Bombala Council v Smith [2005] NSWSC 382 | Case summary

DECISION : The order of the Local Court is set aside; the matter is remitted to the Local Court for determination in accordance with law; the defendant is to pay the costs of the proceedings; if so entitled, the defendant is to have a certificate under the Suitors' Fund Act 1951.

JUDGMENT 1 Master: The defendant is the owner of a property known as "Toorallie" (the property). The property is located within Bombala Shire. The plaintiff is the relevant local government authority. 2 The plaintiff purported to take action to carry out its statutory responsibilities. It was contended by the plaintiff that all of the paddocks on the property suffered from "nodding thistle" infestation. Such a thistle is a "noxious weed" within the meaning of the Noxious Weeds Act 1993 (the Act). 3 It is unnecessary to embark on a lengthy narrative of the relevant facts. It suffices to say that in the purported exercise of its statutory responsibilities under the Act, steps were taken by the plaintiff which were intended to effect the destruction of the infestation by the spraying of herbicides. This process involved the defendant being required to remove his stock so that the spraying could take place. Various notices were given to the defendant and other communication passed between the parties. 4 It appears that some paddocks were free of stock and the plaintiff was able to have them sprayed. Others could not be sprayed because the defendant did not remove his stock. This led to charges being brought against the defendant. 5 An Information was laid on 17 June 2003 and a summons was issued on the same day. It alleged an offence under s54(1)(b) of the Act. The alleged offence was in the following terms:- That on the 23/12/02 at Bibbenluke the State of New South Wales, the said Defendant, did hinder or obstruct an inspector or authorised officer from exercising a function conferred by the Act, to wit, the control of Nodding Thistle in paddocks on the property "Tourallie". 6 The essence of the offence was a failure to remove the stock so that all paddocks could be sprayed. 7 A defended hearing took place before Russell LCM. A solicitor appeared for the plaintiff. The defendant was unrepresented. An ex tempore judgment was delivered on 19 August 2004. The magistrate came to the view that the offence was not made out and dismissed the charge. 8 On 16 September 2004, the plaintiff filed a summons in this Court. It purports to bring an appeal from that decision. 9 The avenue of appeal available to the plaintiff in this case is error in point of law. The plaintiff bears the onus of satisfying the Court of such an error and that the error justifies the disturbing of the decision of the Magistrate. 10 The Magistrate seems to have reached her view having regard to the meaning she gave to "obstructs". She concluded that the plaintiff had elected to proceed on the basis that there had been obstruction rather than hindrance. 11 Whether or not it had so elected is not a question that falls for determination in this appeal. Likewise, it is unnecessary to consider any question of duplicity in the alleged offence. 12 The Magistrate's judgment is short. Largely, it does not address the issues of fact that were before her. 13 She appears to have taken the view that the "facts of the matter" would fall within s54(1)(c) of the Act and that this was a position that had been accepted by the solicitor appearing for the plaintiff. 14 The Magistrate then addressed the meaning to be attributed to "obstructs". She had regard to a dictionary meaning ("as to prevent, impede or hinder"). 15 She had regard to the judgment of Campbell J in Boon v Maher (unreported, NSWSC, 22 December 1986). In that judgment, Campbell J gave consideration to the meaning of "obstructs" as it appears in the Pure Food Act 1908. In that Act, it appears in the context of "assaults" and "intimidates". 16 Her judgment concludes with the following [p 37]:- In my view the word "obstructs" is s54(1)(b) of this Act imports some action on the part of the defendant to adopt the words of Campbell J, "a step taken". Here no step was taken. It is said that the defendant failed to comply with a requirement. The Act provides in s54(1)(c), as I have said, for such behaviour to constitute an offence in appropriate circumstances. That is part of the scheme of the Act. This, in my view, informs a reading of s54(1)(b) of the Act and supports the natural reading of the section which is in my view that some positive steps be taken. IN MY VIEW THE OFFENCE IS NOT MADE OUT FOR THOSE REASONS, AND THE CHARGE WILL BE DISMISSED. 17 Section 54(1) of the Act is in the following terms:- Offence: obstructing inspector, authorised officer or other authorised person (1) A person who: (a) prevents an inspector or authorised officer from exercising a function conferred by or under this Act, or (b) hinders or obstructs an inspector or authorised officer in the exercise of such a function, or (c) without reasonable excuse, refuses or fails to comply with a requirement made or to answer a question of an inspector or authorised officer asked in accordance with this Act, or (d) furnishes an inspector or authorised officer with information knowing that it is false or misleading in a material particular, is guilty of an offence. Maximum penalty: 20 penalty units. 18 The Act contains a dictionary of words and expressions. The dictionary does not define "hinders" or "obstructs". 19 Dictionary definitions of "hinder" include:- impede; delay; prevent. [Oxford] 1. to check; interrupt; retard … 2. to prevent from acting or taking place; stop … [Macquarie] 20 Dictionary definitions of the word "obstruct" include:- 1. block up; make hard or impossible to pass. 2. prevent or retard the progress of; impede. [Oxford] 1. to block or close up (a way, road, channel, etc). 2. to make difficult or oppose the passage, progress, course, etc, of. 3. to come in the way of or shut out (a view, etc). [Macquarie] 21 "Impede" appears as a meaning attributed to both "obstruct" and "hinder". "Impede" itself connotes inter alia - "to slow down in movement or progress; obstruct; hinder; hamper". There is clearly overlapping in the natural meanings of "obstruct", "hinder" and "impede". 22 These terms appear in other legislation. However, the meaning given in other legislation is dependent upon the relevant context. 23 In purporting to apply what she understood to have been said by Campbell J, the Magistrate seems to have fallen into error. It seems to me that she has either misunderstood or misapplied the observations of Campbell J. Whether or not that be the case, I consider that what was said by Campbell J has little application in this case ("obstructs" appears in a different context). 24 The word "obstructs" has to be read and construed in the particular context it has in the Act. As s54(1)(b) contains both "hinders" and "obstructs", it seems clear that the legislature had in mind creating separate and distinct offences. 25 It may be thought that "hinders" was the most appropriate of the two in the circumstances of the present case. Be that as it may, I put that consideration aside. 26 In construing "hinders" and "obstructs", the Court also has to have regard to the content of subsection (1)(c) (which is intended to create another separate and distinct offence) and to other provisions of the Act. 27 Section 54 appears in Part 5 of the Act (which is headed "Noxious weed control officers and advisory committees"). It is one of a number of provisions which are intended to assist officers in the performance of statutory functions. 28 Counsel for the defendant has referred to Towse v Bradley (1985) 14 A Crim R 408. The judgment of Blackburn CJ in that case came to consider a charge of hindering police under the Australian Federal Police Act 1979. 29 At pp 412-413, the following was said:- I wish to guard against the inference that my conclusion in this case contravenes the accepted principle that mere inaction - doing or saying nothing at all - does not amount to hindrance under statutory provisions such as the one in question here. That principle is of course correct. At 530, 531 of Leonard v Morris Bray CJ said: "Some overt act is required and mere inaction cannot amount to hindering." His Honour proceeded to give an example from the case of O'Hair v Killian (1971) 1 SASR 1. The example given from that case was of the leader of a protest march who in the first place gave directions to the marchers which were contrary to later orders lawfully given by police. The failure by the leader, after the police orders had been given, to countermand the instructions earlier given by him was said not to be a hindrance of the police. With this contention I respectfully agree; but the words "some overt act" are in my opinion inadequate if they do not cover deliberate non-compliance with a reasonable direction to move in order to allow the execution of the constable's duty. I imagine the case of a person who is sitting in a chair in front of a cupboard, and refuses to move so as to allow police executing a search warrant to open the door of the cupboard. To hold that such a refusal would not be hindering the police within the meaning of this section would merely be to encourage or necessitate the application of physical force by the police to such person to allow them to open the cupboard door. It would be absurd if the law were to be such as to necessitate the application of physical force in such a case, with no criminal sanction for anything short of physical resistance to such force. The legislation should be so construed as to discourage, not to encourage, the application of physical force. The facts of this case are not different in kind. In my opinion the commission of the offence by the appellant was established on the evidence, and the learned chief stipendiary magistrate came to a correct conclusion. The appeal is dismissed and the order nisi is discharged. 30 It seems to me that what was said in that case is of little assistance to the defendant (inter alia in the present circumstances). Apart from the different context, this may be seen as a case where there has been non-compliance by the defendant with what the plaintiff wanted him to do. 31 The Magistrate has taken the view that there has to be some positive steps taken. In my view, that approach is erroneous. It seems to me that "obstructs" in its context in the Act would contemplate circumstances where action has been taken and where action has not been taken. In either situation, a person may obstruct an inspector or officer in the exercise of a function conferred by or under the Act. 32 The failure to remove stock in the circumstances may be seen as impeding or hampering. 33 It may be that circumstances such as those thrown up in the present case could fall within the contemplation of a number of the provisions contained in s54. Whether or not that is the case, it is not a matter that bears upon the meaning to be attributed to the various provisions. 34 It seems to me that there has been misdirection which requires the matter to go back to the Magistrate for further consideration. 35 I am satisfied that the plaintiff has discharged the relevant onus. The appeal is allowed. 36 The order of the Local Court is set aside. The matter is remitted to the Local Court for determination in accordance with law. The defendant is to pay the costs of the proceedings. If so entitled, the defendant is to have a certificate under the Suitors' Fund Act 1951. **********

Bombala Council v Smith

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