(f) the proposed amendment of the summons is not possible in the circumstances.
8 Mr Ireland QC relies upon a number of authorities in support of his submissions, but none of them are directly on the point. In Marshall v D G Sundin & Co Pty Ltd (1989) 16 NSWLR 463, the plaintiff, Mr Marshall, died at about 8:40 am on 3 June 1988. On the same day, at about 9:30 am, his solicitor, being unaware of his death, filed a statement of claim naming him as plaintiff and suing the defendants in negligence. An amended summons was then sought to be filed in the name of "Anne Margaret Marshall (as executrix of the estate of the late Donald Raymond Marshall)". It was held that the proceedings were, from the outset, a nullity by reason of their having been commenced in the name of a deceased person and could not be rendered valid by orders made by the Supreme Court. The named executrix was a person to whom no grant of probate had been made, and if she obtained a grant subsequently it would not relate back. The proceedings were a nullity from the beginning and the limitation period having expired, the court would not validate proceedings which were ab initio defective.
9 In Darrington v Caldbeck (1990) 20 NSWLR 212, the decision in Marshall v D G Sundin & Co Pty Ltd was followed. Proceedings in that case had been commenced under s 66G of the Conveyancing Act 1919 by the plaintiffs, being executors by representation of the estate of a deceased registered proprietor, to whom probate had not been granted at the date of commencement of the proceedings. The plaintiffs were not co-owners for the purposes of s 66G and accordingly the proceedings were a nullity and incapable of amendment. Moreover, as in Marshall, s 81 of the Supreme Court Act 1970 (which preserves proceedings commenced or conducted irregularly) could not save the situation because there was no failure to comply with the Supreme Court Act or the Supreme Court Rules 1970, which is the linchpin of the operation of s 81.
10 Hubbard Association of Scientologists International v Anderson (No. 2) [1972] VR 577 is apparently cited by way of contrast. In that case a writ was issued, signed by the plaintiff's agent who was not a solicitor, contrary to the rules of the Supreme Court of Victoria (which provided only for a writ of summons being signed by the plaintiff in person or by a solicitor). Relying upon the equivalent of s 87 of the New South Wales Supreme Court Act, the Full Court of the Supreme Court of Victoria held that non-compliance with the rules was treated as an irregularity which did not render the writ a nullity such as to nullify the proceedings.
11 Reference was also made to Re Pritchard (dec'd) [1963] 1 Ch 502, in which an originating summons was filed in the district registry of the High Court instead of the central office as required by the relevant rule of court. It was held that the proceedings were a nullity and the court had no power to cure proceedings which were a nullity. Upjohn LJ said (at 524) that the authorities established the following classes of nullity: (i) proceedings which ought to have been served but have never come to the notice of the defendant at all; (ii) proceedings which have never started at all owing to some fundamental defect in issuing them; and (iii) proceedings which appear to be duly issued, but fail to comply with a statutory requirement. In particular, Upjohn LJ said: "A fundamental defect will make it a nullity."
12 As I understand Mr Ireland's submission, the commencement of the proceedings in the name of the Director-General, Department of Planning did not involve a non-compliance with the rules, but was a nullity ab initio; and the solicitor for the prosecutor in the present case had no instruction to act for the named prosecutor, the Director-General, Department of Planning.
13 I find the competing submissions nicely balanced. The authorities relied upon by the prosecutor (Brownlie, Burrell, CSR), however, are of no assistance: they are cases in which the courts allowed amendments to be made to the particulars of the offence and this did not change the essential nature of the offence. Neither do I find s 68(2) of the Land and Environment Court Act ("the Court Act") to be of any assistance. That section (and s 81 of the Supreme Court Act 1970) only applies where there is a failure to comply with the requirements of the Act or of the rules - that is, procedural requirements. The Hubbard Association of Scientologist case is an example. The section does not apply where the proceedings are a nullity. The present case does not involve a non-compliance with the Act or of the rules.
14 These proceedings are in the criminal (Class 5) jurisdiction of the Court, to which the provisions of Pt 75 of the Supreme Court Rules 1970 apply: see Pt 6, r 2 of the Land and Environment Court Rules 1996. Part 75, r 6 of the Supreme Court Rules states that Pt 20 of those rules (inter alia) applies. Part 20 is headed "Amendment". Part 20, r 1 relevantly states:
(1) The Court may, at any stage of any proceedings, on application by any party or of its own motion, order that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the Court thinks fit.
(2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings.
(3) Where there has been a mistake in the name of a party, subrule (1) applies to the person intended to be made a party as if he were a party.
15 As the authorities cited by the prosecutor show, the powers of amendment extend to permitting amendments to the particulars of a summons, provided that in its amended form the nature and substance of the proceedings remain the same. In the absence of an enabling rule of the court, an amendment cannot be made where the proceedings are a nullity ab initio. As Upjohn LJ stated in Re Pritchard, a fundamental defect will make it a nullity, coming within the second class of nullity described by Upjohn in Re Pritchard.