Tseng v Brisbane City Council

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DISTRICT COURT OF QUEENSLAND

CITATION:

Tseng v Brisbane City Council [2021] QDC 293

PARTIES:

EN-TZU TSENG
(appellant)
v
BRISBANE CITY COUNCIL
(respondent)

FILE NO/S:

3358 of 2019

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

29 November 2021

DELIVERED AT:

District Court at Brisbane

HEARING DATE:

14 September 2020

JUDGE:

Sheridan DCJ

ORDER:

1.   Appeal dismissed.

2.   The appellant file and serve any submissions as to costs of no more than four pages in length by 10 December 2021.

3.   The respondent file and serve any submissions in reply as to costs of no more than four pages in length by 16 December 2021.
CATCHWORDS:

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where the appeal was brought pursuant to s 222 of the Justices Act 1886 (Qld) – where pursuant to s 7 of the Natural Assets Local Law 2003 (Qld) the appellant was convicted of 62 offences of having caused or permitted protected trees to be interfered with and two further offences of failing to comply with the Compliance Notice and failing to comply with the extended time for compliance – where  the appellant appeals against the decision – whether Magistrate was in error

City of Brisbane Act 2010 (Qld)
Evidence Act 1977 (Qld), s 95
Justices Act 1886 (Qld) s 222, s 223
Justices Regulation 2014 (Qld), sch 2
Natural Assets Local Law 2003 (Qld), s 2, s 3, s 7, s 35, s 39, s 40

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, cited
Brisbane City Council v Ashraf Ali Qureshi (unreported, Magistrate Cornack, Holland Park, 19 November 2018), cited
De Bray v Cohen; Macefield Pty Ltd v Cohen [2008] QDC 275, cited
Director General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137, cited
Dwyer v Calco Timbers [2008] HCA 13; (2008) 234 CLR 124, cited
Forrest v Commissioner of Police [2017] QCA 132, cited
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, cited
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, cited
McDonald v Queensland Police Service [2017] QCA 255; [2018] 2 Qd R 615, cited
Richard Thorn (Brisbane City Council) v 100% Treecycle Pty Ltd (unreported, Acting Magistrate Turra, Holland Park, 4 May 2018), cited
Richard Thorn (Brisbane City Council) v Southland Holdings Pty Ltd & Yi Lu (unreported, Acting Magistrate Turra, Holland Park, 21 June 2018), cited
S v The Queen [1989] HCA 66; (1989) 168 CLR 266, cited
Teelow v Commissioner of Police [2009] QCA 84; [2009] 2 Qd R 489, cited
Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77, cited
Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, cited
White v Commissioner of Police [2014] QCA 121, cited
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, cited
SOLICITORS: Self-represented for the appellant
M…
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Details
Case
[2021] QDC 293
Decision Date

CaseChat Overview and Summary

In the Magistrates Court of Queensland, Tseng was convicted of 62 offences under the Natural Assets Local Law 2003 (Qld) for causing or permitting protected trees to be interfered with, as well as two additional offences for failing to comply with a Compliance Notice and an extended time for compliance. The Brisbane City Council brought the charges against Tseng after receiving a complaint that protected trees on Tseng's property had been felled. The case has been appealed by Tseng, who challenges the magistrate's decision. The central legal issues in the appeal revolve around whether the magistrate erred in their interpretation of the law, particularly in relation to the validity of the certificate and the evidence presented regarding the felling of the trees. Additionally, the appeal questions whether the magistrate correctly applied the law when considering the appellant's submissions.

The court found that the appellant did not challenge the validity of the certificate and its attachments, and therefore, these were not in dispute. The evidence presented included testimonies from various council officers who observed the felling of trees on the property. Notably, Ms Cruttenden and Ms Sciortino provided accounts of the trees being knocked over, while Mr Pulley, who made the initial complaint, did not witness the act of felling but observed the aftermath. The court also considered the evidence from Mr Morris, who interviewed Tseng and explained the legal basis for the charges. The magistrate's decision was based on the evidence and the law as applied, and the court found no error in the magistrate's reasoning or application of the law.

The appeal was dismissed, and the court ordered the appellant to submit written arguments on costs by 10 December 2021, with the respondent to reply by 16 December 2021. The court's decision upheld the convictions, and the focus now shifts to the costs associated with the appeal process.

Orders

Orders of the court

1. Appeal dismissed.

2. The appellant file and serve any submissions as to costs of no more than four pages in length by 10 December 2021.

3. The respondent file and serve any submissions in reply as to costs of no more than four pages in length by 16 December 2021.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The validity of the certificate including the attachments to the certificate was not challenged either in this court or below.Evidence as to commission of the offences The alleged felling of a number of trees on the Property is said to have occurred over the weekend of 26 November 2016. A complaint was made to the Council through the online system on 29 November 2016. The complaint was made by Mr Pulley who was employed at the time by the Scenic Rim Regional Council, as a natural resource officer, Environmental Planning. Mr Pulley gave evidence of driving past the Property on Friday, 25 November 2016, and of the Property being heavily vegetated with gum trees and the like, and then of driving past the next day, Saturday, 26 November 2016, at around midday, and noticing that trees had been felled. Mr Pulley’s evidence was that over the past two years he regularly drove past the Property on his way to and from work. On the Saturday he was driving past on his way to a friend’s house. In giving evidence, Mr Pulley confirmed that he did not witness the felling of any trees. Evidence was also given by Ms Cruttenden, an employee of the Council working in the Natural Environment Team, of having observed early on Tuesday, 29 November 2016, all of the very large trees having been pushed over on the Property. Ms Cruttenden was attending Council land, adjoining the Property, to conduct the monthly audit of the weed management program on that land. The officer gave evidence of having taken photographs of the trees; which were subsequently tendered. Evidence was given also by another Council officer, Ms Sciortino, who was dispatched by the Council on 29 November 2016 to attend the Property following receipt of the complaint. Ms Sciortino gave evidence of having observed a number of trees knocked over and lying on the ground and of having taken photographs of the trees from the western side of the Property; though she said she did not know how long the trees had been on the ground. The photographs were tendered as an exhibit. At the time of attending the Property, the officer did not go on to the Property, nor observe anyone at the Property. Two Council officers, Mr Morris and Ms Hume, gave evidence of attending the Property on 30 November 2016 and again on 6 December 2016. Both Mr Morris and Ms Hume were senior natural environmental officers with bachelor’s degrees in environmental science and were authorised officers under NALL to carry out the investigation. Mr Morris had a major in ecology and gave evidence of having undertaken botanical identification courses at university and plant identification courses at the Queensland Herbarium and of having previously worked as an ecologist. Mr Morris gave evidence of having a conversation on 30 November 2016 at the Property with Ms Tseng. Ms Hume was present but did not give any evidence as to the contents of the conversation. Prior to having any discussion with Ms Tseng, Mr Morris advised Ms Tseng of her right to silence and told Ms Tseng that any information which she provided verbally may be used as evidence in court. Ms Tseng was told that they wished to discuss with her the recent works to cut the trees down. Ms Tseng was told that based on the mapping there was protected vegetation and, despite the applications for a permit submitted by her, there was no valid permit to allow this interference and as such they thought that an offence has occurred under the NALL.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.