Reeves v Ranson - [1999] TASSC 52

[1999] TASSC 52

CITATION: Reeves v Ranson [1999] TASSC 52

PARTIES:  REEVES, Robert John
  v
  RANSON, Paul

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 28/1998
DELIVERED ON:  13 May 1999
DELIVERED AT:  Launceston
HEARING DATES:  23 April 1999
JUDGMENT OF:  Crawford J

CATCHWORDS:

Magistrates - Jurisdiction and procedure generally - Procedure - Orders and convictions - Sentencing - Fact-finding and evidence - Fine - Financial circumstances of defendant not put by his counsel - Whether magistrate erred by failing to inquire.
Aust Dig Magistrates [144]

REPRESENTATION:

Counsel:
             Applicant:  R L Holder
             Respondent:  S B McElwaine
Solicitors:
             Applicant:  Archer Bushby
             Respondent:  S B McElwaine

Judgment ID Number: [1999] TASSC 52
Number of paragraphs: 26

Serial No 52/1999
File No LCA 28/1998

ROBERT JOHN REEVES v PAUL RANSON

REASONS FOR JUDGMENT CRAWFORD J
13 May 1999

In a court of petty sessions the applicant and his wife pleaded guilty on a complaint dated 16 June 1998 to a charge that since on or about 20 January 1998, they (as joint proprietors) had continued to use the second floor of "Cadorna House" at 91A Cormiston Road, Riverside for the purposes of hostel accommodation (welfare building) without having a permit as required by the Municipality of Beaconsfield Planning Scheme 1986 and the Land Use Planning and Approvals Act 1993 ("the Act"), s51. The charge was laid under the Act, s63. The learned magistrate determined to penalise only the applicant, who was fined $7,500 plus a special penalty of $3,300 in respect of continuing contravention. He has moved the Court to review the penalties on the following grounds:

"1That the learned Magistrate erred in fact and in law in imposing a fine of $7,500.00 in that the fine was manifestly excessive in all the circumstances.
2That the learned Magistrate erred in fact and in law in imposing a fine of $3,300.00 in respect of a continuing contravention of Section 63(2) of the Land Use Planning and Approvals Act 1993 in that the fine was manifestly excessive in all of the circumstances.
3That the learned Magistrate erred in fact and in law in imposing a fine of $10,800.00 in totality in that the total fine was manifestly excessive in all of the circumstances.
4That the learned Magistrate erred in fact and in law by failing to take sufficient account or take sufficient account of the mitigating factors put to him by the counsel for the Applicant.
5That the learned Magistrate erred in law by failing to enquire as to the financial means of the applicant prior to imposing a total fine of $10,800.00."

It is plain that ground 4 cannot succeed without the applicant being able to persuade the Court of manifest excessiveness in the penalty, which is raised by grounds 1, 2 and 3. I will say nothing more concerning ground 4.

The Act, s63(2), provides inter alia that a person must not use land in a way that is contrary to a planning scheme. By subs(3), contravention of subs(2)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Reeves v Ranson

Details

AGLC: Reeves v Ranson [1999] TASSC 52
Case: [1999] TASSC 52
Decision Date: 13 May 1999

CaseChat Overview and Summary

Robert John Reeves has appealed against the penalties imposed by a magistrate for offences under the Land Use Planning and Approvals Act 1993. Reeves and his wife had allowed an elderly tenant to reside on the second floor of Cadorna House, a two-storey residence in a retirement village, without having a permit as required by the Municipality of Beaconsfield Planning Scheme 1986 and the Act. They were charged with contravening the Act and pleaded guilty. Reeves was fined $7,500 and a special penalty of $3,300 in respect of the continuing contravention. Reeves seeks to review the penalties on the grounds that they were manifestly excessive and that the magistrate failed to inquire as to his financial means. The court examined the legal issues concerning the magistrate's discretion in determining the penalty and whether the failure to inquire about Reeves' financial means constituted an error of law. The court held that the magistrate was not in error in failing to inquire about Reeves' financial means, as Reeves was represented by counsel and there was no indication that he was in a poor financial position. Furthermore, the court found that the penalty imposed was not manifestly excessive, considering the prescribed maximum penalties and the circumstances of the offence. The appeal was dismissed, and the penalties were upheld.

Orders