Brisbane City Council v Happy Scrappy Recycling Pty Ltd; Brisbane City Council v Musawi [2023] QDC 226

DISTRICT COURT OF QUEENSLAND CITATION: Brisbane City Council v Happy Scrappy Recycling Pty Ltd; Brisbane City Council v Musawi [2023] QDC 226 PARTIES: BRISBANE CITY COUNCIL (Appellant) v HAPPY SCRAPPY RECYCLING PTY LTD (Respondent) BRISBANE CITY COUNCIL (Appellant) v SYED MEHDI MUSAWI (Respondent) FILE NO: 1709/23 and 2297/23 DIVISION: Appellate PROCEEDING: s 222 Justices Act Appeal ORIGINATING COURT: Richlands Magistrates Court DELIVERED ON: 6 December 2023 DELIVERED AT: Brisbane HEARING DATE: 24 November 2023 JUDGE: Richards DCJ ORDER: The appeal is allowed. The orders set aside. The matter is remitted to the Brisbane Magistrates Court for hearing by a Magistrate other than the original Magistrate that heard this matter. The Court is to arrange for an interpreter to be provided to the respondent. CATCHWORDS: CRIMINAL LAW - APPEAL PURSUANT TO THE JUSTICES ACT 1886 s 222 – APPEAL AGAINST DISMISSAL OF CHARGES – where the respondents were charged with offences under the Planning Act 2016 – where at the mention of the matter the Magistrate provided two dates of the commencement of the trial – where the appellant failed to appear at the trial – whether the Magistrate should have dismissed the charges for failure to appear LEGISLATION: Justices Act 1886 s 147, s 222, s 225. CASES: Williamson v ADG Engineers (Aust) Pty Ltd [2018] QDC 195. -- 1 of 8 -- 2 Shield v Topliner Pty Ltd; Shield v Eaton [2004] QCA 476. COUNSEL: Daniel Caruana for the appellant The respondent is self-represented and appeared on behalf of both respondents SOLICITORS: City Legal for the appellant The respondent is self-represented and appeared on behalf of both respondents Introduction [1] The respondents were charged on 23 March 2023 with offences against the Planning Act 2016. Happy Scrappy Recycling Pty Ltd was charged with contravening an enforcement notice1 and Mr Musawi was charged with failing to take reasonable steps to ensure that Happy Scrappy Recycling complied with that notice.2 Both matters came on for mention on 16 May 2023 and they were adjourned for trial to 12 July 2023. [2] Unfortunately, there was some confusion about the trial date. During the mention the following exchange took place:3 “His Honour: Then we will list the matters for trial. Defendant: No, I just need an interpreter, I can – I have one [indistinct] His Honour: How many witnesses will there be Mr Spencer? Mr Spencer: Probably two, your Honour. His Honour: Right. Well, Mr Musawi, the charges are adjourned to this court at 9am on the 20th of July for trial”. However, later in the hearing His Honour said4, “The trial for both the company and for you is on the 12th of July. The brief is to be available by the 20th of June. City Council, I imagine will - how will- how will you give it to him?”. Some further discussion followed about disclosure of the brief and the defendants’ need for an 1 Planning Act 2016 (Qld) s 168(5). 2 Planning Act 2016 (Qld) s 227(1). 3 Transcript of proceedings dated 16 May 2023, 1-3, ll 1-12. 4 Transcript of proceedings dated 16 May 2023, 1-4, ll 40-42. -- 2 of 8 -- 3 interpreter and legal representation. The transcript concludes with a note that the matters were adjourned at 9.19 am until Thursday, 20 July 2023.5 [3] Mr Musawi was required to sign a bail undertaking and was advised of the adjournment date of 12 July 2023. Happy Scrappy Recycling Pty Ltd was sent a notice of adjournment requiring an appearance at 9.00 am on 12 July 2023 at the Richlands Magistrates Court. At 9.51am on that date the Respondents were present in the Court, but the Brisbane City Council did not appear. Their names had been called on nine occasions and the Magistrate then gave this judgment:6 “As there is no appearance by the prosecution each of the charges in respect of Happy Scrappy Recycling are dismissed for want of prosecution and in relation to the charge against you it is also dismissed for want of prosecution so you are discharged you can go thank you.” Application for Fresh Evidence [4] At the hearing of this appeal the appellant sought to tender an affidavit of Mr Spencer to explain why the appellant did not appear on 12 July. This is on the basis that there is a residual discretion under s 225 of the Justices Act 1886 whether to confirm, set aside or vary an appealed order or make any other order as is considered just. It is argued by the appellant that this provides an explanation for the failure to appear. Counsel for the appellant fairly points out that a similar explanation was refused in the case of Williamson v ADG Engineers (Aust) Pty Ltd [2018] QDC 195. In that case His Honour Judge Lynch KC noted7: “The new evidence in this case amounts to no more than an explanation of the circumstances which led to the failure by the prosecution to appear at the first return date of the complaint. The reasons for the non-appearance can be described as a simple mistake. The Magistrate did not seek any explanation or make any enquiry which might have established any reason. Instead, the Magistrate acted solely upon the fact of the non-appearance in ordering the complaint be struck out. That might suggest the Magistrate acted hastily or without due consideration; however, the explanation now available was not a factor in his doing so. It is common ground that the real issue on this appeal is whether the order dismissing the complaint was authorised by the terms of s 141 of the Justices Act. It follows the actual explanation for non-appearance is irrelevant to the question 5 Transcript of proceedings dated 16 May 2023, 1-6, l 25. 6 Transcript of decision dated 12 July 2023. 7 Williamson v ADG Engineers (Aust) Pty Ltd [2018] QDC 195 at [13]. -- 3 of 8 -- 4 whether the Magistrate was in error. And, since the real question is whether the dismissal based solely on the non-appearance was in accordance with the provision, the explanation does not of itself demonstrate a miscarriage of justice.” [5] In the circumstances of this particular case and given what transpired at the first mention of the matters, it is not necessary to take further evidence and in my view it would not be appropriate to do so for the reasons outlined by Judge Lynch KC in Williamson. The Appeal [6] The nature of this appeal is by rehearing on the evidence given before the Magistrate.8 Where an error has been demonstrated, the powers on hearing the appeal are set out in s 225 of the Justices Act as follows: “(1) On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just. (2) If the judge sets aside an order, the judge may send the proceeding back to whoever made the order or to any Magistrates Court with directions of any kind for the further conduct of the proceedings including, for example, directions for rehearing or reconsideration. (3) For subsection (1), the judge may exercise any power that could have been exercised by whoever made the order appealed against.” [7] In arguing this appeal, the appellant relies heavily on the case of Shield v Topliner Pty Ltd; Shield v Eaton [2004] QCA 476. That case involved a prosecution under the Fisheries Act 1994 and the respondents were charged by complaints returnable before the Magistrates Court at Redcliffe. Over a period of 10 months there were appearances in that Court at which both the complainant and the defendants were represented but the complaints were not able to be heard as two days were needed for the hearing. Eventually the parties agreed that the matter should be transferred to the Magistrates Court in Brisbane where there were better prospects of the complaints being heard. 8 Justices Act 1886 s 223(1). -- 4 of 8 -- 5 [8] On 12 December 2023 the first mention in Brisbane occurred. However, the complainant did not appear. The defendant’s solicitor applied for the complaints to be dismissed for want of prosecution. The Magistrate granted the application, dismissed the complaint, and ordered the complainant pay costs fixed in the sum of $250. [9] On 21 January 2004 the complainants applied to have those orders set aside on the basis that the matter was a mention, was not set down for hearing and an email had been sent to the court indicating that the non-appearance was due to an oversight on the part of a junior officer who had not entered the mention date in the office diary. The Magistrate held that it would be a denial of natural justice to the complainant to allow the order to remain and he set aside the order dismissing the complaints but not the order for payment of the defendant’s costs. [10] In the meantime, the complainant also lodged an appeal to the District Court on 13 January 2004 against the decision dismissing the complaints on 12 December 2003. That appeal was dismissed in the District Court and appealed to the Court of Appeal. The principal question argued in the District Court was the power of the Magistrate to dismiss the complaints. It was held in that case by McPherson JA as he then was:9 “It is, of course, true that, as the magistrate said, it is not the duty of a court to communicate with absent litigants to find out why they have not appeared. It is, however, another matter to say that their proceedings should be peremptorily dismissed for failing to do so. Even if there is in such circumstances a power under the Justices Act to dismiss the complaint, the magistrate ought not, in my opinion, to have exercised it in the circumstances here. He should on this occasion have followed the course called for in James v Williams of adjourning the complaints to another date for mention, and of ordering the complainant to pay the respondents’ costs thrown away by the adjournment on 12 December. Predictably, taking that course would have alerted the complainant to the oversight that had taken place and discouraged the Department from making the same mistake again.” Further he noted10: “The question was not whether he had power under s 147 of the Justices Act to dismiss the complaints on 12 December 2003; but whether in doing so he exercised it properly on the ground that the 9 Shield v Topliner Pty Ltd; Shield v Eaton [2004] QCA 476 at [11]. 10 Ibid at [14]. -- 5 of 8 -- 6 complainant had without explanation failed to appear on the mention fixed for that day. For the reasons I have given, it was in my opinion a wrong exercise of his discretion to dismiss the complaints as he did instead of either adjourning them for mention to a later date, or else proceeding to assign dates for hearing the complaints, doing so without further reference to the complainant. It was not shown or suggested that any delay involved in adjourning the date for mention would have caused prejudice to the defendants that could not have been met by an appropriate order for costs.” [11] The situation in this case is slightly different from Topliner because the date on which the Magistrate dismissed these complaints was the date set for trial. The Magistrate clearly had the power to strike out the complaint. However, in this particular case, the Magistrate had given two different dates for the hearing. It is likely he was not aware of his mistake however; in those circumstances it is understandable that a mistake may have been made by the complainant. [12] It is accepted that the Court does not have a duty to chase litigants, however in a case where the prosecution has been brought by a local authority, it is reasonable to assume that a non-appearance at a trial hearing date is likely to be an error or some emergent situation. This was the second appearance. The Council had appeared by its solicitor on 12 May. It would be unusual for there to be no appearance and no explanation for that non-appearance by the complainant in those circumstances. There was no evidence that the complainant had previously ignored court orders or missed deadlines for the matters before the Court. [13] There were no submissions made by the respondent applying to dismiss the complaints. The Magistrate in doing so did not give any reasons for the dismissal other than noting the non-appearance at Court. [14] The respondent who appeared at this appeal has made his submissions in writing and spoken through an interpreter to argue that he understood that he should appear on the 12th of July and he that was given a notice of adjournment to indicate that he had to appear on that day. He also pointed out that he had been charged earlier in 2019 before the same Magistrate and had been called away to look after his sick mother and the Magistrate proceeded in his absence and fined him $22,000.11 Basically, his 11 Transcript of proceedings 24 November 2023, 1-10 ll 21-28. -- 6 of 8 -- 7 argument is that the same thing happened to him and therefore the appeal should be dismissed. [15] I do not accept the decision it is as easy as that. The fact that he may have been treated in the same manner does not mean that the procedure here was fair. I accept that the Magistrate had the power to proceed pursuant to s 147 of the Justices Act 1886. If there was not the confusion about the date for trial, the Magistrate would have been entitled, given that the matters were set down for hearing, to dismiss the complaint. However, it is obvious that there was confusion caused by the Magistrate in relation to the trial date. Even the Court transcription service noted that the matters were adjourned to 20th of July. In those circumstances it appears that the order must be set aside. Decision [16] Section 225(2) of the Justices Act enables the Court to make directions for the further conduct of the proceedings. I note at the first hearing of this matter Mr Musawi asked for an interpreter. He said to the Court, “I can’t speak English properly. I need an interpreter.” To which his Honour replied, “We don’t have one just here right this second. It seems you can speak English well enough.” He said, “I can but not really good.” His Honour, “Well that’s, I think you can speak it just fine”. The Magistrate then inquired into t whether Mr Musawi was going to plead guilty or not guilty. The defendant repeated his request an interpreter, but the Magistrate essentially ignored that request. The following exchange followed:12 “His Honour: Don’t turn up here and say, “I need an interpreter.” It’s up to you to get advice to be legally represented here for your trial. Defendant: No, no, no. I can’t afford because I’m not working. His Honour Well you’re going to have to. Defendant: I - I am not working. His Honour Right. Defendant: And I need - It’s everything I had, my own self. His Honour Yes. Defendant: I’m jobless now. 12 Transcript of proceedings dated 16 May 2023, 1-3 to 1-4. -- 7 of 8 -- 8 His Honour: Okay. Well --- Defendant: So, I’m just needing to prove that I have --- His Honour: Then - if you don’t get a lawyer, you’ll be representing yourself at the trial. Okay? So that’s - whether you have a lawyer or you don’t have a lawyer is entirely - -- Defendant: I can’t afford a lawyer. His Honour: Just listen to me. Whether you have a lawyer or you don’t have a lawyer is entirely up to you but that isn’t going to terminate the prosecution that you don’t. You represent yourself.” [17] His Honour was clearly on notice that an interpreter was required by the respondent. He was also aware that the respondent was not able to afford a lawyer, so had to represent himself. The use of an interpreter was thus relevant to his ability to properly represent himself against this criminal prosecution. When the respondent appeared before me it became clear that English is very much his second language and although he can speak it, he has difficulty finding words at times and the use of an interpreter at trial, particularly where he is representing himself, would have been essential. If the matter is to return to the Court for rehearing, then the Court will need to appoint an interpreter. [18] Given the Magistrate’s attitude to the difficulties the respondent had with English, it would not be appropriate for his Honour to hear this matter. After hearing submissions from the appellant, I propose to transfer theses matters to the Brisbane Magistrate Court for hearing and order that an interpreter be provided for the respondent. Order [19] The appeal is allowed. The orders set aside. The matter is remitted to the Brisbane Magistrates Court for hearing by a Magistrate other than the original Magistrate that heard this matter. The Court is to arrange for an interpreter to be provided to the respondent. -- 8 of 8 --