Sunshine Coast Regional Council v Thomas - [2019] QDC 55

DISTRICT COURT OF QUEENSLAND

CITATION:

Sunshine Coast Regional Council v Thomas [2019] QDC 55

PARTIES:

SUNSHINE COAST REGIONAL COUNCIL
(appellant)

v

NATHAN EDWARD THOMAS
(respondent)

FILE NO/S:

Maroochydore Registry 150/18

DIVISION:

Civil

PROCEEDING:

Appellate

ORIGINATING COURT:

Caloundra Magistrates Court

DELIVERED ON:

18 April 2019

DELIVERED AT:

District Court at Brisbane

HEARING DATE:

12 April 2019

JUDGE:

Reid DCJ

ORDER:

[1] Appeal allowed

[2] Set aside the order of 13 September 2018 striking out the complaint and summons and consequential orders as to costs

CATCHWORDS:

APPEAL – COMPLAINT – SUMMONS - where a learned acting Magistrate struck out a complaint and summons in which the appellant sought to prosecute the respondent for breach of s 194 of the Animal Management (Cats and Dogs) Act 2008 (Qld) – where appellant seeks an order that the Magistrate’s decision be set aside and the matter be sent to trial before a different Magistrate - whether or not a Justice of the Peace in issuing the summons is required to consider evidence in determining to issue a complaint and summons.

Animal Management (Cats and Dogs) Act 2008 (Qld) s 194

Justices Act 1886 (Qld) s 53

Electronic Rentals Pty Ltd v Anderson & Ors (1970) 92 WN (NSW) 672

Electronic Rentals Pty Ltd v Anderson & Ors (1971) 45 ALJR 302

Forrest v Commissioner of Police (2017) QCA 132

Madsen v Appo; ex parte Appo (unreported, Full Court of the Supreme Court of Queensland, 20^th December 1973) No 46-50 of 1973

R v Joice; ex parte Tsay Wann Fure [1981] Qd R 550

R v Peacock; ex parte Whelan [1971] Qd 471

COUNSEL:

MD Nicolson for the appellant
IA Munsie for the respondent

SOLICITORS:

Heiner and Doyle for the applicant
Aitken Whyte for the respondent

Introduction

An acting Magistrate sitting at Caloundra, on an application by the respondent, struck out a complaint and summons in which the appellant sought to prosecute the respondent for breach of s 194 of the Animal Management (Cats and Dogs) Act 2008 (Qld). The appellant sought an order before me that the decision striking out the complaint be set aside. It also sought an order that the matter be sent to trial before a different Magistrate in the Caloundra Magistrates Court.

In my view the appeal should be allowed and the decision of the learned acting Magistrate be set aside. Because the matter was not raised in argument before me I will hear submissions as to whether or not the matter should proceed before a different Magistrate or whether it should be remitted to the same Magistrate.

Nature of Appeal

I am mindful that an appeal under s 223(1) of the Justices Act is by way of re-hearing. In Forrest v Commissioner of Police (2017) QCA 132, Sofronoff P, with whom Gotterson and Morrison JJA agreed, set out the nature of such an appeal. In coming to the conclusion I have about this matter I have conducted my own review of the evidence and made up…

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.

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Details

Case: [2019] QDC 55
Decision Date: 18 April 2019

CaseChat Overview and Summary

The appellant, Sunshine Coast Regional Council, sought to prosecute the respondent, Thomas, for an alleged breach of s 194 of the Animal Management (Cats and Dogs) Act 2008 (Qld). The case arose from a complaint and summons issued by a Justice of the Peace, Mr Richardson, which were subsequently struck out by a learned acting Magistrate. The appellant appealed this decision, arguing that the Magistrate erred in concluding that the Justice of the Peace was required to consider evidence before issuing the summons.

The primary legal issue before the court was whether a Justice of the Peace, in issuing a summons in response to a complaint, must consider evidence beyond the contents of the complaint itself. The respondent argued that the Justice of the Peace had not properly considered any evidence and thus the summons was invalid. The appellant contended that the information contained in the complaint, supported by particulars, was sufficient to justify the issuance of the summons.

The court found that the Justice of the Peace was not required to consider additional evidence beyond the complaint to issue the summons. The decision in Madsen v Appo, which the learned acting Magistrate relied upon, was not determinative of this issue. Instead, the court held that the information contained in the complaint was sufficient to justify the issuance of the summons. Consequently, the appeal was allowed, and the order striking out the complaint and summons was set aside.

In light of the appeal's success, the court will hear arguments regarding whether the matter should be remitted to the Magistrates Court to be determined by a different Magistrate, as well as arguments on costs.

Orders

Orders of the court

[1] Appeal allowed

[2] Set aside the order of 13 September 2018 striking out the complaint and summons and consequential orders as to costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The learned acting Magistrate then delivered his decision. In doing so he noted that counsel for the respondent “is suggesting that the complaint is not validly before the court, because the Justice of the Peace, in considering the complaint and whether to issue his summons, had no regard to any evidence, did not consider any evidence and referred to Mr Richardson’s evidence that he only asked one question… whether the complaint was true and correct. Mr Munsie is suggesting that the Justice of the Peace, Mr Richardson, has not considered whether a prima facie case has existed. He has not made any enquiry.” (My underlining). The learned Magistrate said: He referred to the fact that in the circumstances of this case, Mr Lalor did not present a summary of the evidence to the Justice of the Peace to substantiate the complaint that he was making. He noted that Mr Richardson did not give any evidence that he looked at any additional information other than what was in the complaint, which I note includes the particulars I have set out. He then concluded: The critical question is whether or not the Justice of the Peace in issuing the summons, was required to consider evidence, that is, statements or summaries of witnesses’ evidence, in determining whether to issue a summons in response to a complaint. The Magistrate as I have said referred to the fact that the Justice did not look at “any additional information other than what was in the complaint”. That is not disputed. Madsen v Appo; ex parte Appo is an unreported decision of the Full Court of Queensland (OSC 46-50 of 1973, delivered 20th December 1973). Williams J with whom Wanstall SPJ and Andrews J agreed said that: I have set out this lengthy passage because it is determinative of this dispute. It appears to me absolutely clear, from what was said by Asprey JA in the Electronic Rentals case, relied on in that passage in Madsen v Appo, that it is not necessary for the Justice of the Peace to consider evidence in the sense that the learned acting Magistrate determined was necessary, and as was submitted by counsel for the respondent. In my view, there is no reason to think that the information contained in the complaint supported by the significant particulars set out in it was not sufficient to justify the Justice in issuing the summons as he did. In my view, the learned acting Magistrate was not justified in coming to the conclusion he did. Instead, the application ought have been refused by him. His failure to do so means that the appeal should be allowed and the order of the Magistrate setting aside the complaint and summons ought be set aside. Because argument was not advanced by the respondent’s counsel as to whether in such circumstances, the matter should be remitted to the Magistrate’s Court to be determined by a different Magistrate, I will, upon delivery of these reasons, hear argument about that issue. I will also hear arguments as to costs.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Sunshine Coast Regional Council v Thomas [2019] QDC 55
PARTIES:	SUNSHINE COAST REGIONAL COUNCIL (appellant) v NATHAN EDWARD THOMAS (respondent)
FILE NO/S:	Maroochydore Registry 150/18
DIVISION:	Civil
PROCEEDING:	Appellate
ORIGINATING COURT:	Caloundra Magistrates Court
DELIVERED ON:	18 April 2019
DELIVERED AT:	District Court at Brisbane
HEARING DATE:	12 April 2019
JUDGE:	Reid DCJ
ORDER:	[1] Appeal allowed [2] Set aside the order of 13 September 2018 striking out the complaint and summons and consequential orders as to costs
CATCHWORDS:	APPEAL – COMPLAINT – SUMMONS - where a learned acting Magistrate struck out a complaint and summons in which the appellant sought to prosecute the respondent for breach of s 194 of the Animal Management (Cats and Dogs) Act 2008 (Qld) – where appellant seeks an order that the Magistrate’s decision be set aside and the matter be sent to trial before a different Magistrate - whether or not a Justice of the Peace in issuing the summons is required to consider evidence in determining to issue a complaint and summons. Animal Management (Cats and Dogs) Act 2008 (Qld) s 194 Justices Act 1886 (Qld) s 53 Electronic Rentals Pty Ltd v Anderson & Ors (1970) 92 WN (NSW) 672 Electronic Rentals Pty Ltd v Anderson & Ors (1971) 45 ALJR 302 Forrest v Commissioner of Police (2017) QCA 132 Madsen v Appo; ex parte Appo (unreported, Full Court of the Supreme Court of Queensland, 20^th December 1973) No 46-50 of 1973 R v Joice; ex parte Tsay Wann Fure [1981] Qd R 550 R v Peacock; ex parte Whelan [1971] Qd 471
COUNSEL:	MD Nicolson for the appellant IA Munsie for the respondent
SOLICITORS:	Heiner and Doyle for the applicant Aitken Whyte for the respondent