Swift v RSPCA - Yagoona

Judgment

1. The plaintiff, Dr Rosemary Swift, was granted leave to file in Court a summons in which she sought final orders pursuant to s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) ("CARA") quashing a decision by Magistrate R Brender on 24 March 2022 to deny an application made by her for an adjournment of a Local Court hearing of six charges contrary to the Prevention of Cruelty to Animals Act 1979 (NSW) that are being prosecuted by the first defendant, the RSPCA - Yagoona ("the 24 March application"). Magistrate Brender was named as the second defendant on the summons. A submitting appearance, save as to costs, has been filed by the Local Court of New South Wales, which becomes the second defendant in Magistrate Brender's stead.
2. The matter was set down as a special fixture for a contested hearing with an estimate of five days, commencing on Monday 4 April 2022 in the Downing Centre. The hearing of this application occurred on 30 March 2022 and 1 April 2022. On the second date, leave was granted for the plaintiff to file in Court an amended summons, the only variation being in the naming of the second defendant. In view of that date being the Friday before the week that had been set aside for the Local Court hearing, I made orders, which were in effect to refuse the plaintiff's application. I now provide my reasons.
3. An application by the plaintiff for an adjournment was initially filed on 9 March 2022 before Magistrate Christofi, who heard and refused the application on 14 March 2022. The plaintiff made a further application on different grounds on 24 March 2022, which was opposed by the first defendant, and refused. It is the subject of this application.
4. A transcript of the application on 24 March 2022 and Magistrate Brender's reasons for refusing it were not available at such short notice. The basis of that application was set out in a document titled "Application to vacate a hearing date", dated 21 March 2022 and which was lodged by the plaintiff in the Local Court. By way of necessary background to an understanding of that document, it appears from an excerpted fact sheet that the charges arose from two inspections of animals alleged to be in the plaintiff's care which were carried out by the RSPCA in January and October 2020. The basis of the application, as stated in the document, was as follows: "An initial application to vacate was heard in this matter on the 14 March 2022, that application was refused. Due to this refusal, Senior and Junior Counsel briefed in the matter have returned their brief citing a lack of time to review the new material provided and an absence of expert evidence. We have contacted Chambers seeking another barrister to appear, however have not been able to secure services at this stage. Secondly, we are advised by Counsel that appeared at the application, the main basis for refusal to vacate was due to an absence of evidence provided by the experts as to their inability to review material, prepare and produce a report in time for hearing. This evidentiary material has now been obtained and is annexed to the affidavit of Salvatore Russo sworn 18 March 2022. The Defendant has had substantial difficulty in obtaining documents, both on subpoena and from the Prosecution ('the RSPCA'). Most notably, the RSPCA sent transcripts to the legal representatives of the Defendant regarding select audio recordings as recent as 1 March 2022. In addition, the RSPCA has only recently now produced in suitable form, critical X-ray material and transcripts from a January 2020 inspection which took place at the Defendants residence. We assert these identify that the RSPCA made no adverse findings in regard to our client's conduct or the animals less than 8 months before the 1 October inspection of our client's residence whereby euthanizing and seizure of the animals took place. The RSPCA were ordered to provide the whole brief of evidence by January 2021 and, after three applications before the Court, only produced part of the brief on 24 March 2021. As a result of the incomplete brief, subpoenas were issued on the RSPCA themselves and individual medical practitioners used by the RSPCA. After some protracted resistance to the subpoenas, the last return of subpoena before the Court was on 3 November 2021. The January material, which we assert as crucial for a comparative analysis to the RSPCA's October evidence, produced on 1 March 2022, and further on 4 March 2022 was immediately forwarded to her Experts so that they may conduct expert comparison and evaluation. However, this is not possible in the timeframe and in circumstances where that material has recently been received. Our client intends to rely on expert evidence at the hearing, however, unfortunately the experts we had originally engaged originally are no longer available and so have now reengaged experts. However, due to the status of the RSPCA, attempts to engage experts who are willing to produce reports which may challenge the finds of the RSPCA has been challenging. We have had to go outside of the state and indeed the Country to obtain expert evidence. One of the treating veterinarians has refused to acknowledge or provide any assistance to us. In addition, some of the parties subpoenaed to produce documents: • objected; and/or • did not produce in a timely fashion. This greatly delayed the preparation of briefs for Counsel last year. Several members of staff in our office have contracted COVID in December 2021 and this has greatly affected the capacity of our firm, especially over the January period to prepare briefs and material. Moreover, our client is aged, frail and unvaccinated. Due to COVID restrictions and the vulnerability of our client, we have only recently been in a position to finalise documents relevant to facts and circumstances associated with both the January 2020 and October 2020 RSPCA inspections. The provision of documents by her has greatly impacted our preparation. Letters received from RSPCA on 1 and 4 March 2022 attach over 100 pages of documents which we submit should have been included in the brief and/or should have been produced on Subpoena. The Defendant is now required to submit all these documents to her experts to re-evaluate their opinion evidence and does not afford procedural fairness to our client."
5. As I understand it, the application made before Magistrate Brender for the hearing to be vacated may be distilled into two related bases. These were: 1. There was inadequate time before the hearing for the plaintiff's expert witnesses to review the relevant material so as to prepare their expert reports, in particular, "crucial" material which they did not receive from the plaintiff's solicitor until 4 March 2022 ("inadequate preparation time"). The reasons advanced in the application for there being inadequate preparation time were as follows: 1. The plaintiff's solicitor received the "crucial" material, which was "over 100 pages of documents" on dates up to and including 4 March 2022, which should have been "included in the brief and/or should have been produced on subpoena". The plaintiff encountered "substantial difficulty" in obtaining the relevant material from the first defendant and from third parties who had possession of some of the material; 2. "Several members of staff" in the plaintiff's solicitor's office contracted Covid-19 in December 2021, which "greatly affected" the firm's capacity to "prepare briefs and material"; 3. In addition, the plaintiff is unvaccinated against Covid-19, which has created difficulties for the plaintiff's solicitor in obtaining instructions and relevant documents from her. 1. In light of the refusal of the application for an adjournment made on 14 March 2022, senior and junior counsel had "returned their brief" for the reason that there would be an absence of expert evidence. Alternative counsel were unavailable and therefore the matter should be adjourned to enable alternative senior and junior counsel to be located and briefed.
6. The evidence in support of the plaintiff's application before Magistrate Brender was an affidavit by the plaintiff's solicitor, Salvatore Russo, sworn on 18 March 2022. Annexures to the affidavit included the material that had been served upon the plaintiff up to 4 March 2022.
7. The only evidentiary basis of the second basis for the application is an email from senior counsel for the plaintiff that was addressed to his junior counsel and copied to Mr Russo, that was forwarded on the same date as the unsuccessful application for an adjournment before Magistrate Christofi on 14 March 2022, at 5:03pm. Senior counsel stated, with apparent reference to the refusal: "This is bad news. As I predicted, I have no time now to dedicate to the preparation of this matter until 28 March 2022. There is a real prospect of this matter not being ready from [the plaintiff's] point of view. In those circumstances, I would have thought someone else should take my place."
8. Junior counsel replied, at 5:06pm: "I'm in the same position, I have back-to-back hearings until 29 March."

The Magistrate's reasons

1. The counsel who appeared before this Court respectively for the plaintiff and first defendant on the application for judicial review also appeared on the 24 March application. The first defendant tendered notes made by his instructing solicitor at the 24 March application of the ex tempore reasons provided by Magistrate Brender ("the judgment notes"). They were as follows: "JUDGMENT • Application for adjournment of hearing - discretionary exercise, involves balancing factors including: ○ Gravity of charges ○ Public interest in determination of hearing on merits ○ Attitude of accused to adjournment ○ Circumstances giving rise to adjournment • Relevant charge periods: April-October 2020 • Matter has been before court on numerous occasions, told that is largely to do with subpoenas issued by accused. • Matter is listed for hearing on 4 Apr 2022 (5 days), dates fixed on 15 Sep 2021. Parties have had seven months or so to get ready. • [Application to vacate] (#1) was made and refused about 10 days ago on 14 Mar 2022. Now reagitated. • Evidence in support of [application to vacate] (#2) includes affidavit of Mr Russo: ○ Refers to fact that 105 pages of 'new' material was served 3 Mar 2022. ○ Also states that Counsel told him they would be returning their briefs as 'it would not be possible to run the case in circumstances where there would likely be no expert evidence'. ○ Annexure B: Email from Senior Counsel … to Junior Counsel … on evening after refusal of first [application to vacate]: ▪ This is bad news. As I predicted, I have no time now to dedicate to the preparation of this matter until 28 March 2022. There is a real prospect of this matter not being ready from [the plaintiff's] point of view. In those circumstances I would have thought someone else should take my place. • While SC/JC may have physically returned the brief, they could both be available to prepare the matter for hearing between 29 Mar to 4 Apr. They have had the brief for a long time. ○ Perhaps, and I'm only speculating, they may be unwilling to do that because they feel it's just not possible run a case where there is no expert evidence. • Aug 2021 - defence contacted many experts, all said unavailable. Then widened search and found four. Those experts were provided with preliminary brief. It is not clear what they were asked to do, when they were asked to do it, or what timeframe they were given. • Affidavit then talks about late service of 'new' material: Mostly seems to revolve around Jan 2020 inspection. ○ Prosecution says this is not part of the prosecution case, not within charge period, but nonetheless provided material in accordance with duty of disclosure. ○ Mr Russo says he wants the experts to review the material. ○ Annexures C and D: Two letters say experts can't prep report by 4 Apr 2022. They say they will need between 4-8 weeks to complete their reviews. • Given limited scope of 'late' material, it's not possible they would need 4-8 weeks to consider 'new' material. Perhaps they need that long to consider all of the material but that's not clear. It seems the experts are not ready; blame for that can't be laid at feet of RSPCA. • In large measure, the late material, if any, was provided under duty of disclosure: ○ 47 pages are transcripts (not evidence but aides). ○ There is factual dispute re: whether some material on USB was produced and then lost, but whatever the case all has now been produced. • Mr Russo says the hearing should be adjourned because he has no barristers or experts. • Mr Russo says he asked three clerks and couldn't find barrister willing to take matter. • I think I can take judicial notice of the fact there are many more than three clerks servicing some 2,000 barristers and 100's of SC in NSW. • This lady is not unrepresented - and she may well have Counsel, potentially JC and SC, in addition to her solicitor. • If she doesn't have an expert, I don't see how that's the problem of the prosecution. • Defence says doesn't have to tell the prosecution what its case is - but there's actually no evidence that any expert is going to say there's a live expert issue about any medical matter. • I note there's a horse being agisted by prosecutor, charitable organisation. • Interest in finality • Pressure on courts is relevant. Five-day special fixture, Magistrate won't be able to hear other matters during that time (no one will take hearing date on such short notice). People in custody, in jail, awaiting hearing dates. • Further adjournment will require another 6 months given the body of work waiting. • In all the circumstances, I can't see that it's necessary or advisable to vacate the hearing. • If defence wants to renew some application they can do so at hearing, not that I'm encouraging that. I think matter should proceed. ORDERS …"
2. The judgment notes are the only material before me as to the reasons provided by Magistrate Brender. They were tendered without objection and accepted by the plaintiff as an accurate record of the Magistrate's reasons, and accordingly, I take them into account on that basis.

Relevant statute and legal principles

1. The source of jurisdictional power for the Magistrate to entertain the application to vacate the special fixture was s 40 of the Criminal Procedure Act 1986 (NSW): "40 Adjournments generally (1) A court may at any stage of criminal proceedings adjourn the proceedings generally, or to a specified day, if it appears to the court necessary or advisable to do so. (2) An adjournment may be in such terms as the court thinks fit. (3) A matter that is adjourned generally must be listed before the court or a registrar not later than 2 years after the adjournment. (4) Without limiting subsection (1), a court may, at the request of an accused person, adjourn criminal proceedings if it appears to the court that a variance between any process or document by which the proceedings were commenced and the evidence adduced in respect of the offence charged in that process or document is such that the accused person has been misled by the variance."
2. It is apparent from the terms of s 40(1) that the nature of the power is an exercise of discretion.
3. As noted, the application was brought pursuant to s 53(3)(b) of CARA, which provides as follows: "53 Appeals requiring leave … (3) Any person against whom: (a) an order has been made by a Magistrate in relation to the person in any committal proceedings, or (b) an interlocutory order has been made by the Local Court in relation to the person in summary proceedings, may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court. (4) An application for leave to appeal must be made within such period after the date of the conviction, sentence or order as may be prescribed by rules of court."
4. The summons sought orders in the nature of certiorari and/or mandamus quashing Magistrate Brender's orders and a declaration that the jurisdiction of Magistrate Brender "has constructively not been exercised".
5. Alternatively, the plaintiff sought an order that the Magistrate's orders be set aside and that the matter be remitted for determination according to law: "… and for the purposes of allocating a new hearing date and making procedural directions to the extent that they are necessary to prepare the matter for hearing."
6. The only orders sought that were the subject of oral or written submissions by either party were directed to the question of whether leave should be granted to the plaintiff pursuant to s 53(3)(b) of CARA, in particular, whether the judicial review that is sought by the plaintiff "involves a question of law alone" and if so, whether a grant of leave was appropriate.

The grounds of the application

1. The grounds of the application, titled "grounds of review" in the plaintiff's written submissions, are as follows: "a. That his Honour['s] exercise of discretion in refusing an application for a vacating of the hearing date on the 4 April 2022 miscarried. b. That his Honour did not provide adequate reasons for exercising discretion in not allowing the adjournment of the matter commencing on the 4 April 2022 to a later date to ensure that the defendant was afforded procedural fairness and a fair trial. c. That his Honour did not place adequate or appropriate weight as to the defendant not having the benefit of senior counsel and/or junior counsel … and the prejudice that this would occasion to her on the late withdrawal of senior counsel and junior counsel in terms of having a fair trial. d. That his Honour did not consider that the withdrawal of senior counsel and/or junior counsel was beyond the control of the defendant, that is the defendant was not the cause, and the prejudice that the defendant would suffer in terms of having a fair trial. e. That his Honour erred insofar as considering and concluding that in the absence of senior counsel and/or junior counsel the defendant's solicitor could adequately defend the proceedings on behalf of the defendant. f. That his Honour did not place adequate or appropriate weight as to the inability of the defendant's experts to produce expert reports for the hearing commencing on the 4 April 2022, as rebuttal evidence, to the charges against the defendant and the prejudice that the defendant would suffer in terms of having a fair trial. g. That his Honour did not consider that the defendant's experts could not produce their expert reports of a rebuttal nature by the 4 April 2022, which was not the cause of the defendant, and in doing so his Honour did not adequately consider the prejudice occasioned to the defendant of having a fair trial."
2. The evidence tendered by the plaintiff on the application to this Court was an affidavit sworn by Mr Russo on 28 March 2022. Material annexed to the affidavit included that which had been annexed to Mr Russo's affidavit sworn on 18 March 2022. Certain paragraphs of the 28 March 2022 affidavit that related to events that occurred after the impugned decision were objected to, on the basis that they could not be relevant to a review of that decision. I rejected them for that reason.

The parties' submissions

1. The plaintiff submitted that his Honour erred in law in "denying the application for the adjournment on the basis being that there was adequate legal representation and that experts essentially were not required". The plaintiff submitted that this was an error of law in that his Honour failed to give adequate consideration and weight to those matters, resulting in a denial of procedural fairness to the defendant.
2. The plaintiff relied on authority to the effect that a failure by a tribunal exercising judicial functions to adequately articulate reasons for a decision constitutes an error of law: Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [22]; Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [130]; Hunter v Transport Accident Commission [2005] VSCA 1 at [21]. Counsel for the plaintiff submitted that the Magistrate's reasoning "doesn't go into the detail" such that it failed to adequately set out his Honour's reasoning process. In this way, the application complied with s 53(3)(b) of CARA in that it involved an interlocutory order and a question of law alone, thereby warranting a grant of leave by this court for the application to be heard.
3. The first defendant submitted that leave, as required by s 53(3) of CARA, should be refused. It is apparent that the Magistrate gave consideration to the issues of the unavailability of expert evidence and counsel, so that the plaintiff's only possible basis for the application is that he gave inadequate "weight" to the issues as opposed to none at all. Since the nature of the application was for a judicial review, the preliminary test was not whether there was an error of law but whether there was jurisdictional error: Belan v Office of the Director of Public Prosecutions (NSW) [2021] NSWCA 96 at [72]. It was incumbent on the plaintiff to demonstrate that the Magistrate's judgment was outside the ambit of the statutory discretion provided by s 40(1) of the Criminal Procedure Act, for example, by establishing that the judgment was irrational or legally unreasonable, that is to say, so unreasonable that no reasonable tribunal could have made it; its reasoning "falls outside the framework of rationality provided by the statute" or the relevant source of law, as opposed to the notion that an alternative view as to how the discretion should have been preferred: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [22], [26], [30] and [66]-[68]. The first defendant submitted that an analysis of the reasons for the decision mitigated against such a conclusion in relation to both aspects of the magistrate's decision.
4. The first defendant advanced a further submission to the effect that the Magistrate's refusal of the application arguably did not necessarily constitute an "interlocutory order" for the purposes of s 53(3)(b). Reference was made to various judgments with different, if not conflicting, views as to where the line lay between a "ruling" or "decision", as opposed to an "order". In favour of the first defendant's contention, some reliance was placed on Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126, in which King CJ, at 127, referred to a determination of an adjournment application as an "incidental ruling" rather than an order.

Consideration

1. The application for an adjournment of the hearing was interlocutory in nature. It is unnecessary to determine whether it was an interlocutory "order" for the purposes of s 53(3)(b) of CARA, in view of my determination of the substantive ground relied upon by the plaintiff and contested by the first defendant.
2. The appropriate framework in which to assess the Magistrate's decision, for the purposes of this application, is whether the plaintiff has discharged its onus of demonstrating that the decision was unreasonable, in the sense identified by French CJ in Minister for Immigration and Citizenship v Li at [26].
3. As to the issue of the plaintiff not having adequate legal representation, the Magistrate noted the reasons provided by senior and junior counsel for their unavailability and the steps taken by the plaintiff's solicitor to find alternative counsel. Magistrate Brender noted that counsel had held the brief for a considerable period of time which had been sufficient for them to prepare the matter. He noted that the plaintiff's claim that counsel returned the briefs for the reason that the case could not be run without expert evidence was speculative. The Magistrate explained why, in any event, he did not accept the proposition that all reasonable measures to secure alternative representation by counsel had been taken, noting the large number of junior and senior counsel in practice in New South Wales.
4. As to the Magistrate's reasoning for rejecting the plaintiff's submission that more time was required in order to secure suitable expert evidence, the judgment notes disclose that the Magistrate reminded himself of the parties' submissions. He stated that the matter had been set down for hearing in September 2021, so that parties had seven months from that date to prepare their cases. The Magistrate considered the potential significance of the additional material that had recently been disclosed by the first defendant, observing that it related to the January 2020 inspection and was not relied upon by the first defendant to prove its case. Significantly, the Magistrate noted that there was no evidence before the Court that there was a "live expert issue about any medical matter". He concluded that the period of time that the plaintiff alleged would be required for the material to be adequately considered (four to eight weeks) was "not possible", in view of its limited scope.
5. In relation to both issues, the Magistrate found that the first defendant was not at fault and expressed cognisance of the impact of an adjournment on the Court's resources and the extended delay before a hearing should the matter be vacated.
6. The onus of establishing that the Magistrate's reasons for refusing the application were inadequate rested upon the plaintiff. I note the observations of Nettle JA in Hunter v Transport Accident Commission, at [21], as to necessary considerations when determining the adequacy of reasons provided for judgment. Although the context of the application in that case was, of course, different to this application, the observations are appropriate: "21 … while the extent of the reasons will depend upon the circumstances of the case, the reasons should deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material upon which those finding are based; and provide an intelligible explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusion. It should also be understood that the requirement to refer to the evidence is not limited to the evidence that has been accepted and acted upon. If a party has relied on evidence or material which the judge has rejected, the judge should refer to that evidence or material and, in giving reasons which deal with the substantial points that have been raised, explain why that evidence or material has been rejected." (footnote omitted)
7. In my view, the Magistrate's reasons were adequate, rational and, in the sense in which the term was used in Minister for Immigration and Citizenship v Li, reasonable.
8. In relation to the issue of legal representation, I would add that there was no evidence before the Magistrate or this Court that the reason that senior and junior counsel withdrew from the matter was because of a concern that the case could not proceed without expert evidence. In the course of oral submissions in this Court, counsel for the plaintiff conceded that the emails from senior and junior counsel did not necessarily convey that meaning. As to an alternative interpretation, namely, that counsel were simply stating that they had insufficient time in their diaries to properly prepare the matter for hearing, counsel for the plaintiff responded, reasonably in my view: "That is certainly an interpretation your Honour could quite comfortably come to; I [would not] cavil with that". The first defendant submitted that senior and junior counsel had been briefed for the special fixture. I note that the terms of the emails do not necessarily confirm that proposition and are equally consistent with counsel having been briefed on a contingent basis, namely, that the application for an adjournment would succeed. In any event, a determination of that issue is irrelevant for the purposes of determining this application.
9. It follows that the issue advanced by the plaintiff in this Court was one of mixed law and fact and thus was outside the ambit of s 53(3) of CARA. Accordingly, I refused leave to the plaintiff for its summons to be heard.

Costs

1. The plaintiff submitted that there should be no order as to costs. In my view, there is no reasonable reason as to why an order for costs should not follow the event, being the refusal of the plaintiff's application. Accordingly, I made an order for costs in favour of the first defendant.

Orders

1. The orders that I made on 1 April 2022 were as follows: (1) The application for leave to appeal the decision of Magistrate Brender on 24 March 2022 to not grant an adjournment of the hearing of RSPCA v Swift is refused. (2) The plaintiff is to pay the costs of, and incidental to, the hearing of the summons.

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