Dart v Mulherin & Anor [2009] QCA 146

SUPREME COURT OF QUEENSLAND

CITATION: Dart v Mulherin & Anor [2009] QCA 146

PARTIES: DART, Sydney Ronald (applicant/appellant) v / MULHERIN, Timothy (first respondent) ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS QUEENSLAND INC (second respondent)

FILE NO/S: Appeal No 12243 of 2008 / SC No 689 of 2008

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Townsville

DELIVERED ON: 29 May 2009

DELIVERED AT: Brisbane

HEARING DATE: 18 May 2009

JUDGES: McMurdo P, Fraser JA and Applegarth J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: 1. Appeal dismissed. / 2. Appellant pay the costs of and incidental to the appeal of each respondent. / 3. The first respondent’s application to adduce further material is refused.

CATCHWORDS: CONSTITUTIONAL LAW – THE NON-JUDICIAL ORGANS OF GOVERNMENT – THE LEGISLATURE – LEGISLATION AND LEGISLATIVE POWERS – EXAMINATION OF VALIDITY OF LEGISLATION BY COURTS – the Animal Care and Protection Act 2001 (Qld) – where s 114 of the Act provides for the appointment of an employee of the second respondent to exercise statutory powers as an inspector – where appellant sought declaration that s 114 is invalid because of its potential to harm the second respondent’s competitors – where primary Judge found the appellant’s arguments to be without substance – whether s 114 is invalid / Trade Practices Act 1974 (Cth), s 46 / Animal Care and Protection Act 2001 (Qld), s 3, s 4, s 114, s 115 / Constitution of Queensland 2001 (Qld), s 55

COUNSEL: The appellant appeared on his own behalf / J M Horton for the first respondent / R G Fryberg for the second respondent

SOLICITORS: The appellant appeared on his own behalf / Crown Law for the first respondent / Roberts Nehmer McKee for the second respondent

1. McMURDO P: The appeal should be dismissed with costs for the reasons given by Applegarth J.

2. FRASER JA: I agree with the orders proposed by Applegarth J and his Honour’s reasons.

3. APPLEGARTH J: The appellant applied to the Supreme Court for declaratory relief to the effect that certain provisions of the Animal Care and Protection Act 2001 (Qld) (“the Act”) are invalid on the grounds that they authorise employees of a trading corporation to be appointed as inspectors to investigate and enforce compliance with the Act. The learned primary judge declined to declare the law invalid. In essence, his Honour concluded that the appellant’s complaints went to the question of whether the legislation represented good policy, and did not provide a basis upon which the legislation could be said to be invalid. His Honour found it unnecessary to determine whether the second respondent is a “trading corporation” within the meaning of s 51(xx) of the Commonwealth Constitution and s 4 of the Trade Practices Act 1974 (Cth) (“the TPA”). The appellant’s challenge to the validity of the legislation was found to be without substance irrespective of whether the second respondent was a trading corporation. Accordingly, the learned primary judge declined the appellant’s invitation to declare the second respondent to be a trading corporation.

4. On this appeal the appellant contends that his Honour erred by “declining an invitation to declare the Second Respondent a trading corporation” and that it “competes directly in trade and commerce with ordinary commercial enterprises”.¹ The appellant also challenges the primary judge’s decision to not uphold his argument that the legislation is invalid.

The legislation

5. The purposes of the Act are to:

“(a)promote the responsible care and use of animals;

(b)provide standards for the care and use of animals that –

(i)achieve a reasonable balance between the welfare of animals and the interests of persons whose livelihood is dependent on animals; and

(ii)allow for the effect of advancements in scientific knowledge about animal biology and changes in community expectations about practices involving animals;

(c)protect animals from unjustifiable, unnecessary or unreasonable pain;

(d)ensure the use of animals for scientific purposes is accountable, open and responsible.”²

[6] These purposes are primarily achieved by, amongst other things:

“(a)providing for regulations about codes of practice for animal welfare;

(b)allowing regulations to require compliance with codes of practice;

(c)imposing a duty of care on persons in charge of animals;

(d)prohibiting certain conduct in relation to animals;

(e)requiring a person using an animal for scientific purposes to comply with the scientific use code;

(f)providing for the registration of certain users of animals for scientific purposes;

(g)providing for the appointment of authorised officers to monitor compliance with compulsory code requirements and the scientific use code;

(h)providing for the appointment of inspectors to investigate and enforce this Act;

(i)allowing the Minister to establish an animal welfare advisory committee or another body to advise the Minister on animal welfare issues.”³

[7] Section 114 of the Act provides for the appointment and qualifications of inspectors. It states:

“(1)The chief executive may appoint an individual as an inspector.

(2)However, an individual may be appointed as an inspector only if –

(a)the individual is –

(i)a public service officer or employee; or

(ii)employed by the Royal Society for the Prevention of Cruelty to Animals Queensland Incorporated; or

(iii)included in a class of individuals declared under a regulation to be an approved class of persons for this section; and

(b)the chief executive is satisfied the individual has –

(i)the necessary expertise or experience to be an inspector; or

(ii)satisfactorily finished training approved by the chief executive.

(3)Subsection (2) does not limit the issues the chief executive may consider when deciding whether to appoint an individual as an inspector.”

[8] The functions of an inspector are to investigate and enforce compliance with the Act.⁴ Chapter 6 of the Act contains detailed provisions in relation to the powers of inspectors and provides for, amongst other things, entry by inspectors to places and vehicles, seizure of animals and other things as evidence of an offence or for the welfare of the animal, forfeiture of an animal or thing that has been seized and the giving of an “animal welfare direction”.

The appellant’s argument at first instance

[9] The appellant contended in his Amended Originating Application that s 114(2)(a)(ii) of the Act contravened s 55 of the Queensland Constitution 2001 (Qld), the argument being that it:

“purports to delegate a Power of the State, to investigate, enforce and prosecute Law of the State, to employees of the RSPCA Qld who do not meet criteria of the Queensland Constitution 2001, set out at section 55 in regard to delegation of a ‘Power of The State’”.⁵

This argument is without merit. Section 114 does not delegate a power of the State. It confers authority on the chief executive to appoint an individual, including an individual who is employed by the second respondent, as an inspector. Section 55 of the Constitution of Queensland provides that a Minister may delegate a power of the State to an appropriately qualified officer of the State. The power of delegation given to a Minister by s 55 of the Constitution of Queensland is irrelevant to the power to appoint inspectors conferred by s 114 of the Act. The learned primary judge was correct in not upholding this argument, and the appellant did not press this argument on the hearing of the appeal.

[10] The learned primary judge dealt with the appellant’s broader argument, which was renewed on the appeal. The appellant argues that:

“employees of a trading corporation ought not to be empowered to investigate, enforce and prosecute Law as against other trading corporations, ordinary commercial enterprises and individuals that are the empowered trading corporation’s competitors in the market place.”⁶

Section 114(2)(a)(ii) of the Act was said to be a law that creates

“serious conflict of interest between commercial trading activities of the second respondent as a trading corporation and law enforcement activities delegated by the [Act]”.⁷

The provision was said to create “grave potential” for employees of the second respondent to abuse their authority under the Act to enhance the second respondent’s commercial trading activities.⁸ The law was said to “create opportunities” for employees of the second respondent to defeat the object of the TPA by abusing their authority under the Act and to “deter, restrict and limit competition in the market place under guise of law enforcement”.⁹

[11] These matters were said to render the legislation “repugnant and anathema to norms of democratic law enforcement” and inconsistent with the object of the TPA.¹⁰ On the basis of these arguments the appellant sought a declaration that s 114(2)(a)(ii) of the Act and “delegation of authority” under that section is “unconstitutional, ultra vires, unlawful, and void ab initio and must be repealed and revoked with immediate effect by order of the Court”.¹¹

[12] The learned primary judge stated:

“It is axiomatic, of course, that the Court in considering a matter of this kind is not in any way concerned with whether what is reflected in the legislation represents good policy or anything of that kind. The only issue is whether there is any basis upon which the legislation can be said to be invalid.”¹²

His Honour correctly rejected the argument based on s 55 of the Constitution of Queensland 2001. His Honour noted that the power to enact legislation such as the Act comes from the Constitution Act of 1867, and there is no appeal in respect of that matter.

The appellant’s arguments on the appeal

[13] The appellant’s case concerning the alleged invalidity of s 114(2)(a)(ii) of the Act both at first instance and on appeal turned upon what was said to be its “potential” for abuse, “potential” for a serious breach of s 46 of the TPA and what was said to be its “anathema to norms of democratic law enforcement”. It was also said to be inconsistent with Commonwealth law and inconsistent with the Queensland Constitution. In these various ways the law was said to be invalid. No declaration or other relief was sought concerning specific conduct of the second respondent, or its employees, and, in particular, no allegation was made that the second respondent had actually contravened the TPA.

[14] The appellant complains that the learned primary judge erred in failing to consider the lawfulness of the authorisation of employees of the second respondent to act as inspectors under the Act. This contention should be rejected. The learned primary judge considered the appellant’s arguments and correctly concluded that they related to the issue of whether the legislation represented good policy or was a good law. The appellant’s argument does not disclose a basis to declare the law invalid. There is no basis to conclude that the Queensland Parliament exceeded its legislative authority by passing the Act or s 114(2)(a)(ii) in particular. It is no part of the court’s function to determine whether “the Queensland Government per se, were negligent in legislative duties” when framing the Act.¹³

[15] On the hearing of the appeal the appellant did not contend that s 114 of the Act was necessarily inconsistent with s 46 of the TPA, but contended that employees of the second respondent who were authorised to act as inspectors under the Act “ought not to have [the] opportunity to” inflict damage upon the second respondent’s competition.¹⁴ Counsel for each of the respondents responded to the appellant’s argument that there was a potential for inspectors to enhance the second respondent’s commercial trading activities, adversely affect and eliminate competitors and breach the TPA. Their responses included:

(a)the exercise of power as inspectors did not involve the use of market power, but involved the exercise of statutory power;

(b)s 114 of the Act does not purport to authorise conduct in contravention of s 46 of the TPA, and the operation of s 46 of the TPA is unaffected by s 114 of the Act;

(c)there is no evidence of use, let alone misuse, of market power in that the exercise of powers by inspectors to enter property and seize animals did not involve the use of market power for an anti-competitive purpose in contravention of s 46 of the TPA;

(d)if, contrary to the respondents’ submissions, the exercise of power by individuals appointed as inspectors was treated as conduct engaged in by the second respondent, such conduct is subject to s 46 and other provisions of the TPA;

(e)there is no evidence that inspectors have used their powers for the purpose of seeking to deter or eliminate competitors of the second respondent or to improperly take possession of seized animals for the second respondent’s own commercial benefit;

(f)if the second respondent engaged in conduct in contravention of s 46 of the TPA it would be liable for the consequences of such a contravention.

[16] It is unnecessary to canvass these arguments. This is because even if the appellant was correct in his contention that the potential exists for inspectors appointed pursuant to s 114 of the Act to abuse their power, contravene s 46 of the TPA and deter or eliminate competitors of the second respondent, this contention goes to the merit of the legislation, not its validity. The learned primary judge was correct to not declare s 114(2)(a)(ii) of the Act and the conduct of inspectors appointed under that section “unconstitutional, ultra vires, unlawful and void ab initio”. The appellant erroneously believed that it is part of the Court’s function to pass judgment on whether the law was a bad law because it had the potential consequences that he alleges. The learned primary judge correctly refrained from accepting the appellant’s invitation to declare whether the legislation represents good policy or has the potential which the appellant alleges.

[17] For completeness, I note that the first respondent submitted that there is no inconsistency between the State legislation that the appellant seeks to impugn and Commonwealth law. In particular, the first respondent submits that:

(a)the State Act does not seek to trespass upon the field that Commonwealth law (the TPA) covers;

(b)the State Act does not ‘alter, impair or detract from the operation of’ the TPA;

(c)the State Act and the TPA can be obeyed simultaneously;

(d)this is not a case in which one law takes away what the other confers; and

(e)there is no ‘operational inconsistency’.

The second respondent adopts these arguments. The appellant did not contest these propositions in his written or oral submissions. In short, this is not a case where he has made out an argument that s 114 or any other provision of the Act is inconsistent with a law of the Commonwealth.¹⁵

Conclusion

[18] The learned primary judge was correct to conclude that there was no substance in the appellant’s challenge to the validity of the legislation, and to dismiss the application.

[19] Because the appellant’s attack on the validity of the legislation was without substance, it was both unnecessary and inappropriate for the learned primary judge to accept the appellant’s invitation to determine the question of whether the first respondent is a “trading corporation”. Even if the learned primary judge had assumed for the purpose of argument that the first respondent was a trading corporation, the appellant failed to establish grounds to challenge the validity of the legislation. There was no utility in making a declaration that the first respondent was a trading corporation and the learned primary judge was correct in not making any such declaration.

[20] The appeal should be dismissed. The appellant should be ordered to pay the costs of each respondent of and incidental to the appeal.

[21] The appellant and the first respondent each sought leave to adduce further material. The appellant’s application was refused after argument on 18 May 2009 on the ground that it was not demonstrated to be relevant to the legal issues to be determined in the appeal.¹⁶ The first respondent’s application should be refused for the same reason.

Footnotes

1. Amended Notice of Appeal, paras 3 and 5. ↩

2. Animal Care and Protection Act 2001, s 3. ↩

3. Animal Care and Protection Act 2001, s 4 (emphasis added). ↩

4. Animal Care and Protection Act 2001, s 115. ↩

5. Amended Originating Application, para 8. ↩

6. Appellant’s Reply to the Outline of Argument of the First Respondent, para 9. ↩

7. Appellant’s Outline of Argument, para 4(xii)(b). ↩

8. Appellant’s Outline of Argument, para 4(xii)(a)(second appearing). ↩

9. Appellant’s Outline of Argument, paras 4(vi) and (xii). ↩

10. Amended Notice of Appeal, para 10. ↩

11. Amended Originating Application, para 10. ↩

12. Appeal Record Book, page 141, lines 19 – 28. ↩

13. Appellant’s Outline of Argument, para 5(v). ↩