Gunning, Patrick --- "Bcoonabarabran Shire Council v Shaw" [1994] PrivLawPRpr 115; (1994) 1(8) Privacy Law & Policy Reporter 151

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COONABARABRAN SHIRE COUNCIL v SHAW

Supreme Court of NSW - Equity division, Young J, 3 June 1994

Search warrants - reasonable grounds to issue - civil proceedings

The plaintiff council adopted a cat code and a dog code in 1989 pursuant tos289(e) of the Local Government Act 1919 (NSW). In 1990 the council commenced proceedings in the Local Court against the defendant for breach of the cat code. The magistrate imposed a fine. However, the defendant continued to keep a large number of cats and dogs on her property. The council sought an equitable injunction to restrain the defendant from keeping more than four dogs and four cats on her property.

Shortly before the Supreme Court hearing a council officer obtained a search warrant from a chamber magistrate under s201 of the Local Government Act 1993 (NSW) in order to investigate the defendant's compliance with the cat and dog codes. No records of the grounds for issuing the warrant were recorded by the chamber magistrate and the council officer did not comply with several requirements imposed by Pt 3 ofthe Search Warrants Act 1985 (NSW) (incorporated by s201(3) of the LocalGovernment Act 1993 when executing the warrant.

Held, refusing to grant an injunction:

1. The search warrant was invalid because a record of the relevant particulars of the grounds for issuing it had not been kept by the chamber magistrate. However, the evidence obtained in purported execution of the warrant was admitted because of its peripheral relevance (Carroll v Mijovich (1991) 25 NSWLR 441; Parker v Churchill (1985) 9 FCR 316, followed).
2. In adopting the cat code the council failed to afford natural justice to the defendant and the code was invalid. Even if the cat code was valid, the defendant had not breached it because it only applied to commercial premises. Accordingly the fine imposed by the Local Court was invalid (White v Ryde MC [1977] 2 NSWLR 909, followed).
3. The council had not established that this was a proper case for the court to grant an injunction to aid the enforcement of the criminal law (Peek v NSW Egg Corp (1986) 6 NSWLR 1, applied).

Obiter:

It would be an odd consequence if the Local Government Act and the Search Warrants Act could be used by councils to obtain evidence for use in civil proceedings.

Comment

Young J stated that:

whilst there is power to issue search warrants at the instance of councilofficers under s201 of the Local Government Act 1993, this is not a power to be exercised in the ordinary case. Australians still have their right to privacy and to exclude from their property whomsoever they wish subject to the extraordinary situations dealt with in legislation. It is not to be considered the norm that any council officer can, whenever he or she feels it convenient, go across to the court house, tell the chamber magistrate that he has reason to believe that there has been a contravention of the LocalGovernment Act, and then march out to the ratepayer's property to search it.

His Honour's comment that search warrants should be confined to investigation of suspected criminal offences has important implications for the gathering of evidence for the purposes of civil enforcement proceedings. It is commonplace for councils to take enforcement proceedings in the Land and Environment Court'sclass 4 jurisdiction. If Young J's interpretation of s201 is adopted by that court, it will be necessary for a council to rely on notices to produce and subpoenas issued by the court in order to obtain evidence for the purposes of the proceedings.

Patrick Gunning