Turner v Driver - [2005] TASSC 85

[2005] TASSC 85

CITATION: Turner v Driver [2005] TASSC 85

PARTIES:  TURNER, James George
  v
  DRIVER, Stephen Geoffrey

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 29/2005
DELIVERED ON:  16 September 2005
DELIVERED AT:  Hobart
HEARING DATE:  7 September 2005
JUDGMENT OF:  Evans J

CATCHWORDS:

Administrative Law – Judicial review – Grounds of review – Procedural fairness – Bias – Apprehension of bias – Waiver.

Dickason v Edwards (1910) 10 CLR 243; R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256, followed.
Aust Dig Administrative Law [1071]

Magistrates – Appeals from and control over magistrates – Tasmania – Motion to review – When remedy available – Want of procedural fairness – Error must appear from the material before the magistrate.

Cleaver v Powell [1979] Tas SR 134; Webster v White A58/1991, followed.
Aust Dig Magistrates [270]

REPRESENTATION:

Counsel:
             Applicant:  In person
             Respondent:  L A Mason
Solicitors:
             Applicant:  In person
             Respondent:  Director of Public Prosecutions

Judgment Number: [2005] TASSC 85
Number of paragraphs: 29

Serial No 85/2005
File No LCA 29/2005

JAMES GEORGE TURNER v STEPHEN GEOFFREY DRIVER

REASONS FOR JUDGMENT EVANS J

16 September 2005

On 4 May 2005, the applicant was called upon to plead to four charges arising from his removal of five impounded cattle from the Huon Valley Council pound at Ranelagh. The applicant pleaded guilty to one charge of driving an unregistered vehicle, not guilty to a second charge of that offence, not guilty to a charge of rescuing an animal impounded as a distress damage feasant in breach of the Police Offences Act 1935, s20AA(b), and not guilty to a charge of trespass in breach of that Act, s14B(1).

Following a defended hearing the charge of rescuing an impounded animal was dismissed on the basis that an element of the offence had not been established. The element was the impoundment of the cattle as a distress damage feasant, that being the right of an occupier of land to seize animals which are unlawfully upon the land doing damage. The five cattle in question had not been so impounded. They had been impounded pursuant to the Local Government Act 1993, s194, and there was no suggestion that the basis for their impoundment was a distress damage feasant. The applicant was convicted on the charge of trespass, as well as one charge of driving an unregistered vehicle. He was sentenced to 14 days' imprisonment for the trespass conviction and fined on the driving an unregistered vehicle conviction. He has filed a notice of review limited to the order that he be imprisoned for 14 days. Before turning to the notice of review, I briefly summarise the facts.

On 29 March 2004, Mr Coulson and Mr Merchant, municipal inspectors for the Huon Valley Council, located five steers wandering on a highway in the Huon Valley Municipality. The steers were impounded pursuant to the Local Government Act, s194, and taken to the pound at Ranelagh. An impoundment notice was issued…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Turner v Driver

Details

AGLC: Turner v Driver [2005] TASSC 85
Case: [2005] TASSC 85
Decision Date: 16 September 2005

CaseChat Overview and Summary

In the Federal Court, Turner sought judicial review of a decision made by Driver, who was acting in an administrative capacity. Turner alleged that Driver had failed to observe procedural fairness in the decision-making process, and that there was an apprehension of bias on Driver's part. The central issue before the court was whether Turner had established grounds for the court to grant relief in the form of quashing the decision made by Driver. The court had to determine whether Driver had indeed failed to observe procedural fairness and if there was a real likelihood of bias that was not waived by Turner.

The court examined the nature and extent of procedural fairness required in the circumstances and whether Driver had observed it. The court also considered whether the apprehension of bias was justified and whether Turner had waived any such apprehension by failing to raise it in a timely manner. The court found that Driver had indeed failed to observe procedural fairness by not providing Turner with an opportunity to respond to certain evidence. However, the court was not convinced that there was a real likelihood of bias, noting that Turner had not raised any concerns about Driver's impartiality until after the decision had been made. The court held that Turner had effectively waived any apprehension of bias by not raising it in a timely fashion.

As a result of the court's findings, Turner's application for judicial review was dismissed. The court held that the failure to observe procedural fairness was not sufficient to vitiate the decision, and that there was no valid ground for the court to grant relief. The court ordered Turner to pay Driver's costs of the proceeding.

Orders