Bessemer v Owners of Strata Plan 6925/35054 - [2018] NSWCA 57 - NSWCA 2018 case summary — Zoe

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Bessemer v Owners of Strata Plan 6925/35054

[2018] NSWCA 57

Court of Appeal (NSW)|2018-02-09|Before: McColl JA, Simpson JA

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2018-02-09

Before

McColl JA, Simpson JA

Source

Original judgment source is linked above.

Judgment (25 paragraphs)

[1]

] NSWCA 340 Bagshaw v Director of Public Prosecutions (NSW) [2018] NSWCA 14 Commissioner for Railways (New South Wales) v Cavanough (1935) 53 CLR 220; [1935] HCA 45 Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 Director of Public Prosecutions v Emanuel [2009] NSWCA 42;(2009) 193 A Crim R 552 Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 Mayfair Trading Co Pty Ltd v Dreyer (1958) 101 CLR 428; [1958] HCA 55 Miller v Director of Public Prosecutions [2004] NSWCA 90; (2004) 145 A Crim R 95 Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92; (2015) 25 A CrimR 154 R v Bates [1982] 2 NSWLR 894 Re Culleton (No 2) [2017] HCA 4; (2017) 91 ALJR 311 Re Trim Perfect Australia Pty Ltd; National Australia Bank Ltd [2005] NSWSC 972; (2005) 55 ACSR 237 Scott v Director of Public Prosecutions (NSW) [2015] NSWCA 60 Spanos v Lazaris [2008] NSWCA 74 Trad v Harbour Radio Pty Ltd [2017] NSWCA 64 Yousaf v Director of Public Prosecutions [2012] NSWCA 397 Texts Cited: Archbold's Criminal Pleading, Evidence and Practice 21st ed (1893) Introduction to Justices (Amendment) Bill, the Hon Mr J Maddison, Minister of Justice, New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 14 March 1967 Justices Legislation Amendment (Appeals) Bill 1998 (NSW) Category: Principal judgment Parties: Lorraine Helen Bessemer (Applicant) Owners of Strata Plan 6925/35054 (First Respondent) District Court of New South Wales (Second Respondent) Representation: Counsel: Lorraine Helen Bessemer (In Person) Owners of Strata Plan 6925/35054 (Mr J McKenzie) District Court of New South Wales (Submitting Appearance) M McHugh SC, A Justice (Amici Curiae)

[2]

[4]

Judgment

McCOLL JA: The applicant, Lorraine Helen Bessemer, seeks judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) of a decision of Judge Conlon given in the District Court in its criminal jurisdiction on 10 November 2016. The respondents are the owners of lots in Strata Plan 6925/35054 (Owners Corporation). [1] There are three lots in the Strata Plan, one of which is owned by Ms Bessemer.
The complex and lengthy history of the matter stems from attempts by the owners of the other two lots in the Strata Plan to require Ms Bessemer to comply with orders made, in 1992 and 1993 respectively, by the Strata Titles Board (STB), pursuant to the Strata Titles Act 1973 (NSW) (STA). Those attempts included the Owners Corporation successfully prosecuting Ms Bessemer in 1993 and 1994 in the Local Court of New South Wales pursuant to s 142(2A) of the STA for contravention of those orders, for which contraventions she was convicted.
Some 20 or so years later, in 2015, in the circumstances detailed later in these reasons, Ms Bessemer's convictions were annulled by his Honour Judge Scotting in the District Court of New South Wales pursuant to s 4 of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act). In 2016, the Owners Corporation determined not to pursue the prosecutions afresh, withdrew the informations by which they had commenced and the proceedings were dismissed (2016 proceedings).
In the 2016 proceedings Ms Bessemer sought to recover from the Owners Corporation costs she asserted she had incurred consequent upon her convictions. Ms Bessemer ultimately withdrew her costs application. Notwithstanding this, she subsequently sought to appeal to the District Court asserting she had not, in fact, withdrawn the costs application. She also sought on appeal to be relieved of a levy imposed by the Owners Corporation (apparently after the conclusion of the 2016 proceedings) on all lot owners in proportion to their respective unit entitlements, to recoup legal costs it had incurred in seeking advice and legal representation in relation to the 2016 proceedings (strata levy issue).
Conlon DCJ dismissed the appeal on the basis, in part, that he did not have jurisdiction in relation to the strata levy issue.
In her summons Ms Bessemer describes the orders she seeks as follows: "A judicial review. Exemption from paying cost [sic] of the Owners Corporation. Reimbursement of property and money taken from me unlawfully."
Ms Bessemer was self-represented. Mr James Mackenzie, the secretary and treasurer of the Owners Corporation, appeared on its behalf.
The Court was greatly assisted by Mr Michael McHugh of Senior Counsel and Mr A Justice who appeared as amici curiae.
As Gleeson JA explained in Bagshaw v Director of Public Prosecutions (NSW), [2] "[t]here is no right of appeal to this Court from a decision of the District Court on an appeal against a conviction or sentence in the Local Court." [3] Section 176 of the District Court Act 1973 (NSW) provides that no adjudication on appeal of the District Court is to be removed by any order into the Supreme Court. [4] Its effect is not entirely to exclude proceedings by way of judicial review but to limit relief to cases in which the applicant can demonstrate jurisdictional error. [5] Accordingly, the scope for any intervention by way of judicial review by this Court in a decision of the District Court on an appeal against either a conviction or sentence imposed by the Local Court is limited. [6] Thus, any relief this Court may be able to afford on the judicial review summons depends on Ms Bessemer demonstrating jurisdictional error. [7]
Jurisdictional error is sufficiently described in this case as arising where an inferior court "mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist", [8] where a judicial officer misconstrues the relevant statute and, accordingly, "misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case and where a party has been denied procedural fairness." [9]
Due, no doubt, to both the passage of time, and the way the proceedings have been conducted, primary documents have not been produced in relation to many of the historical events. Accordingly, some of those matters, such as the formalities surrounding the prosecutions of Ms Bessemer have been drawn from documents in the nature of submissions produced for the purpose of recent proceedings. None of these historical accounts has been disputed by Ms Bessemer.
For the reasons that follow, I would dismiss the judicial review application with costs.

[5]

Strata Titles

Pursuant to STA, s 157 (as in force at the time the 1993 and 1994 proceedings were commenced) proceedings for an offence against STA, s 142 such as those commenced against Ms Bessemer, could "only be taken before a court of petty sessions held before a stipendiary magistrate". Section 157 had survived in this form notwithstanding the enactment of the Local Courts Act 1982 (NSW), which relevantly commenced on 1 January 1985 and provided for the creation of Local Courts within New South Wales and abolished courts of petty sessions and the position of stipendiary magistrate. [10]
However, by reason of Sch 1, cl 2(1), in the Savings and Transitional Provisions to the Local Courts Act, all courts of petty sessions which existed immediately before the Local Courts Act commenced were deemed to be Local Courts established under s 6(1) of the Local Courts Act. In addition, pursuant to Sch 1, cl 7(1)(a), a reference in any other Act to Courts of Petty Sessions or Petty Sessions was to be read and construed as a reference to Local Courts established under s 6(1). Accordingly, the 1993 and 1994 proceedings were appropriately commenced in the Local Court in its criminal jurisdiction.
Ms Bessemer contends she is entitled to relief in relation to the strata levy issue by reason of s 150 of the STA as in force at the time of her convictions, or, alternatively by reason of one of its successor provisions.
Section 150 of the STA as in force at the time of the 1993 and 1994 proceedings provided: "Costs proceedings by proprietors against body corporate (1) In any proceedings brought by one or more proprietors against the body corporate, or by the body corporate against one or more proprietors (including one or more proprietors joined in third party proceedings), the court may order that any moneys (including costs) payable by the body corporate pursuant to an order of the court made in those proceedings shall be paid, only in respect of such lots as are specified in the order and in such proportions as may be so specified, by the body corporate out of contributions levied for the purpose. (2) Where a court makes an order under subsection (1) the body corporate shall, for the purpose of paying the moneys ordered to be paid by it, levy contributions in accordance with the terms of the order and shall pay the moneys out of the contributions paid pursuant to that levy, and section 59, subsection (3) excepted, applies to and in respect of contributions levied under this subsection in the same way as it applies to contributions levied under that section." [Emphasis added.]
The STA was renamed the Strata Titles (Freehold Development) Act 1973 (NSW) (Freehold Development Act) on the enactment of the Strata Schemes Management (Miscellaneous Amendments) Act 1996 (NSW) (Miscellaneous Amendments Act 1996). [11] The Miscellaneous Amendments Act 1996 came into force on 1 July 1997. [12] It repealed s 150 of the STA. [13] The Strata Schemes Management Act 1996 (NSW) (Management Act 1996) also came into effect on 1 July 1997. Its objects included providing for the management of strata schemes created under the Freehold Development Act and providing for the resolution of disputes arising in connection with the management of strata schemes. [14]
Pursuant to Sch 4 (Savings, transitional and other provisions), Pt 2, cl 3 of the Management Act 1996, any proceedings commenced but not determined or finalised under provisions of the Freehold Development Act repealed by the Miscellaneous Amendments Act 1996 could be dealt with and determined as if that Act had not been amended by the Miscellaneous Amendments Act 1996.
Pursuant to Sch 4, Pt 2, cl 4(1) of the Management Act 1996, an order made by a strata titles board under the Freehold Development Act was taken to have been made by the Strata Schemes Board under the corresponding provision of the Management Act 1996. However, despite that subclause, the provisions of the Freehold Development Act relating to the contravention of orders as in force immediately before their repeal continued to apply to such an order: cl 4(2)(b).
Pursuant to Sch 4, Pt 2, cl 5, a decision, consent or approval of an owners corporation under the Freehold Development Act before its amendment by the Miscellaneous Amendments Act was taken to have been made under the Management Act 1996.
Chapter 7, Pt 1 (Matters relating to proceedings) of the Management Act 1996 dealt with proceedings for an offence against the Act or the regulations. It contained s 229 on which Ms Bessemer sought to rely in the alternative to s 150 of the STA. It was in substance in like terms to s 150. Relevantly, s 229 provided: "(2) The court may order in proceedings that any money (including costs) payable by an owners corporation under an order made in the proceedings must be paid from contributions levied only in relation to such lots and in such proportions as are specified in the order. (3) If a court makes such an order the owners corporation must, for the purpose of paying the money ordered to be paid by it, levy contributions in accordance with the terms of the order and must pay the money out of the contributions paid in accordance with that levy. (4) Division 2 of Part 3 of Chapter 3 (section 78(2) excepted) applies to and in respect of contributions levied under this section in the same way as it applies to contributions levied under that Division." [Emphasis added.]
In addition, the Management Act 1996 also contained a new provision, s 230, s 230(1) of which provided that "An owners corporation cannot, in respect of its costs and expenses in proceedings brought by or against it under Chapter 5, levy a contribution on another party who is successful in the proceedings." Chapter 5 of the Management Act 1996 dealt with disputes, complaints or problems concerning a strata scheme. [15] It enabled applications to be made to the Civil and Administrative Tribunal to resolve such issues.
For completeness, I note that the Freehold Development Act was, in turn, repealed by the Strata Schemes Development Act 2015 (NSW) (Development Act 2015) which came into force on 30 November 2016. [16] The Management Act 1996 was repealed by the Strata Schemes Management Act 2015 (NSW) (Management Act 2015) which also came into force on 30 November 2016. [17] The current "equivalents" to s 229 and s 230 are ss 90 and 104. Each Act contained a savings provision to the effect that proceedings commenced but not determined or finalised under either the Freehold Development Act or the Management Act 1996 (respectively "former Act") were to be dealt with and determined as if the former Acts had not been repealed. [18]

[7]

The prosecutions

As I have said, in 1992 there were three lots in the Strata Plan. Their proprietors were Ms Bessemer, Mr and Mrs Tolley and Ms Mary Brown respectively. Mr and Mrs Tolley owned unit 2, Ms Brown owned unit 1 at the relevant time, whilst Ms Bessemer owned unit 3.
On or about 13 December 1991, Ku-ring-gai Council, in whose municipality the building the subject of the Strata Plan is located, made an order pursuant to s 317D of the Local Government Act 1919 (NSW) requiring the proprietors of the Strata Plan to ensure all common walls in the building had a 1-hour fire resistance rated standard (fire resistance works).
From about December 1991, when the Owners Corporation was served with the s 317D order by the Ku-ring-gai Council, until on or about 21 or 22 October 1993, Ms Bessemer failed to provide contractors access to her unit to enable the fire resistance works to be completed. In addition, it appears she was undertaking, or was seeking to undertake, work upon the common property without the approval of the Owners Corporation.
In August 1992 there were two members of the council of the Owners Corporation, Mr Tolley and Ms Brown. As the Owners Corporation had two or more members, a quorum required both Mr Tolley and Ms Brown to be present. [22]
On 14 August 1992, the Council of the Owners Corporation passed, or purported to pass, the following resolutions: "Resolution 5: That all necessary steps be taken by the Body Corporate and its delegated agent to gain access to Unit 3 to complete the works relating to the fire rating order issued by Ku-ring-gai Council on 13/12/91, within the required time specified by the Council in subsequent correspondence. Resolution 6: That NHSM [the strata manager] be instructed to make application to the Strata Titles Commissioner for an order to prevent the proprietor Unit 3 [sic, as in original] from carrying out any work to the Common Property and the Building without the prior written approval of the Body Corporate. Resolution 7: That approval be granted to Council and/or the Managing Agent to pursue the enforcing of any strata order(s) so granted, by any means, including the taking of further legal action".
The meeting on 14 August 1992 was chaired by the Strata Manager, Mr Allan Cameron of North Harbour Strata Managers Pty Ltd, who declared there was a quorum. However, only Mr Tolley was present.
Mr Tolley sold his unit on or about 3 September 1993. Ms Brown died at some stage before the annulment application.

[13]

McIntyre LCM

Pursuant to the CAR Act, s 9(2)(a) and (3), upon the annulment of the convictions, the Local Court was required to deal with the original matters afresh as if no conviction or sentence had been previously made or imposed.
Further, CAR Act, s 10 relevantly provided: "Effect of annulment of conviction or sentence (1) On being annulled, a conviction or sentence ceases to have effect and any enforcement action previously taken is to be reversed. […] (3) If a fine is annulled, any amount paid towards the fine is repayable to the person by whom it was paid. (4) The Consolidated Fund is appropriated to the extent necessary to give effect to subsection (3)." [Emphasis added.]
On 29 February 2016, the s 9 rehearing was listed for mention before McIntyre LCM. Ms Bessemer appeared in person. The Owners Corporation was represented. Mr Tolley also appeared and was also represented.
The Owners Corporation advised the Court that given the proceedings were "over 20 years old" and "the state of the records the owners don't wish to continue with the proceedings and seek [they] be discontinued." Mr Aitken, who appeared for Mr Tolley, advised the court that Mr Tolley had sold his unit in 1993 and "ought not be regarded as the informant on the face of the informations".
Ms Bessemer sought costs for the original hearings and, apparently, reimbursement of other expenses and the return of her fines.
All three proceedings were noted as being withdrawn and dismissed and the matters were listed for her costs application to be heard on a later date.
McIntyre LCM made orders requiring Ms Bessemer, the Owners Corporation and Mr Tolley to file written submissions in respect of the costs application. Extensive submissions were filed.
In her written submissions dated 28 March 2016, Ms Bessemer contended she had paid costs of $39,749.05 to the Owners Corporation pursuant to s 142 of the STA to which it was no longer entitled. She further contended those costs could be repaid to her pursuant to s 150 of the STA or either s 229 or s 230 of the Management Act 1996. In addition to the amount of $39,789.05 she sought interest and any further costs. In a schedule to her submissions, she listed a variety of costs allegedly incurred over the period 1993 - 2016. Some of these included "court costs paid to [the] proprietors." As the Owners Corporation observed in its written submissions, the amounts set out in the schedule were not supported by tax invoices or receipts. Nor, to a large extent, did they apparently relate to either the 1993 or 1994 proceedings.

[16]

Applicant's submissions

In her lengthy handwritten submissions, Ms Bessemer repeats aspects of the history of the matter. She submits she should be exempted from paying her unit entitlement of what she describes as "the costs which the Owners Corporation … paid to Bannerman's Solicitors to pursue three Criminal Summons issued against me pursuant to s 9 of the [CAR] Act." Although it is not entirely clear, these costs appear to be those the Owners Corporation incurred in seeking to determine whether to pursue the prosecutions against Ms Bessemer consequent upon the annulment of her convictions.
Ms Bessemer submits such "an exemption" can be granted pursuant to ss 229 and 230 of the Management Act 1996. She complains that neither Farnan LCM nor Conlon DCJ granted her that relief.
In addition, Ms Bessemer complains that she has been "forced to pay $40,417.97 to the owners corporation for matters which are now acknowledged to have no legitimacy, from 1 March 1993 to 28 February 1999." [24] In support of this contention, Ms Bessemer annexed to her written submissions 12 pages of what appeared to be statements of accounts prepared by the managing agents of the Owners Corporation during the period referred to.
Next, Ms Bessemer complains of an amount "directly stolen from me by way of fines and penalties for the prosecutions and convictions which were unlawfully founded [of] $23,695.74 [which] I alone had to pay this to the Owners Corporation." [Sic, as in original.]
The $40,417.97 to which Ms Bessemer refers also appears from other documents attached to her written submissions to represent her unit entitlement [26.7%] of an amount of $62,630.06 ($16,722) which she describes as "misappropriated monies" and the "stolen amount of $23,695.74." The so-called "misappropriated monies" all appear to be amounts paid to either firms of solicitors or managing agents, presumably retained by the Owners Corporation over the years. There is no manifest connection between those amounts and Ms Bessemer's convictions.

[19]

Annulment of convictions

At common law, a conviction which was reversed by proceedings in error, by being quashed or set aside upon a statutory appeal was avoided ab initio: "The judgment reversed is the same as no judgment". Such a conviction was described as "utterly defeated and annulled". [25]
The effect of the reversal of a conviction, however, was not to set aside all that had happened consequent upon the conviction. Rather, as was said in Cavanough: "Acts done according to the exigency of a judicial order afterwards reversed are protected: they are 'acts done in the execution of justice which are compulsive' - (Dr Drury's Case). And proceedings which, although based upon a judgment, are brought to completion before its reversal are not avoided. For 'collateral acts executory are barred, but not collateral acts executed' - (Dr Drury's Case). But 'upon the reversal of a judgment against any person convicted of any offence, the judgment, execution and all former proceedings become thereby absolutely null and void. If living, he (or if dead his heir or personal representative, as the case may be) will be entitled to be restored to all things which he may have lost by such erroneous judgment and proceedings, and shall stand in every respect as if he had never been charged with the offence in respect of which judgment was pronounced against him' (Archbold's, Criminal Pleading, Evidence and Practice, 21st ed. (1893), pp. 226, 227)." [26] [Emphasis added.]
Until 1967, there was no statutory avenue in New South Wales by which a person could seek an annulment of a conviction. Rather, the only avenue by which that course could be pursued was to petition the Governor seeking to attract the exercise of the prerogative of mercy. [27] Annulment provisions were first introduced by way of amendments to the Justices Act, [28] and are now found in the CAR Act.
Section 10 of the CAR Act was considered by the High Court in Re Culleton (No 2), [29] in which the High Court had to determine the effect on Mr Culleton's eligibility to remain a senator despite his conviction in the Local Court in his absence, of larceny, prior to his nomination for the 2016 Senate election and before polling day for the election. By reason of his conviction, he was liable to be sentenced to imprisonment for a maximum term of two years when he was brought before the Local Court. The Local Court subsequently granted an annulment of the conviction, proceeded to deal with the matter afresh, found him guilty of the offence, on his own plea, but dismissed the charge without proceeding to conviction. [30]
Mr Culleton was "incapable of being chosen or of sitting as a senator" if he "ha[d] been convicted and [was] under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer". [31] Accordingly, the issue was whether his conviction had the effect of disqualifying him from being elected as a senator. That turned on whether the annulment of his conviction operated retrospectively or prospectively.
Kiefel, Bell, Gageler and Keane JJ held that the requirement in CAR Act, s 9(2)(a) that if a conviction was annulled, the Local Court must "deal with the original matter afresh"; and that the Local Court "is to deal with the original matter as if no conviction ... had been previously made" (s 9(3)), "require[d] the Local Court to proceed upon the fiction that a conviction has not been made, because, in truth, the conviction was not a nullity from the beginning". [32]
This was because the effect of CAR Act, s 10(1), providing that "[o]n being annulled, a conviction ... ceases to have effect and any enforcement action previously taken is to be reversed", was that the annulment of the conviction "was not apt to expunge the legal rights and obligations arising from it, save in relation to the future and in the reversal of things done under it" [emphasis added]. Thus, CAR Act, s 9 and s 10, did "not purport to operate retroactively to deny legal effect to a conviction from the time that it was recorded." [33]
Accordingly, "[t]o say, as s 10(1) does, that the conviction 'ceases to have effect' is to acknowledge that it has been in effect to that point". [34] Further, the effect of the statement in s 10(1) that "enforcement action ... is to be reversed", is "to leave the legal state of affairs previously established by the conviction unaffected, save for the actual reversal of any action taken by way of enforcement against the defendant." [35]
At the date of the 2016 Senate election, the conviction recorded against Mr Culleton for which he was liable to be sentenced to imprisonment for a maximum term of two years was legally in effect. That position was not altered by the annulment because the effect of CAR Act, s 10, was that the annulment did not purport retrospectively to treat the conviction as if it had never occurred. [36] Accordingly, Mr Culleton was incapable of being chosen as a senator. [37]

[21]

The strata levy issue: enforcement action

Nor, in my view, could the raising of a strata levy constitute "enforcement action" reversible consequent upon the annulments.
Pursuant to CAR Act, s 10(1), on the annulment of a conviction, "any enforcement action previously taken is to be reversed." Does that have any operative effect insofar as Ms Bessemer is concerned?
"Enforcement action" is not defined in the CAR Act. It must be understood by reference to the text of s 10, and in the context, of the CAR Act.
In context, as the Amici Curiae submitted, as the repayment of annulled "fines" is dealt with by s 10(3), "enforcement action" in s 10(1) must refer to matters other than fines. However, the fact that fines are dealt with in s 10(3) gives some insight into the meaning of s 10(1). A "fine" is a monetary penalty imposed by a court for an offence. [38] It is, accordingly, a form of punishment. Prima facie, and as a matter of ordinary English usage, it would accord both with the text and context that "enforcement action" in s 10(1) refers to punishment consequent upon conviction.
The plurality's statement in Re Culleton (No 2) that the effect of s 10(1) was "to leave the legal state of affairs previously established by the conviction unaffected, save for the actual reversal of any action taken by way of enforcement against the defendant", [39] supports that interpretation of "enforcement action" in that provision.
Such a construction is also consistent with the ordinary meaning of "to enforce" which is "to compel observance of". [40] In the context of securities, for example, the words "enforce", "enforceable" and "enforcement" may "be properly applied to the exercise of any of the remedies which the security may give". [41] Punishment consequent upon a conviction is the imposition of the State's "remedy" for the offence committed.
Whether an action is "enforcement action" depends upon its inherent legal character, not the subjective classification someone may place upon it or whether the action is antecedent to, or postdates, an act which is, by its inherent legal character, "enforcement action". [42]
At the times Ms Bessemer was convicted in 1993 and 1994 pursuant to STA, s 142(2A), for contravening the STB orders, the court could order the defendant to pay a maximum of 5 penalty units. [43] As I have earlier said, insofar as costs were concerned, in the case of an order of dismissal pursuant to s 81(1) of the Justices Act, the Court could order the prosecutor or complainant to pay to the clerk of the court, to be paid by that clerk to the defendant, such costs as seemed "just and reasonable." The amount allowed for such costs was to be specified in the order: s 81(2).
As I have also said, the imposition of a penalty under s 142 operated as a judgment under the Civil Claims Act against the defendant and in favour of the prosecutor for the amount of the penalty: s 142(4)(a). Such a penalty was not enforceable or recoverable other than as s 142(4) provided: s 142(5). Accordingly, s 87(1) of the Justices Act which provided for imprisonment in default of payment of a fine or penalty did not apply.
Pursuant to s 47(1) of the Civil Claims Act, the registrar of the Local Court in which a judgment was given or entered up was empowered to "make an order that all debts due or accruing to the judgment debtor from any person specified in the order shall be attached to answer the judgment debt" (garnishee order). The balance of s 47 dealt with the application, making and service of a garnishee order, as well as the power of the registrar to refuse to make such an order having regard to the "smallness of the judgment debt or of the amount to be recovered or of the debt sought to be attached or for any other reason" (s 47(5)).
Section 52 set out the procedure to be followed where a garnishee order was not complied with. It is unnecessary to recount the details of the procedure. It is sufficient to note that if the garnishee either failed to appear or did not satisfy the court that the debt alleged by the judgment creditor to be owing by the garnishee to the judgment debtor was bona fide in dispute, the court was empowered to "order execution to issue and it may be sued out accordingly without any other writ or process to levy the amount alleged to be due" (s 52(3)). The registrar of the Local Court in which a judgment is given or entered up was empowered, on the application of the judgment creditor, to issue a writ of execution in the nature of a writ of fieri facias directed to the sheriff and all bailiffs appointed for the purposes of the Civil Claims Act (s 58). At the time Ms Bessemer was convicted, such a writ bound the property in the goods of the execution debtor as from the time when the writ was delivered to the sheriff to be executed. [44]
All those steps, if taken, might properly be regarded as "enforcement action" within the meaning of CAR Act, s 10(1).
However, there are limits to how far the concept of "reversing enforcement action" can be taken. Practically, for example, it cannot apply to invalidate the custodial term served by a person whose conviction is annulled. That would be contrary to the fundamental principle, as explained in Cavanough, [45] that such acts are protected because they are "'acts done in the execution of justice, which are compulsive'". As Basten JA observed in Trad v Harbour Radio Pty Ltd,, the statement in Archbold's Criminal Pleading, Evidence and Practice, [46] cited in Cavanough, [47] that "upon the reversal of a judgment against any person convicted of any offence, the judgment, execution and all former proceedings become thereby absolutely null and void" cannot be taken literally. If it were, "the sentence of imprisonment served pending the determination of an appeal would be a trespass entitling the accused to damages. That is not the law." [48]
The strata levy was raised consequent upon the operation of a legislative scheme which depended on the relationship between strata lot owners and the Owners Corporation. At the time the strata levy from which Ms Bessemer seeks to be relieved was raised (that is to say, between 24 May and 10 November 2016), Ch 3, Pt 3 of the Management Act 1996 dealt with the finances of strata schemes. Division 2 dealt with the levy of contributions. The Owners Corporation was required to determine the amounts to be levied as a contribution to the administrative fund and the sinking fund, as well, if necessary to levy on each owner a contribution to the administrative fund, to meet expenses it could not "at once meet from either fund": (s 76). An owners corporation could "recover as a debt a contribution not paid at the end of one month after it [became] due and payable, together with any interest payable and the expenses of the owners corporation incurred in recovering those amounts:" (s 80(1)).
This analysis demonstrates that the strata levy was remote from Ms Bessemer's convictions and their annulment, even if the legal advice sought pursuant to which the Owners Corporation raised the levy concerned whether to proceed with the historic informations. Obtaining that advice and/or raising that levy could not be said to be a form of punishment or a remedy consequent upon Ms Bessemer's convictions so as to constitute "enforcement action" which was reversed, or, reversible consequent upon the annulments.
Although the primary judge did not engage in any analysis in concluding that he did not have power in respect of the strata levy issue, his conclusion that he did not was correct.

[23]

Orders

The judicial review application should be dismissed with costs.
SIMPSON JA: I agree with McColl JA. I also agree with the additional observations of Sackville AJA.
SACKVILLE AJA: I agree with McColl JA. I add the following observations.
As McColl JA has pointed out, it is not clear why the Attorney-General issued a certificate permitting the applicant to institute annulment proceedings some 20 years after the Local Court recorded convictions against her. No doubt the applicant has nurtured feelings of injustice about the events leading to her convictions and subsequent actions taken in consequence of those convictions. But the annulment proceedings, brought so many years after the convictions, have spawned a significant volume of litigation.
The parties, who have mostly been unrepresented, have encountered the difficulty that some of the legislation governing their rights and obligations has been repealed. As McColl JA's careful examination of the legislation demonstrates, it is no easy task - virtually impossible for many lay people - to identify which historical version of legislation applies to events occurring long ago.
It is also no easy task to find one's way through the procedural complexities of litigation in which the issues are not clearly defined and the parties themselves are not necessarily clear as to their objectives. This Court was fortunate to have the assistance of Mr McHugh SC and Mr Justice in unravelling the history of the matter and the issues arising on the application for judicial review.
Formally speaking, the litigation initiated by the applicant has involved the same owners corporation responsible for commencing the prosecutions against her. In practical terms, however, the litigation has embroiled the two current proprietors of lots in the strata plan (other than the applicant). Neither of these proprietors had anything to do with the disputes that occurred in 1993 and 1994. Nor is there anything in the evidence to indicate that they had any inkling when they acquired their lots that they would effectively be subject to litigation arising out of proceedings concluded many years earlier.
The principal issue the applicant seeks to agitate in the judicial review proceedings is her entitlement to be relieved of her 26.7 per cent share of the special levy imposed by the body corporate on the three unit holders in the strata plan. The special levy was apparently imposed to meet the legal costs incurred by the body corporate in connection with the annulment proceedings and the subsequent litigation initiated by the applicant. Her share of the levy amounts to approximately $8,000.
There may have been some costs orders the applicant could have sought in her annulment application and in the subsequent rehearing of the criminal prosecution. However, she did not press any claim for such orders.
For the reasons given by McColl JA, the applicant's reliance on s 150 of the Strata Titles Act 1973 (NSW) or ss 229 - 230 of the Strata Schemes Management Act 1996 (NSW) to exempt her from the levy imposed by the body corporate was misplaced. McColl JA has also explained why the applicant is unable to rely on s 10(1) of the Crimes (Appeal and Review) Act 2001 (NSW).
Accordingly, the application for judicial review of the decision of the District Court must be dismissed.

[24]

Endnotes

At the time of the events giving rise to the controversy between the parties, those who owned lots in a strata plan were referred to as "proprietors" of those lots, and the "owners corporation" was known as the "body corporate". Those expressions were changed on the enactment of the Strata Schemes Management Act 1996 (NSW). Henceforth a "proprietor" was referred to as an "owner" and the "body corporate" was known as an "owners corporation". For convenience I have used the post-1996 expressions notwithstanding the date referred to.
[2016] NSWCA 340 (Bagshaw) (at [32]).
Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 (Garde v Dowd) (at [9]) per Basten JA (Giles and McColl JJA agreeing); Scott v Director of Public Prosecutions (NSW) [2015] NSWCA 60 (Scott) (at [19]); Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92; (2015) 25 A CrimR 154 (at [32]).
Garde v Dowd (at [9]).
Garde v Dowd (at [10]). See also Spanos v Lazaris [2008] NSWCA 74 (at [15]) per Basten JA (Beazley and Bell JJA agreeing); Director of Public Prosecutions v Emanuel [2009] NSWCA 42; (2009) 193 A Crim R 552; (at [18]) (Spigelman CJ) (and [45]) (Basten JA).
Bagshaw v Director of Public Prosecutions (NSW) [2018] NSWCA 14 (Bagshaw) (at [45] - [46]).
Ibid.
Craig v South Australia (1995) 184 CLR 163 (at 177); [1995] HCA 58.
Ibid; see also Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 (at [46]); Yousaf v Director of Public Prosecutions [2012] NSWCA 397 (at [30]) per Barrett JA (McColl and Meagher JJA concurring).
See Local Courts Act, s 6(1), s 9; s 157 of the STA was amended by Sch 4.90 of the Statute Law (Miscellaneous Provisions) Act 1999 (NSW) to read "Proceedings for an offence against any provision of this Act may only be taken before a Local Court constituted by a Magistrate sitting alone".
Miscellaneous Amendments Act 1996, cl [2.30[1]].
Section 2 and Government Gazette No 68 of 27.6.1997.
Schedule 2, cl [2.30[25]].
Management Act 1996, s 3.
Management Act 1996, s 123.
Section 2 and 2016 (658) LW 4.11.2016.)
Section 2 and 2016 (492) Legislation Website 12.8.2016.
Development Act 2015, Sch 8, Pt 2, cl 9, Management Act 2015, Sch 3, Pt 2, cl 7.
There were some preconditions to the award of costs in favour of a defendant in s 81(4), but they did not apply to awarding costs against an informant or a complainant acting in a private capacity: s 81(5).
Justices Legislation Amendment (Appeals) Bill 1998 (NSW), Sch 1, cl [2]; date of commencement, 1 March 1999, s 2 and GG No 25 of 26.2.1999, p 973.
Section 212(1), CPA.
Section 74(1), STA.
This statement is based on Mr Tolley's submissions to the Local Court for the purposes of Ms Bessemer's costs application. It is not clear that in 1992 the STB was empowered to make an order pursuant to s 104A(2) (cf s 118(1), STA), however the STC to whom the Owners Corporation's application would have been made did not have that power.
The $40,417.97 appears to be an update of the amount of $39,749.05 sought before Farnan LCM.
Commissioner for Railways (New South Wales) v Cavanough (1935) 53 CLR 220 (at 225); per Rich, Dixon, Evatt and McTiernan JJ; see also Starke J; [1935] HCA 45 (Cavanough) (at 227 - 228).
Cavanough (at 225); per Rich, Dixon, Evatt and McTiernan JJ.
Introduction to Justices (Amendment) Bill, the Hon Mr J Maddison, Minister of Justice, New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 14 March 1967 at 4065; see also Miller v Director of Public Prosecutions [2004] NSWCA 90; (2004) 145 A Crim R 95 (at [33]).
The Justices (Amendment) Act 1967 (NSW) inserted a new Part IVA (Annulment of Convictions) into the Justices Act.
[2017] HCA 4; (2017) 91 ALJR 311; (at [29]).
Re Culleton (No 2) (at [2]).
Section 44(ii) of the Constitution.
Re Culleton (No 2) (at [27]) [emphasis added].
Ibid (at [28]).
Ibid (at [29]).
Ibid.
Ibid.
Ibid (at [4]).
Fines Act 1996 (NSW), s 4(1)(a).
Re Culleton (No 2) (at [29]).
R v Bates [1982] 2 NSWLR 894 (at 895) per Samuels JA (Cantor and Enderby JJ agreeing).
Mayfair Trading Co Pty Ltd v Dreyer (1958) 101 CLR 428 (at 448); [1958] HCA 55 per Dixon CJ (McTiernan J agreeing).
Re Trim Perfect Australia Pty Ltd; National Australia Bank Ltd [2005] NSWSC 972; (2005) 55 ACSR 237 (at [19]) per Palmer J.
Pursuant to s 56 of the Interpretation Act 1987 (NSW) as then in force, the reference to 5 penalty units was to be read "as a reference to an amount of money equal to the amount obtained by multiplying $100 by that number of penalty units."
Sale of Goods Act 1923 (NSW), s 29.
(At 225).
21st ed (1893), (at 226 - 227).
At (225).
[2017] NSWCA 64 (at [31]) (McColl and Ward JJA agreeing).
Originally the Crimes (Local Courts Appeal and Review) Act 2001 (NSW).