Fletcher v Byron Shire Council

Land and Environment Court (NSW)|2010-09-24|Before: Biscoe J

CITATION : Fletcher v Byron Shire Council [2010] NSWLEC 185

APPELLANT: Michael Hume Fletcher PARTIES : RESPONDENT: Byron Shire Council

KEY ISSUES: APPEAL :- appeal against sentence - application for leave to appeal against conviction in Local Court made out of time and refused - appellant allowed to file and serve fresh evidence.

CASES CITED: Lin v Fairfield City Council [2007] NSWLEC 568, 159 LGERA 264

APPELLANT: Mr M Fletcher (in person) SOLICITORS: n/a LEGAL REPRESENTATIVES: RESPONDENT: Mr T March SOLICITORS: HWL Ebsworth

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

EX TEMPORE JUDGMENT 1 HIS HONOUR: This is a notice of motion filed on 24 September 2010 by the appellant, Mr Michael Fletcher, who is self-represented, that the Court (a) grant him leave to appeal against his conviction in the Local Court in his appeal 60004 of 2010 (the trees matter) and (b) to allow him to adduce fresh evidence in both that appeal and in his appeal 60003 of 2010 (the waste matter). 2 The two appeals are unrelated, although they concern offences that occurred on the same land.

3 In the Local Court Mr Fletcher pleaded guilty in the trees matter and not guilty in the waste matter. He was convicted and sentenced in relation to both matters on 9 February 2010.

4 The appeal in the waste matter is against conviction and sentence. The appeal in the trees matter is against sentence.

LEAVE TO APPEAL AGAINST CONVICTION IN TREES MATTER 5 Mr Fletcher seeks leave to appeal against conviction in the trees matter, notwithstanding that he pleaded guilty in the Local Court. 6 In my opinion the Court does not have power to grant Mr Fletcher leave to appeal against conviction because of the time bars in the Crimes (Appeal and Review) Act 2001 ss 32 and 33 which relevantly provide: " 32 Appeals requiring leave

(1) Any person who has been convicted by the Local Court, in the person's absence or following the person's plea of guilty, with respect to an environmental offence may appeal to the Land and Environment Court against the conviction, but only on a ground that involves a question of law alone, and only by leave of the Land and Environment Court. … (4) An application for leave to appeal must be made: (a) in the case of a conviction referred to in subsection (1): (i) within 28 days after sentence is imposed, or …

(1) An appeal to the Land and Environment Court may be made: … (b) by any person by whom an application for leave to appeal could be made under section 32, but for section 32 (4), but only by leave of the Land and Environment Court. (2) An application for leave to appeal must be made within 3 months after the relevant conviction, sentence or order is made or imposed."

7 It appears that under s 33(2) an application for leave to appeal outside the 28 day period prescribed by s 32(4)(a)(i) can be made provided it is made within three months after the relevant conviction, sentence or order is made or imposed: Lin v Fairfield City Council [2007] NSWLEC 568, 159 LGERA 264 at [8]. 8 Conviction and sentence in the Local Court in both matters were imposed on 9 February 2010. The notice of motion seeking leave to appeal against conviction in the trees matter was filed on 24 September 2010. Thus, both the 28 day period provided for in s 32(4)(a)(i) and the three month period provided for in s 33(2) had long since lapsed when the notice of motion was filed.

9 Mr Fletcher queries whether s 64 of the Act might overcome the statutory time bars. Section 64 provides: " 64 Extension of appeal proceedings to other convictions and sentences

If an appeal or application for leave to appeal has been duly made in respect of one conviction or sentence (the primary conviction or sentence), an appeal court may hear and determine an appeal or application for leave to appeal in respect of any other conviction or sentence made or imposed on the same day, and in respect of the same person, as the primary conviction or sentence, and may do so even though an appeal or application for leave to appeal has not been duly made in respect of the other conviction or sentence." 10 I do not consider that s 64 ousts the time bars in ss 32 and 33. Further, I do not consider that s 64 applies to an unrelated matter merely because the conviction or sentence in relation to each was made or imposed on the same day. The word "primary" in s 64 suggests a substantive connection between the two matters which is absent in the present case and not established by the mere fact that the two offences occurred on the same land.

11 In my opinion, the Court is powerless to entertain this application for leave to appeal against conviction because of the statutory time bars. The notice of motion must be dismissed in that respect.

12 It is unnecessary to consider whether any question of law is involved in the proposed appeal as required by s 32(1). The proposed ground of appeal is based on the assertion in Mr Fletcher's notice of motion, although there is no formal evidence of this, that at the hearing in the Local Court his legal representative went against his wishes and pleaded guilty.

FRESH EVIDENCE 13 Mr Fletcher also seeks an order that he be allowed to file fresh evidence in both matters within two weeks. The respondent's objection is that he has been directed on several occasions since 16 April 2010 to file and serve any additional evidence upon which he intends to rely and has not complied with the directions. There should be taken into account that the initial direction required him to serve any such additional evidence within 14 days of receipt of the remainder of the Local Court transcript and that there was some delay in receiving that transcript. Nevertheless, his failure to comply with the directions of the Court is egregious. 14 He has proffered an explanation from the bar table that he was distracted for some time by his attempt to institute proceedings in the Federal Court of Australia which in some way he thought would be dispositive of, or would impact upon, the proceedings in this Court. The Federal Court has recently refused to allow him to file his application and supporting affidavit. He has tendered the first page of a letter of 20 September 2010 from the Federal Court of Australia registry to him and has said that he does not have the second page with him but that that it is merely a signatory page. The letter states: "Reference is made to the application and supporting affidavit that you sought to file with the Court on or about 13 August 2010.

I note that your application is based on the premise that because the provisions of the Commonwealth of Australia Constitution Act do not formally recognise local government, the respondent council has no power to enforce regulations that affect your enjoyment of land to which you hold the fee simple title. In this regard you seek to have your application impact on certain proceedings before the land and Environment Court of New South Wales.

I was concerned that your application would, if accepted for filing, amount to an abuse of the process of the Court in two ways. First, your application, being based on the above mentioned premise, is clearly foredoomed to fail. In this sense it amounts to an abuse of process as observed by the High Court in Walton v Gardiner 177 CLR 378 (at 393). Second, the application would appear to be an impermissible collateral attack on the appeals process before the Land and Environment Court of New South Wales.

As a consequence of my concerns, I referred your documents to a Judge pursuant to Order 46 rule 7A(2) of the Federal Court Rules for direction as to whether they should or should not be accepted for filing.

The Honourable Justice Collier has directed under that provision that your documents not be accepted for filing." 15 I do not regard the fact that Mr Fletcher was seeking to commence proceedings in the Federal Court as an excuse for his delay in complying with repeated directions of this Court over the last six months to serve additional evidence by specified times. He has also put forward as an excuse that the solicitor whom he formerly retained in both matters ceased to act for him on 21 June 2010. I do not think that provides any excuse either. 16 The fact remains that he is a self-represented litigant who wishes to put forward additional evidence which he believes, as I understand it, is relevant to his appeals. In the waste matter, he has indicated that the evidence that he wishes to adduce comprises a letter that the respondent council wrote to him about two months ago concerning council control and a report from an environmental engineer. In the trees matter he has indicated that the fresh evidence that he wishes to adduce comprises statements from two people who have been on the subject land for many years and a report from an ecologist concerning the trees that were removed. Notwithstanding that Mr Fletcher has no reasonable excuse for failing to comply with the directions for so long, I am prepared to grant him the two additional weeks which he seeks to file and serve this proposed fresh evidence.

17 The respondent has indicated that it wishes to have the opportunity to consider that material and to decide whether it should make an application to the Court concerning its admissibility or otherwise which, if successful, might avoid the expense and time of having to respond to it.

ORDERS 18 The orders of the Court are as follows:

The appellant's notice of motion filed on 24 September 2010 is dismissed insofar as it seeks leave of the Court to appeal against conviction in proceedings 60004 of 2010. 2. The appellant is to file and serve any additional evidence upon which he intends to rely in proceedings 60003 of 2010 and 60004 of 2010 by 8 October 2010. 3. Both proceedings are listed before the List Judge for directions on 15 October 2010. 4. Any notice of motion by the respondent concerning the appellant's proposed additional evidence is to be filed and served by 12 October 2010 and made returnable before the List Judge on 15 October 2010.

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.

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