Tavitian v Public & Environmental Health Council (NO. 2) - [2009] SADC 29

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
In the Matter of PUBLIC & ENVIRONMENTAL HEALTH ACT 1987
TAVITIAN v PUBLIC & ENVIRONMENTAL HEALTH COUNCIL & ANOR (NO. 2)
[2009] SADC 29
Judgment of Her Honour Judge Trenorden
27 March 2009
HEALTH LAW - ADMINISTRATION OF PUBLIC HEALTH SYSTEM - NOTICES
ADMINISTRATIVE LAW
Notice of insanitary condition - Appeal against decision of PEH Council - Whether sufficient evidence to establish an insanitary condition - Whether evidence of rodent faeces sufficient to infer presence of rodents - Whether expert evidence given to Committee should have been sworn or affirmed.
HELD: Appeal dismissed.
Public and Environmental Health Act 1987; District Court Act 1991, referred to.
Tavitian v Public and Environment Health Council & City of Playford [2008] SADC 118; Board of Education v Rice [1911] AC 179, considered.

TAVITIAN v PUBLIC & ENVIRONMENTAL HEALTH COUNCIL & ANOR (NO. 2)
[2009] SADC 29
THE COURT DELIVERED THE FOLLOWING JUDGMENT:

The background to this appeal is set out in Tavitian v Public & Environmental Health Council & Anor [2008] SADC 118. That judgment was in relation to the submission by Mr Tavitian that the Public and Environmental Health (PEH) Council acted unfairly or denied Mr Tavitian the benefit of natural justice. The Court held that the PEH Council had not acted unfairly or denied Mr Tavitian the benefit of natural justice and concluded that Mr Tavitian was not entitled to a re-hearing before the Council.
However, that judgment did not dispose of the appeal. An appeal from the decision of the PEH Council is to the Administrative and Disciplinary Division of the District Court: s 29 Public and Environmental Health Act 1987; and is accordingly governed by the provisions of Division 2 of Part 6 of the District Court Act 1991.The Court must, on appeal, examine the decision of the original decision-maker, give due weight to the decision being appealed and not depart from it except for cogent reasons: s 42E District Court Act.
The original decision-maker in this case is both the PEH Council and the City of Playford (the City): see s 42B District Court Act. That is because an appeal against a Notice of Insanitary Condition (the Notice) issued by the City lies in the first instance to the PEH Council under the Public and Environmental Health Act. The appeal is heard by a review committee appointed by the PEH Council: s 26(1). The decision of a review committee is the decision of the PEH Council: s 26(2), and so I will refer to the hearing before the relevant review committee as having been before the PEH Council and its decision and reasons as being those of the PEH Council.
Mr Tavitian, in his Notice of Appeal, had not identified which parts of the PEH Council decision he challenged (apart from the preliminary issues with respect to the validity of the warrant and the issue of natural justice). The Court invited Mr Tavitian to identify those parts of the PEH Council decision that he asserted were in error; in other words, to particularise the basis of his appeal. Mr Tavitian had asked the Court to conduct a re-hearing or a fresh hearing of the matter, but the Court declined on the basis that its role was to examine the decision of the PEH Council in relation to the Notice.
After being given some time to consider his position, Mr Tavitian informed the Court that his challenges as to the decision of the PEH Council were as follows:
1.     The evidence before the Committee was not sufficient to establish an insanitary condition.
2.     The finding that there was a rodent infestation was made by inference rather than the evidence of the witnesses.
3.     The evidence of the witnesses at the Committee hearing was neither sworn nor affirmed.
4.     The Committee proceeded on the wrong basis by making a decision in accordance with the definition of “insanitary condition” in the Public and Environmental Health Act 1987, when there is no definition of “insanitary condition” in the Act.
I shall refer to these as the grounds of appeal.
This judgment will not canvass again whether Mr Tavitian was afforded natural justice. Mr Tavitian invited the Court to do so, but the Court informed him that any challenge to the Court’s earlier judgment with respect to the issue of natural justice, could only be addressed by way of an appeal to the Supreme Court.
The difficulty faced by this Court in addressing Mr Tavitian’s appeal against the PEH Council decision is that the PEH Council had before it only Mr Tavitian’s grounds of appeal against the Notice without evidence or submissions from him and the response by the City in the form of evidence and submissions. The PEH Council heard and saw evidence only from the City in support of the Notice. The grounds of Mr Tavitian’s appeal to the PEH Council against the Notice were as follows:
1. The premises are not filthy or neglected neither has contributed to any infestation by rodents or other pests.
2. The actions to improve the conditions of the premises is very broad.
(sic)
After his statement of the grounds of appeal, Mr Tavitian sought particular orders or directions from the PEH Council, in the nature of particulars, with a view to commencing negotiations to see whether the issues could be resolved without proceeding to a hearing.
I now turn to address Mr Tavitian’s grounds of appeal, noting first that Mr Tavitian abandoned that ground numbered 4, above.
1. Whether the evidence before the committee was sufficient to establish an insanitary condition
The criticism was that the evidence concentrated on faeces allegedly of rats, and mosquito larvae which, it was said, was insufficient to establish that an insanitary condition existed.
The meaning given by the Public and Environmental Health Act to “insanitary condition” is as follows:
3—Interpretation
…
(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 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.
Mr Tavitian did not criticise Ms Krake’s evidence in relation to the observation of mosquito larvae on the premises.
2. Whether the finding that there was a rodent infestation was made by inference rather than the evidence of Ms Krake
Mr Tavitian intended by this issue to criticise the finding by the PEH Council that there was evidence of rodent infestation, based as it was not upon observation of rodents on the premises, but on faeces, allegedly of rodents.
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 6^th 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.
3. The evidence of witnesses at the hearing was neither sworn nor affirmed
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.
Those often quoted words continue to reflect the position at law today. This position is fortified in the case of the PEH Council, given that Parliament has provided that it may inform itself in such a manner as it thinks fit (s 27(4)).
A review committee of the PEH Council, charged with hearing and determining an appeal (see s 26) is not given any power to administer an oath. It may inform itself as it thinks fit. That means what is says. It follows that the challenge to the evidence brought before the Planning and Environmental Health Review Committee in support of the respondent to the appeal, on the sole ground that the evidence was not given under oath or upon affirmation, cannot succeed.
4. Whether the Committee proceeded on the wrong basis by making a decision in accordance with the definition of “insanitary condition” in the Act, when there is no definition of “insanitary condition” in that Act.
This ground of appeal was withdrawn by Mr Tavitian shortly before the hearing of the appeal. He had overlooked s 3(2) of the Act.
Conclusion
Mr Tavitian has challenged the decision and reasoning of the PEH Council. Having considered the grounds of the challenge, I am satisfied that they cannot succeed. The role of the PEH Council was to consider whether Mr Tavitian’s appeal against the Notice should be upheld. It determined, having heard from the City, including its expert witnesses whose observations had originally given rise to the issue of the Notice, that the appeal be dismissed. The PEH Council upheld the Notice, but it varied the original requirements of the Notice. These requirements as varied by the PEH Council, were not challenged by Mr Tavitian in the appeal proceedings before this Court, nor have I heard any submissions in relation to any of them.
The Notice originally listed 8 “actions” required to be performed within 45 days, to improve the condition of the premises. The PEH Council varied the requirements and the period of time in which each was to be carried out by Mr Tavitian.
I have concluded that the PEH Council was not in error in conferring that an insanitary condition existed on the premises. There are no cogent reasons to depart from the decision of the PEH Council, but it will be necessary to impose new periods for compliance with the requirements, or remit the matter to the PEH Council for that to be done.
In his argument before this Court, Mr Tavitian made much of what he saw as an issue, namely whether there were rodents on the premises. However, the Notice did not allege that rodents existed on the premises, but rather that an insanitary condition existed on the premises by reason of the existence of conditions that might provide harbourage for rodents, among other matters.
The appeal will be dismissed. I will hear the parties as to final orders.