Batistic & Anor v Caboolture Shire Council [2006] QDC 280

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[2006] QDC 280 DISTRICT COURT CIVIL JURISDICTION JUDGE ROBIN QC No BD 4355 of 2005 EVAN BATISTIC and REBECCA BATISTIC First Appellant Second Appellant and CABOOLTURE SHIRE COUNCIL Respondent BRISBANE ..DATE 14/07/2006 ORDER CATCHWORDS: Appeal from Magistrate to District Court - appeal dismissed with costs when appellants failed to appear - concern that penalties imposed on appellants as owners for maintaining a defective septic system may have been excessive, in that each of 2 co-owners may have separately been fined the same amount as a single owner would have faced. -- 1 of 7 -- 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This is an appeal by Mr and Mrs Batistic against their conviction by a Magistrate at Caboolture for offences under the Standard Sewerage Law. Is that right? MR ANDREW: Under the Plumbing and Drainage Act 2002, your Honour - section 102(1). HIS HONOUR: Thank you. They had what used to be called a "septic system" on their property that repeatedly, when testing occurred, was found to have failed to comply with the standards set for health reasons. The excedences of concerning concentrations of unwelcome organisms were gross. As has been replicated today, the appellants did not turn up for the hearing in the Magistrates Court on the 28th of October 2005. The Magistrate, Mr Allingham had announced his determination, the matter having proceeded in their absence, when Mrs Batistic suddenly appeared, indicating she knew of the scheduled 9 a.m. starting time but had been held up by attending to her children's' needs; her husband was at work - the Magistrate gave her a fair opportunity to present her case. Essentially, it was that she and her husband had engaged the services of a plumber whose name appeared on a list kept by the Council, who provided a service each three months. The -- 2 of 7 -- 14072006 T16/KLN16 M/T CMS79/2006 (Robin DCJ) 3 ORDER 1 10 20 30 40 50 60 Magistrate's approach was that those circumstances did not entitle the appellants to be relieved from their statutory obligations (which, it should not be forgotten, relate to the health of the general community) by use of that plumber and that the time had arrived and well and truly passed for engaging the services of some more effective tradesman. In deference to what he had heard, his Honour revised the orders he had proposed by which each of the appellants was fined $2,750. That is $250 for each of the unsatisfactory tests made by appropriate Council officers. The discount allowed cut $250 off the fine imposed on each of the appellants, reducing it to $2,500, for a total of $5,000. Default imprisonment periods were set, placing each of the appellants at risk of being locked up for 50 days. There was also a significant order for costs. In that regard, Mrs Batistic had some success as well, her submissions about costs allowed for mentions or adjournments leading the Magistrate not to allow two separate amounts of $250 which he had originally intended to include in the costs award. There is more default imprisonment attaching to the costs. As far as the appeal is concerned, this was instituted by a solicitor giving an address at 53 Martin Place, Sydney. The notice of appeal also identifies the appellants' address which is that where the events occurred. The Court file contains copies of the notices which the Deputy Registrar sent on 14th of June 2006 to the parties, using the residential address of -- 3 of 7 -- 14072006 T16/KLN16 M/T CMS79/2006 (Robin DCJ) 4 ORDER 1 10 20 30 40 50 60 the appellants. The letter to the Council's solicitors was delivered; indeed, it was shown to the Court today. There is not anywhere on the file, as one frequently encounters, anything to indicate that the letter to the appellants was not delivered. They may be treated, unless the contrary is made to appear on some future occasion, as having received notice of today's hearing. As Mr Andrew for the Council has said, given what happened before the Magistrate, the appellants should be more alive than the ordinary litigant to the importance of turning up for a Court hearing of which they have notice, and, particularly, when the hearing is of a proceeding instituted by them. The ordinary fate of an appeal in these circumstances is that it be dismissed with costs and that is the order the Court will make. There is some possibility that the appellants, if they have appropriate grounds, may seek to be heard. I have thought it appropriate to note some features of the situation. In the belated outline of argument as supplied by the appellants, correspondence to the Registrar about which indicates that they took an active role in the appeal (not relying on the Sydney solicitor), the point made is that a licence for the septic system is curious in respect of its date given that the appellants are the licensees and that the date is a couple of years before they became owners of the -- 4 of 7 -- 14072006 T16/KLN16 M/T CMS79/2006 (Robin DCJ) 5 ORDER 1 10 20 30 40 50 60 property. The latter date appears to have been based on Titles Office records and so there may be nothing curious at all if the situation was that the Batistics obtained a licence before becoming the legal owners of the site. It is not for the Court to make a case about this for the appellants in their absence. The Magistrate expressed concern about but was not dissuaded from making the orders he did, by the use of substantial hearsay in the principal evidence relied on by the Council at the hearing which was a certificate pursuant to Section 1117(3) of the Local Government Act 1993. His Honour's suggestion to the Council was that in the future it might consider obtaining direct evidence from officers who had undertaken particular tests. Its counsel explained to the Magistrate the difficulties in organising its personnel in a way that would make that feasible, but that aspect is of no concern to this Court in the circumstances. It does not suggest there is anything wrong with the outcome before the Magistrate. The concern which I felt, having perused the file before the hearing, and raised with Mr Andrew related to the imposition of separate fines, substantial in amount, on each of the appellants. They were properly proceeded against on the basis of being owners of the property. It would be difficult to justify the Council's selecting one only of two owners in a prosecution of this kind. It seemed to me that in principle -- 5 of 7 -- 14072006 T17/LM18 M/T CMS79/2006 (Robin DCJ) 6 ORDER 1 10 20 30 40 50 60 the penalty ought to be the same whether there was a single owner (here, say, if the appellants had chosen to have the property in the name of one of them only) or whether there were multiple owners. There may have been more than two. It would be a matter of concern if the aggregate fines resulting in respect of a single faulty septic system bore any relation to the number of individuals or entities owning the property. At the callover I asked Mr Andrew to think about this, which he did, apparently in association with the solicitors. He has indicated that the fines might be considered excessive on the basis I have been alluding to, while adhering to his argument that in the circumstances the appeal must be dismissed with costs. It is clear from the transcript that the Council's counsel professed no experience or expertise in the level of fine might be appropriate. His Honour was similarly embarrassed and, as I would think happens from time to time, everyone turned to the Council's solicitor who made available the knowledge she had obtained from her own experience. That was in terms of fines of about $2,500, which it was indicated had been imposed in circumstances where there were multiple failing tests, but not so many as one finds here. ... HIS HONOUR: Nonetheless, it seems to me that the amount of the aggregate fine here has the appearance of being excessive. -- 6 of 7 -- 14072006 T17/LM18 M/T CMS79/2006 (Robin DCJ) 7 ORDER 1 10 20 30 40 50 60 I would hope that courts in the future alerted to this problem would be careful about imposing a penalty that might be too harsh on the basis of what might be called a full commercial penalty being imposed on more than a single property owner or person in some analogous category. In the absence of the appellants and of any invitation by the Council to allow the appeal and substitute other orders that might seem to me to do perfect justice, I make the order foreshadowed at the outset which is that the appeal is dismissed with costs. ... HIS HONOUR: I will fix the costs at $1,800 as requested by Mr Andrew but reserve to the appellants the right to have the costs assessed by the Registrar on application within 14 days of being served of this order. ... ----- -- 7 of 7 --