Edwards v Jenkins [2017] QCA 298

SUPREME COURT OF QUEENSLAND CITATION: Edwards v Jenkins & Ors [2017] QCA 298 PARTIES: ANDREW DARCY EDWARDS (applicant) v CHAD DOUGLAS JENKINS (first respondent) DONALD KYM WILLIAMS (second respondent) COLIN LAWRENCE WARD (third respondent) WILLIAM RUSSELL TOMLINSON (fourth respondent) FILE NO/S: Appeal No 5757 of 2017 DC No 6 of 2016 DIVISION: Court of Appeal PROCEEDING: Application for Leave s 118 DCA (Civil) ORIGINATING COURT: District Court at Brisbane – [2017] QDC 135 (Butler SC DCJ) DELIVERED ON: 5 December 2017 DELIVERED AT: Brisbane HEARING DATE: 12 October 2017 JUDGES: Fraser and McMurdo JJA and Jackson J ORDERS: 1. The application for leave is dismissed. 2. The applicant is ordered to pay the second to fourth respondent’s costs of the application for leave to appeal to this court to be assessed on the standard basis. CATCHWORDS: APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where the first respondent applied to have the ownership of cattle determined under s 694 of the Police Powers and Responsibilities Act 2000 (Qld) – where the Magistrates Court at Roma ordered that the cattle be sold and the net proceeds distributed between the applicant and the second to fourth respondents – where the applicant appealed the decision to the District Court – where the District Court refused leave to appeal and dismissed the appeal – where the applicant applied for leave to appeal that decision to this Court – whether leave to appeal should be granted -- 1 of 5 -- 2 COUNSEL: The applicant appeared on his own behalf C J Capper (sol) for the first respondent D Caruana for the second to fourth respondents SOLICITORS: The applicant appeared on his own behalf QPS Legal Unit for the first respondent Robert Bax & Associates for the second to fourth respondents [1] FRASER JA: I agree with the reasons for judgment of Jackson J and the orders proposed by his Honour. [2] McMURDO JA: I agree with Jackson J. [3] JACKSON J: The applicant applies for leave to appeal1 from orders of the District Court2 dismissing his application for leave to appeal and appeal from the Magistrates Court to the District Court.3 Accordingly, the leave sought is from a judgment of the District Court in its appellate jurisdiction. [4] On 10 May 2016, the first respondent applied to have the ownership of 23 cattle determined.4 The parties to this proceeding were those potentially interested in that question, except for the first respondent, who is a police officer. [5] On 29 August 2016, the Magistrates Court at Roma decided to refuse5 an application by the appellant to have the respondents and other police officers as deponents who had sworn affidavits available for cross-examination on the hearing of the application to determine ownership of the cattle. [6] On 1 September 2016, the Magistrates Court at Roma ordered that the first respondent sell the cattle or cause them to be sold at auction at the Roma Sale Yards together with any offspring and to meet all proper necessary and reasonable expenses of maintaining the cattle from the proceeds of the sale. Any net proceeds were ordered to be distributed equally among the parties to this proceeding except the first respondent. The Magistrates Court ordered that the applicant pay the costs of the other parties. [7] On 12 May 2017, the District Court refused the applicant leave to appeal and dismissed his appeal from the orders made by the Magistrates Court. The District Court ordered the applicant to pay the costs of the appeal.6 [8] Although there were six grounds of appeal to the District Court from the orders of the Magistrates Court, the applicant directed his oral submissions in the District Court to two grounds, namely that the magistrate erred by not allowing him to cross-examine witnesses and that the magistrate erred in making a costs order. [9] The District Court held that the applicant required leave to appeal to the District Court because the amount involved in the application was under the minor civil dispute limit of $25,000.7 However, in any event, the District Court proceeded to consider the substance of the grounds of appeal advanced by the applicant. 1 District Court of Queensland Act 1967 (Qld), s 118(3). 2 Edwards v Jenkins [2017] QDC 135. 3 Magistrates Courts Act 1921 (Qld), s 45(1) and (2). 4 Police Powers and Responsibilities Act 2000 (Qld), s 694. 5 The Magistrate relied upon Uniform Civil Procedure Rules, r 390. However, on appeal, the District Court held that the correct rule was Uniform Civil Procedure Rules, r 439. 6 Edwards v Jenkins [2017] QDC 135. 7 Edwards v Jenkins [2017] QDC 135, [19]; Magistrates Courts Act 1921 (Qld), s 45(1)(a) and (2). -- 2 of 5 -- 3 [10] On the question of cross-examination, the Magistrate’s Court had held that the court’s enquiry was directed only to the issue of who was the owner of the cattle and that the cross-examination that the applicant wished to conduct did not go to that issue. The District Court held that it was satisfied that the learned Magistrate was correct in concluding that the proceeding was not a general enquiry as to actions, reasons, legality or illegality in relation to how the cattle were mustered on 13 January 2016 and were taken to the Roma sale yards.8 [11] Notwithstanding that finding, the District Court considered for itself some of the applicant’s complaints about how the muster was conducted. The learned Judge concluded that they had no obvious relevance to the issue of ownership.9 His Honour further considered the appellant’s submissions that the probability was that the animals were progeny of his branded cattle.10 The learned Judge concluded that the best that could be said was that there was a possibility that a number of the cattle were the progeny of the applicant’s animals but it was not possible to say which of them were the applicant’s property.11 [12] The District Court concluded, therefore, that while it was possible that the 23 cattle were the progeny of the applicant’s cattle, there were competing inferences that some or all of them were cattle belonging to others.12 The learned Judge held that the Magistrate had not erred in concluding that ownership of the animals could not be determined on the balance of probabilities.13 [13] Next, the District Court held that the order for disposal of the proceeds made by the magistrate was within the scope of the Magistrate's discretion and that the District Court could not detect error in the exercise of discretion in that regard. While the Magistrate may have taken the course of distributing the proceeds by assessment of the overall probabilities of ownership of the animals it was within discretion to order disposal of the proceeds as he did.14 [14] Last, the District Court held that the order as to costs made by the Magistrate’s Court was made in the exercise of discretion and that the learned Magistrate did not err in coming to the view that the proceeding would have been unnecessary but for the actions of the applicant, given that each of the other persons potentially interested in the cattle conceded that they could not establish their ownership of the cattle to the degree required.15 [15] It is uncontroversial that leave to appeal by this court in a case such as this will not be granted unless there is an important point of law or question of general public importance or where leave is necessary to correct a substantial injustice to an applicant, there being a reasonable argument that there is an error to be corrected.16 [16] Generally speaking, the error must be identified, and the question to be decided should be the matter of importance or raise the substantial injustice. 8 Edwards v Jenkins [2017] QDC 135, [26]-[27]. 9 Edwards v Jenkins [2017] QDC 135, [30]. 10 Edwards v Jenkins [2017] QDC 135, [31]. 11 Edwards v Jenkins [2017] QDC 135, [32]. 12 Edwards v Jenkins [2017] QDC 135, [36]. 13 Edwards v Jenkins [2017] QDC 135, [36]. 14 Edwards v Jenkins [2017] QDC 135, [41]. 15 Edwards v Jenkins [2017] QDC 135, [45]. 16 Aguilar & Anor v Egnalig [2017] QCA 175, [31]. -- 3 of 5 -- 4 [17] The applicant does not identify any specific error in the reasoning of the learned Judge, with one possible exception. The possible exception concerns the value of the cattle which were the subject of the proceeding in the Magistrates Court. The applicant contends that it was just over the $25,000 limit for a minor civil dispute. [18] The District Court did not dispose of the applicant’s appeal on the footing that leave to appeal should not be granted, without consideration of the substance of the grounds of the applicant’s appeal from the Magistrates Court. [19] On the contrary, the learned Judge considered the appeals and gave detailed reasons for rejecting each of the grounds of appeal that were to be pressed. [20] However, whether or not leave to appeal was required for an appeal to the District Court, there is no question that leave to appeal is required for an appeal to this court from the District Court’s judgment. [21] When considering the question of whether this court should grant leave to appeal it cannot be ignored that the subject matter of the dispute was, on any view, worth no more than about $25,000 (and possibly less because of sale expenses and expenses of maintenance) and that before coming to this court the applicant has had the benefit of a full hearing both at first instance before the Magistrates Court and on appeal before the District Court. [22] In such circumstances, before a grant of leave to appeal is made by this court “[a]n applicant should at least ‘come to grips with … the task of showing how’ the reasoning of the District Court judge is wrong.”17 [23] In my view, the applicant has failed to do that. There is no matter of general public importance raised and no other substantial injustice which would justify a grant of leave, beyond the applicant’s sense of grievance. [24] Accordingly, in my view, the application for leave to appeal should be dismissed. [25] The second, third and fourth respondents seek an order that the applicant pay their costs of the application to be assessed on the indemnity basis. [26] A similar application for an order for costs to be assessed on the indemnity basis was made by these respondents to the District Court in respect of the costs of the appeal to that court. The respondents made a Calderbank offer18 before the appeal to the District Court, requesting that the applicant discontinue the appeal and advising they would not seek a costs order in the event he did so. The District Court refused to order that the costs be assessed on the indemnity basis because it was not satisfied there were special or unusual features to justify the award of indemnity costs. [27] The careful and detailed reasons of the District Court for dismissing the appeal to that court clearly informed the applicant why he had extremely limited prospects of success for an appeal to this court. [28] Despite the applicant’s continuing sense of grievance at the Magistrate’s refusal of his application to cross-examine the deponents, the grounds of the application for leave to appeal raised nothing new, except for the point about whether the cattle were 17 Smith v Woodward [2009] QCA 119, [16]. 18 Kitchen v Vision Eye Institute Ltd & Anor [2017] QCA 32. -- 4 of 5 -- 5 worth in excess of $25,000. But for that point, in the circumstances of this particular case, it might have been appropriate to order that the applicant pay the costs of the second to fourth respondents of the application to be assessed on the indemnity basis. [29] In the result, in my view, the applicant should be ordered to pay the second to fourth respondent’s costs of the application for leave to appeal to this court to be assessed on the standard basis. -- 5 of 5 --