Tavitian v Public & Environmental Health Council
[2008] SADC 118
•26 September 2008
DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
TAVITIAN v PUBLIC & ENVIRONMENTAL HEALTH COUNCIL & ANOR
[2008] SADC 118
Judgment of Her Honour Judge Trenorden
26 September 2008
ADMINISTRATIVE LAW
Appeal against determination of the Public and Environmental Health Council pursuant to the Public and Environmental Health Act 1987 - Whether natural justice was denied in the hearing of the appeal after requests to vacate made by appellant - Whether warrants issued prior to issue of the Notice were invalid.
HELD: Council held not to have acted unfairly or deny appellant benefit of natural justice - Warrants held not to be invalid - Appeal dismissed and decision of Council upheld.
Public and Environmental Health Act 1987; Local Government Act 1934; District Court Act 1991; Controlled Substances Act 1984; Summary Offences Act 1953; Magistrates Court Act 1991, referred to.
Tavitian v Public and Environmental Health Council & City of Playford [2003] SADC 178; R v A [2000] SASC 51; 76 SASR 356; George v Rockett (1990) 170 CLR 104; R v Applebee (1995) 79 A Crim R 554; Brewer v Castles [1984] FCA 48; 52 ALR 577; FAI Insurances v Winneke (1977) 137 CLR 461; Kioa v West (1985) 159 CLR 550; Sullivan v Department of Transport (1978) 20 ALR 323; Bloch v Bloch (1981) 180 CLR 390, considered.
TAVITIAN v PUBLIC & ENVIRONMENTAL HEALTH COUNCIL & ANOR
[2008] SADC 118THE COURT DELIVERED THE FOLLOWING JUDGMENT:
Background
The appellant, Mr David Tavitian, appealed against the determination of a review committee of the Public and Environmental Health Council (the Council) under the Public and Environmental Health Act 1987 (the PEHAct). The determination was in relation to an appeal against a Notice issued to Mr Tavitian, pursuant to s 15 of the PEHAct. The Notice was issued by the City of Playford on 12 December 2006. The Notice advised that the City of Playford had determined that the named premises, of which Mr Tavitian is described as the owner, were in an insanitary condition and required him to take specified action to improve the condition of the premises.
Once a Notice has been issued under Part 3 of the Act, the recipient is required to take the action specified in the Notice, but may appeal to the Council pursuant to s 25 of the PEH Act. Any appeal will be heard and determined by a review committee, constituted by the Council in accordance with s 26(1) of the PEH Act.
Upon the determination of an appeal by a review committee of the Council, the recipient of a Notice has a right of appeal against that determination of the Council to the Administrative and Disciplinary Division of the District Court: s 29(1).
The review committee constituted by the Council conducted a hearing of the appeal on 3 July 2007, and delivered its determination under cover of a letter to Mr Tavitian dated 6 August 2007. As an appeal against a Notice lies to the Council (see s25(2)), a determination by a review committee constituted by the Council under s 26(1) of the PEH Act, is the determination of the Council. Thus, the date of the determination of the appeal by the Council was 6 August 2007.
Mr Tavitian lodged an appeal with this Court on 20 August 2007, in accordance with his right to institute an appeal within 14 days of the decision of the Council: s 29(1a).
The Legislation
The Public and Environmental Health Council is established by s 8 of the PEH Act. Its functions are set out in s 12 of the Act.
Under the Act, it is the duty of a local council (meaning a council constituted under the Local Government Act 1934), among others, to take reasonable steps to prevent any infestation or spread of vermin, rodents or other pests within its council area: s 12A(2) and 3(1) “local council”. The local council in this case is the City of Playford.
Where premises are in an insanitary condition, the local council may issue a written notice requiring the owner to take specified action to improve the condition of the premises or to desist from specified activity to which the condition of the premises is apparently attributable: s 15(1) and 3(1) “the authority”. Section 3(2) of the PEH Act gives meaning to “insanitary condition”, and is as follows:
…
(2) Premises are in an insanitary condition if—
(a)the condition of the premises gives rise to a risk to health; or
(b)the premises are so filthy or neglected that there is a risk of infestation by rodents or other pests; or
(c)the condition of the premises is such as to cause justified offence to the owner of any land in the vicinity; or
(d)offensive material or odours are emitted from the premises; or
(e)the premises are for some other reason justifiably declared by the authority to be in an insanitary condition.
…
It is an offence to fail to comply with a Notice: s 15(3).
Where an appeal has been instituted against a Notice, the PEH Act provides as follows, in s 25:
Division 5—Appeals
25—Grounds for, and manner of, appeal
…
(4)Subject to a determination by the Council to the contrary in relation to a particular appeal, where an appeal has been instituted, the requirement appealed against is suspended until the appeal has been determined or withdrawn.
(5)An appeal under this section is to be conducted as a full review of the matter to which the appeal relates.
(6)An appeal under this section must be dealt with as expeditiously as possible.
Section 26 sets out how a review committee to hear an appeal will be constituted by the Council and s 27 addresses matters of a procedural nature concerning the review committee, 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.
(2)A party is entitled to appear personally or, with leave of the committee, by representative, in proceedings before a review committee.
(3)A review committee may proceed to determine an appeal in the absence of a party if the party has had notice of the time and place of the proceedings and fails to appear.
(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 powers of the review committee following the hearing of an appeal is set out in s 28 of the PEH Act.
A person holding an appointment as an authorised officer under the Act is given certain powers by the Act, in particular under s 38. These powers are very wide ranging, including enabling an authorised officer to enter and inspect any premises at any reasonable time. However, if, in order to enter premises an authorised officer may need to use force, he or she may only do so on the authority of a warrant issued by a magistrate, except where the officer believes on reasonable grounds, that the circumstances require immediate action to be taken: s 38(2a).
In order to issue a warrant to enable an authorised officer to use force to enter premises, the magistrate must be satisfied, on information given on oath, as set out in s 38(2b), below:
Part 5—Miscellaneous
38—Inspections etc
…
(2b)A magistrate must not issue a warrant under subsection (2a) unless satisfied, on information given on oath—
(a)that there are reasonable grounds to suspect that an offence against this Act has been, is being, or is about to be, committed; or
(b)that the warrant is reasonably required in the circumstances.
In addition, the legislation provides that the person in charge of the premises must provide such assistance as is reasonably required by the authorised officer inspecting the premises, to facilitate the inspection: s 38(3). It is an offence to hinder or obstruct an authorised officer: s 38(4).
Grounds of Appeal and Orders Sought
The grounds of appeal set out in Mr Tavitian’s Notice of Appeal are as follows:
1. Denial of natural justice.
2. Misinterpretation of legislators intention of section 25(6) of the Public and Environmental Health Act 1987.
3. Ignoring a request to vacate the hearing date.
The orders sought by Mr Tavitian in his Notice of Appeal, are as follows:
1. The appeal to be rescinded and overturned.
2. Stay of proceedings.
3. A rehearing applying natural justice rights.
4. Respondents to provide a list of documents including but not limited: All documents, notes, memos, emails, notes of telephone conversations between the employees of respondents and appellant.
5. Pre trial conference.
6. Any other order the court deems fit.
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.
Mr Tavitian asked this Court to state a case for a ruling by the Supreme Court with respect to the validity of the warrants. I declined to do so, on the basis that this Court in its Administrative and Disciplinary Division has the jurisdiction to entertain a broad range of appeal grounds identified by an appellant. It is my view that Smith DCJ correctly stated the position in Tavitian v Public and Environmental Health Council and City of Playford [2003] SADC 178:
34 A close look at the provisions making up Division 2 of Part 6 of the District Court Act demonstrates Parliament's intention to confer generous appellate powers on the Court.
36 ..................... I am not here expressing the view that this Court has supervisory jurisdiction. Rather, it is my view that this Court has appellate jurisdiction to grant the relief sought in this case even though the same relief might be available through the supervisory jurisdiction of the Supreme Court.
His Honour's reasoning in that matter was specifically addressed to whether the Court could entertain a ground of appeal that raised natural justice. However, in my view the position is the same with respect to a ground of appeal that raises as an issue, the validity of the warrants used to gain entry to premises the subject of appeal to the Council, the decision of which is now appealed to this Court.
Thus, I heard argument with respect to the validity of the warrants and will deal with that issue in these reasons.
As I have said, Mr Tavitian did not include a challenge to the merits of the Council's decision as part of his grounds of appeal, although the first order sought by him would involve setting aside the Council's decision, as I understand it. Counsel for the respondents submitted forcefully that an appeal against a decision of the Council should seek to address the merits, if they are to be addressed in addition to any other challenge. I have concluded that this approach is correct, having regard to the provisions of s 42E of the District Court Act 1991. However, I note that the Court does have power to “remit matters to the original decision-maker for consideration or further consideration in accordance with any directions or recommendations of the Court”: s 42F. Indeed, this Court, in Tavitian [2003] remitted “the appeal for rehearing before a differently constituted Review Committee of the Council” [51]. Of course, if the merits have not been challenged in a Notice of Appeal, the Court ordinarily would be entitled to assume that they are not challenged.
I decided to proceed to hear the arguments with respect to the validity of the warrants, and the natural justice issue, and to determine those issues before hearing the parties further as to the resolution of the appeal.
Validity of the Warrants
The First Warrant
On 29 August 2006 a warrant to enter premises was issued to Courtney Anne Krake, described as “authorised person for the City of Playford”. The substance of the warrant is set out below:
TO: Courtney Anne Krake (Name of Authorised Person)
Authorised Person for the City of Playford
10 Playford Boulevard Elizabeth SA 5112
PURSUANT TO Section Part 5 Section 38 (2a) (a) of the Public and Environmental Health Act (“the Act”) having satisfied me on the information given on oath that a warrant is reasonably required in the circumstances.
NOW I HEREBY DIRECT that you, together with such assistants as you may require, are hereby authorised to enter and inspect the premises at 14 Shaftesbury Road Elizabeth Vale and use such force as may be reasonably necessary to gain entry to the premises
Dated 29 August 2006
…………………………….
Magistrate
The warrant was signed below the date and above the word “Magistrate” and the stamp of the Magistrates Court of South Australia was affixed next to that signature, the name of the authorised person, and the date had been entered in handwriting. Also provided to the Court was a copy of an affidavit sworn by Courtney Anne Krake 29 August 2006, in support of the application for a warrant to enter premises.
The Second Warrant
Provided to the Court was a copy of a second warrant to enter premises, also issued to Courtney Anne Krake, described as “authorised person for the City of Playford”, dated 24 October 2006. This warrant appears to be on City of Playford letterhead, in that the City of Playford logo, the street, postal and email addresses and the telephone and facsimile numbers are displayed thereon, both at the top right-hand side and in the footer of the document. In addition, although the warrant bears a signature above the word “Magistrate” there is no stamp or seal of the Magistrates Court affixed to the document. The substantive contents of the document are as set out below:
TO: Courtney Anne Krake
(Name of Authorised Person)
Authorised Person for the City of Playford
10 Playford Boulevard, Elizabeth, SA, 5112
PURSUANT TO Part 5 Section 38 (2a) (a) of the Public and Environmental Health Act (“the Act”) having satisfied me on the information given on oath that a warrant is reasonably required in the circumstances.
NOW I HEARBY [sic] DIRECT that you, together with such assistants as you may require, are hereby authorised to enter and inspect the premises at 14 Shaftesbury Road, Elizabeth Vale, SA, 5112 between the 25th of October 2006 and the 31st of October between the hours of 8am and 7pmand [sic] use such force as may be reasonably necessary to gain entry to the premises.
Dated 24/10/2006
………………………..
Magistrate
As with the first warrant, the name of the authorised person, and the date, have been handwritten on the document. The documents before the Court included an affidavit sworn by Courtney Anne Krake on 24 October 2006.
Issues of Invalidity
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 vCastles [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.
Neither warrant having been successfully challenged, I now turn to consider the argument by Mr Tavitian that he was denied natural justice in that the hearing of the appeal proceeded in his absence.
Natural Justice
Mr Tavitian argued that he was denied natural justice when Council proceeded to hear and determine his appeal in his absence. He says that the Council ignored a request by him to vacate the hearing date and misinterpreted s 25(6) of the Act which required an appeal to be “dealt with as expeditiously as possible”.
Mr Tavitian’s argument must be looked at in the context of what had actually occurred. Set out below is a chronology of events concerning Mr Tavitian, leading up to the hearing of the appeal:
12/12/06 A Notice, pursuant to s 15 of the PEH Act. “Prevention of Insanitary Conditions on Premises” was issued to Mr Tavitian under cover of a letter of the same date from the City of Playford, in which Mr Tavitian’s rights of appeal and the appeal period was advised.
22/12/06 An (undated) Notice of Appeal is received from Mr Tavitian by the Council. The appeal is against the Notice of Insanitary Condition issued on 12 December 2006 by the City of Playford.
27/12/06 Letter from the Council to Mr Tavitian acknowledging receipt of the Notice of Appeal, enclosing extracts of the legislation and a copy of “Appeal Protocol Summary for Appellant”, requesting the supply of documentation and advising that “arrangements for the appeal hearing will be negotiated including an appropriate venue and date”.
02/02/07 Mr Tavitian delivered documents to the Council offices together with a request from him for a pre-hearing.
07/02/07 Letter from the Council to Mr Tavitian enclosing documents sent to the Council by the City of Playford and advising that “arrangements for the appeal hearing will be negotiated shortly” and that he would inform him of the date and venue.
15/02/07 Mr Tavitian, by telephone, requested clearer copies from the Council of City of Playford documentation.
15/02/07 Letter from the Council to Mr Tavitian enclosing “original documents” sent to the Council by the City of Playford and further advising that arrangements for the appeal hearing would be negotiated shortly and that he would be advised.
27/04/07 Letter from the Council to Mr Tavitian confirming that the appeal would be heard on Tuesday 22 May 2007 at the Natural Resource Management Board, northern office, the address of which was given, commencing at 10am.
30/04/07 Letter from the Council to Mr Tavitian advising that the Council was unable to accommodate his request for a pre-trial conference.
11/05/07 Mr Tavitian advised that he wished to vacate the date of hearing, being 22 May 2007. The secretary of the Council spoke to Mr Tavitian by telephone and asked him to provide a list of 3 dates that would suit him, for the hearing.
11/05/07 Letter from Mr Tavitian to the secretary of the Council asking that the hearing date set for 22 May 2007 be vacated and the hearing deferred “after a number of issues dealt [sic]”. Mr Tavitian asserted that there were irregularities with the warrants obtained by the City of Playford, that it was important these be investigated and determined by the relevant authorities, and that the Council had no jurisdiction or power to investigate or make a determination on these issues.
18/05/07 The secretary of the Council telephoned Mr Tavitian and advised that his request to cancel the hearing on 22 May 2008 has been accepted and that the hearing was postponed.
24/05/07 Letter from the Council to Mr Tavitian confirming that the hearing date had been vacated, proposing 3 alternative dates for the hearing (3 July, 4 July and 18 July 2007) and asking Mr Tavitian to nominate his preferred date in writing by 1 June 2007.
01/06/07 Letter from Mr Tavitian to the secretary of the Council reiterating that a hearing should not take place until “investigations, directions and determination of a higher court” in relation to the irregularities of the warrants had been finalised and that he would keep the Secretary informed “with the progress of the investigation, directions and determination of the irregularities of the warrants as the information becomes available”, concluding with “it is important for a fair hearing to take place the respondent co-operates and provides the information I requested on my Appeal document dated 21/12/06”.
05/06/07 Letter from the Council to Mr Tavitian advising that notwithstanding the latest concerns about the irregularities of warrants, “the Council has a statutory obligation to deal with this appeal as expeditiously as possible” and notifying him that the appeal would be heard on 3 July 2007, at the location and time specified. Mr Tavitian was further advised that if he was unable to attend on that date, he could seek to have a representative attend on his behalf or “submit further written details to support your appeal”, and further that the appeal could be heard in his absence if he failed to attend.
07/06/07 Mr Tavitian sought to vacate the hearing date and to speak directly to the presiding member of the Council, on the basis that the issue of the warrants had to be determined prior to the hearing of the appeal.
14/06/07 Letter from the Council to Mr Tavitian advising that his request that the hearing date scheduled for 3 July 2007 be vacated would not be accommodated and confirming that the appeal would be heard on that date at the advised location and commencement time. The letter added that “it is recommended your concerns regarding the irregularity of warrants be pursued independent of this appeal process” further advising that the Council considered that the concerns with respect to the warrants did not necessitate the postponing of the hearing.
14/06/07 Letter from Mr Tavitian to the secretary of the Council again requesting the appeal hearing to be set aside pending investigations and determinations into the irregularities of the warrants, the vacation of the 3 July 2007 hearing date, and a meeting with the presiding member of the Council. 26/06/07 Letter from Mr Tavitian to the secretary of the Council advising that the hearing date of 3 July 2007 “must be vacated” as he had to attend another hearing on that day in another court and had no representative to represent him. Mr Tavitian said the hearing should not take place “at the expense of denial of natural justice and unfair hearing”.
27/06/07 Letter from the presiding member of the Council to Mr Tavitian advising that the Council acknowledged his unresolved issues pertaining to the warrants and advising that the Council is unable, again, to defer the hearing of the appeal “until such time as you have resolved these matters to your satisfaction”. The letter confirmed that the hearing would proceed on 3 July 2007 at the specified venue at the advised commencement time.
01/07/07 Letter from Mr Tavitian to the presiding member of the Council noting with great disappointment that the appeal would be heard on 3 July 2007, regardless of his inability to attend and asserting that he had given the Council “sufficient time to make arrangements to vacate the hearing date.”.
03/07/07 The hearing of Mr Tavitian’s appeal proceeded before the Council commencing at 10.10am and concluding at 11.15am. There was no appearance, by or on behalf of the appellant Mr Tavitian.
Mr Tavitian was also involved in proceedings in the Elizabeth Magistrates Court, with another party. These proceedings are not relevant here, except as they affected Mr Tavitian’s ability to attend on the scheduled date for the hearing of the appeal by the Council (3 July 2007). The record of the Magistrates Court shows that Mr Tavitian was engaged in a trial on 15 March 2007, 1 May 2007 and 17 May 2007, at the conclusion of which judgment was given against him. The latter is only relevant because in consequence, an Investigation Summons was issued, requiring Mr Tavitian to attend at Elizabeth Magistrates Court on 3 July 2007; the same date as the scheduled hearing of the appeal by the Council. Service of this summons upon Mr Tavitian was effected on 17 June 2007, according to the court record.
The reasons given by Mr Tavitian as grounds for his request to defer the hearing set for 22 May, were that the “irregularities with the warrants” should first be investigated and determined because, in his words, “the Public and Environmental Health Council has no jurisdiction or the power to investigate or make determination on these issues”. Despite maintaining that the warrants were subject to challenge Mr Tavitian only made enquires concerning the warrants, of the issuing magistrate with whose clerk he had correspondence. There is not a shred of evidence that he instituted any proceedings to challenge the validity of the warrants. He requested a meeting with the presiding member of the Council to raise the issue of the warrants, but did nothing further, even though on his evidence, he had been informed from the correspondence with the magistrate’s clerk, that a challenge would need to be mounted in the Supreme Court if he wished to have addressed what he referred to as “the irregularities with the warrants”.
It was inappropriate for the presiding member of the Council to meet with Mr Tavitian, given that there was every chance that the presiding member would be part of the panel to hear and determine the appeal by Mr Tavitian against the Notice. If Mr Tavitian had seriously wished to challenge the validity or authority of the warrants, he should have taken steps to do so, rather than sit back and wait for the Council to discuss the matter with him, preparatory to hearing the appeal. In effect, put in the best light, Mr Tavitian was waiting for something to be done by someone else to consider the so-called irregularities of the warrants, before he would agree to proceed to a hearing of his appeal. At worst, he was using the so-called irregularities of the warrants as an excuse to defer the hearing of the appeal and the whole issue of the insanitary condition of his premises. It is hard to fathom what Mr Tavitian thought would come of a meeting with the presiding member of the Council to discuss the irregularities in the warrants, given that on his own evidence, he had already been informed that he should proceed to the Supreme Court if he wished to argue that the warrants were invalid because of the irregularities therein.
Mr Tavitian has previously been involved in proceedings, in various courts. It cannot be said that he was a stranger to the courts. Yet, he did not take any steps to obtain a definitive response from the courts to his argument that the warrants were bad for irregularities until the hearing commenced in this Court. Either he did not know what to do, which I find difficult to accept, or he knew what he had to do but used the prospect of a challenge to the warrants as a basis for delaying the hearing and determination of his appeal against the Notice.
Mr Tavitian was required to be in two different places on 3 July 2007. He chose to seek to defer the hearing of his appeal by the Council and to attend the hearing in the Magistrates Court in relation to the Investigation Summons, even though the Council hearing had already been deferred once, at his request. He had been made fully aware by the Council of the possible consequences of failing to appear at the scheduled hearing.
Mr Tavitian says he has been denied natural justice because the hearing of the appeal by the Council proceeded in his absence. It is a fundamental rule that a statutory authority, having power to affect the rights of a person, is bound to hear that person before exercising the power: FAI Insurances v Winneke (1977) 137 CLR 461.
In Kioa v West (1985) 159 CLR 550 the High Court described the rules of natural justice as “the duty to act fairly”. The requirements of the duty to act fairly are flexible and, according to the reasons of the various justices in that case, will depend in each case on the context, namely the relevant circumstances. It is not that a person must be heard, but that he or she must be given what has been variously described as an opportunity, or a chance, or a reasonable opportunity of presenting his or her case. What is required is fairness in all of the circumstances.
In Tavitian [2003], Smith DCJ held that the rules of natural justice or procedural fairness apply to the exercise of appellate power under the PEH Act by a review committee of the Council. I agree with that conclusion.
In accordance with s 27(2), a party has a right to appear in proceedings before a review committee, either in person, or with leave, by a representative. However, that right has to be read in the context of the power residing in a review committee to proceed to determine an appeal in the absence of a party, that party having been given notice of the hearing and failing to appear at the allotted time: s 27 (3).
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.
Conclusion
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.
I will hear the parties as to appropriate orders.
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