Dart & Anor v Singer [2010] QCA 75

SUPREME COURT OF QUEENSLAND CITATION: Dart & Anor v Singer [2010] QCA 75 PARTIES: DART, Frederick William (first applicant) v SINGER, Clifford (respondent) HAJRIDIN, Megan Ann (second applicant) v SINGER, Clifford (respondent) FILE NO/S: CA No 21 of 2010 CA No 22 of 2010 DC No 452 of 2008 DIVISION: Court of Appeal PROCEEDING: Miscellaneous Application – Criminal ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 30 March 2010 DELIVERED AT: Brisbane HEARING DATE: 22 February 2010 JUDGES: McMurdo P, Fraser JA and P Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made ORDER: Applications refused CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL –PRACTICE AND PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – WHEN REFUSED – where the applicants pleaded guilty to a number of charges brought under the Animal Care and Protection Act 2001 (Qld) – where an order was made that certain animals be forfeited to the respondent – whether the Court can grant a stay in respect of that order – whether the Court can order that the respondent be prevented from parting with the property which it now has in the animals – whether the Court can order that the respondent be prevented from otherwise disposing of the animals Acts Interpretation Act 1954 (Qld), s 44 Animal Care and Protection Act 2001 (Qld), s 17, s 115, s 116, s 122, s 126, s 154, s 178, s 182, s 198, s 203, s 204, s 205 -- 1 of 10 -- 2 Justices Act 1886 (Qld), s 222 Uniform Civil Procedure Rules 1999 (Qld), r 250, r 761 Croney v Nand [1999] 2 Qd R 342; [1998] QCA 367 cited COUNSEL: The applicants appeared on their own behalf R Fryberg for the respondent SOLICITORS: The applicants appeared on their own behalf Roberts Nehmer McKee Lawyers for the respondent [1] McMURDO P: The applications for a stay of the orders made by the District Court on 11 December 2009 and to prevent the Royal Society for the Prevention of Cruelty to Animals from parting with property forfeited to it under the Townsville Magistrates Court order of 12 December 2008 should be refused for the reasons given by P Lyons J. [2] FRASER JA: I agree with the reasons for judgment of P Lyons J and the orders proposed by his Honour. [3] P LYONS J: The applicants pleaded guilty to a number of charges brought under the Animal Care and Protection Act 2001 (Qld) (ACP Act). Orders were made against them in that court on 12 December, including an order (the disposal order) that certain animals be forfeited to the Royal Society for the Prevention of Cruelty to Animals (RSPCA). The applicants then appealed to the District Court, where some orders were varied, but not the disposal order. The applicants have filed applications in this Court for extensions of time and for leave to appeal against the orders made in the District Court. In those applications, the applicants seek orders to prevent the RSPCA from parting with the property which it now has in the animals, or otherwise disposing of them. These reasons deal with the application for that relief, and for a stay of other orders made by the Courts below. Background [4] On 31 July 2008, RSPCA inspectors attended at premises where the applicants kept a number of animals, and executed a warrant under the ACP Act. The animals were in a shed, and were kept in what were considered by the inspectors to be unsanitary and inappropriate living conditions for the animals. The inspectors seized 113 live dogs, one cat, 488 rats, 73 mice, 12 guinea pigs and 11 birds. Veterinary examinations were carried out on most of the dogs, as a result of which treatment, of varying degrees of severity (including in one case euthanasia), was administered to 53 animals. [5] The respondent, an inspector appointed under the ACP Act, and the person who seems to have been responsible for obtaining and executing the warrant, brought charges by complaint and summons against the applicants. The charges were brought for an offence created by the ACP Act. Section 17(1) of that Act imposes on a person in charge of an animal, a duty of care to it; and s 17(2) creates the offence of breaching that duty of care. That was the offence with which the applicants were charged. [6] The complaints came on for hearing in the Magistrates Court at Townsville in the latter part of 2008. The applicants there pleaded guilty to the charges, and submissions were made by counsel for both parties about sentence and related -- 2 of 10 -- 3 orders. The Magistrate did not record a conviction. However, he placed the applicants on probation for two years. He made the disposal order which has previously been mentioned. He made an order that the applicants not purchase or otherwise acquire or take possession of a dog or rat for trade or commerce, for a period of two years. He fined each applicant the sum of $12,500. He ordered that the applicants pay the sum of $57,161.30 as costs incurred in taking possession of the animals, and providing them with accommodation and treatment, for the period up to 12 December 2008 (the costs order). [7] The applicants then appealed to the District Court against the orders made against them, including the disposal order. [8] The appeal was heard on 11 June 2009. Judgment was given on 11 December 2009. The amount of the costs order was reduced to $45,000. The fine of $12,500 against each applicant was reduced, in each case, to $5,000. Otherwise the appeal was dismissed, with costs. [9] On 13 January 2010, the applicants sent to the respondent unsealed copies of documents which they stated had been sent for filing to this Court. On 25 January 2010, the solicitors for the respondent wrote to the applicants, acknowledging receipt of the documents, and stating that their inquiries indicated that this Court had not accepted the documents for filing. The letter also advised that the RSPCA was dealing with the animals the subject of the disposal order, including finding homes for them. The applicants responded the following day, advising that the court had required some alterations to the documents, and that an application for an extension of time, and stay orders, would be sought. Their letter called on the RSPCA to take no action in respect of the animals, other than to keep them safe. The solicitors for the respondent replied stating that there was no legal requirement for the RSPCA to refrain from dealing with the animals; and that the RSPCA would continue to deal with the animals, as previously indicated. Further correspondence between the parties did not result in any change of position, hence the present application. Applicants’ position [10] The notice of appeal prepared by the applicants asserts that the learned District Court Judge erred in a number of respects, each related to an agreement between the RSPCA and the State of Queensland acting through the Department of Primary Industries and Fisheries (the DPI&F Agreement). This agreement was executed in November 2007, though the commencement date is said to be 1 July 2007. The applicants contend that it had the effect that the respondent had no power to obtain a search warrant, or to enter upon their property, or to deal with the animals there. They assert that by not disclosing the existence of the agreement to the Magistrates Court and the District Court, the respondent and the RSPCA “misled the Courts and perverted the course of justice”. Their written and oral submissions are generally to similar effect. For those reasons, they contend that orders should be made to preserve the position until their appeal is heard. Statutory background [11] It is convenient first to deal with the statutory provisions which regulate the prosecution proceedings against the applicants, and their rights of appeal. -- 3 of 10 -- 4 [12] An offence against the provisions of the ACP Act, such as an offence against s 17, is a summary offence.1 A proceeding for such an offence is a summary proceeding under the Justices Act 1886 (Qld).2 Provisions of the Justices Act deal with the conduct of such proceedings. They also include a right of appeal against an order made in such a proceeding. The appeal is to a District Court Judge; but a defendant who had pleaded guilty or who has admitted the truth of a complaint may only appeal “on the sole ground that a fine, penalty, forfeiture or punishment was excessive”.3 [13] Counsel for the respondent submitted that in fact the appeal to the District Court was brought under s 205 of the ACP Act. That section is found in Pt 4 of ch 7 of that Act. It seems to me that s 205 needs to be read in its context. [14] Part 4 of ch 7 commences with a provision dealing with appeals against an “original decision”. That expression is defined in the schedule, and refers generally to the exercise of powers expressly conferred by the ACP Act. It includes a decision to forfeit an animal, made by the Chief Executive under s 154 of the ACP Act. Part 4 then deals with a review of such decision by the Chief Executive, which is to result in a “review decision”, of which notice is to be given to the person who applied for it.4 The notice must advise the applicant that the applicant can appeal to the Magistrates Court. [15] Subsequent appeals are dealt with in Div 2 of Pt 4 of ch 7. Those provisions regulate the appeal against review decisions to the Magistrates Court, and state the power of the Magistrates Court when determining such an appeal.5 Division 2 of Pt 4 of ch 7 concludes with s 205, which is in the following terms: “205 Appeal to District Court An appeal lies to a District Court from a decision of the Magistrates Court, but only on a question of law.” [16] It seems to me to be relatively clear, from the analysis of the provisions just mentioned, that s 205 is intended to provide for an appeal against a decision made by a Magistrates Court under ss 203 and 204. It seems to me to be rather unlikely, given its context, that s 205 is intended to provide for and regulate an appeal in relation to summary proceedings under the Justices Act. That view is reinforced by another consideration. It seems to me to be relatively unlikely that an appeal against proceedings under the Justices Act which might result in a conviction, and the imposition of a penalty, would be restricted to an appeal limited to questions of law. In my view, the applicants’ right to appeal to the District Court arose under the Justices Act, specifically s 222. [17] It is also useful to note the provisions which regulate some of the powers exercised by the Magistrate. It will be apparent from what has been mentioned that a number of powers are conferred by the ACP Act on various persons. One of them is a power conferred on the Chief Executive to forfeit animals in certain cases. In addition, 1 See s 178(1) of the ACP Act. 2 See s 44 of the Acts Interpretation Act 1954 (Qld). 3 See s 222(2)(c) of the Justices Act. 4 See s 198 of the ACP Act. 5 See s 203. The Magistrates Court is given additional powers when determining such an appeal: see s 204. -- 4 of 10 -- 5 however, s 182 confers on the court power to order the disposal or forfeiture of an animal that was the subject of an offence. This section occurs in chapter 7, dealing with evidence and legal proceedings. It is located shortly after the section which provides that an offence against the ACP Act is a summary offence; and after some sections relating to the proceedings for such an offence. It is the only section which has been identified as a potential source of the Magistrate’s power to order forfeiture of animals. It is followed by sections relating to other powers conferred on a court. In context, it seems that s 182 gave the Magistrates Court the power to make the disposal order previously mentioned, a position apparently accepted by the parties in the courts below and here.6 Application for relief in relation to animals [18] The applicants are not legally represented. In their formal application they seek a suspension of the orders made in the District Court. However, their correspondence to the respondent’s solicitors indicated that they would seek to have the orders made in the Magistrates Court and the District Court “stayed” until their proceedings were finally determined. [19] An initial difficulty with their application was that it would affect the RSPCA, who was not a party to the application. However, Mr Fryberg of Counsel, who represented the respondent, announced that he had instructions to appear on behalf of the RSPCA, and made submissions on its behalf. [20] The applicants have not identified the source of power on which they rely for the relief sought. The respondent’s written submissions make reference to r 761 of the UCPR, which makes provision for a stay of the enforcement of a decision subject to an appeal. In my view, that does not provide a power to grant any effective relief in respect of the disposal order. As mentioned, the Magistrate’s power was conferred by s 182. The consequences for the making of the order are not specified by the legislation. That position is to be contrasted with the provisions of Subdivision 5, Div 4, Pt 2 of ch 6. They deal with the consequences of a forfeiture order made by the Chief Executive under s 154(2). Those provisions identify when the transfer of the animal takes effect; and how the animal might be dealt with thereafter, including restrictions on doing so when an appeal is current. Absent such provisions, it seems to me that the effect of the order was that property in the animals immediately vested pursuant to the order. [21] At the hearing, the possibility of relief by way of an injunction, or an order under r 250 of the Uniform Civil Procedure Rules (UCPR) was raised. However, it is not necessary for the disposition of these applications to consider the source of power to grant relief. [22] To the extent that the applicants seek a stay of the operation of the orders made against them, and for any other form of relief in respect to the animals which may potentially be available to them, it is necessary to give some consideration to their prospects of success on their proposed appeal.7 6 I note that a forfeiture order is usually made to the Crown. However s 182 extends to the disposal of animals, without restriction on the means of disposal, and in addition to forfeiture. It is not obvious that the order made by the Magistrate was beyond power. Since there have been no submissions from the parties about the scope of s 182, it is unnecessary to consider this matter further. 7 See Croney v Nand [1999] 2 Qd R 342, 344, 349. -- 5 of 10 -- 6 [23] The applicants’ argument on the proposed appeal is, stated shortly, that the RSPCA inspectors who obtained and executed the search warrant were acting beyond power; that they knew that to be so; and that the respondent in bringing the proceedings in the Magistrates Court acted fraudulently. It is therefore convenient to commence with a consideration of the power of an inspector to obtain a search warrant, and execute it. Statutory powers of inspectors [24] The ACP Act states that the functions of an inspector are “to investigate and enforce compliance with this Act”.8 An inspector may enter and stay at a place if the entry is authorised by a warrant.9 An inspector is authorised to apply for a warrant in respect of a place.10 In general, therefore, there can be no doubt that an inspector appointed under the ACP Act may apply for a warrant, and having obtained one, may enter a place. It is unnecessary to consider additional powers conferred on an inspector in relation to an entry carried out under the authority of a warrant. [25] The applicants argue that the inspectors who entered the premises in the present case, however, were subject to an express limitation of their powers, provision for which is made in s 116 of the ACP Act. Its effect is that the instrument of appointment of an inspector, or a notice signed by the Chief Executive, or a regulation, may limit an inspector’s function or powers under the ACP Act. The applicants argue that the powers of the RSPCA inspectors in the present case were so limited. The only matter on which they rely is the DPI&F Agreement. DPI&F Agreement [26] The principal provisions of the DPI&F Agreement on which the applicants rely are found in cl 13, which includes the following: “AREAS OF JURISDICTION 13.1 RSPCA Inspectors will have primary responsibility for enforcing the Act in relation to animals within urban, semi rural and rural areas. The agreed geographical boundaries are shown in Schedule 4. Within this jurisdiction the RSPCA will cover all animal welfare complaints (except as provided for in 13.2) including wildlife, zoos, greyhound racing, riding schools, pet shops and rodeos, but not feral nor commercial livestock. 13.2 Within this jurisdiction DPI&F Inspectors will have primary responsibility for enforcing the Act in relation to animals used in commercial livestock production ie where the keeping of such livestock is a significant or primary business of the person or organisation involved, and for feral livestock animals. DPI&F will also manage matters dealing with animals involved in standard bred and thoroughbred racing in consultation with the Office of Racing Regulation.” 8 See s 115. 9 See s 122(1)(c). 10 See s 126(1). -- 6 of 10 -- 7 [27] They also rely on the definition of “Commercial Livestock” found in cl 1, which is as follows: “Commercial Livestock” means more than ten livestock animals of the one species or more than 500 poultry and where the keeping of such livestock is a significant or primary business of the person or organisation but does not include wildlife, or animals kept in zoos, riding schools, pet shops or for greyhound racing or rodeos;” [28] The applicants say that they kept the animals for a business, and accordingly the animals were commercial livestock for the purposes of the agreement. They submit that the agreement constituted a document which was effective under s 116 to limit the powers of the inspectors. [29] Section 116 is as follows:- “116 Appointment conditions and limit on powers (1) An inspector holds office on any conditions stated in— (a) the inspector’s instrument of appointment; or (b) a signed notice given to the inspector; or (c) a regulation. (2) Without limiting subsection (1), the instrument of appointment, a signed notice given to the inspector or a regulation may— (a) limit the inspector’s functions or powers under this or another Act; or (b) require the inspector to give the chief executive stated information or a report about the performance of the inspector’s functions or the exercise of the inspector’s powers. (3) In this section— signed notice means a notice signed by the chief executive.” [30] There are a number of difficulties with the applicants’ submission. The agreement is plainly neither the instrument of appointment of an inspector, nor a regulation. Accordingly, it could only limit the powers of the respondent and other RSPCA inspectors if it were a notice signed by the chief executive, it had been given to each inspector, and it limited the powers of the inspector under the ACP Act. [31] The Agreement was made between the State of Queensland and the RSPCA. There is no evidence that the person who signed it on behalf of the State of Queensland was the chief executive. More significantly, there is no evidence whatever that the Agreement was given to any of the inspectors who acted in relation to the warrant. [32] Further, the Agreement does not indicate an intention to limit the powers of inspectors. An examination of the Agreement reveals that one of its important purposes is to enable the RSPCA to maintain a role in the enforcement of animal welfare legislation, and to obtain funding for that activity. Much of the Agreement -- 7 of 10 -- 8 therefore, seeks to define its relationship with the DPI&F; and to reconcile its enforcement role with its other activities. [33] Seen in the context of the agreement, cl 13 is concerned, not with limitations to be imposed on the powers of RSPCA inspectors, but rather with the areas of operation in which they would generally act. Thus, within a defined geographic area (the document defining that area is not included in the material relied on in the application), RSPCA inspectors are to have the primary responsibility for enforcing the Act, save in respect of feral and commercial livestock. In the same area, DPI&F inspectors are to have primary responsibility for enforcing the Act in relation to commercial livestock. The clauses are concerned, not with limitations on the power of inspectors, but with identifying the relative roles of the organisations. [34] Moreover, the expression used for this purpose is “primary responsibility”. It is not an expression that suggests that inspectors who do not have the primary responsibility for enforcement in respect of some animals are to be without any responsibility in respect of them. Still less does it suggest a limitation on their powers. Support for this view is to be found in cls 14 and 15. Clause 14 provides for either entity to seek assistance from the other; and cl 15 makes provision for the transfer of cases from one organisation to the other. That could not be done, in enforcement matters, if the powers of RSPCA inspectors were limited. [35] Moreover, the approach taken by the applicants rather suggests that in the field of operation where the RSPCA has primary responsibility, DPI&F inspectors would not be able to act. It seems intrinsically unlikely that that was the intention of the Agreement. [36] The alleged limitation on the powers of the RSPCA inspectors is a critical part of the applicants’ argument. It seems to me that it has no real prospect of success. Fraud allegations [37] To make out their fraud allegations, the applicants must show that the respondent knew of the existence and terms of the DPI&F Agreement; and that they believed it to have the effect for which the applicants contend. The applicants could point to no evidence which would support either proposition. Accordingly, they have failed to demonstrate that they have any prospect of success in their proposed appeals on any ground based on these allegations. In coming to that conclusion, it has not been necessary to give any consideration to the effect of s 222 (1)(c) of the Justices Act. Other considerations [38] The applicants have not sought to establish that if they comply with the orders for the payment of the fines and the costs order, and are ultimately successful in their appeals, they would not be able to recover the moneys paid. Nor have they provided evidence of significant financial hardship which would result from compliance with those orders. [39] The applicants assert that the animals which were the subject of the order made in the Magistrates Court are of considerable value. They also assert that they are the result of a breeding program carried out over many years. However, they acknowledged orally that there was a market for the animals, and have not provided -- 8 of 10 -- 9 any evidence to indicate that, if they were to be ultimately successful on their appeals, monetary compensation would not be an adequate remedy. [40] A consequence of granting the relief which the applicants seek is that the RSPCA would be required to maintain the animals until the determination of the appeal. On behalf of the RSPCA it was submitted that that is a reason why relief should be refused. The applicants submit that it is likely that the RSPCA has made arrangements for the voluntary care of the animals by others, so that it incurs little or no expense. No evidence was adduced by either party on this issue. [41] It was said against the applicants that they have not demonstrated that they are in a position where they could lawfully take possession of and care for the animals. It was accepted by the applicants that they do not yet have a permit which would allow them to keep the animals, although they have made an application for one. Refusal of relief [42] The application to this Court and the proposed notice of appeal identify a number of grounds which depend upon the applicants’ contentions as to the effect of the DPI&F Agreement, including a fraud allegation. These have already been discussed. The applicants also allege in those documents that the Magistrate erred in receiving unsigned statements into evidence. That ground was not argued on the application. Nor was it a ground of the appeal to the District Court. In those circumstances, there is no reason to think that the applicants have any prospect of success on this ground. The only other proposed ground of appeal relates to the fine, and not to the disposal order. In my view, the applicants’ prospects of success in their proposed appeal, so far as relevant to the disposal order, are such that relief in respect of this order should be refused. [43] Granting to the applicants any relief in respect of the animals would, in my view, mean that either the RSPCA or others are in a position where expenses incurred in maintaining the animals; and a state of uncertainty about the future of the animals would continue for some period of time. This provides some, though not particularly compelling, support for the decision to refuse this relief. [44] In relation to the stay of the costs order, the only matters argued were the effect of the DPI&F Agreement and the fraud allegation. For reasons already stated, I do not consider the applicants’ prospects of success on the appeal sufficient to warrant a stay. That conclusion is supported by the absence of any evidence of significant hardship which would follow from payment under the order, and the absence of any evidence to show that moneys paid could not be recovered, if the applicants were ultimately to conduct successful appeals. [45] In their application and proposed notice of appeal, the applicants also allege that the District Court Judge failed to consider whether a fine should have been imposed at all. This ground was not argued. It seems distinctly unpromising: his Honour set about considering what penalty should be imposed, which carries with it the question whether any fine should have been imposed. Success on this ground would not affect the disposal order. No basis has been established for granting a stay in respect of the fine. [46] It seems to me that it is unnecessary to give detailed consideration to the significance of the fact that the applicants do not have a permit necessary for them -- 9 of 10 -- 10 lawfully to keep the animals. The applicants do not seek an order that the animals be returned to them at this stage. That may be something they would seek in their proposed appeals, if they are able to pursue them. It seems to me to be premature to consider, therefore, what weight should be given to the fact that at this time, the applicants may lack some necessary permit or permits to enable them to retain the animals, or whether they are capable of making other arrangements for their proper and lawful care, a prospect not explored at the hearing of this application. [47] The debate about the consequences for the applicants of action which might be taken by the RSPCA in respect of the animals did not establish a firm basis for granting relief. However I do not treat that as a matter adverse to the applicants’ success, given that the applicants represented themselves, and that, properly advised, they may have established that action taken by the RSPCA as a consequence of the disposal order may not be able to be reversed, and that an order for some form of compensation may not be adequate to restore the position. [48] In my view, the applicants have failed to establish any real prospect of success in their proposed appeal on any basis which might affect the disposal order. They have not shown any basis for a stay of the costs order or the fine. For those reasons, relief should be refused. Conclusion [49] The applications should be refused. -- 10 of 10 --