Director-General, Department of Planning v Epacris Pty Limited

DEFENDANT: Epacris Pty Limited

Practice and Procedure :- amendment of summons - mistake in name of party - jurisdiction - discretion to amend where in the interests of justice KEY ISSUES: Practice and Procedure:- inspection of property - access - contravention of Native Vegetation Conservation Act 1997- no power to make order for entry and inspection

Land and Environment Court Act 1979 ss 67, 68(2) LEGISLATION CITED: Land and Environment Court Rules 1996 pt 6 r 2 Native Vegetation Conservation Act 1997 ss 21(2), 61, 64(3) Supreme Court Rules 1970 pt 20 rr 1, 4 pt 75 rr 4, 6, pt 25 div 2

Alexander Mountain and Co v Rumere Limited [1948] 2 KB 436; ANZ Banking Group Ltd v Larcos (1987) 13 NSWLR 286; Bedingfeld v Keogh (1912) 13 CLR 601; Brebner v Bruce (1950) 82 CLR 161; Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231; Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78; Burrell v Jacenko (1998) 99 LGERA 173; Darrington v Caldbeck (1990) 20 NSWLR 212; CASES CITED: Duke Investments Trust Pty Ltd v Leichhardt Municipal Council [2000] NSWLEC 14; Environment Protection Authority v CSR Ltd (2001) 114 LGERA 217; Hubbard Association of Scientologists International v Anderson (No. 2) [1972] VR 577; Lloyd Steel Co Pty Ltd v Jade Shipping [1985] 1 NSWLR 212; Marshall v D G Sundin & Co Pty Ltd (1989) 16 NSWLR 463; McGee v Yeomans [1977] 1 NSWLR 273; McInnes v Wingecarribee Shire Council (1987) 64 LGRA 137; Proctor v Jetway [1984] 1 NSWLR 166; Re Pritchard (dec'd) [1963] 1 Ch 502; Weldon v Neal (1887) 19 QBD 394

PROSECUTOR: E G H Cox (barrister) SOLICITORS: I V Knight, Crown Solicitor LEGAL REPRESENTATIVES: DEFENDANT: J M Ireland QC SOLICITORS: McGirr James Hall & Associates

JUDGMENT:

• 18 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

DIRECTOR-GENERAL, DEPARTMENT OF PLANNING v EPACRIS PTY LIMITED[2006] NSWLEC 306

1 HIS HONOUR: The defendant is charged with an offence that it cleared native vegetation, not being in accordance with a development consent that was in force or in accordance with a native vegetation code of practice, in contravention of s 21(2) of the Native Vegetation Conservation Act 1997. 2 The prosecutor has now filed two notices of motion. The first seeks an order changing the identity of the prosecutor from the Director-General, Department of Planning to the Director-General, Department of Natural Resources. The second notice of motion seeks access to the defendant's property by the prosecutor's departmental representatives and two expert witnesses to inspect and make measurements of and near the area of alleged clearing. The defendant opposes both motions. 3 It is convenient to consider each motion separately.

Change of identity of prosecutor 4 According to the evidence of Ms C R Giurastante, a solicitor employed by the office of the Crown Solicitor and having the carriage and conduct of these proceedings, the Crown Solicitor's office was instructed to act in these proceedings on behalf of the Director-General, Department of Natural Resources. She further says that the summons had been prepared from a precedent form and it was not noticed that an error had been made in the name of the prosecutor.

5 The order which was consequently made by the Court, requiring the defendant to appear and answer the charge, correctly names the Director-General, Department of Natural Resources as the prosecutor. Moreover, at the foot of the summons the prosecutor is identified as the Director-General, Department of Natural Resources. 6 Mr E G H Cox, appearing for the prosecutor, submits that it was at all times apparent that the Director-General, Department of Natural Resources was the prosecutor, since that name appears as the prosecutor at the foot of the summons. He submits that the naming of the Director-General, Department of Planning as the prosecutor is a procedural irregularity and may be changed without changing the substance or nature of the offence; and which may be corrected under s 68(2) of the Land and Environment Court Act 1979 and/or under Pt 20, r 1 of the Supreme Court Rules 1970 which apply in this Court. Reference was made to Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78, Burrell v Jacenko (1998) 99 LGERA 173; and Environment Protection Authority v CSR Ltd (2001) 114 LGERA 217. 7 Mr J M Ireland QC, appearing for the defendant, relies upon the following submissions:

(a) The summons was filed one day before the expiration of the two-year time limit specified by s 64(3) of the Native Vegetation Conservation Act ;

(b) the question is whether the prosecution was validly commenced on that day ;

(c) at the date of the institution of the proceedings the Crown Solicitor's office had no instructions to act for the named prosecutor;

(d) the proceedings were not validly commenced and are a nullity;

(e) any prosecution now commenced would be out of time; and

(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.

16 If the matter were left on the basis of the submissions of the parties and absent any enabling rule of the Court, I would be inclined to hold that the amendment sought by the prosecutor could not be made - the solicitor for the prosecutor had no instructions to act for the named prosecutor and the proceedings were thus affected by a fundamental defect.

17 It seems to me, however, that the position is governed by Pt 20, r 4 of the Supreme Court Rules, which was not referred to by either Counsel. The position is also governed by the cases in which that rule has been applied, which again were not referred to by either Counsel and which I have researched myself.

(1) Where any relevant period of limitation expires after the date of filing of a statement of claim and after that expiry an application is made under rule 1 for leave to amend the statement of claim by making the amendment mentioned in any of subrules (3), (4) and (5), the Court may in the circumstances mentioned in that subrule make an order giving leave accordingly, notwithstanding that that period has expired. … (3) Where there has been a mistake in the name of a party and the Court is satisfied that the mistake was not misleading or such as to cause reasonable doubt as to the identity of the person intended to be made a party, the Court may make an order for leave to make an amendment to correct the mistake, whether or not the effect of the amendment is to substitute a new party. ... (6) This rule has effect in relation to a summons as it has effect in relation to a statement of claim.

19 This provision would, prima facie, appear to deal directly with the situation before me. The summons contains a mistake in the name of a party, in this case the Prosecutor, and the application to amend the summons has been brought after the expiry of the time limit for bringing proceedings specified by s 64(3) of the Native Vegetation Conservation Act.

20 McInnes v Wingecarribee Shire Council (1987) 64 LGRA 137 dealt with an application to amend the name of the applicant so as to substitute a third party objector who qualified as an "objector" as defined by s 4 of the Environmental Planning and Assessment Act 1979 after the expiry of the time for appeal. This was a civil matter which came under Pt 10, rr 1 and 2 of the Land and Environment Court Rules. However, Priestley JA, with whom Kirby P and Clarke JA agreed, found rr 1 and 2 of Pt 10 substantially reproduce rr 1 and 4 of Pt 20 of the Supreme Court Rules. Priestley JA went on to hold that the amendment was allowed and stated: In construing rules such as those in question an approach which gives the empowering words as full a meaning as they can reasonably bear in their context should be adopted leaving it to the discretion of the court to decide when justice requires that an amendment should or should not be granted, in contrast to the pre-Judicature Act approach of leaving the rules rather than the court's discretion to determine the matter.

21 In that case it was sought to amend an application objecting to the grant of a development consent by substituting a qualified objector for an unqualified one. Such an amendment is not dissimilar to that in this case where the name of the prosecutor is sought to be substituted for another. 22 Duke Investments Trust Pty Ltd v Leichhardt Municipal Council [2000] NSWLEC 14 was another case which dealt with an application to amend the name of the applicant under Pt 10 of the Land and Environment Court Rules. The misnaming occurred originally on the development application and was carried forward into the application to the Court as the information provided on the original development application was used when proceedings were instituted. Talbot J allowed the amendment. He referred to the similarity between Pt 10, r 1(3) of the Land and Environment Court Rules and Pt 20, r 1(3) of the Supreme Court Rules and stated, at [25]: This power should not be narrowly construed. In my view it covers cases where there is a misnomer, where there is clerical error or misdescription, extending even to a real mistake as to the name of the party . Misnomer is generally to be regarded as a mistake in naming a person or the use of a wrong name or designation. In Ritchie's Supreme Court Practice, Supreme Court Procedure, there is a note to the effect that the term misnomer applies where there has been a genuine error in the name given to a party but where the error is not so significant as to have actually misled the intended defendant. (emphasis added)

23 Talbot J then went on to discuss numerous authorities relating to the court's power to amend. Notably his Honour looked at the case of Alexander Mountain and Co v Rumere Limited [1948] 2 KB 436 where the commencement of an action in the name of a firm where the business had been carried on by a person since deceased was held to be a mere misnomer as "...the person who in fact was entitled to bring the action had, in practice, given instructions to the solicitors to bring that very action" (at [30]). Similarly, in the case before me now it was the Director of Natural Resources, not the Director of Planning, who gave instructions to the Crown Solicitor's Office to commence the prosecution. 24 McGee v Yeomans [1977] 1 NSWLR 273 is the leading authority on the application of Pt 20, r 4 of the Supreme Court Rules. It dealt with an appeal by the plaintiff in an action for damages for negligence, to allow the amendment of a statement of claim at a time when the bringing of new proceedings based upon that cause of action would be statute barred. Specific consideration was given to the settled rule of practice as laid down in Weldon v Neal (1887) 19 QBD 394; and the court found that the relevant provisions of the Supreme Court Rules have displaced that rule in favour of a general discretion to allow amendment where it is in the interest of justice. Glass JA stated (at 280): By providing in r. 4 (3)-(5) that an amendment may be authorized which allows the substitution of a new party, the suing by the plaintiff in a new capacity and the substitution of a new cause of action, the rule was, in those circumstances, totally destroyed. I am unable to accept that it continued, nonetheless, to operate in circumstances outside their terms with undiminished vigour. When it is further provided that the abrogation of the settled rule of practice in certain defined situations shall not in any way abridge the width of the general power to amend, there is in my view an implication that other amendments might in the exercise of discretion be properly allowed in situations not expressly dealt with by the rule, notwithstanding that they introduce causes of action then barred by the expiry of a period of limitation.

I am driven to the conclusion that the Supreme Court Rules , upon their proper construction, displace the settled rule of practice laid down in Weldon v. Neal and all the finespun distinctions which it engendered. In its place there has been substituted a general discretion to allow an amendment, notwithstanding that it raises a barred cause of action, whenever justice so requires. The exercise of the discretion is unfettered by any rules of practice. It is not possible by judicial decision to establish in advance categories of amendments which it would be just or unjust to allow: cf. Sophron v. Nominal Defendant (1957) 96 CLR 469 at 475. The discretion, having been set free, should not again be confined by rigid technicalities. The Court hearing the application will necessarily have regard to the hardship of the plaintiff, if the amendment is refused, and the prejudice to the defendant, if it is granted. It must also consider all other relevant circumstances, such as the fault of the plaintiff or his advisers, the period of time since the limitation has expired, and the defendant's knowledge of the new cause of action or the new capacity.'

25 The Court of Appeal found further that the provisions of Pt 20, r 4 also exclude the operation of the Weldon v Neal rule of practice from those cases falling within the general power to amend given by Pt 20, r 1(1). It was held in the circumstances of the case that the interests of justice would best be served by allowing the amendment sought. It is thus clearly within my discretion to allow the amendment requested by the prosecutor. In deciding whether to excerise this discretion regard must be had to the matters referred to by Glass JA to determine whether, in the circumstances of the case before me, it would be in the interests of justice to grant the amendment sought.

26 The Court of Appeal explained and affirmed McGee v Yeomans in Proctor v Jetway [1984] 1 NSWLR 166. In that case compensation was claimed for the death of a family member resulting from an aircraft crash. As in McGee v Yeomans, the applicant's statement of claim was sought to be amended as the essential ingredients of a claim under the Civil Aviation (Carrier's Liability) Act 1967 had been omitted. Despite the expiry of the time limitation for such a cause of action under that Act the amendment was granted as (at 166) "an amendment, duly made, to a statement of claim takes effect not from the date when the amendment is made, but from the date the statement of claim was filed". Explaining McGee v Yeomans Priestley JA stated (at 183): The decision was one which read the rules of court in the ordinary meaning of their words and thus held that the rules required the courts, at some cost of certainty, to follow a practice designed to achieve in particular cases what in the court's view would be more meritorious results than under the practice before the introduction of the new rules. It brought about a change of practice in the exercise of a power the court had always had. What would happen more frequently under the new practice would be that leave would be granted to include time expired causes of action in statements of claim…

27 McGee v Yeomans was applied in Lloyd Steel Co Pty Ltd v Jade Shipping [1985] 1 NSWLR 212 and ANZ Banking Group Ltd v Larcos (1987) 13 NSWLR 286 where in both cases the court exercised it's discretion under Pt 20, r 4 to grant the amendments sought. In Lloyd Steel Co the plaintiffs sought to subsititute different defendants for the first defendants originally sued. The action had been instituted against the original defendants as a result of the plaintiff's solicitors mistaken belief that they, and not the proposed defendants, were the carriers of cargoes of goods shipped from Korea under bills of lading. The bringing of a new action would be prohibited by the time bar stipulated in the bills of lading. Clarke J found the distinction Donaldson LJ drew in applying the English equivalent to Pt 20, r 4 utterly persuasive. In Lloyd Steel Co Clarke J (at 218) quoted Donaldson LJ (at 821):

In applying Ord. 20, r. 5(3) it is, in my judgment, important to bear in mind that there is a real distinction between suing A in the mistaken belief that A is the party who is responsible for the matters complained of and seeking to sue B, but mistakenly describing or naming him as A and thereby ending up suing A instead of B. The rule is designed to correct the latter and not the former category of mistake. Which category is involved in any particular case depends upon the intentions of the person making the mistake and they have to be determined on the evidence in the light of all the surrounding circumstances. 28 In ANZ Banking Group Ltd v Larcos in an action for possession of land the defendant sought to amend a cross-claim for fraudulent misrepresentation by adding a statutory claim based on the Trade Practices Act 1952 (Cth) which was outside the limitation period fixed by that act. The move away from the Weldon v Neal rule of practice was considered and affirmed as discussed by Rogers J (at 295): The rule in Weldon v Neal as to how the discretion in granting the relevant amendment should be exercised was formulated by the judges. That judge made rule directing the withholding of amendments is no longer to be treated as governing the exercise of discretion. In other words, whatever the practical effect may be, flowing from the accepted consequences of amending a pleading, Pt 20, r 4, did no more than bring about a change of practice.

29 It is thus apparent that Pt 20, r 4 has prompted a new rule of practice which allows the court the discretion to consider whether in the circumstances of the case presently before me justice would be served by granting the amendment sought.

30 The court's power to amend was considered by the High Court in Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231. The appellant in that case sought to amend a third party notice in relation to damage to goods sustained through their carriage by sea. The appellant had issued the third party notice against the registered owner of the vessel, but discovered, after the expiry of the time limitation within which a new action could be brought, that the shipowner had chartered the vessel to another company who was the carrier of the goods. Hence an amendment was sought to substitute the charterer as a third party for the shipowner. That case dealt with r 36.01 of the Victorian Supreme Court Rules which McHugh J recognised as similar to Pt 20 of the Supreme Court Rules (NSW). Toohey J in a separate judgment also recognised this similarity but pointed out that differences exist, reading the New South Wales rules to allow judicial officers greater discretion to amend including in the case where the effect would be to substitute a new party (at 251). McHugh J (Brennan and Dean JJ concurring) gave a wide scope to the power to amend conferred by r 36.01 holding (at 261) that it: ….covers not only cases of misnomer, clerical error and misdescription but also those where the plaintiff, intending to sue a person identified by a particular description, was mistaken as to the name of the person who answered that description. 31 Despite the wide discretion allowed the High Court did not allow the amendment in the particular circumstances as the appellant had intended to sue the owner of the vessel believing that its right of action lay against the owner.

32 In the case now before me, at no point did the prosecutor's solicitors believe that the action should be brought in the name of the Director-General, Department of Planning. Rather, at all times the intention of the prosecutor was to bring the prosecution on behalf of the Director-General, Department of Natural Resources. The affidavit of Ms Giurastante sworn 24 February 2006 indicates that the error was a mere oversight as a result of the use of a precedent form in preparing the summons and that the instructions to commence the proceedings came from the Director General, Department of Natural Resources and not the Director General, Department of Planning. That this intention did not exist is admitted by the defendant in Mr Ireland's written submissions. Moreover, as noted in par [5] above, the order of the Court accompanying the erroneous summons directed to the defendant correctly named the prosecutor as the Director-General, Department of Natural Resources. I further note that the summons itself refers to the prosecutor as the Director-General, Department of Natural Resources on the third page of that document. It therefore seems to me that the error can be classified as one of clerical error and thereby is within the discretion to amend allowed by Pt 20, r 4 of the Supreme Court Rules.

33 In deciding whether to grant the amendment I return to the factors identified in McGee v Yeomans as necessary for the Court to have regard to in exercising the discretion. Firstly, hardship to the prosecutor if the amendment is not granted would not appear to be relevant here, the only apparent hardship being the inability to bring an action to prosecute a fairly serious alleged environmental crime. Secondly, the defendant will be prejudiced by being denied the ability to rely upon the limitation period within which an action can be brought under the Native Vegetation Conservation Act. Further, the prosecutor did not bring the original action until the day before this limitation period expired. This motion comes before me now some five months after the expiry of the limitation period. Nonetheless, the error in the name on the summons was not repeated in the order signed by Talbot J and it would not appear at any point in the proceedings thus far that the defendant did not have an adequate understanding of the action brought against him and the person who was prosecuting him. Senior Counsel for the defendant has referred to s 14 of the Criminal Procedure Act 1986 which allows prosecutions to be instituted by an inspector or an "authorised officer" (citing Bedingfeld v Keogh (1912) 13 CLR 601; Brebner v Bruce (1950) 82 CLR 161). There is no evidence, however, that the defendant was confused as to the party prosecuting him. According to McGee v Yeomans, the mistake must have been such as to cause reasonable doubt as to the identity of the person intended to be made a party to the action. In all the circumstances of the case I do not believe the defendant held any such doubt as to the true identity of the prosecutor.

34 In giving the words of Pt 20, r 4 as full a meaning as they can reasonably bear in their context (McInnes v Wingecarribee Shire Council), I find that it is in the interests of justice that the amendment be allowed. I am thus prepared to grant leave to the prosecutor to amend the summons pursuant to sub-rr 4(1), (3) & (6) of Pt 20 Supreme Court Rules. In accordance with the decision in Proctor v Jetway, the amendment takes effect from the date of filing of the summons. The proceedings are thus not a nullity ab initio and may be regarded as validly commenced.

Entry and inspection 35 The prosecutor seeks an order for access to the defendant's property by his legal representatives and expert witnesses to inspect and take measurements of and near the area of alleged clearing.

36 There have been previous inspections of the defendant's property. According to the evidence, on 18 December 2003, Mr S J Beaman and Mr G Turner, officers of the Department of Infrastructure, Planning and Natural Resources attempted to enter the area of the alleged clearing on the defendant's property, but were prevented from doing so by Mr D J Gleeson who I understand to be a director of the defendant. Mr Beaman and Mr Turner returned to the property on the following day, 19 December 2003, with Constable J Turner of the Wee Waa Local Area Command of New South Wales Police. On this occasion Mr Gleeson allowed an inspection and Mr Beaman undertook a "waypoint survey" of the extent of the cleared area.

37 On 24 February 2005, a botanist retained by the prosecutor, Mr G N Elks, attended the property and prepared a report. On 24 April 2005 another botanist retained by the prosecutor, Dr M F Olsen, attended the property and prepared a report.

38 By letter dated 7 February 2006, Ms Giurastante of the Crown Solicitor's Office wrote to the defendant's solicitors formally requesting permission for the prosecutor's legal representatives and expert witnesses to enter and inspect the defendant's property. According to the request, the primary purpose of the inspection is "to verify the identify and size of remnant canopy trees on the property and identify other physical and floristic features of the trees."

39 Both of the expert witnesses retained by the prosecutor, Mr Elks and Dr Olsen, have stated in writing that they each require a second inspection of the property in order to complete their reports. According to Mr Elks, extra controls point coordinates are required for the preparation of more accurate maps which are considered necessary to meet higher standards of proof. Dr Olsen states that he requires a more precise definition of the loss of canopy and their physical and ecological features than is practical with the available data. I note, however, an earlier opinion expressed by Dr Olsen in his affidavit, that a more accurate count of the old growth trees present on the cleared area could be conducted if the aerial photographic images for 1986, 1998 and 2003 were subjected to photographic plotting by spectrograph.

40 Section 61 of the Native Vegetation Conservation Act provides that an "authorised officer" may enter land for the purpose of determining whether a person is contravening or has contravened any provisions of the Act, or whether any native vegetation or protected land is being cleared in contravention of the Act. An "authorised officer" a is a person appointed under s 59, namely, "any person who is a public servant employed in the Department of Land and Water Conservation as an authorised officer for the purposes of this Act". The expert witnesses engaged by the prosecutor are not public servants and are thus not authorised officers.

41 Moreover, Mr Cox, appearing for the prosecutor, concedes that the power of entry and inspection under s 61 is now spent. The authorised officers, Mr Beaman and Mr Turner, have inspected the property for the purpose of determining whether a person is contravening or has contravened a provision of the Act, or for the purpose of determining whether any native vegetation is being cleared in contravention of the Act. The purpose of the further inspection is not to determine whether an offence has been committed - the defendant has now been charged with an offence against the Act following the original inspection. The further inspection now sought is for some other or additional purpose.

42 The prosecutor submits that the Court has the power to order an inspection under s 67 of the Court Act. That section states:

67 Powers of the Court as to the production of evidence

The Court shall have and may exercise the functions vested in the Supreme Court in respect of the following matters:

(a) compelling the attendance of witnesses and examining them on oath, affirmation or declaration,

(b) compelling the production, discovery and inspection of books, records, documents and other papers,

(c) compelling witnesses to answer questions which the Court considers to be relevant in any proceeding before it,

(d) the apprehension, detention and punishment of persons guilty of contempt, or of disobedience to any order made by the Court, or of any process issuing out of the Court, and

(e) directing witnesses to be prosecuted for perjury.

43 In my opinion, however, s 67 does not extent to the inspection of real property. In particular, sub-s (b) is expressly limited to the inspection of "books, records, documents and other papers" only. I do not think that this can include things not mentioned.

44 The prosecutor also relies upon Pt 75 of the Supreme Court Rules, which apples to proceedings brought in the summary jurisdiction of this Court: Pt 6, r 2(1), Land and Environment Court Rules. In particular, the prosecutor relies upon Pt 75, r 4(a), which provides generally that the Court has the power to make orders "for the just and efficient disposal of the proceedings".

45 Sub-paragraph 4(b) of Pt 75 relevantly states, however that the Court may: without limiting the generality of paragraph (a), make such order and give such directions as may be appropriate relating to - ….

(iv) inspection by the defendant of documents or of property;

46 It seems to me that a consequence of the express limitation of the power to make an order for the inspection by the defendant of property is that there is no power to make an order for inspection by the prosecutor of property. The general power of the Court to make orders for the just and efficient disposal of the proceedings is, in my view, directed to the procedural matters and is not related to the gathering of evidence by the prosecutor, which is the apparent purpose of the inspection in the present case.

47 The prosecutor has been unable to identify any other source of power for the order which is now sought. I note that Div 2 of Pt 25 of the Supreme Court Rules, which enables the Court to make orders for the inspection of any property, does not apply to proceedings brought in the Court's summary jurisdiction.

48 In the absence of any enabling provision, the Court does not have the power to make an order for entry and inspection of the defendant's property. It follows that the second notice of motion must be dismissed.

49 Although the prosecutor has been successful in its notice of motion to substitute the name of the prosecutor on the summons, the need for such an order arises from the prosecutor's initial mistake. The usual practice as to costs in such circumstances is that the party seeking the Court's indulgence must pay the costs of any necessary application. The prosecutor has been unsuccessful in its motion for entry and inspection of the defendant's property. It must pay the defendant's costs.

(1) The prosecutor's notice of motion filed on 24 February 2006 is allowed and the prosecutor is granted leave to file an amended summons naming the Director-General, Department of Natural Resources as the prosecutor. (2) The prosecutor must pay the defendant's costs of the notice of motion filed on 24 February 2006. (3) The prosecutor's notice of motion filed on 24 March 2006 is dismissed. (4) The prosecutor must pay the defendant's costs of the notice of motion filed on 24 March 2006.

I hereby certify that the preceding 50 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.