(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.
12 Lloyd J dealt first with a submission by the defendant that the proceedings were not validly commenced and were therefore a nullity. He adopted (at [11]) the propositions stated by Upjohn LJ (as he then was) in Re Pritchard [1963] 1 Ch 502 - that a fundamental defect in issuing proceedings made those proceedings a nullity (at 524), and that a court has no power to cure such a nullity (at 520, 523). Dankwerts LJ (at 527) agreed with Lord Upjohn. Lloyd J held (at [16]) that "the solicitor for the prosecutor" had no instructions to act for "the named prosecutor" and that this constituted a fundamental defect in the proceedings. It necessarily follows from the judge's line of reasoning that he considered the summons to be a nullity.
13 The judge said (at [13]) that s 68(2) was of no assistance, as it referred only to a failure to comply with procedural requirements and did not apply where the originating process was a nullity. He expressed the view (at [15]) that the powers of amendment granted by SCR Pt 20 r 1 permitted an amendment to the originating process only where "in its amended form the nature and substance of the proceedings remain the same". He concluded (at [16]) that, if the matter were left on the basis of the submissions made to him, he would have been inclined to refuse the application to amend as the proceedings were affected by the fundamental defect he had identified.
14 The judge went on the grant leave to file an amended summons "naming the Director-General, Department of Natural Resources, as the prosecutor". He proceeded in accordance with SCR Pt 20 r 4, to which, although Pt 20 had been raised in argument, neither party had referred. So far as it is here relevant, r 4 was in the following terms:
(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 nor 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.
(7) This rule does not limit the powers of the Court under rule 1.
(The terms of SCR Pt 20 rr 1 and 4 as they had been in force prior to 15 August 2005 are also substantially adopted in LECR Pt 10 rr 1-2.)
15 Lloyd J (at [29]) interpreted Pt 20 r 4(3) as giving him the discretion to consider whether in this particular case "justice would be served by granting the amendment sought". He accepted (at [32]-[33]) that:
(1) there had been no intention to commence the proceedings in the name of the Director-General, Department of Planning;
(2) such Director-General was named as prosecutor in the header instead of the Director-General, Department of Natural Resources, by way of a "clerical error" as a result of a "mere oversight"; and
(3) the correct Director-General was identified as the prosecutor in that part of the document which nominated the time and place for the hearing of the summons.
The defendant had expressly (and, on the evidence, realistically) accepted that there had been no intention to bring the proceedings in the name of the Director-General, Department of Planning. The judge pointed out that there was no evidence that the defendant was confused as to the identity of the party prosecuting it. He held (at [34]) that it was in the interests of justice that the amendment be allowed, and he granted leave to make the amendment sought in relation to the name of the prosecutor in the header.
16 Pursuant to s 5F of the Criminal Appeal Act 1912, the defendant has applied to this Court for leave to appeal against the interlocutory order made by Lloyd J. It is convenient to continue to refer to the applicant for leave to appeal as "the defendant".
17 The defendant has argued a number of submissions:
(1) The Director-General, Department of Natural Resources, had no standing to apply to the Land and Environment Court to amend the summons; the prosecutor in the summons was the Director-General, Department of Planning, who made no such application.
(2) As the Director-General, Department of Planning, had not appeared on the return date of the summons, and the defendant had attended, the judge before whom the summons was returned was obliged by s 249 of the Criminal Procedure Act to discharge the defendant.
(3) As Lloyd J had correctly held that the summons was a nullity, the provisions in the rules permitting it to be amended had no application.
(4) The judge wrongly interpreted the provisions of SCR Pt 20 r 4(3) by holding that -
(a) it permitted a subjective assessment to be made as to whether the mistake made in the summons was not misleading nor such as to cause reasonable doubt as to the identity of the person named as the prosecutor;
(b) it permitted the applicant for amendment to succeed unless the mistake had both misled and caused such a reasonable doubt; and
(c) it placed an evidentiary onus on the defendant to demonstrate that it had been misled or had a reasonable doubt.
(5) SCR Pt 20 r 4(3) is applicable to civil proceedings only and has no work to do in relation to a criminal prosecution where an attempt is made to substitute one prosecutor for another in contravention of the time limit imposed by the Native Vegetation Conservation Act .
18 Common to many of the defendant's submissions is the issue as to whether the judge was correct in his interpretation of the summons which led him to the conclusion that the document was a nullity. We commence with a consideration of this issue.
19 The fundamental defect in the proceedings identified by the judge was that "the solicitor for the prosecutor" had no instructions to act for "the named prosecutor". There is no dispute that the Crown Solicitor had instructions from the Director-General, Department of Natural Resources, to commence the proceedings against the defendant. In order to reach the conclusion that the solicitor had no instructions from the named prosecutor, therefore, the judge must necessarily have interpreted the summons as naming the Director-General, Department of Planning, as the prosecutor, rather than the Director-General, Department of Natural Resources.
20 The summons, however, expressly and separately named each of the two Directors-General as the prosecutor, each in an important but different part of the document - one in the header, and the other where the defendant is being notified of the time and place of the hearing at which it was to appear. That fact necessarily indicates that either one or the other Director-General had been named as the prosecutor in error. For the purpose of determining whether the solicitor had instructions to institute the proceedings for the prosector, it was necessary for the judge to determine which Director-General was "the prosecutor".
21 That task had to be undertaken on a completely objective basis by considering which Director-General a reasonable person would interpret the document itself and any linked document - and without reference to the subjective intention of the actual person who drafted it - had been intended to be the prosecutor. That first task differed from the second task - which confronted the judge only if the document was held not to be a nullity - to determine whether the amendment sought to be made should be allowed in accordance with Pt 20 r 4. That second task raised quite separate issues in the circumstances of this case: which Director-General was subjectively intended by the solicitor who filed the document to be the prosecutor; and (if the Director-General, Department of Natural Resources, had been subjectively intended to be the prosecutor) whether the mistake made in naming the Director-General, Department of Planning, as the prosecutor in the header of the summons was either misleading or such as to cause reasonable doubt as to the identity of the person intended to be the prosecutor. The ultimate decision on the first task, therefore, does not necessarily foreclose the defendant's arguments in relation to the second task.
22 The judge gave no reasons for interpreting the summons as naming the Director-General, Department of Planning, as the prosecutor, despite the importance of the strongly disputed issue he was determining. It would appear that he simply assumed that the Director-General named in the header had been intended to be the prosecutor. However, no such assumption could safely be made where the summons expressly and separately names two different persons as the prosecutor in the different places already referred to. In our opinion, the judge erred by failing to consider which of the two "named" prosecutors was intended to be the prosecutor in the way outlined in the previous paragraph. It is thus open for this Court to consider that issue for itself.
23 There were two relevant documents to consider: the summons and the order permitted by the Criminal Procedure Act to be made by a judge that the defendant appear at the specified time and place to answer the offence charged (see par [4] supra). Both documents were prepared in the office of the Crown Solicitor, and they are necessarily linked documents. As already stated, the order names the Director-General, Department of Natural Resources, as the prosecutor, and there is no reference in it to the Director-General, Department of Planning. Both documents relate to the institution of the same prosecution pursuant to the Native Vegetation Conservation Act. The Department of Natural Resources is the department administering that statute, and not the Department of Planning - which has nothing to do with prosecutions under it. (The Director-General, Department of Natural Resources, was also named as the prosecutor in all of the affidavits filed in support of the summons. Those affidavits are required by LECR Pt 6 r 2(2) to accompany the s 246 order, but it is unclear from the material before this Court whether they were in fact filed and served with the summons or subsequently. We have therefore not treated them as linked documents.)
24 We are satisfied that, on the completely objective basis identified in par [21] supra, the Director-General, Department of Natural Resources, was intended by the two linked documents to be the prosecutor. The judge therefore erred in concluding that "the prosecutor" was the Director-General, Department of Planning. It follows that he also erred in holding that the Crown Solicitor had no instructions to act for "the prosecutor". There was accordingly no fundamental defect in issuing the proceedings, and the summons was not a nullity. The judge erred in holding that it was a nullity.
25 That conclusion on our part enables us to dispose of a number of the defendant's submissions set out in par [17] supra.
26 Submission (1) on behalf of the defendant - that the Director-General, Department of Natural Resources, had no standing to appear on the return date of the summons and to seek the amendment of the summons - therefore necessarily fails. He and not the Director-General, Department of Planning, was the prosecutor, and he therefore had standing to appear.
27 Submission (2) - that, as the prosecutor had not appeared on the return date, the judge should have discharged the defendant pursuant to s 249 of the Criminal Procedure Act - also necessarily fails. Section 249 requires the court to discharge an accused person who appears at the time, on the date and at the place specified by the order made pursuant to s 246 (see par [4] supra) if the prosecutor does not appear and if the court is satisfied that the prosecutor had been notified of those details. As the prosecutor did appear on the return date, that provision had no part to play in the proceedings, and the defendant was not entitled to be discharged pursuant to it.
28 Submission (3) - that as the summons was a nullity no amendment could be made to it - also necessarily fails because the judge erred in concluding that the summons was a nullity.
29 The judge was correct to disregard the provisions of s 68(2) of the Land and Environment Court Act on which the applicant for amendment had primarily relied. There had been no failure by the applicant to comply with the procedural requirements of the Act or the rules which could be treated as an irregularity and which does not nullify the proceedings. A mistaken description of the prosecutor is not a failure to comply with those procedural requirements. The only way the mistake could be corrected was to amend the mistaken description, pursuant to either s 68(1) or SCR Pt 20.
30 This leads us to consider how the judge dealt with the application to amend pursuant to SCR Pt 20 r 4 - that is, Submission (4). The relevant terms of that rule are set out in par [14] supra, but it is convenient to repeat here the terms of r 4(3):
Where there has been a mistake in the name of a party and the Court is satisfied that the mistake was not misleading nor 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.
31 The defendant's Submission (4) is that (1) the judge wrongly interpreted the rule as (a) permitting him to make a subjective assessment as to whether the defendant had in fact been misled or had in fact a reasonable doubt as to the identity of the prosecutor, and (b) permitting the applicant for amendment to succeed unless the mistake had both misled and caused such a doubt, and that (2) he wrongly placed an evidentiary onus on the defendant to demonstrate that it had been misled.
32 The first part of this submission, that the judge erred in making such a subjective assessment, is based on the following passage in the judgment (at [33]):
[…] 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. […] There is no evidence, however, that the defendant was confused as to the party prosecuting him. According to McGee v Yeomans ([1977] 1 NSWLR 273), 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.
There is no doubt that the judge did make such a subjective assessment, and that he did place an evidentiary onus on the defendant as to whether it had been misled.
33 The parties, having conducted an apparently extensive review of the many decisions on SCR Pt 20 r 4(3) and its equivalent elsewhere in Australia and in England, found no decision in which this particular issue has been discussed. Neither have we found such a case. The wording of the rule, that the Court must be satisfied that
the mistake was not misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party,
certainly suggests that the inquiry is directed to the objective nature or quality of the mistake itself, and not to the subjective reaction to that mistake by the other party. The inquiry would be how a reasonable person receiving the document would interpret its intention in the light of the circumstances in which such person received it.
34 The defendant relies on the following statement of Devlin LJ (as he then was) in Davies v Elsby Bros Ltd [1961] 1 WLR 170 at 176:
I think that the test must be: how would a reasonable person receiving the document take it? If, in all the circumstances of the case and looking at the document as a whole, he would say to himself: "Of course it must mean me, but they have got my name wrong", then there is a case of mere misnomer. If, on the other hand, he would say: "I cannot tell from the document itself whether they mean me or not and I shall have to make inquiries", then it seems to me that one is getting beyond the realm of misnomer.
That statement has been referred to with approval in many cases in England and Australia, including J Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd (1970) 44 ALJR 441 at 443 (Walsh J sitting as a single justice) and Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 at 254 (McHugh J, with whom Brennan & Deane JJ agreed). In each case, however, it was cited not for the purpose of determining whether the test is a subjective or an objective one but in order to distinguish between a mistake as to the name of the party and a mistake as to the identity of the party.
35 The Court of Appeal in Davies v Elsby Bros Ltd was concerned with the English rules relating to amendments existing before the new English rules made in 1965 (which were substantially the same as SCR Pt 20 r 4(3)), and at a time when the so-called rule in Weldon v Neal (1887) 19 QBD 394 held sway - that an amendment would not be granted where it prejudiced the defendant's rights under a statute of limitations or any other limitation period. The previous rules and practice made no reference to the mistake being misleading or causing a reasonable doubt as to the identity of the person intended to be made a party. Lord Devlin's statement is therefore of no assistance in relation to the specific issue with which we are here presently concerned.
36 Moreover, the Bridge Shipping case was an appeal from Victoria, where the rule permitting amendments requires to the Court's satisfaction that the respondent -
[…] would not be prejudiced in the conduct of his claim or defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise.
The Victorian rule does not refer to whether the mistake was misleading or would cause a reasonable doubt as to the identity of the person intended to be made a party. The approval given to Lord Devlin's statement in that case does not therefore assist in relation to the specific issue with which we are here presently concerned. In that case (at 249), Toohey J also quoted Lord Devlin's statement in order to make the point that its purpose was to reject the argument that the intention of the author was decisive, and that it was in that context that Lord Devlin spoke of the reaction of "a reasonable person receiving the document". He said (at 249) that the intention of the author of the mistake must be answered by reference to all the circumstances, including that person's state of knowledge and belief and his or her intentions, judged by reference to the circumstances. We respectfully agree with the view of Toohey J where an amendment is being sought pursuant to Pt 20 r 4.
37 The respondent to the appeal, the Director-General, Department of Natural Resources, relies on the fact that, in many of the cases dealing with SCR Pt 20 r 4(3) and its equivalent elsewhere in Australia and in England, the judges - although not expressly applying their minds to the issue of whether the inquiry is directed to the objective nature or quality of the mistake itself or to the subjective reaction of the other party to that mistake - have made findings based on the subjective reaction of the other party.
38 In Mitchell v Harris Engineering Co Ltd [1967] 2 QB 703 (a case dealing with the 1964 English rules), Lord Denning MR (at 719) held that the misnomer was a genuine mistake by the plaintiff's solicitors and that the defendant "must have realised it as soon as he read the writ and the endorsement". Russell LJ (at 721) said that the defendant "could not have failed to have seen that [the name] was an error". Davies LJ agreed with the other two judges. In Rodriguez v RJ Parker (a male) [1967] 1 QB 111 (also a case dealing with the 1964 English rules), Nield J considered that the defendant "knew full well" that he was the person intended to be sued. In Lloyd Steel Co (Aust) Pty Ltd v Jade Shipping SA (1985) 1 NSWLR 212, in which the plaintiff sought to amend the name of only the first defendant which had been sued as the carrier, Clarke J (as he then was) concluded (at 217-218):
Accordingly, it seems to me, there has been a mistake in the identity of a party in so far as the carrier, the intended recipient of the action, was wrongly named and I am satisfied that this mistake was not misleading (presumably to the first defendant) and not such, in the light of the pleadings, as to cause reasonable doubt as to the identity of the party intended to be sued.
In Brandsma Crockett Pty v Heindal Pty Ltd (2002) 26 WAR 323, McLure J (with whose conclusion that the amendment should be allowed Murray J agreed) held (at [45]) that at all material times the defendant "understood" that it was the company intended to be sued.
39 SCR Pt 20 r 4 was introduced as part of the new Rules of Court in the Fourth Schedule to the Supreme Court Act 1970 when it commenced, and came into operation on the commencement of that Act in 1972. It had appeared in the same terms in the Fourth Schedule to the draft Act prepared by the Law Reform Commission in its Report LRC 7 (Supreme Court procedure), published in 1969. The side note is "cf RSC (Rev) 1965, O 20 r 5". Unfortunately, both the Report and its Notes on the Supreme Court Bill are uninformative as to the intended interpretation of this provision.
40 If we had been invited in 1965 - when the progenitor of SCR Pt 20 r 4(3) was first introduced in England - to determine whether the inquiry should be directed to the objective nature or quality of the mistake itself or to the subjective reaction to that mistake by the other party, we would have said that the wording of the rule indicates that correct test is the objective one. But more than forty years since 1965 of judges treating the rule as if it permitted the subjective test to be applied, even though never expressly deciding the issue, leads us to conclude that it is too late now to insist that our view is the correct one. We are therefore not satisfied that the judge erred in the present case by making a subjective assessment as to whether the defendant had in fact been misled or had in fact had a reasonable doubt as to the identity of the prosecutor.
41 The objective nature or quality of the mistake made nevertheless remains the primary factor to be considered. That is clear from all of the decisions to which reference has been made. It should also be emphasised that, where the objective nature or quality of the mistake is not such that a reasonable person receiving the document would be misled or have a reasonable doubt as to the identity of the person intended to be made a party, that will ordinarily be the end of the matter. The subjective reaction of the particular recipient to the mistake in such a case (for example, by reason of an unfamiliarity with the English language) cannot prevail so that the amendment sought must be refused. The reaction to the mistake by the respondent to the application to amend plays a very minor role indeed - and ordinarily only in favour of the applicant for amendment.
42 The second part of the defendant's Submission (4) is that the judge wrongly interpreted Pt 20 r 4(3) as permitting the applicant for amendment to succeed unless the mistake had both misled and caused a reasonable doubt as to the identity of the prosecutor.
43 The defendant asserts that the application to amend had to fail if the mistake had either misled or caused such reasonable doubt as to the identity of the prosecutor; each consequence of the mistake, it is said, is a self-sufficient basis on which the amending power could falter. We agree. It is, however, submitted by the defendant that the judge reached a contrary conclusion because, when he quoted the rule in his judgment, he read it as saying:
[…] 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 emphasis has been added]
The defendant says that the substitution of "or" for the "nor" which appears in the rule means that the judge interpreted the rule as requiring there to be both consequences to follow before the amendment could fail.
44 The judge did not expressly so interpret the rule. If he did in fact so interpret it, it could not have resulted from that misquotation. The English rule on which SCR Pt 20 r 4(3) is based also uses the word "or" rather than "nor", as does the rule in each of the other Australian States which adopted the English rule. No one has ever suggested that the different words are significant. We do not accept that there is any significance in the judge's misquotation of the rule. SCR Pt 20 r 4(3) clearly requires the applicant for amendment - as does the English rule - to satisfy the judge both that the mistake was not misleading and that it was not such as to cause reasonable doubt as to the identity of the person intended to be made a party.
45 The judge expressly held (at [33]) (1) that the defendant did not at any point in the proceedings "not have an adequate understanding of […] the person who was prosecuting him", and (2) that "there was no evidence […] that the defendant was confused as to the party prosecuting him (sic)". The first constitutes a finding that the mistake did not cause the defendant to have a reasonable doubt as to the identity of the prosecutor; the second constitutes a finding that the defendant was not misled by the mistake. The judge was therefore satisfied that neither consequence flowed from the mistake made as to the name of the prosecutor in the header of the summons. We are not satisfied that the judge misinterpreted the rule or that the judge wrongly interpreted the rule as permitting the applicant for amendment to succeed unless the mistake had both misled and caused a reasonable doubt as to the identity of the prosecutor.
46 The last part of the defendant's Submission (4) is that the judge placed an evidentiary onus on the defendant to demonstrate that it had been misled or had a reasonable doubt. This submission was also based on the judge's statement that "there was no evidence […] that the defendant was confused as to the party prosecuting him (sic)". In our view, the judge did intend by that statement to give some weight to the fact that the defendant had not produced any evidence that he had been misled or had a reasonable doubt. Before considering whether that amounted to an error, one associated issue must be disposed of.
47 At one stage, the defendant submitted that the prosecutor had to establish the elements of SCR Pt 20 r 4(3) beyond reasonable doubt in order to obtain leave to amend the summons, but this submission was wisely not pursued at the hearing of the appeal. The prosecutor in a prosecution governed by the provisions of SCR Pt 75 still has to establish the guilt of the defendant beyond reasonable doubt. But he or she does not have to establish beyond reasonable doubt the elements of SCR Pt 20 r 4(3) - which are brought into play by SCR Pt 75 - in order to obtain leave to amend the summons on which the prosecution is based. Those issues do not form elements of the offence charged; such procedural matters need to be established according to the ordinary civil standard of proof only: cf Thompson v The Queen (1989) 169 CLR 1 at 12-13, 29-30, 39.
48 Can the issue of an evidentiary onus on the defendant nevertheless still arise? A defendant will sometimes bear an evidentiary onus in a criminal trial. For example, in a murder trial, the defendant must point to or produce evidence of such issues as accident, provocation or self-defence before an onus is placed on the Crown to eliminate any reasonable possibility that the defendant's conduct arose as a result of such matters: Regina v Youssef (1990) 50 A Crim R 1 at 2-4. But, in an application by the prosecutor to amend the summons on which the prosecution is based, there can be no evidentiary onus on the defendant to point to or to produce evidence that he was in fact misled or in fact had a reasonable doubt. The difference is that, in a murder trial, the issues of accident, provocation or self-defence do not arise at all unless there is evidence from which such issues are capable of arising. That is made clear in the authorities discussed in Regina v Youssef. On the other hand, a prosecutor seeking to amend the summons in a SCR Pt 75 prosecution at all times bears the onus of establishing the two negative propositions stated in SCR Pt 20 r 4(3) - that the mistake was not misleading and was not such as to cause a reasonable doubt as to the identity of the prosecutor.
49 The judge therefore erred in giving weight to the fact that the defendant had not produced any evidence that he had not been misled or had a reasonable doubt, and this error in the exercise by the judge of his discretion to grant the amendment sought by the prosecutor requires this Court to exercise its own discretion as to whether the amendment should be allowed.
50 Was the naming of the Director-General, Department of Planning, in the header of the summons a mistake? We are satisfied that it was. The defendant had expressly (and, on the evidence, realistically) accepted that there had been no intention to bring the proceedings in the name of the Director-General, Department of Planning. The judge himself accepted that fact, and that the "office" of that Director-General had been identified in the header of the summons by way of a "clerical error" as a result of a "mere oversight" (see par [15] supra). It was common ground that the Department of Planning had nothing to do with the matter (see par [8] supra).
51 Was the mistake as to the name of the party or as to the identity of the party? The vital nature of the distinction is well illustrated by the decision of the Court of Appeal in Price v Ferris (1994) 34 NSWLR 704, to which we were referred. In that case, the proceedings were commenced in the Local Court by Inspector Price charging Constable Ferris with using a firearm in a public place without reasonable excuse or lawful purpose. Prior to the hearing of the summons, the Director of Public Prosecutions gave notice that he had "taken over" of the prosecution pursuant to s 9 of the Director of Public Prosecutions Act 1986. At the hearing of the summons, the magistrate dismissed the proceedings, apparently on the basis that the place where the firearm was discharged was not a public place. He ordered the DPP to pay the defendant's costs. The DPP obtained from the magistrate an extension of time in which to appeal to the Supreme Court by way of a stated case. The magistrate subsequently signed a stated case to the Supreme Court in which Inspector Price rather than the DPP was named as the appellant. On the application of Constable Ferris to strike out the appeal on the basis that Inspector Price had no standing to prosecute it, McInerney J refused an application to amend the appeal by substituting the DPP for Inspector Price as the appellant, and he struck out the appeal to the Supreme Court holding that the DPP and not Inspector Price had been the prosecutor.
52 Inspector Price appealed to the Court of Appeal against that refusal to permit the amendment. Kirby P (at 706-707) described the judge's refusal in this way:
[The judge] did this because he formed the view that the misnomer of the prosecutor was not such a mistake as would permit amendment of the record. The nomination of Inspector Price in the summons had been deliberate. The mistake was not one merely as to the name of a party (which could be cured) but a fundamental mistake (at his Honour found) as to the identity of the person in whom the rights to bring the appeal by stated case were vested. [The emphasis is supplied in the original]
Kirby P (at 709) expressed his own view in this way:
This was not a mistake as to the name of a party entitled to appeal. It was a mistake as to the identity of the proper appellant. Repeated and recent authority of this Court makes it clear that the rules of court do not allowed substitution and correction of the record in such cases: see Smith v The Nominal Defendant (Court of Appeal, 17 February 1994 [BC9402268], unreported). Consistently with the holding of the Court in Smith , we could not permit the substitution of the DPP (who would otherwise be out of time for an appeal by stated case to this Court), for Inspector Price. It was confusion in the prosecution's office as to who was the proper appellant, not confusion as to Inspector Price's name that led to the mistaken proceedings in the name of Inspector Price.
Meagher JA (at 714) agreed with Kirby P. Priestley JA (at 713) dissented on the basis that the provisions of s 9 of the Director of Public Prosecutions Act allowing the Director to "take over" the proceedings did not constitute the Director the prosecutor in the place of the original prosecutor, and that Inspector Price had remained on the record as "nominal prosecutor". He did not disagree with the propositions stated by Kirby P at 709 and quoted above.
53 We are satisfied that the mistake in naming the prosecutor as the Director-General, Department of Planning, in the header of the summons may fairly be described as a mistake as to the name of the party, and not as to the identity of the party - in the circumstances that the Director-General, Department of Natural Resources, was intended to be the prosecutor, and was named as such elsewhere in the same document and in the linked document prepared by the same solicitor, the order (required by s 246 of the Criminal Procedure Act) that the defendant be dealt with according to law for the offence charged.
54 The remaining issue is whether the mistake was either misleading or of such a nature as to cause reasonable doubt as to the identity of the person intended to be made a party. We are satisfied that neither consequence flowed from the mistake. The reasonable recipient of the summons, together with its necessarily linked document (the order pursuant to s 246 of the Criminal Procedure Act: see par [23] supra), is presumed to have read the whole of both documents. That person would immediately see that the summons expressly and separately names two different persons as the prosecutor: one person in the header, and the other where the defendant is being notified of the time and place of hearing at which to appear. The reasonable recipient of the summons would immediately realise that it could not have been intended to have done this, and would therefore ask him or herself which person was intended by the author of the document to be the prosecutor. If the summons had been the only document to be considered, that person would have to make an inquiry as to which was intended, and the mistake would in those circumstances therefore have to be regarded as such as to at least cause reasonable doubt as to the identity of the prosecutor. But it was not the only document to be considered. The answer to any such inquiry arising from a reading of the summons is necessarily found in the linked document (the s 246 order), which definitively identifies the Director-General, Department of Natural Resources, as the prosecutor rather than the Director-General, Department of Planning.
55 Subject, therefore, to the resolution of the defendant's Submission (5) - that SCR Pt 20 r 4(3) is applicable to civil proceedings only and has no work to do in relation to a criminal prosecution where an attempt is made to substitute one prosecutor for another in contravention of the time limit imposed by the Native Vegetation Conservation Act - we would ourselves have granted the amendment sought by the prosecutor. This conclusion would lead to the dismissal of the appeal.
56 We turn finally to Submission (5). Our conclusion (at par [53] supra) that the mistake was as to the name of the party and not as to the identity of the party strips Submission (5) to the single issue: is SCR Pt 20 r 4(3) applicable to civil proceedings only?
57 As stated in par [3] supra, in accordance with LECR Pt 6 r 2, Class 5 proceedings (Environmental planning and protection summary enforcement) in the Land and Environment Court are governed by the provisions of SCR Pt 75 and they are taken to form part of the Land and Environment Court Rules. SCR Pt 75 r 6 (Rules applicable) provides that SCR Pt 20 applies to proceedings within the summary jurisdiction of the Court only "so far as applicable" to those proceedings. The defendant's argument is that SCR Pt 20 r 4 is not applicable to criminal proceedings because SCR Pt 20 r 4(6) provides:
This rule has effect in relation to a summons as it has in relation to a statement of claim.
The defendant submits that, in its context of referring to a statement of claim (by which civil proceedings may be commenced), this subrule refers only to the summons for which SCR Pt 5 (Proceedings by summons) provided as an alternative means of commencing civil proceedings, and therefore that SCR Pt 20 r 4 is not applicable to SCR Pt 75 proceedings.
58 We do not accept that conclusion. SCR Pt 20 as a whole was directed to civil proceedings, as are most of the Supreme Court Rules. SCR Pt 20 r 4(6) was intended to apply to both types of originating civil process permitted by those Rules. SCR Pt 75, however, is expressly directed to all criminal proceedings in the Supreme Court pursuant to the Criminal Procedure Act, Chapter 4, Part 5 (Summary jurisdiction of the Supreme Court and other higher courts). There is a need for rules governing amendments to the originating process in all criminal proceedings; there is a considerable body of law which permits a prosecutor to amend an indictment in certain circumstances, and the position is no different in relation to amending a summons in summary proceedings. It is clear that, notwithstanding the reference in SCR Pt 20 r 4(6) to the manner in which civil proceedings are commenced, the adoption by SCR Pt 75 of SCR Pt 20 was a convenient way of regulating the manner in which amendments can be made to the originating process in all summary prosecutions in the higher courts. Such proceedings are required by Pt 75 r 7 to be commenced by summons. The clear intention is for SCR Pt 20 to apply to applications to amend such a summons - not because SCR Pt 20 r 4(6) refers to a summons - but because the power to amend and the rules governing the exercise of that power was intended by SCR Pt 75 to apply to all originating process in summary prosecutions, in accordance with SCR Pt 20 so far as it is applicable. No explanation has been suggested as to why SCR Pt 20 r 4 should be excluded from the operation of those rules in the Land and Environment Court. We are satisfied that SCR Pt 20 r 4 is applicable to an application to amend a summons in a summary prosecution in that Court.
59 We will accordingly make orders granting leave to appeal but dismissing the appeal. However, before doing so, we must deal with an issue which arose during the hearing of the appeal and in relation to which both parties have made extensive submissions. This issue was raised by the defendant only shortly before the hearing of the appeal. It concerns the width of the application of s 16(2) of the Criminal Procedure Act, which provides:
(2) No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in a Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of:
(a) any alleged defect in it in substance or in form, or