Tavitian v Public and Environmental Health Council
[2009] SASC 343
•11 November 2009
SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
TAVITIAN v PUBLIC AND ENVIRONMENTAL HEALTH COUNCIL & ANOR
[2009] SASC 343
Judgment of The Honourable Justice Gray
11 November 2009
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS
Application for permission to appeal against judgment of District Court Judge in Administrative Review proceedings - notice pursuant to section 15 of Public and Environmental Health Act 1987 (SA) - notice advised that City of Playford had determined that appellant's premises were in an insanitary condition - appeal to Public and Environmental Health Council - application for administrative review in District Court - application for review dismissed - whether Public and Environmental Health Council conducted proceedings properly - whether warrants irregular - whether a denial of natural justice - effect of evidence not being given on oath or affirmation - proceedings brought out of time - extension of time sought.
Held: permission refused - District Court Judge's application of relevant principles to established facts correct - evidence before the Public and Environmental Health Council fully justified actions of City of Playford - no basis for a grant of permission made out - no prospect of success - extension of time not granted.
Public and Environmental Health Act 1987 (SA) s 15; District Court Act 1991 (SA) s 43; Supreme Court Civil Rules 2006 (SA) r 295, referred to.
Tavitian v Public and Environmental Health Council & Anor (No 2) [2009] SADC 29; Tavitian v Public and Environmental Health Council & Anor [2008] SADC 118; Australian Steel & Mining Corporation Pty Ltd v Corben [1974] 2 NSWLR 202; Bill Williams Pty Ltd v Williams (1972) 126 CLR 146; Workers' Rehabilitation & Compensation Corporation v Thuy Thi Vu (1988) 49 SASR 585; Collector of Customs v Pozzalanic Enterprises Pty Ltd (1993) 43 FCR 280; Harrow Trust v Adelaide Hebrew Congregation Inc (2002) 221 LSJS 449, considered.
TAVITIAN v PUBLIC AND ENVIRONMENTAL HEALTH COUNCIL & ANOR
[2009] SASC 343Civil
GRAY J.
Introduction
Sometime prior to 31 August 2006, the suburban premises of David Tavitian raised public health concerns. Following inspections of the premises on 31 August 2006 and 25 October 2006, the City of Playford determined that an insanitary condition existed as the premises were so filthy and neglected that there was a risk of infestation by rodents and other pests.
The state of the premises was summarised by a District Court Judge as follows:[1]
The evidence in support of the Notice needed to establish that the premises were so filthy or neglected that there was a risk of infestation by rodents or other pests. It was not necessary to show that rodents were or actually had been on the premises at the relevant time. There was a wealth of evidence before the PEH Council in the nature of photographs taken at the premises and physical evidence of faeces and larvae collected at the premises, as well as the evidence of Mr Wastell and Ms Krake.
The photographic evidence, which was also before the Court in the book of documents, appears to show waste items, piles and stacks of stored objects and materials, crates of materials stored inside old motor vehicles, old motor vehicles some with an open door or window, overgrown garden areas and very long grass, plastic liquid containers both with tops in place and without, open containers containing liquid, deposits of faeces, a cockroach, an old refrigerator, wheels, steel parts, guttering, pieces of timber, metal grills, large drums, reinforcing mesh, horticultural produce boxes, fruit fallen from a tree, an old chair, a tyre, a roll of wire, used plastic containers, and a vehicle licence plate. There are other items that are not readily identifiable. A few items are neatly stacked, but mostly the items and objects appear to be stored haphazardly and in a jumble.
[emphasis added]
[1] Tavitian v Public & Environmental Health Council & Anor (No 2) [2009] SADC 29 at [16]-[17].
It is to be observed that during the hearing in this Court, Mr Tavitian accepted that the photographs informing the District Court Judge’s determination were of his premises and were accurate.
In these appeal proceedings Mr Tavitian challenges an administrative review decision made by the District Court Judge. In a ruling of 26 September 2008, the Judge refused to order a re-hearing of the proceedings before the Public Environment and Health Council, and in the process rejected complaints of Mr Tavitian with respect to the alleged irregularity of warrants and a denial of natural justice. The administrative review proceeding then proceeded for further hearing to determine Mr Tavitian’s challenge to the ultimate findings of the Council. Mr Tavitian’s further complaints were rejected by the Judge, and his application for administrative review was dismissed on 27 March 2009.
The events giving rise to the within appeal proceeding commenced on 12 December 2006 when the City of Playford served Mr Tavitian with a notice pursuant to section 15 of the Public and Environmental Health Act 1987 (SA).[2] The notice advised that the City of Playford had determined that premises of which Mr Tavitian was the owner were in an insanitary condition. The notice required Mr Tavitian to take remedial action to address that condition.
[2] 15—Prevention of insanitary conditions on premises
(1)If premises are in an insanitary condition, the authority may, by notice in writing, require an owner of the premises or any other person who is apparently responsible for causing the insanitary condition or allowing the insanitary condition to occur—
(a) to take specified action to improve the condition of the premises; or
(b)to desist from a specified activity to which the condition of the premises is apparently attributable.
(2)If residential premises are, by reason of their insanitary condition, unfit for human habitation, the authority may include in a notice under subsection (1), a direction that, after a date specified in the notice, the premises must not be occupied until—
(a) specified action to render the premises fit for human habitation has been taken; and
(b) the authority is satisfied that the premises are fit for human habitation.
(3)A person to whom a notice under subsection (1) is addressed shall not, without reasonable excuse, fail to comply with the notice.
Penalty: Division 5 fine.
Expiation fee: Division 6 fee.
(4)Where a notice under subsection (1) includes a direction under subsection (2), the authority must have a copy of the notice affixed to a conspicuous part of the premises to which it relates.
(5)A person shall not, knowing that a direction exists under subsection (2), occupy premises in contravention of that direction.
Penalty: Division 6 fine.
Expiation fee: Division 7 fee.
(6)The authority may, by further notice in writing, vary or revoke a notice given under this section.
On 22 December 2006, Mr Tavitian appealed to the Public and Environmental Health Council with respect to the notice.[3] Between 27 December 2006 and 15 February 2007 there was an exchange of correspondence between the Council and Mr Tavitian, during which the Council provided information relevant to the appellate process.
[3] Pursuant to section 25 of the Public and Environmental Health Act 1987 (SA).
On 27 April 2007, Mr Tavitian was informed that his appeal would be heard on 22 May 2007. On 11 May 2007, Mr Tavitian sought to vacate the hearing date. The Council agreed to vacate the date and provided Mr Tavitian with three further alternative dates, asking for his preferred nomination by 1 June 2007. On 1 June 2007, Mr Tavitian sought an indefinite delay of the hearing pending an inquiry about claimed irregularities with warrants that had been issued and other concerns. On 5 June 2007, the Council notified Mr Tavitian that his appeal would be heard on 3 July 2007 and that if he was unable to attend personally, he could have a representative attend on his behalf. On 7 June 2007, Mr Tavitian sought to vacate the hearing date of 3 July 2007. This request was rejected by the Public and Environmental Health Council on 14 June 2007 and the hearing date confirmed for 3 July 2007. Between 14 June 2007 and 1 July 2007, further correspondence was exchanged in which Mr Tavitian sought, and the Council refused, to vacate the hearing date.
On 3 July 2007, the hearing proceeded. Mr Tavitian did not attend. The Public and Environmental Health Council dismissed the appeal.
The Application for Administrative Review in the District Court
On 20 August 2007, Mr Tavitian instituted appeal proceedings in the Administrative Division of the District Court. The District Court Judge summarised the complaints advanced by Mr Tavitian in the following terms:[4]
At the hearing of the appeal it became clear that Mr Tavitian’s argument on appeal was in essence that he had been denied natural justice by the Council in that he was not given a chance to be heard nor an opportunity to cross examine witnesses. There is a second issue that concerned Mr Tavitian, namely that the warrants obtained by the City of Playford and which preceded the Notice that is the subject of the appeal, were not validly issued. The merits of the decision by the Council and therefore the merits of the Notice had not been raised in Mr Tavitian's grounds of appeal.
[4] Tavitian v Public & Environmental Health Counci & Anorl [2008] SADC 118 at [18].
On 26 September 2008, the Judge rejected Mr Tavitian’s complaints.
With respect to the challenge to the validity of the warrants, the Judge reasoned:[5]
[5] Tavitian v Public & Environmental Health Counci & Anorl [2008] SADC 118 at [28]-[46].
Mr Tavitian says the warrants are invalid for these reasons:
The First Warrant:
•A date or period upon or within which the warrant may be exercised is not identified.
The Second Warrant:
• It is on City of Playford letterhead.
• It has not been sealed by the Court.
It is appropriate to consider the law in relation to the issue of a warrant. A warrant authorises the holder to perform an act which he or she would not otherwise be entitled at law to do. Therefore, a warrant may be issued only in accordance with due process. The person who issues a warrant must be acting within a power given to the office that he or she holds at the time. Thus, only a magistrate can issue a warrant authorising an authorised officer to use force to enter premises, under s 38 of the Act, and no magistrate can do so unless he or she is satisfied, upon information given on oath, that the requirements of s 38(2b) are met.
The issue of a warrant is an administrative act, not a judicial decision: R v A [2000] SASC 51 at para [49]. That matter concerned the provisions of the enabling subsection, being s 52(5) of the Controlled Substances Act 1984, those provisions were, at the relevant time, identical to s 38(2a) of the Act.
A warrant issued by a magistrate must disclose jurisdiction on its face: R v A (above) at para [78]. The question raised by Mr Tavitian is, in respect of the first warrant, whether the absence of a period or date upon which the powers given in the warrant may be exercised, invalidates the warrant. There is nothing in the Act which requires the content of a warrant to include the expiry date of a warrant on the date or period within which the powers given therein, are to be exercised.
Although not a search warrant, the warrant in question is similar in nature in that it could authorise an invasion of premises, using force, without the consent of the person in lawful possession or occupation thereof. Thus, the history of search warrants, articulated by the High Court in George v Rockett (1990) 170 CLR 104 at 110 is relevant. The following passage from George v Rockett is quoted in Ward and Kelly, Summary Justice South Australia, at [4.5630]:
A search warrant thus authorises an invasion of premises without the consent of persons in lawful possession or occupation thereof. The validity of such a warrant is necessarily dependent upon the fulfilment of the conditions governing its issue. In prescribing conditions governing the issue of search warrants, the legislature has sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions of his privacy and property. Search warrants facilitate the gathering of evidence against, and the apprehension and conviction of, those who have broken the criminal law. In enacting s 679 (of the Queensland Code), the legislature has given primacy to the public interest in the effective administration of criminal justice over the private right of the individual to enjoy his privacy and property. The common law has long been jealous of the prima facie immunity from seizure of papers and possessions: see Holdsworth, The History of English Law, vol 10, (1938), pp 668-672. Except in the case of a warrant issued for the purpose of searching a place for stolen goods, the common law refuses to countenance the issue of search warrants at all and refused to permit a constable or government official to enter private property without the permission of the occupier: Leach v Money (1765) 19 State Tr 1001; Entick v Carrington (1765) 19 State Tr 1029. Historically, the justification for these limitations on the power of entry and search was based on the rights of private property: Entick at 1066. In modern times, the justification has shifted increasingly to the protection of privacy: see Feldman, The Law Relating to Entry, Search and Seizure, (1986), pp 1-2.
State and Commonwealth statutes have made many exceptions to the common law position, and s 679 is a far-reaching one. Nevertheless, in construing and applying such statutes, it needs to be kept in mind that they authorise the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature’s concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation.
Any warrant issued under s 38(2b) of the Act authorises an invasion of premises without consent of the owner. Thus, the conditions governing its issue must be met strictly, because the legislature has given primacy in the case of the Act, to the public interest in the prevention of insanitary conditions on premises in the interests of the public and environmental health, over the private right of the individual to enjoy his or her privacy and his or her property to the exclusion of all other persons.
It is to be noted however, that the High Court in the passage from George v Rockett (above), emphasised the need for strict compliance with the statutory conditions governing the issue of search warrants, rather than the form of the warrant itself.
The Act does not specify the form of a warrant that may be issued by a magistrate. There is nothing in the Magistrates Court Act 1991 or Rules governing the issue of a warrant under the Act, or more generally, a warrant of this nature.
Section 67 of the Summary Offences Act 1953, empowers the Commissioner of Police to issue general search warrants to police officers, and provides that a warrant must be in a specified form (identified in the schedule) or in a form to that effect and that the warrant may remain in force for a limited period of 6 months or a shorter period as specified in the warrant: s 67(3).
Under the Controlled Substances Act 1984, an authorised officer may exercise certain powers upon the authority of a warrant issued by an officer of police, a special magistrate or a justice, those powers including the use of force to enter: s 52. Neither the section nor any other provision in the Controlled Substances Act provides that the warrant must express the period within which it may be executed. However, there is persuasive authority that where such a warrant has not been made subject to an expressed condition as to the period of its operation, it is not defective on that account (see R v Tillett; exp Newton (1969) 14 FLR 101 at 114), and it is subject to an implied condition that it may only be enforced within a reasonable time: R v Applebee (1995) 79 A Crim R 554.
In R v Applebee (above), a judgment of the ACT Supreme Court, no time limit was included on a search warrant issued to named police officers. The Court held that execution of the warrant 4 weeks after it was issued did not amount to execution within a reasonable period and thus the warrant had ceased to authorise the entry to premises that had been made. This conclusion follows from the position at law that a warrant authorises an act of trespass, an exception to the common law and must therefore be limited to precisely what has been authorised. With respect to a time limit, the ACT Supreme Court reasoned that when a warrant is sought, the issuing justice would normally assume that it would be executed “as promptly as was practicable and reasonable”, whether a time limit is specified or not.
This reasoning follows from the nature of a warrant. Thus in the absence of an expressed time limit, a warrant must be executed within a reasonable period. It follows that a warrant is not invalid merely for the absence of an expressed time limit (but it might not authorise entry if not exercised promptly).
The first warrant was not invalid because no time limit was specified on its face. It was issued on 29 August 2006 and executed on 31 August 2006. Its execution, given that it was 2 days after it was issued, was not unlawful on the ground that it was not executed promptly. Therefore, any evidence obtained in the course of the execution of the warrant was not unlawfully obtained.
The second warrant, on its face, appears to satisfy the conditions for its issue. It was issued by a magistrate, who has stated in the warrant that he has been satisfied upon oath by the authorised officer to whom the warrant is directed, that a warrant is reasonably required in the circumstances. That is a sufficient basis under s 38(2b) of the Act. That subsection provides that a magistrate cannot issue a warrant under subsection (2a), unless he or she has been satisfied, upon information given on oath, of one of the bases set out in paragraphs (a) and (b) of subsection (2b).
In my view, the warrant is not rendered invalid because the stamp or seal of the Magistrates Court is not affixed. The warrant is signed above the word “Magistrate”. It is therefore apparent on the face of the document, even without a stamp or seal, that the warrant was issued by a magistrate as the Act required. Where a person challenges the validity of a warrant with a view to seeking to exclude the evidence obtained through the execution of the warrant, the onus is on that person to prove, on the balance of probabilities, that the warrant is invalid: see R v A (above).
Mr Tavitian has not ever suggested that the person who issued the warrant was not a magistrate and therefore not authorised. He argues only that the seal or stamp of the Magistrates Court should have been affixed. While I can see that there might be a benefit in the seal or stamp being affixed, having regard to the fact that the seal is evidence of a document having been duly issued under the authority of the Magistrates Court (see s 6, Magistrates Court Act 1991), I do not consider that this course is required. The Act requires any warrant to be issued by a magistrate. Jurisdiction is thus conferred on magistrates appointed under the Magistrates Act 1983. While the Magistrates Court comprises magistrates, the jurisdiction to issue a warrant under the Act is not conferred on the Court itself: see Part 2 Division 3 of the Magistrates Court Act. The warrant is not invalid on this argument.
The more difficult question is as to the effect of the warrant being on the City of Playford letterhead. The authority of the warrant and what it authorised should be reasonably clear to the ordinary person reading it: see Brewer v Castles [1984] FCA 48 also reported at 52 ALR 577. But for a spelling error (HEARBY for HEREBY) that I find does not impair its meaning, the warrant is clearly authorised, and is clear in what it authorises. I find that an ordinary person upon reading it, would obtain a reasonably clear understanding of what it authorised, including the limits of the period of authorisation, as well as the identity of the person so authorised. The issue is whether the fact of the warrant being upon City of Playford letterhead detracts from this clarity.
It is at the very least, most unfortunate that the warrant was printed on City of Playford letterhead. It might suggest that the issuing magistrate was in the employ of the City of Playford. However, on balance, I do not think that this conclusion is most likely to be drawn by an ordinary person. In my view, an ordinary person would know that a magistrate is independent of a local authority, and in particular, the City of Playford, while perhaps noting that the warrant was obtained by, and issued to, an officer of the City of Playford.
I find that it would be reasonably clear to an ordinary person, upon a proper reading of the warrant, that it duly authorised the acts that it purported to authorise, notwithstanding the existence of the City of Playford logo and contact details thereon. Mr Tavitian’s arguments with respect to the second warrant fail. The second warrant is not invalid.
With respect to the assertion that there had been a denial of natural justice and procedural fairness, the Judge reasoned:[6]
[6] Tavitian v Public & Environmental Health Council & Anor [2008] SADC 118 at [59]-[62].
The effect of subsections 27(2) and (3) is that a party must be given a reasonable opportunity to present his or her case, either by the party personally or through a representative. Section 27 does not give a party a right to choose when he or she will present his or her case. This interpretation of the legislation is consistent with interpretation of the natural justice or duty to act fairly requirement that a party be heard, in relation to a decision affecting rights, as expressed by the High Court in Kioa and by the Federal Court in Sullivan v Department of Transport (1978) 20 ALR 323.
In Bloch v Bloch (1981) 180 CLR 390, one of the grounds of appeal was that the trial judge had refused to grant a further adjournment to the appellant and that this had occasioned him serious injustice. The context included that there had been delays in the matter and one adjournment of the trial. The respondents were elderly. Counsel for the appellant was unable to give an assurance that the appellant would return to Australia in the near future or ever. The appellant had at all times been represented by counsel. The ground of appeal failed. However, this had not been raised as a natural justice issue. The decision is not on point with the matter now before me, but does indicate that the courts will not condone the postponement of the hearing of proceedings contrary to the interests of other parties, when there is no indication on the part of the party seeking adjournment as to when he or she will be prepared to proceed.
In this matter, the Council would have been acting unfairly in deferring the hearing of the appeal to a date to be determined, having regard to the public interest in circumstances where the City of Playford had determined that an insanitary condition existed at the premises, some 6 months previously. In coming to this conclusion, I have particularly taken into account the following:
•Mr Tavitian had sought information on how he could challenge the warrants but had done nothing towards implementing a challenge.
•No steps had been taken by Mr Tavitian to have the issue of the alleged irregularities in the warrants determined in the courts.
• The appeal hearing had been postponed once already, at Mr Tavitian’s request.
•Mr Tavitian had ignored requests to indicate hearing dates which would be suitable to him.
•Mr Tavitian had declined, in his last request, to indicate a date on which he would be ready to proceed.
•There were other options open to Mr Tavitian in the event he could not attend the hearing, namely seeking leave to be represented at the hearing or to make written submissions, and he had been advised of these, by the Council.
•Mr Tavitian had been informed by the Council that it could proceed with the hearing in his absence, if he failed to attend.
• The public interest underlying the issue of a Notice of Insanitary Condition.
The Council faced a difficult decision when it considered and ultimately decided to proceed with the hearing in the absence of Mr Tavitian. However, I am satisfied that in all of the circumstances, the Council acted fairly in accordance with its duty to do so. Mr Tavitian was given adequate notice that the Council had declined his request to vacate the hearing on 3 July, being the second hearing date that had been arranged, and had advised him of his options. In all of the circumstances, including but not limited to the public interest, the Council did not act unfairly in proceeding with the hearing on the date advised. Where a tribunal is under a duty to act judicially and therefore must give a party a reasonable opportunity to present his case, it is not also required to perform the impossible task of ensuring that the party takes the best advantage of the opportunity: per Deane J in Sullivan (above) at page 343.
The Judge concluded her reasons in the following terms:[7]
In proceeding to hear and determine the appeal on 3 July 2007 in Mr Tavitian’s absence, the Council did not act unfairly or deny Mr Tavitian the benefit of natural justice. The Council neither ignored Mr Tavitian’s request nor misinterpreted s 25(6) of the PEH Act.
It follows that Mr Tavitian is not entitled to a rehearing before the Council.
The warrants issued to authorise officers of the City of Playford to gain entry to Mr Tavitian’s premises, the subject of the Notice of Insanitary Condition, are not invalid. There is then, no reason to stay proceedings, as Mr Tavitian has sought.
Mr Tavitian has not presented any argument against the decision of the Council on his appeal, other than the arguments with respect to the warrants and that he was denied natural justice. Those being the sole issues he has raised on appeal, the logical consequence of my determination of these issues, is that the appeal be dismissed and the decision of the Council upheld. That course would be in the public interest.
[7] Tavitian v Public & Environmental Health Council & Anor [2008] SADC 118 at [63] – [66].
The District Court Judge did not proceed to dismiss the application for review. Instead, Mr Tavitian was invited to identify any further aspects of the Council’s decision that he asserted were in error. Mr Tavitian did so, and ultimately three further grounds of appeal were advanced:[8]
…
The evidence before the Committee was not sufficient to establish an insanitary condition.
The finding that there was a rodent infestation was made by inference rather than the evidence of the witnesses.
The evidence of the witnesses at the Committee hearing was neither sworn nor affirmed.
…
[8] Tavitian v Public & Environmental Health Council & Anor (No 2) [2009] SADC 29 at [5].
On 27 March 2009, the District Court Judge dismissed Mr Tavitian’s application. The reasons for judgment of that date addressed the further complaints with respect to the dismissal of Mr Tavitian’s appeal by the Public and Environmental Health Council.
The Judge considered that the Council had conducted its proceeding appropriately and that there was ample evidence to support and justify the findings and conclusions of the Council. In particular, the Judge observed:[9]
[9] Tavitian v Public & Environmental Health Council & Anor (No 2) [2009] SADC 29 at [13] – [18], [21]- [26].
It is clear from the Notice issued by the City that an insanitary condition was alleged by it on the grounds of paragraph (b) of the subsection 3(2), namely that Mr Tavitian’s premises were so filthy or neglected that there was a risk of infestation by rodents or other pests. The basis of this allegation was expressed to include the presence of faeces on the premises together with excess refuse and recyclable items, excess vegetation and vegetative waste that could provide harbourage for rodents and other pests. Mr Tavitian’s criticism was that the evidence was insufficient to establish the existence of rodents on the premises. He argued that the evidence was insufficient to establish the presence of rats, in that no live rats were seen by any witnesses. He was critical of the qualifications of the witness, Mr Wastell, a licensed pest operator, who had inspected the premises.
The faeces on the premises included rat faeces identified during inspections by both Mr Wastell and Ms Krake who was, at the relevant time, a qualified environmental health officer employed by the City, and confirmed in evidence before the PEH Council.
The PEH Council appeared to accept without requiring further information, that Mr Wastell, as a licensed pest operator, possessed the qualifications and experience to qualify him as an expert in identifying rodent faeces. There is an argument that the acceptance of Mr Wastell’s evidence would have been better justified had he provided evidence of his qualifications and experience, sufficient to establish his expertise to identify faeces as rodent faeces. However, in the circumstances the failure to do so is of no consequence.
The evidence in support of the Notice needed to establish that the premises were so filthy or neglected that there was a risk of infestation by rodents or other pests. It was not necessary to show that rodents were or actually had been on the premises at the relevant time. There was a wealth of evidence before the PEH Council in the nature of photographs taken at the premises and physical evidence of faeces and larvae collected at the premises, as well as the evidence of Mr Wastell and Ms Krake.
The photographic evidence, which was also before the Court in the book of documents, appears to show waste items, piles and stacks of stored objects and materials, crates of materials stored inside old motor vehicles, old motor vehicles some with an open door or window, overgrown garden areas and very long grass, plastic liquid containers both with tops in place and without, open containers containing liquid, deposits of faeces, a cockroach, an old refrigerator, wheels, steel parts, guttering, pieces of timber, metal grills, large drums, reinforcing mesh, horticultural produce boxes, fruit fallen from a tree, an old chair, a tyre, a roll of wire, used plastic containers, and a vehicle licence plate. There are other items that are not readily identifiable. A few items are neatly stacked, but mostly the items and objects appear to be stored haphazardly and in a jumble.
I am satisfied that the PEH Council was justified on what was before it, in confirming that the evidence supported the contents of the Notice issued by the City, including that places existed with the potential to provide harbourage for rodents and other pests, and established that an insanitary condition existed on the premises.
…
The finding by the PEH Council was of vermin activity, particularly rodent activity, based notably upon evidence of faecal matter identified as having been deposited by rats, although the PEH Council, in one of the revised requirements of the Notice referred to “the current rodent infestation”.
Ms Krake was at the relevant time a qualified environmental health officer, holding a Bachelor of Environmental Health degree. Her expertise in identifying faeces as rodent faeces was accepted, as had been the expertise of Mr Wastell.
The Notice under challenge did not allege a rodent infestation. Evidence of such was not necessary to establish an insanitary condition. The Notice alleged that faeces were present on the premises and that the condition of the premises, as particularly alleged, might “provide harbourage for rodents …”.
It was not necessary for the City, upon a challenge to the Notice, to prove that rodents were or had been present on the premises in numbers amounting to an infestation. There was evidence that rats had been present on the premises. This was primarily the evidence of rat faeces. It appears that this was accepted by the PEH Council as evidence of rodent infestation. The PEH Council confirmed that an insanitary condition existed on the premises, based upon physical evidence and photographs of the existence of faecal material identified as produced by rats, as well as the presence of other conditions on the premises conducive to harbouring rodents as alleged in the Notice.
It is correct to state that there was no reported observation of a rat or rats. That does not matter. It was not an error on the part of the PEH Council in the circumstances to draw an inference, as it appears to have done in drafting the 6th requirement of the Notice.
It follows that it is of no concern that the presence of rodents on the premises was inferred by Ms Krake from the presence of rat faeces, rather than direct observation.
With respect to the complaint about the witnesses not being sworn nor affirmed, the Judge reasoned: [10]
[10] Tavitian v Public & Environmental Health Council & Anor (No 2) [2009] SADC 29 at [27] – [30].
I understand the ground of appeal to be that, having been neither sworn nor affirmed, the evidence of the witnesses at the appeal hearing is to be disregarded or given little weight. The relevant provisions of s 27 of the Public and Environmental Health Act are as follows:
27—Proceedings of review committee
(1) For the purposes of dealing with an appeal, a review committee may adopt such procedures as it thinks appropriate.
…
(4) In any proceedings before a review committee, the review committee is not bound by the rules of evidence but may inform itself upon any matter relating to the proceedings in such manner as it thinks fit.
The PEH Council has established an “Appeal Protocol Summary for Appellant”, described therein as having “been developed to inform parties about appeal processes”. A copy of this document was sent to Mr Tavitian by the secretary of the PEH Council under cover of a letter dated 27 December 2006.
The appropriateness of this document for the parties to an appeal is questionable because it does seem to be mostly cast in language directed towards a PEH Committee established to hear an appeal. It appears to be an appeal protocol summary for a Committee. The document reiterates that the Committee may inform itself upon any matter as it thinks fit and stresses that the Committee must observe the rules of procedural fairness.
It is now well accepted that an appeal body such as the PEH Council Committee may receive evidence given without oath or affirmation. In Board of Education v Rice [1911] AC 179, page 182, Lord Loreburn L.C., had to consider the duty of the Board of Education in hearing and dealing with a dispute, in that case in relation to the amount of teachers’ salaries. Lord Loreburn L.C. reasoned that the role and responsibilities of such a body charged with determining a dispute was as follows:
In such cases, the Board of Education will have to ascertain the law and also to ascertain the facts. I need not add that in doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon everyone who decides anything. But I do not think they are bound to treat such question as though it were a trial. They have no power to administer an oath, and need not examine witnesses. They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view.
Supreme Court Proceedings
Section 43 of the District Court Act 1991 (SA) provides:
(1) A party to an action may, in accordance with the rules of the appellate court, appeal against any judgment given in the action.
(2) The appeal lies—
(a)in the case of a judgment given by a Master or the Court constituted of a Master—to the Court constituted of a Judge;
(b)in the case of an interlocutory judgment given by a Judge—to the Supreme Court constituted of a single Judge;
(c)in any other case—to the Full Court of the Supreme Court.
(3) The appeal lies as of right, or by permission, according to the rules of the appellate court but, in the case of an appeal against a final judgment of the Court in its Administrative and Disciplinary Division, permission is required to appeal on a question of fact.
(4) A right of appeal conferred by this section extends to a legal practitioner, witness or other person against whom an order under section 42 is made.
It is to be observed that subsection 3 provides for an appeal as of right or by permission according to the rules of the appellate court, but in the case of an appeal from the administrative and disciplinary division, permission is required on a question of fact.
As to the distinction between questions of law and fact, it has been held that a finding of fact which is tainted by an error of law raises a question of law.[11] Further, the legal consequences of the finding of fact of the trial judge is considered to be a question of law;[12] the question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law; the ordinary meaning of a word or its non-legal technical meaning is a question of fact; the meaning of a technical legal term is a question of law; the effect or construction of a term whose meaning or interpretation is established is a question of law; the question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law.[13]
[11] Australian Steel & Mining Corp Pty Ltd v Corben [1974] 2 NSWLR 202 at 209.
[12] Bill Williams Pty Ltd v Williams (1972) 126 CLR 146 at 154; Workers Rehabilitation & Compensation Corp v Thuy Thi Vu (1988) 49 SASR 585 at 589.
[13] Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 as applied in Harrow Trust v Adelaide Hebrew Congregation Inc (2002) 221 LSJS 449 (Bleby J).
On 17 October 2008, Mr Tavitian filed a Notice of Appeal to the Full Court of the Supreme Court with respect to the decision of the District Court Judge of 26 September 2008. He complained about the Judge’s rulings with respect to “denial of natural justice and procedural fairness” and “ruling of warrants”. He also complained of “ruling on who is the original decision maker and to whom the actual appeal to be made as respondents”. The Notice of Appeal included the handwritten endorsement “seeks permission to appeal”. These complaints appear to involve questions of law within the meaning of section 43 of the District Court Act. If this is so, Mr Tavitian would have a right of appeal.
No further step in the appeal proceeding took place in this Court until 14 April 2009 when Mr Tavitian, by interlocutory application, sought the following orders:
Extension of time
Stay of proceedings
Leave to amend the appeal
Leave to include (combine) the judgement [sic] of Honourable Judge Trenorden dated 27 March 2009, with the judgement [sic] of 26 September 2008
Questions of law (interpertation) [sic] to be dealt first
Any other orders the court sees fit
Directions
The application came on for hearing ex parte before a Judge of this Court on 17 April 2009. The Judge refused to allow Mr Tavitian to proceed with the matter ex parte and made no order for an extension of time. No order extending time for the setting down of the appeal has been made. In these circumstances it would appear that Mr Tavitian’s Notice of Appeal, may, by reason of Rule 295, be taken to have been discontinued and consequently has lapsed.[14]
[14](1) If the party having the carriage of an appellate proceeding fails to set the proceeding down for hearing within the time fixed by practice direction, another party may apply to the Court for permission to set the proceeding down for hearing or for an order dismissing the proceeding.
(2) Unless an appellate proceeding is set down for hearing within 6 months after the proceeding is commenced or a longer time allowed by the Court, the proceeding is taken to have been discontinued and lapses.
(3) If a proceeding lapses under subrule (2), all parties are to bear their own costs.
Mr Tavitian’s application came before me on 1 May 2009. I also declined to proceed ex parte. On 8 May 2009 the application proceeded inter partes. Counsel appearing for the City of Playford, subject to a proper ground of appeal being identified, did not oppose an extension of time and did not oppose the joining of Mr Tavitian’s complaints with respect to the decision of 27 March 2009 with his earlier appeal in the informal manner proposed. I granted Mr Tavitian permission to lodge proposed amended grounds of appeal and a short argument in support of his application for permission to appeal.
Mr Tavitian’s documentation and submissions, both oral and written, have been difficult to follow. On my review of the matter I was concerned that, insofar as Mr Tavitian sought an extension of time, permission to appeal and other interlocutory relief, there was a possibility that he may not have understood the importance of demonstrating to the Court that he had a matter of substance to advance on the appeal. Accordingly, I allowed Mr Tavitian an opportunity to present further submissions.
The proposed grounds of appeal re-agitate Mr Tavitian’s earlier complaints; that warrants issued were defective; that there had been a denial of natural justice; and that the evidence was not on oath or affirmation. Mr Tavitian, as I understand his documents and submissions, asserts that the evidence did not establish that the premises were insanitary.
Earlier in these reasons I have set out extensive passages from the reasons of the District Court Judge in both of her rulings. I consider that the Judge’s analysis of the relevant principles is correct, and that there is no basis on which there has been a misapplication of those principles to the established facts. I have set out portions of those reasons in full to provide Mr Tavitian with a complete understanding of the reasons for my decision. I would add that evidence before the Public and Environment Health Council, as reviewed by the District Court Judge, fully justified the actions of the City of Playford in requiring the premises to be cleaned up in the interests of public health.
In my view, no basis for a grant of permission to appeal has been made out. I do not consider that Mr Tavitian has any prospect of success with respect to his appellate proceedings in this Court. Further, insofar as he has identified any proposed ground of appeal, it would appear to raise within the meaning of the relevant rules of Court, a complaint of law with respect to which permission would not be required.
In these circumstances, insofar as it may be necessary, I am not prepared to grant permission to appeal. In my view there is no reasonable prospect of success. I do not consider that any important point of principle is raised. For the same reasons, I am not prepared to grant an extension of time or make any of the other orders sought by Mr Tavitian.
Mr Tavitian’s application for interlocutory relief is dismissed.
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