Administrative Law - Judicial review - Grounds of review - Procedural fairness - Bias - Apprehension of bias - Waiver.

Dickason v Edwards [1910] HCA 7; (1910) 10 CLR 243; R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256, followed.

Magistrates - Appeals from and control over magistrates - Tasmania - Motion to review - When remedy available - Want of procedural fairness - Error must appear from the material before the magistrate.

Cleaver v Powell [1979] Tas SR 134; Webster v White A58/1991, followed.

Judgment Number: [2005] TASSC 85

1 On 4 May 2005, the applicant was called upon to plead to four charges arising from his removal of five impounded cattle from the Huon Valley Council pound at Ranelagh. The applicant pleaded guilty to one charge of driving an unregistered vehicle, not guilty to a second charge of that offence, not guilty to a charge of rescuing an animal impounded as a distress damage feasant in breach of the Police Offences Act 1935, s20AA(b), and not guilty to a charge of trespass in breach of that Act, s14B(1).

2 Following a defended hearing the charge of rescuing an impounded animal was dismissed on the basis that an element of the offence had not been established. The element was the impoundment of the cattle as a distress damage feasant, that being the right of an occupier of land to seize animals which are unlawfully upon the land doing damage. The five cattle in question had not been so impounded. They had been impounded pursuant to the Local Government Act 1993, s194, and there was no suggestion that the basis for their impoundment was a distress damage feasant. The applicant was convicted on the charge of trespass, as well as one charge of driving an unregistered vehicle. He was sentenced to 14 days' imprisonment for the trespass conviction and fined on the driving an unregistered vehicle conviction. He has filed a notice of review limited to the order that he be imprisoned for 14 days. Before turning to the notice of review, I briefly summarise the facts.

3 On 29 March 2004, Mr Coulson and Mr Merchant, municipal inspectors for the Huon Valley Council, located five steers wandering on a highway in the Huon Valley Municipality. The steers were impounded pursuant to the Local Government Act, s194, and taken to the pound at Ranelagh. An impoundment notice was issued on 30 March 2004 and served on the applicant on 1 April 2004. Consistent with the Local Government Act, ss195, 196 and 197, the notice specified that unless the steers were claimed and all fees, costs and charges of the impoundment paid within 14 days, the steers may be sold, given away or destroyed at the pound on 14 April 2004. A notice was placed in the Mercury newspaper on 16 April 2004 advertising that the 5 steers had not been claimed and would be auctioned on 19 April 2004. A subsequent notice was placed in the Mercury newspaper advertising that the 5 steers would not be auctioned as previously advertised, but sold by tender, the tenders to be received no later than 12pm on Tuesday, 20 April 2004.

4 Upon receiving the impoundment notice, the applicant decided that it would be cheaper to attend the proposed auction to buy the steers than to pay the fees claimed by the council. Following the cancellation of the auction, the applicant, on 15 April 2004, wrote to the council claiming the cattle, but refusing to pay the fees and costs associated with impoundment (an amount in excess of $1,260 at that date) and offering to pay $250 for the five steers. That offer not having been accepted by 20 April 2004, the date on which the tender process closed, the applicant, at about 5am that morning, went to the pound, cut the chains securing the gates to the pound with a hacksaw and removed the steers. At the time of the hearing before the learned magistrate, the steers remained in the applicant's possession.

5 The notice of review is expressed to seek a review of the order that the applicant be imprisoned for 14 days, that is a review of the sentencing order made upon his conviction for trespass. However, the first three amended grounds of appeal are wide enough to amount to an appeal against the applicant's conviction as distinct from the sentence that was imposed and I will deal with them on this basis.

"The learned magistrate erred in law in proceeding to hear the matter when I had not previously been supplied by the prosecution with copies of witness statements, photographs and other relevant materials, as requested in writing and he therefore failed to give me sufficient time to prepare my defence for this matter, such as to result in my denial of procedural fairness and natural justice."

6 Whilst the applicant gave evidence to this Court in order to establish the late supply to him of copies of witness statements, photographs and other relevant material, he did not explain how, in the circumstances of this case, the late provision of the material impacted on his trial. More significantly, there is no evidence that the applicant informed the learned magistrate of the late provision of this material and that it was causing him difficulty in defending the charge. The contrary might be inferred from a request the applicant made at the commencement of the hearing for a few moments to enable him to read a transcript of interview he had just received. It seems from this request that the applicant was well able to cope. It is apparent from the evidence given to this Court by the applicant and the decision in Turner v Cole [2005] TASSC 72 that the applicant was well aware of his entitlement to complain to the learned magistrate about matters such as this. That decision records that at the commencement of the hearing to which it relates on 12 January 2005, the applicant had complained to the magistrate, the same magistrate who heard the subject case, about not having been provided with witness statements and the like and on the intervention of the magistrate they had been provided. It is significant that in the subject case the learned magistrate was not informed of the late delivery about which the applicant now complains, as a notice of review can only succeed if it is established that the magistrate erred. The clear effect of the Justices Act 1959, ss107, 108 and 110(2), is that, save for a ground that asserts that the magistrate had no jurisdiction, this Court's jurisdiction is confined to reviewing circumstances where it can be shown that there has been an error or mistake on the part of the magistrate on a matter of fact or law. The learned magistrate could not err in relation to a matter of which he had no knowledge. The following cases are examples of the application of this principle. In Webster v White A58/1991, a magistrate had convicted the applicant in ignorance of relevant evidence from an uncalled witness that was consistent with the applicant's innocence. Zeeman J, at 6, held that as the magistrate could not be found to have erred on the basis of evidence of which he was not aware, the error must be one which appears from the material before the magistrate. In Cleaver v Powell [1979] Tas SR 134, the applicant contended that the sentence imposed on him should be set aside as being in error due to the disparity between it and the sentence imposed on a co-offender on an earlier date by a different magistrate. Green CJ held that as the evidence before the magistrate who sentenced the applicant about the sentence imposed on the co-offender was insufficient to demonstrate to the magistrate that the sentence he imposed on the applicant would be unjust for reasons of disparity, the magistrate could not be held to have erred.

7 For these reasons, ground 1(a) must fail. It also fails because there is no evidence to suggest that the late delivery of the material in question caused the applicant any injustice. In the course of his submissions to this Court, the applicant in substance said that he chose not to raise the late delivery of the material with the magistrate as he had a rough idea of what the witnesses were going to say and he considered he had a good defence.

"The learned magistrate erred in law in proceeding to hear the matter when he was biased as he had just heard and determined another matter relating to me which had concluded on 3 May 2005."

8 The day prior to the subject hearing, the learned magistrate had convicted and fined the applicant and ordered that he not have the possession or care of any more than 20 horses for a period of five years, arising from a charge that had been heard in the course of the previous four months. That conviction and the sentencing orders then imposed were the subject of Turner v Cole (supra).

9 The applicant, in substance, asserts that as the learned magistrate had previously convicted and sentenced the applicant, the learned magistrate should not have heard the subject prosecution. Circumstances such as this may provide a basis for a finding of actual or apprehended bias, Bradshaw v Kyle (1995) 15 WAR 327. However, an objection of this nature can be waived. Where a party, being aware of his right to object, fails to do so, the right is lost. It has long been settled that a party cannot wait to see whether the outcome of a case is favourable before raising an objection of bias, the availability of which he was previously aware: Dickason v Edwards [1910] HCA 7; (1910) 10 CLR 243 at 260 and R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259. Whilst the applicant was not legally represented, he is a most experienced litigant, as is apparent from his record of prior convictions which runs to 21 pages and reported judgments of this Court and the Federal Court. When giving evidence to this Court, the applicant estimated that he had represented himself "definitely upward" of 100 times in the Magistrates Court, about 10 times in the Supreme Court and 5 times in the Federal Court. In 1986, during the hearing of a prosecution for assault in which the applicant was representing himself, he applied to the magistrate to disqualify himself for bias as the magistrate had described the applicant in derogatory terms and ruled against him on a number of evidentiary issues. The applicant's appeal against that magistrate's refusal to discharge himself for bias is dealt with in Turner v The Police A53/1986.

10 In this case, the applicant was well aware of the learned magistrate's involvement in the applicant's most recent conviction and sentencing and was well aware of his entitlement to raise concerns about such matters as the magistrate's bias. By way of a further illustration of this, I note at the outset of the hearing the applicant put to the learned magistrate that he was not qualified to sit because he was not eligible to be appointed as a magistrate pursuant to the Magistrates Court Act 1987, s8, which, in effect, required that an appointee be a legal practitioner of not less than five years' standing in this State. That objection was rejected as the applicant had overlooked an amendment made to that section which covered the circumstances of the learned magistrate's appointment.

11 No evidence was put before me of matters arising from the learned magistrate's involvement in the hearing of the immediately preceding prosecution of the applicant that might provide a basis for a finding of actual or apprehended bias. In the course of his submissions the applicant said that the learned magistrate had stated that the applicant had no respect for authority. The applicant was well aware of what had occurred. He did not raise bias with the learned magistrate and chose to proceed with the hearing as he considered he had a good defence. By failing to raise bias at the outset of the hearing, the applicant waived that opportunity. This ground fails.

"2 The learned magistrate erred in fact and/or in law in failing to find that (a) officers of the Huon Valley Council were not entitled under the Local Government Act 1993 or otherwise to either seize or sell (or otherwise dispose of) my 5 steers and (b) the impoundment notice was invalid.

3 The learned magistrate erred in fact and/or in law in failing to find that, the officers of the Huon Valley Council having unlawfully seized my 5 steers and purporting to dispose of them, I had a reasonable and/or lawful excuse to enter the council pound and recover the said animals."

12 The steers were impounded pursuant to the Local Government Act, which then relevantly provided:

A council may impound any animal found straying or at large -

(1) If an animal has not been claimed by its owner or a person on behalf of the owner within 48 hours of it being impounded, the council is to give notice to the owner of the animal.

(a) a description of the animal and any brands or marks;

(d) the date on which and the place at which the animal may be sold if it is not claimed.

(3) A notice is to be given in writing and delivered to the owner by any means the council considers appropriate.

(4) If the owner of an impounded animal cannot be ascertained or found, the council is to publish on at least one occasion a notice containing the particulars specified in subsection (2) in a daily newspaper circulating in the municipal area.

(1) A council, by notice in writing, is to notify the owner of an impounded animal of the fees, costs and charges payable in respect of the impounding, maintenance and treatment of the animal.

(2) The owner of an impounded animal is liable to pay -

(a) any fees, costs and charges specified in a notice; and

(b) any further fees, costs and charges incurred in the maintenance and treatment of the animal while it is impounded.

(3) Any unpaid fees, costs and charges is a debt due to the council and may be recovered by the council in a court of competent jurisdiction.

(4) A council may detain an impounded animal until any fees, costs and charges specified in a notice are paid.

(1) A council may sell, give away free of charge or destroy any impounded animal if -

(a) no one has claimed it within 14 days after its impounding; or

(b) any fees, costs and charges specified in a notice under section 196 have not been paid within 14 days of the date of that notice.

(2) A council must, by notice published on at least one occasion in a daily newspaper circulating in the municipal area, notify its intention to sell, give away or destroy any impounded animal.

(a) the animal, together with a description and any marks or brands; and

(b) the date on which and place at which the animal is to be sold, given away or destroyed."

13 In the course of his submissions, the applicant acknowledged (in my view correctly) that the officers of the council had been entitled to impound the steers. He contends, however, that pursuant to the Local Government Act, s195(1), the council was obliged to serve notice of the impoundment on him as the owner of the steers within 48 hours of the impoundment, and that because the notice was not in fact served on him until 72 hours after the impoundment, the impoundment thereupon became unlawful. This argument involves a misconstruction of s195(1). The period of 48 hours referred to in that section is the period following which a notice is to be given to the owner. No express requirement is imposed as to when, after the lapse of the period of 48 hours, the notice is to be provided and there is nothing to indicate that delay in provision of the notice will, of itself, render an impoundment unlawful.

14 An alternative contention advanced by the applicant is that he was not the owner of the steers and that the notice should have been served on either Roberts Ltd or the Official Trustee in Bankruptcy; one of these entities being the true owner of the steers. This contention contradicts the applicant's assertion in each of these grounds of appeal that the steers were his, and the argument advanced by the applicant is internally contradictory as on the one hand he seeks to justify his trespass in order to release the steers on the basis that they were owned by him, but on the other hand he seeks to impugn the lawfulness of their impoundment on the basis that they were not owned by him.

15 As I have already said, there is nothing to indicate that even if an entity other than the applicant was the owner of the steers, the non-delivery of a notice of impoundment to that entity by 20 April 2004 would, of itself, have rendered the impoundment unlawful. I will, however, address the question of the ownership of the steers. When the applicant gave evidence before the learned magistrate, he at all times referred to the steers as being his and he asserted that he had a right to take them back as the council had acted unlawfully in impounding them. What emerges from the applicant's evidence referable to Roberts Ltd is that he had a credit account of about $10,000 with that company and when he sold stock, the proceeds were deducted from that liability. He was concerned to ensure that the funds obtained on the sale of the impounded steers went in reduction of his Roberts Ltd account rather than to the council. When interviewed by the police, the applicant had said that he bought the stock from Roberts Ltd at a sale, but that they were not paid for so the title remained with Roberts Ltd. In his letter to the council of 15 April 2004 claiming the steers, he had made a similar claim. This claim was not reiterated by the applicant when he gave evidence before the learned magistrate. In the absence of evidence that the transaction pursuant to which the applicant obtained the steers was subject to a valid "Romalpa" clause in favour of Roberts Ltd, there was no basis for the learned magistrate to doubt that title in the steers passed to the applicant upon delivery.

16 In his letter to the council claiming the steers, the applicant also asserted that "any ownership interest I have (in the steers) vests in my bankrupt estate". When interviewed by the police, the applicant had described himself as, amongst other things, an unemployed bankrupt. In his evidence before the learned magistrate, the applicant said he was "supposed to be a bankrupt", he referred to payments to his "bankrupt estate" and to "seriously trying for a long time to get this bankruptcy sorted". He did not, however, assert that title to the steers had passed to the Official Trustee in Bankruptcy.

17 The evidence before the learned magistrate established that at some time in the past the applicant had been made bankrupt. In the ordinary course, the applicant would have been automatically discharged from that bankruptcy within three years of the date on which he filed a statement of affairs; Bankruptcy Act 1966 (Cth), s149. There was no cogent evidence before the learned magistrate that this had not occurred prior to the applicant's acquisition of the steers, or if it had not, that title to the steers had passed to the Official Trustee as after-acquired property. Title would not have passed to the Official Trustee if the steers were purchased by the applicant from protected funds, or if they were property for use by him in earning income by personal exertion, Bankruptcy Act, s116(2)(c). In the face of the applicant's assertion of ownership of the steers and the absence of cogent evidence that title in the steers has passed to the Official Trustee, there was no reason for the learned magistrate to doubt the applicant's ownership of them.

18 The impoundment notice served on the applicant on 1 April 2004 included notice that if the steers were not claimed and all fees, costs and charges paid within 14 days, the steers "may be sold, given away or destroyed at the Municipal Pound, Ranelagh on Wednesday 14th April 2004". The notice did not specify the time when the steers may be sold, given away or destroyed. The applicant submits that as a time for the sale was not specified, the notice was defective. This is not so. The only relevant requirement in this regard is that the notice give "the date on which and the place at which the animal may be sold if it is not claimed", Local Government Act, s195(2)(d). The notice complied with this requirement. The applicant makes a similar submission in relation to the notice of sale published on 16 April 2004 which specified that the steers "will be sold by public auction at Bridgewater Saleyards on 19 April 2004". This notice complies with s197(3)(b) and is not defective.

19 The applicant submits that changes made by the council in relation to the date and means of sale rendered the impoundment unlawful. This submission finds no support in the legislation. No provision requires the council to sell on any particular date. The legislation simply provides that the council may sell so long as it has published appropriate notice of the date and place of sale.

20 The applicant submits that the impoundment was unlawful as no notice of it was placed on the pound. Again, this submission finds no support in the legislation. It seems that the applicant has in mind a requirement that may have existed prior to the legislation in operation at the time in question. The applicable legislation did not require the placement of any particular notice on the pound.

21 The applicant sought to derive some assistance for the submissions he advanced in support of this ground from the Laws of Australia, 33.2 par[28]. This paragraph relates to the element of reliance in the tort of negligent misstatement and has no relevance to any issue raised on the appeal.

22 Nothing advanced by the applicant provides any basis for concluding otherwise that the impoundment and proposed sale of the steers was lawful and that the applicant had no reasonable or lawful excuse for committing trespass in order to release the steers.

"4 The learned magistrate erred in fact and/or law in that, having found me not guilty of charge 3 (rescue impounded animals), sentenced me upon charge 4 (trespass) as if I had been found guilty of charge 3 and further erred in categorising my offence of trespass as an offence of dishonesty."

23 In the course of his comments when passing sentence, the learned magistrate said in relation to the applicant's conviction for trespass "that is, an offence of dishonestly effectively" and in substance went on to explain that the trespass had been committed in order to reclaim the steers and had the effect of depriving the council of the opportunity of recouping its expenses of the impoundment out of the proceeds of selling the steers. In so commenting, the learned magistrate was not sentencing the applicant as if he had been found guilty on the charge of rescuing an animal impounded as a distress damage feasant. He had been acquitted on that charge. The impoundment that the learned magistrate found established was an impoundment pursuant to the provisions of the Local Government Act. His consideration of the lawfulness of that impoundment was integral to his rejection of the applicant's claim to have had a reasonable or lawful excuse for entering the pound. It was not disputed by the applicant that the purpose of his entry into the pound was to remove the steers. This and its consequences were all part of the circumstances surrounding the trespass that the learned magistrate was bound to take into account in sentencing the applicant. The learned magistrate had a perfect right to consider the applicant's motive for committing the trespass, R v Bright [1916] 2 KB 441 at 444. The matters external to the conviction that the learned magistrate took account of were not the sort of matters that should have been disregarded, that is, matters negatived by the applicant's acquittal on charge 3, conduct that amounts to an uncharged offence or a matter of aggravation that could have been included in the charge; R v Bright (supra) at 444 - 445 and R v De Simoni (1980 - [1981] HCA 31; 1981) 147 CLR 383 at 389 - 340. See also Coates v R [2001] TASSC 141.

24 The learned magistrate's comment that the trespass was an offence of dishonesty effectively was not directed to the elements of the charge, it was no more than a loose categorisation of the totality of the relevant conduct of the applicant, including his motive for the trespass and what then ensued.

"5 The learned magistrate erred in fact and/or law in taking into account the record of prior convictions tendered by the prosecution that contained either inaccurate and/ or misleading entries in the record contained reference to charges that had subsequently been dismissed."

25 At the outset of the sentencing hearing, the applicant was provided with a record of his prior convictions. He crossed out all but one of the entries that related to charges on which he had been convicted. Their inclusion in the record was not misleading as the dismissals were plainly recorded. In sentencing the applicant, the learned magistrate identified the convictions that he considered to be relevant and none of them were convictions that the applicant had disputed.

"6 The learned magistrate erred in fact and/or law in finding that persons in breach of suspended sentences in Tasmania are very rarely brought before the court."

26 In the course of the applicant's submissions in relation to sentence, the learned magistrate indicated to the applicant that he was considering imprisonment. The applicant put to the learned magistrate that there was no reason why a suspended term of imprisonment should not be imposed and the magistrate responded:

"(M)y experience in this jurisdiction (is) that the breaches are very rarely brought before the court when they should be."

I assume that the learned magistrate meant either that his experience was that breaches of suspended sentences are very rarely brought before the court in a timely manner, or that they are very rarely brought before the court at all. In any event, he did not err by referring to his experience in relation to the manner in which a breach of suspended sentence was handled. As he explained when sentencing the applicant, he imposed an actual period of imprisonment as he considered that to be the only penalty that would strike home to the applicant and be a personal deterrent.

"7 The learned magistrate erred in fact and/or in law in imposing a sentence (of 14 days imprisonment) that was manifestly excessive in all the circumstances of the case."

27 In the course of making submissions on this ground, the applicant complained of comments made by the learned magistrate during the sentencing hearing to the effect that the applicant had made no effort to pay the impoundment expenses incurred by the council and that the applicant appeared unwilling to pay the same. Those comments were not inappropriate, the applicant had told the learned magistrate that he had no hope of paying the expenses and was so broke he was going to declare himself bankrupt again. The applicant also complained that the learned magistrate did not appear to give any credence to the applicant's claim that he believed he was entitled to do what he did. I discern no fault in the learned magistrate's approach. He said:

"The (applicant) clearly has a problem with authority, particularly in relation to people whose views differ to himself. He has clearly a large problem with officialdom in terms of rules and regulations. He does not accept that rules and regulations necessarily should apply to him, or if they do, they should apply as he thinks they should, and in terms of his own concepts of reasonableness. (He) is unwilling to comply with his obligations."

These observations were consistent with the evidence before the learned magistrate which included the applicant's many prior convictions. Among those convictions are seven convictions for trespass, two of injuring property, one of destroying property and one of removing an impounded animal. The applicant has previously served a short term of imprisonment for trespass. The applicant's numerous convictions for offences such as assaulting a police officer, resisting a police officer, threatening a police officer, obstructing a police officer and assaulting a public officer bear testament to his problem with authority.

28 The maximum penalty for the offence of trespass is a fine of $500 or 6 months' imprisonment. In canvassing the sentencing options available to him, the learned magistrate said that he did not consider that a fine of $500 or a community service order was an appropriate penalty, and that a suspended sentence would not act as a personal deterrent. He concluded that the only sentence that would strike home and serve that end was a period of actual imprisonment. The sentence he imposed was 14 days' imprisonment. That sentence was within the range of sentences open to the learned magistrate in the circumstances of this case. It was not manifestly excessive.