Sunshine Coast Regional Council v Thomas (No 2)

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DISTRICT COURT OF QUEENSLAND

CITATION:

Sunshine Coast Regional Council v Thomas (No 2) [2019] QDC 70

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:

7 May 2019

DELIVERED AT:

District Court at Brisbane

HEARING DATE:

12 April 2019 and 18 April 2019

JUDGE:

Reid DCJ

ORDER:

1.   In the circumstances, I refuse the application for an appeal costs fund certificate.

CATCHWORDS:

APPEAL – COMPLAINT – SUMMONS – COSTS FUND CERTIFICATE – 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 the appeal was allowed – where Counsel for the respondent made an application for an appeal costs fund certificate pursuant to ss 15(2) and 21(1) of the Appeal Costs Fund Act 1973 (Qld) – where the learned acting Magistrate was heavily influenced by the respondent’s submissions in making his decision to strike out the complaint and summons.

Animal Management (Cats and Dogs) Act 2008 (Qld) s 194
Appeal Costs Fund Act 1973 (Qld) ss 15(2); 21(1)
Acquilina v. Dairy Farmers’ Co-operative Milk Company Ltd. (No. 2) [1965] N.S.W.R. 772
Brisbane City Council v Ferro Enterprises Pty Ltd [1976] Qd R 332
Electronic Rentals Pty Ltd v Anderson & Ors (1970) 92 WN (NSW) 672
Electronic Rentals Pty Ltd v Anderson & Ors (1971) 45 ALJR 302
Lauchlan v Hartley (1980) Qd R 149
Madsen v Appo; ex parte Appo (unreported, Full Court of the Supreme Court of Queensland, 20th December 1973) No 46-50 of 1973
Sultana Investments P/L v Cellcom P/L  (No 2) [2008] QCA 398
Zappulla v Perkins (No 2) [1978] Qd R 401

COUNSEL:

IA Munsie for the respondent

SOLICITORS:

Aitken Whyte for the respondent

  1. When I delivered judgment on 18 April 2019, Counsel for the respondent made an application for an appeal costs fund certificate. It is clear to me that the learned acting Magistrate was heavily influenced by the respondent’s submissions in making his decision to strike out the complaint and summons because. He accepted the respondent’s counsel’s submissions that the JP did not perform his duties properly in issuing the summons in the way he did. Counsel for the respondent, as I’ve previously outlined in my reasons, submitted that it was a failure on behalf of the JP to not consider evidence in issuing the complaint and summons.

  1. In my reasons, I have set out why these submissions lead to the erroneous conclusion that a JP must consider evidence in issuing a complaint and summons. I directed the parties to a lengthy excerpt of Madsen v Appo; ex parte Appo (supra) which relied on Asprey J’s observations in the Electronic Rentals case. That passage, simply put, elucidated why it was not necessary for a JP to consider evidence in the way that the learned acting Magistrate…

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Details
Case
[2019] QDC 70
Decision Date

CaseChat Overview and Summary

Sunshine Coast Regional Council, the appellant, appealed against a decision of the learned acting Magistrate who struck out a complaint and summons brought by the appellant against the respondent, Thomas, for an alleged breach of s 194 of the Animal Management (Cats and Dogs) Act 2008 (Qld). The summons sought a penalty for an alleged contravention of the Act by the respondent. The appeal was heard in the Queensland Court of Appeal. The appeal was allowed, and Counsel for the respondent subsequently applied for an appeal costs fund certificate under ss 15(2) and 21(1) of the Appeal Costs Fund Act 1973 (Qld). The acting Magistrate was found to have been heavily influenced by the respondent's submissions in making his decision to strike out the complaint and summons. The Court of Appeal held that the acting Magistrate’s decision was not made in accordance with the law and that the respondent's application for an appeal costs fund certificate should be refused. The Court of Appeal concluded that the acting Magistrate’s decision was not just and that the respondent should not be rewarded with costs for the appeal.

The Court of Appeal emphasised the importance of judicial independence and impartiality in decision-making. The Court found that the acting Magistrate's decision was influenced by the respondent's submissions, which was not appropriate. The Court of Appeal held that the acting Magistrate's decision to strike out the complaint and summons was not made in accordance with the law and that the appeal should be allowed. The Court of Appeal found that the acting Magistrate's decision was not just and that the respondent should not be rewarded with costs for the appeal. The Court of Appeal held that the acting Magistrate's decision was not made in accordance with the law and that the respondent's application for an appeal costs fund certificate should be refused.

Orders

Orders of the court

1. In the circumstances, I refuse the application for an appeal costs fund certificate.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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