Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : CALANDRA -v- CIVIL AVIATION SAFETY AUTHORITY [2013] WASC 411

Appeal - General principles - Points and objections not taken below - Whether respondent would suffer prejudice - Where objection could have been remedied if point taken below

Criminal law - Jurisdiction, practice and procedure - Whether jurisdiction of Magistrates Court depends on existence of a valid prosecution notice - Prosecution notice not rendered invalid by non-compliance with s 23 Criminal Procedure Act 2004 (WA)

Civil Aviation Act 1988 (Cth), s 20AA(4)(c), s 20AA(4)(d)

Civil Aviation Regulations 1988 (Cth), reg 233(1)(g)

Crimes Act 1914 (Cth), s 13

Criminal Procedure Act 1986 (NSW)

Criminal Procedure Act 2004 (WA), s 20, s 21(3), s 23, s 132, s 178

Interpretation Act 1984 (WA), s 5

Judiciary Act 1903 (Cth), s 68, s 79(1)

Magistrates Court Act 2004 (WA), s 4, s 9, s 11

Arkrie v Director of Public Prosecutions [2012] WASC 200

Calandra v Civil Aviation Safety Authority [2013] WASC 411

In the Marriage of Bradley and Weber (1997) 141 FLR 28

Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd [2014] WASCA 28

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

R v Hughes [2001] WASCA 300

Re Lawrence; Ex parte Westpork Pty Ltd [2012] WASC 487

Russell v The State of Western Australia [2011] WASCA 246

Spagnolo v Flynn [2014] WASC 88

Williams v The King (No 2) [1934] HCA 19; (1934) 50 CLR 551

1 Joseph Pepe Calandra, the appellant, was convicted after trial in the Magistrates Court of contravening s 20AA(4)(c) and/or (d) of the Civil Aviation Act 1988 (Cth) in that as the pilot of an Australian aircraft he commenced a flight in the aircraft when there was damage that may have endangered the safety of the aircraft or any person or property, and/or when the aircraft was unsafe for flight; and of contravening reg 233(1)(g) of the Civil Aviation Regulations 1988 (Cth), in that as the pilot in command of an aircraft he commenced a flight before receiving evidence or taking such action as was necessary to ensure that the aircraft was safe for flight in all respects. He applied for leave to appeal from those convictions to a single judge of the Supreme Court. The grounds of appeal raised in the application for leave were all concerned with the substantive merits of his conviction. Leave to appeal was refused in respect of all grounds, and the appeal dismissed.[1]

2 Mr Calandra now appeals from that decision to this court (with leave). The only ground of appeal raises an issue that was not raised in either the Magistrates Court or in the first appeal from his conviction. He asserts that the Magistrates Court had no jurisdiction to hear and determine the charges brought against him because the prosecution notice initiating the proceedings in the Magistrates Court was signed in the presence of a justice of the peace appointed in and for the State of New South Wales, rather than a justice of the peace in and for the State of Western Australia, as required by s 23 of the Criminal Procedure Act 2004 (WA) (the CPA).

3 For the reasons which follow, if this issue had been raised by Mr Calandra at the commencement of the proceedings in the Magistrates Court, as it should have been, any defect in the prosecution notice could have been corrected by the notice being executed again in the presence of a justice of the peace in and for the State of Western Australia. Accordingly, Mr Calandra should not be permitted to raise this issue at this stage in the appellate process, because the respondent, the Civil Aviation Safety Authority (CASA), would suffer prejudice by reason of his failure to take the point below. The appeal must therefore be dismissed.

4 The prosecution notice instituting the proceedings against Mr Calandra, alleging that he committed the two offences of which he was convicted, and another offence of which he was acquitted, was signed by Mr Paul Campbell, an officer of CASA, in the presence of Mr Olivier Grandjean, a justice of the peace in and for the State of New South Wales, who also executed the prosecution notice. The prosecution notice is undated, but the summons issued to Mr Calandra suggests that it was signed on 26 July 2010. It is common ground that at the time the notice was signed, Mr Grandjean had not been appointed as a justice of the peace in and for the State of Western Australia.

5 The charges against Mr Calandra were heard in the Magistrates Court over the course of three days between 21 and 23 November 2012. No point was taken with respect to any defect or deficiency in the prosecution notice or with respect to the jurisdiction of the court to entertain the charges brought against Mr Calandra. It is common ground that at the time of the hearing in the Magistrates Court, no relevant limitation period had expired which would have precluded the initiation of fresh proceedings against Mr Calandra in respect of the matters alleged in the prosecution notice. On 14 January 2013, Magistrate Malley published his reasons for concluding that Mr Calandra was guilty of the two offences referred to above, but not guilty of a third offence alleged in the prosecution notice.

6 Mr Calandra appealed to a single judge of the Supreme Court against his convictions. All grounds of appeal advanced were concerned with the substantive merits of the charges brought against him. The appeal was heard over two days on 22 and 23 August 2013. On 18 November 2013, Kenneth Martin J published his reasons for concluding that leave to appeal should be refused in respect of all grounds and the appeal dismissed.

7 Mr Calandra has appealed from that decision to this court. His only ground of appeal is:

There was a miscarriage of justice in that conditions precedent to the jurisdiction of the Magistrates Court to hear and determine the charges for which the appellant was convicted (and the Supreme Court to hear and determine an appeal from the decision of the Magistrates Court to convict the appellant) had not been, and have never been, satisfied.

Particulars

The prosecution notice containing the charges for which the appellant was convicted (and in respect of which the Supreme Court heard an appeal against the decision of the learned Magistrate to convict the appellant) was not signed in the presence of, or by, a justice of the peace appointed under the Justices of the Peace Act 2004 (WA) as required by ss 23(3)(b) and (4) of the Criminal Procedure Act 2004 (WA) as picked up and applied by s 68(1) and/or s 79 of the Judiciary Act 1903 (Cth).

The relevant statutory provisions of the State The Magistrates Court Act 2004 (WA)

8 The Magistrates Court of Western Australia is created by the Magistrates Court Act 2004 (WA) (the MCA).[2] The court has the jurisdiction conferred upon it by the MCA and by other written laws.[3] The court's criminal jurisdiction is set out in s 11 of the MCA. That section provides that the court has jurisdiction to hear and determine a charge of a simple offence, and further provides that the jurisdiction is to be exercised subject to, among other things, the CPA.

The Criminal Procedure Act 2004 (WA)

9 The CPA specifies the procedure to be followed in the exercise of the criminal jurisdiction conferred upon the Magistrates Court by the MCA. Division 2 of pt 3 of the CPA contains provisions regulating the persons who can commence a prosecution, when and where a prosecution may be commenced, the formal requirements of a prosecution notice, and the lodgement of a prosecution notice with a court. Provisions relating to the contents of a prosecution notice are also contained within sch 1 to the Act. Section 23 of the CPA provides:

(1) Schedule 1 has effect in relation to prosecution notices and charges in them.

(2) A prosecution notice must -

(a) be in writing in a prescribed form; and

(b) comply with Schedule 1 Division 2; and

(c) contain any information prescribed; and

(d) be signed in accordance with subsection (3) and, if necessary, subsection (4).

(a) if the prosecution is being commenced by an authorised investigator, either -

(i) be signed by the investigator alone; or

(ii) be signed by the investigator in the presence of either a JP or a prescribed court officer;

(b) in any other case - be signed by the person who is commencing the prosecution in the presence of either a JP or a prescribed court officer.

(4) If a prosecution notice is signed in the presence of a JP or a prescribed court officer, the JP or officer must also sign the notice.

(5) The contents of a prosecution notice need not be verified on oath or affirmation before a JP or a prescribed court officer unless -

...

(b) they are required to be so verified for the purposes of another written law.

(a) on the day on which a prosecution notice is signed under section 23 by the prosecutor and either a JP or a prescribed court officer; or

(b) in the case of a prosecution notice signed under section 23 by an authorised investigator alone - on the day on which the notice is lodged with the court in which the prosecution is being commenced,

whether or not the notice has been served on the accused.

11 Section 132 empowers a court to amend a charge at any time before or during a trial, and empowers the court to amend the prosecution notice or indictment containing the charge accordingly.

(1) In this section, unless the contrary intention appears -

court document means a prosecution notice, indictment, summons, court hearing notice, section 155 notice, witness summons, warrant, or an order or other document issued by a court in a case.

(2) Any objection by an accused to a prosecution notice or indictment on the ground that it is defective must be made before the prosecutor's opening address.

(3) If a court document is defective in substance or form, the court, on an application by a party or on its own initiative -

(a) must order that the document be corrected if the defect is not material to the merits of the case;

(b) may order that the document be corrected in any other case.

(4) If a court makes an order under this section -

(a) the court document must be amended accordingly by the court or some person ordered to do so by the court; and

(b) each party is entitled to a copy of the amended court document; and

(c) the court may adjourn the case.

(5) This section is in addition to and does not affect the operation of section 132.

The Interpretation Act 1984 (WA)

13 Section 5 of the Interpretation Act 1984 (WA) defines the term 'JP' to mean, in that Act and in every other written law:

[A] justice of the peace appointed under the Justices of the Peace Act 2004.

14 The Justices of the Peace Act 2004 (WA) is a Western Australian statute. As I have already noted, Mr Grandjean was not appointed pursuant to its terms, although he was appointed as a justice of the peace pursuant to corresponding legislation in New South Wales.

The relevant statutory provisions of the Commonwealth The Judiciary Act 1903 (Cth)

15 Section 68 of the Judiciary Act 1903 (Cth) relevantly provides:

1. Jurisdiction of State and Territory courts in criminal cases

(1) The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for:

(a) their summary conviction; and

(b) their examination and commitment for trial on indictment; and

(c) their trial and conviction on indictment; and

(d) the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith;

and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by this section.

(2) The several Courts of a State or Territory exercising jurisdiction with respect to:

(a) the summary conviction; or

(b) the examination and commitment for trial on indictment; or

(c) the trial and conviction on indictment;

of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth.

(4) The several Courts of a State or Territory exercising the jurisdiction conferred upon them by this section shall, upon application being made in that behalf, have power to order, upon such terms as they think fit, that any information laid before them in respect of an offence against the laws of the Commonwealth shall be amended so as to remove any defect either in form or substance contained in that information.

16 Further, s 79(1) of the Judiciary Act provides:

1. State or Territory laws to govern where applicable

(1) The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.

The Crimes Act 1914 (Cth)

17 Section 13 of the Crimes Act 1914 (Cth) provides that unless the contrary intention appears in the Act or regulation creating the offence, any person may institute proceedings for the summary conviction of any person in respect of any offence against the law of the Commonwealth punishable on summary conviction. This position can be contrasted to s 20 of the CPA which provides that a prosecution for an offence may be commenced by, and only by, a member of the classes of persons specified in that section, and which further provides that:

A person acting in his or her private capacity cannot commence a prosecution, unless another written law expressly provides otherwise.

18 Apart from s 13, there are no other provisions in the Crimes Act, or in any other Commonwealth statute, regulating or prescribing the procedure to be followed in State courts exercising the jurisdiction conferred by the Judiciary Act with respect to the hearing and determination of charges alleging offences contrary to the laws of the Commonwealth. Nor are there any provisions in the Civil Aviation Act or the Civil Aviation Regulations relating to the procedure to be followed when charges are brought for the contravention of that Act or those regulations.

19 In Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd,[4] I summarised the principles governing the circumstances in which a party would be allowed to raise on appeal an argument which had not been raised in the court below:

The principles governing the question of whether an appellant should be permitted to raise a new argument on appeal were set out at length by this court in McLennan v McCallum [2010] WASCA 45 [80] - [88] (Buss JA, McLure P & Newnes JA agreeing). As the High Court stated in University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 59 ALJR 481, referred to in McLennan:

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so (483).

In Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491, Mason CJ, Wilson, Brennan and Dawson JJ expanded on the nature of the exceptional circumstances in which it would be appropriate for a new argument to be raised on appeal:

Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied (497).

In McLennan Buss JA (with whom McLure P and Newnes JA agreed) stated the basis for the rule against raising a new argument on appeal without exceptional circumstances:

The juridical basis of the principles...appears to derive, in part, from public policy considerations directed to ensuring finality in litigation and, in part, from the doctrine of estoppel by election in the conduct of litigation. However, to the extent that some aspects have their origin in estoppel by election, the relevant consideration is not that the other party is put in a worse position, but that he or she may have been put in a worse position. See Banque Commerciale SA, en liquidation v Akhil Holdings Limited [1990] HCA 11; (1990) 169 CLR 279, 284 (Mason CJ & Gaudron J) [87].

In relation to the prejudice which a party may suffer as a result of the other party being able to raise a new argument on appeal, there is ample authority to suggest that an argument cannot be raised on appeal if it cannot be resolved fairly without the parties having to adduce evidence, or where the facts are not admitted or beyond controversy: McLennan v McCallum [82] (Buss JA, McLure P & Newnes JA agreeing); Mammoth Investments Pty Ltd v GIO General Ltd [2007] WASCA 34 [51] (Martin CJ, Pullin & Buss JA agreeing); Water Board v Moustakas 497 (Mason CJ, Wilson, Brennan and Dawson JJ); Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, 7 - 8 (Gibbs CJ, Wilson, Brennan and Dawson JJ); O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310, 319 (Mason J).

On this point, the comments of Gleeson CJ, McHugh and Gummow JJ in Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 are of direct relevance. Their Honours said:

It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial. Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action. Not only is the successful party put to expense that may not be recoverable on a party/party taxation but a new trial inevitably inflicts on the parties worry, inconvenience and an interference with their personal and business affairs [51]. (footnotes omitted).[5]

20 So, in this case, Mr Calandra should not now be allowed to take the point he wishes to take in relation to the deficiency of the prosecution notice if CASA would suffer prejudice arising from the fact that the point was not taken in the Magistrates Court.

21 There can be no doubt that if, as Mr Calandra asserts, the prosecution notice initiating the charges against him is defective, CASA has suffered prejudice by reason of Mr Calandra not raising that issue in the Magistrates Court. For the reasons which follow, if the point had been taken in the Magistrates Court, the court would undoubtedly have permitted the prosecutor to correct the prosecution notice by arranging for it to be re-executed in the presence of a justice of the peace in and for the State of Western Australia, either pursuant to s 178 of the CPA, or s 68(4) of the Judiciary Act. Mr Calandra's argument to the effect that amendment could not have been permitted pursuant to either section is, with respect, not to the point because, if that contention is correct, if the point had been taken in the Magistrates Court, it would have been open to the prosecutor to issue an entirely fresh prosecution notice and proceed on that notice, as there was no relevant limitation period precluding that course. So, on any view of the ambit of the powers conferred by s 178 of the CPA and s 68(4) of the Judiciary Act, in the circumstances of this case, the respondent would suffer significant prejudice if Mr Calandra were now allowed to raise a point which he did not take in the Magistrates Court.

22 That conclusion is sufficient to dispose of the appeal. However, as the operation and application of s 178 of the CPA and s 68(4) of the Judiciary Act were canvassed in written and oral argument, it is appropriate to deal with the submissions advanced on behalf of Mr Calandra with respect to those matters.

23 The natural and ordinary meaning of the language used in s 178 of the CPA leads inexorably to the conclusion that it applies to the issue which Mr Calandra now wishes to raise. The expression 'court document' is defined to include a prosecution notice. The section provides that any objection by an accused to a prosecution notice on the ground that it is defective must be made before the prosecutor's opening address. That did not occur in this case. Further, the section provides that if the prosecution notice is defective in either substance or in form, the court must order that the document be corrected if the defect is not material to the merits of the case, or, if the defect is material to the merits of the case, the court has a discretion to order that the document may be corrected. In this case the alleged defect was plainly not material to the merits of the case and the court would therefore have been obliged to order that the document be corrected, and for that purpose was empowered to adjourn the case.

24 A number of arguments were advanced on behalf of Mr Calandra in an attempt to avoid the clear effect of the language used in s 178. First it was submitted that the jurisdiction of the Magistrates Court depended upon the execution of a valid prosecution notice complying in all respects with the requirements of s 23 of the CPA, with the consequence that the court had no jurisdiction to correct or amend the notice under s 178.

25 There are a number of reasons why this submission must be rejected. First, the jurisdiction of the Magistrates Court to hear charges alleging the commission of simple offences is conferred by s 9 and s 11 of the MCA, not the CPA - see Spagnolo v Flynn,[6] Re Lawrence; Ex parte Westpork Pty Ltd,[7] Arkrie v Director of Public Prosecutions (Cth).[8] In this respect I respectfully agree with the observations made by E M Heenan J in Spagnolo:

However, I do not subscribe to any broad view that such non-compliance deprives a court, even a court of limited jurisdiction such as the Magistrates Court, of jurisdiction to hear and determine the charge. I have already indicated that I consider that jurisdiction is conferred on the court by s 11 of the Magistrates Court Act and it follows that the court will have the jurisdiction to hear and determine whether or not any particular charge has been wrongly commenced and, if so, should be dismissed or stayed. With respect to submissions to the contrary, I do not consider that the jurisdiction of the court to deal with the prosecution depends upon the formalities of the initiating process but rather that, in the case of a prosecution improperly commenced, the Magistrates Court has the jurisdiction and the obligation to decide whether or not the proceedings have been properly commenced and, if they have not, to dismiss them. Consequently, although such a defect in the institution of a prosecution will not deprive the Magistrates Court of jurisdiction, it will mean that if objection is made on the grounds of invalidity or informality and is upheld, the proper determination of the proceedings according to law will require that they be dismissed - compare Russell v The State of Western Australia and R v Janceski.[9]

26 Further, in Russell v The State of Western Australia,[10] although it was unnecessary to decide the point, McLure P drew attention to the distinction between statutory provisions such as the Criminal Procedure Act 1986 (NSW) which specify that an indictment is a condition to the jurisdiction of the court to hear and determine a prosecution, and the relevant provisions of the CPA, and questioned whether the latter had the effect of conditioning the jurisdiction of the court upon the form of the originating process.

27 Further, even if it is accepted, contrary to these views, that the jurisdiction of the court depends upon the existence of a valid prosecution notice, it does not by any means follow that a failure to comply with each and every requirement of s 23 of the CPA renders a prosecution notice invalid. The question of whether or not a failure to comply with the requirements of s 23 of the CPA results in invalidity is a question of statutory construction to be resolved by the application of the principles enunciated by the plurality in Project Blue Sky Inc v Australian Broadcasting Authority.[11]

28 Applying those principles, s 178 is plainly intended to be a remedial provision, the objective of which is to prevent deficiencies in originating criminal processes causing criminal proceedings to miscarry. If the relevant defect is not material to the merits of the case, the obligation imposed by the section upon the court requires the court to take all necessary steps to remedy the defect. The apparent objective of the section would be almost entirely thwarted if other provisions in the Act were construed as giving rise to incurable invalidity in the absence of strict compliance. So, consistently with the process of reasoning adopted by McLure P in Russell, the enactment of s 178, and the breadth of its application, to defects in both substance and form, tells strongly against a construction of s 23 which would render a notice which did not comply with the section invalid.

29 This conclusion is reinforced if consideration is given to the particular aspect of s 23 which was not complied with in this case, being the requirement that the notice be signed in the presence of a JP or prescribed court officer who must also sign the notice. The obvious purpose of that requirement is to enable the execution of the prosecution notice by the prosecutor to be verified or authenticated in cases of doubt. In this case the requirement of the section that the notice be executed in the presence of another person who must also sign the notice was met. The only requirement that was not met was the requirement that the witness be a justice of the peace in and for the State of Western Australia. It is difficult to attribute to any rational legislature an intention that a failure to comply with that aspect of s 23 should render the prosecution notice invalid, based upon the language of the section, viewed in the context of the CPA as a whole, including s 178.

30 So, even if it be concluded, contrary to my view, that the jurisdiction of the Magistrates Court depends upon the existence of a valid prosecution notice, in this case the fact that the person who witnessed the prosecutor's execution of the notice was not a justice of the peace in and for the State of Western Australia did not have the consequence that the notice was invalid, and consequently did not deprive the court of jurisdiction.

31 Next it was submitted that s 178 had no application because the effect of the correction or amendment required would be to initiate fresh proceedings, and s 178 should not be construed as authorising corrections or amendments having that effect. In this context reliance was placed upon s 21(3)(a) of the CPA, which specifies that the time at which a prosecution is commenced is when it is signed by the prosecutor and JP. So, it is said, re-execution of the prosecution notice in the presence of a justice of the peace in and for the State of Western Australia constitutes the commencement of a fresh prosecution.

32 There are a number of reasons why this submission must be rejected. First, implicit in the submission is the proposition that the prosecution notice is invalid unless and until it is corrected or amended in order to comply with s 23. For the reasons I have already given, that assumption is not correct.

33 Second, there is nothing in the language of s 178 which would support a construction which limits its operation to corrections or amendments having a particular character. To the contrary, the language used in the section connotes a legislative intention to give the section a broad breadth of operation, applying to defects both of substance and form, and, where appropriate, defects going to the merits of the case. In answer to this proposition, it was submitted on behalf of Mr Calandra that if s 178 were construed as empowering corrections or amendments which had the effect of commencing fresh proceedings, relevant limitation periods could be overcome. However, this submission overlooks the distinction between the proper construction of the section and the exercise of the powers conferred by it. The expiry of a limitation period may well be relevant to the exercise of the powers conferred by the section. However, it would be erroneous to construe the section on an assumption that it would only be invoked where a limitation period has expired, as there will be many cases, such as this, where, if the point had been taken at the time specified by the section, no limitation issues would have arisen in relation to the commencement of fresh proceedings.

34 Next it was contended on behalf of Mr Calandra that the re-execution of the document by the prosecutor in the presence of a justice of the peace in and for the State of Western Australia did not fall within the scope of s 178 of the CPA because it was not properly considered an 'amendment' but rather, the commencement of a fresh prosecution.

35 There are a number of answers to this contention. Two flow from observations I have already made to the effect that:

(a) the lack of qualification of the witness to the execution of the prosecution notice does not invalidate that document, so that re-execution in the presence of a qualified witness is the correction of a defect, rather than the commencement of fresh proceedings; and

(b) the remedial nature and purpose of s 178 require that it be given a broad interpretation in order that it might achieve the legislative purpose evident in its terms.

36 There are other answers to this proposition. First, it is not the case that the only remedial action that can be taken pursuant to the section in order to cure a defect is by way of an 'amendment'. Rather, s 178(3) specifically authorises, and in some cases requires, an order of the court to the effect that 'the document be corrected'. That language is quite broad enough to embrace re-execution of the prosecution notice by the prosecutor in the presence of a qualified witness.

37 Further and in any event, the natural and ordinary meaning of the word 'amend' is apt to encompass the process that would have been followed if the appellant had drawn this issue to the attention of the Magistrates Court. Section 5 of the Interpretation Act defines 'amend' to mean:

Replace, substitute, or in whole or in part, add to or vary, and the doing of any 2 or more such things simultaneously or by the same written law.

for the purposes of the Interpretation Act and every other written law. Although it may be that the definition is primarily intended for use in the context of the amendment of written laws, it is not so confined by its terms. Further, when the word 'amend' is read in the context of s 178 of the CPA, a meaning which extends to and includes the replacement or substitution of a defective document in whole or in part is entirely consistent with the remedial purpose and evident breadth of the section. There is therefore no reason to suppose that the legislature did not intend the word 'amend' to have the meaning given to it by the Interpretation Act when s 178 of the CPA was drafted.

38 Finally, there is authority for the proposition that the word 'amend' should be given a broad meaning in a context such as s 178 of the CPA. In In the Marriage of Bradley and Weber,[12] it was contended that the changes proposed to a notice of appeal went beyond the power to 'amend' within the meaning of that expression in the Family Law Rules 1984 (Cth) because the substance of the changes proposed was the institution of a fresh appeal. The Full Court of the Family Court referred to various dictionary definitions of the word 'amend' including:

The Macquarie Dictionary, 2nd ed defines it as:

'(1) to alter (a motion, bill, constitution, etc) by due formal procedure;

(2) to change for the better; improve;

(3) to remove or correct faults in; rectify;

(4) to grow or become better by reforming oneself.'

'(1) to free from faults, correct, convert; to rectify;

(2) to make alterations (in a bill before Parliament);

(3) to repair; to restore;

(4) to heal (the sick); to cure (a disease);

(5) to improve;

(6) to better, surpass.'

'To change or modify in any way for the better; as;

(1) by simply removing what is erroneous, corrupt, superfluous, faulty, and the like;

(2) by supplying deficiencies;

(3) by substituting something else in the place of what is removed; to rectify.'[13]

In that case the court concluded that although the changes proposed gave rise to an appeal from parts of the judgment below not previously appealed, and against orders not previously appealed, they came within the power to amend the notice of appeal as originally filed.

39 For these various reasons, the appellant's proposition that if he had drawn this issue to the attention of the Magistrates Court the process that would have been required to correct the prosecution notice would have fallen outside the ambit of s 178 of the CPA must be rejected.

The Judiciary Act s 68(4)

40 In addition to s 178 of the CPA, if this issue had been raised by the appellant in the Magistrates Court, s 68(4) of the Judiciary Act provided an alternative source of power for the court to direct the taking of the steps necessary to 'remove any defect in form or in substance'. On behalf of Mr Calandra two arguments were advanced in opposition to that conclusion.

41 First, it was submitted that the prosecution notice instituting the proceedings against Mr Calandra was not 'information' within the meaning of s 68(4) of the Judiciary Act. The word 'information' is not defined by the Judiciary Act for the purposes of the Part within which s 68(4) is located. Conventional principles of statutory construction require the meaning to be given to the word to take account of the context in which it is used, and the legislative purpose to be derived from the language of the particular provision, read in the context of the statute as a whole.

42 It is of particular significance that s 68(4) confers a remedial power upon the courts of the various Australian States and Territories upon which the section confers jurisdiction to hear and determine charges alleging the commission of summary and indictable offences against Commonwealth laws. The Commonwealth legislature can be taken to have appreciated that a variety of procedures and differing nomenclature is likely to be used in the various jurisdictions of the States and Territories to which the section applies. In that context it is reasonable to attribute to the Commonwealth legislature an intention that the word 'information' should be construed so as to mean any process originating the proceedings to which the section refers, and as therefore including the prosecution notice which instituted the proceedings against Mr Calandra.

43 On behalf of Mr Calandra it was also submitted that s 68(4) of the Judiciary Act had no application to these circumstances because the steps required to remove the relevant defect went beyond the amendment of the prosecution notice, and therefore beyond the scope of s 68(4). That argument must be rejected for the same reasons I have already given for rejecting a similar argument with respect to the ambit of s 178 of the CPA.

44 For these various reasons, if the point now raised on behalf of Mr Calandra had been taken in the Magistrates Court, as it should have been, s 178 of the CPA would have required, and s 68(4) of the Judiciary Act would have empowered the court to direct the taking of whatever steps were necessary to cure the deficiency to which Mr Calandra now points. There is no reason to suppose that those steps could not have been taken simply and quickly, without significant prejudice to CASA or to Mr Calandra. However, because the point was not taken, those steps were not taken, with the result that CASA would suffer significant prejudice if Mr Calandra were allowed to raise the issue at this stage in the appellate process. In accordance with the general principles to which I earlier referred, he should not be permitted to do so, and his appeal must be dismissed.

45 As Mr Calandra should not now be allowed to take the point, it is neither necessary nor appropriate to purport to determine it. However, I note that if the court had entertained the point, there appears to be a considerable obstacle in the path of its success. The Magistrates Court was, and this court is, exercising Commonwealth jurisdiction conferred upon it pursuant to the Judiciary Act. When State laws regulating criminal procedure, such as s 23 of the CPA, are applied in the exercise of the jurisdiction to hear and determine charges against Commonwealth laws, they are applied 'by way of analogy'.[14] So, when s 23 of the CPA is applied 'by analogy' to an offence against Commonwealth law, there appears to be a strong argument to the effect that the term 'JP' should be construed, by analogy, to mean a justice of the peace appointed in and for any and all of the State and Territory jurisdictions in which the Commonwealth law operates, including New South Wales. However, for the reasons I have given, it is unnecessary to determine that question in these proceedings.

46 For these various reasons the appeal should be dismissed.

[1] Calandra v Civil Aviation Safety Authority [2013] WASC 411.

[4] [2014] WASCA 28.

[5] [82] - [86] per Martin CJ (Pullin and Murphy JJA agreeing).

[6] [2014] WASC 88.

[7] [2012] WASC 487.

[8] [2012] WASC 200 [22].

[10] [2011] WASCA 246 [27].

[11] [1998] HCA 28; (1998) 194 CLR 355 [78] (per McHugh, Gummow, Kirby & Hayne JJ).

[12] (1997) 141 FLR 28.

[14] Williams v The King (No 2) [1934] HCA 19; (1934) 50 CLR 551; R v Hughes [2001] WASCA 300 [65].