondents’ material was contained in the affidavit of the second respondent sworn 17 July 2014.

1. The second respondent’s affidavit sets out the process by which the application came to him to be decided and the material he considered. This material included the application, a Crime Report, Queensland Transport registration records for the Nissan and Tony Bell’s traffic history.

1. As I noted above Tony Bell has a poor traffic history. He has committed 8 speeding offences, 1 using a hand held mobile phone offence, 2 unlicensed driving offences and 2 disqualified driving offences between 2006 and 2014 using the Nissan. Whilst it was not stated in the decision, this information appears to have been given significant weight in deciding to refuse the application. Inspector Preston says at paragraphs 13 and 14 of his affidavit that:

“13. After given due consideration to the application received from Mr Neville Bell and the information held by the QPS, I was of the opinion that the early release of this vehicle was considered high risk. Tony Bell appeared to be accessing the vehicle as a regular driver. I believed that Tony Bell has ongoing access to this vehicle and if released he would drive the said vehicle again for work and personal gain.

14. At no time have I received any information to indicate that Tony Bell would be prevented from driving the vehicle nor have I received any further information as to who would be the nominated driver and responsible person.”

1. Following from my reasoning above at [9] and [10] above I do not consider that I can finally determine the appeal with reference to the matters set out by the second respondent in his affidavit. Those facts do not advance or retard the arguments surrounding severe hardship or consent in my view. They may have some bearing on the assessment of unreasonableness.

1. The appellant addresses the issue of severe hardship by stating that the Nissan is crucial to the farming business of the appellant. Neville Bell swears in his affidavit that the vehicle is needed because is it otherwise “not economical to deliver small amounts of produce at short notice to customers in a large truck”. He reinforces this position by stating:

“23. I have been conducting this service to the community for many years in this manner.

24.    I fear in the event that my Appeal is unsuccessful, I may be forced to sell my business as I will not have the means to continue trading.

25.    My business has suffered significantly since the 2011, floods which destroyed and washed away acres of my planted cultivation and infrastructure.

26.    Owing to these floods, a large financial burden has been placed on my company from restoration works, which is on going to date, and as such, my company is not in a financial position to purchase another utility.”

1. Under cross examination at the hearing of the appeal, Neville Bell told the court that the business had a number of vehicles including a 6 tonne truck and a much older utility with a tank on the back of it. These vehicles are used for the advancement of the business as well. According to the appellant, this older utility was not suitable for deliveries and I accept this. Equally, I accept the evidence given that the 6 tonne truck is too large to carry out the small deliveries usually done with the Nissan.

1. The respondents argue that even if I accept the impounding of the Nissan would cause hardship to the appellant, I could not be satisfied that severe hardship would be caused. It was argued that something more than ordinary hardship needs to be shown by an applicant in these types of matters. This argument followed the reasons of Kirby P in R v. Lake (1989) 44 A Crim R 63 at 67-67 when addressing proceeds of crime legislation in New South Wales:

“In considering hardship, it is necessary to bear in mind that, of necessity, in achieving its objects, the Act will cause a measure of hardship in the deprivation of property. Indeed that is its intention. It is not that kind of hardship, therefore that can give rise to the relief under s.5(1)(b)(ii)………Something more than ordinary hardship in the operation of the Act is therefore meant.”

1. Error! Hyperlink reference not valid.Similar reasoning is also found in Frohling v Police [2011] SASC 53 per Nyland J at paragraphs [18] to [20]. The respondents also relied upon this decision to support their argument. It is my view that the principles found in Lake and Frohling should be applied to this legislation and the appellant should show something more than ordinary hardship resulting from the loss of the Nissan to succeed.

1. I was referred to Fowkes v. DPP (1996) 88 A Crim R 166 by the respondents. The court considered the reasons of Kirby P and noted that in Lake there was no third party involved. The court in Fowkes considered R v. Hadad (1989) 16 NSWLR 476 and noted:

“the Court of Criminal Appeal considered the forfeiture of a motor vehicle, used in connection with the offence, but owned by an innocent third party. The court upheld the decision of the trial judge refusing to order the forfeiture, on the ground that considerable hardship would be suffered by an innocent third party, who used the vehicle for his own purposes in a normal manner.”

1. In assessing this issue I find that the appellant here should be considered to be a third party who is not connected to the offences of Tony Bell. I accept the evidence of Neville Bell in paragraphs 23 to 26 of his affidavit. I am satisfied on the balance of probabilities that the Nissan is essential to the operation of the appellant’s business, that there is an inability to replace it and the deprivation of it will cause severe hardship to the appellant.

1. Having found in favour of the appellant on the issue of severe hardship it is not necessary for me to make any findings about the other issue of consent. However, for completeness I make the observation that I am satisfied that the appellant, through Neville Bell, did not consent to the use of the Nissan for this offence. Neville Bell sets out in his affidavit that he was “confused when I received this call from Tony as I was completely unaware that Tony had taken the company vehicle.”

1. As noted above, a court making orders on an appeal can set aside the original decision and substitute another. Such new decision needs to be one that could have been made by the commissioner. The original decision maker could have granted the application with conditions. Examples of the conditions are given in the Act. In light of the concerning traffic history of Tony Bell it is appropriate to make conditions here restricting the use of the Nissan by him.

1. Therefore the orders will be as follows:

1.          Appeal allowed;

2.          The decision of the second respondent dated 24 June 2014 is set aside; and

3.          The application to release the Nissan Navara motor vehicle bearing registered number 047-RLZ and vehicle identification number JNIANUD22A0032328 (“the Nissan”) to the appellant is granted on the condition that the appellant, its directors, servants or agents do not allow Tony Bell to use the Nissan.