Swift v RSPCA – Yagoona

1. [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. [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. [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. [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:

5. [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. (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”).

   2. (2)

      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. [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. [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:

8. [8]

   Junior counsel replied, at 5:06pm:

The Magistrate’s reasons

1. [9]

   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:

2. [10]

   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. [11]

   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):

2. [12]

   It is apparent from the terms of s 40(1) that the nature of the power is an exercise of discretion.

3. [13]

   As noted, the application was brought pursuant to s 53(3)(b) of CARA, which provides as follows:

4. [14]

   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. [15]

   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:

6. [16]

   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. [17]

   The grounds of the application, titled “grounds of review” in the plaintiff’s written submissions, are as follows:

2. [18]

   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. [19]

   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. [20]

   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. [21]

   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. [22]

   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. [23]

   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. [24]

   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. [25]

   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. [26]

   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. [27]

   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. [28]

   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:

7. [29]

   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. [30]

   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. [31]

   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. [32]

   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. [33]

   The orders that I made on 1 April 2022 were as follows: