Garrett v Freeman

LEGISLATION CITED: National Parks and Wildlife Act 1974 s 118D(1) and s 175B(1) Local Government Act 1993 s 731

Bankstown City Council v Alamdo Holdings Pty Ltd (2004) 135 LGERA 312; Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 79 ALJR 1511; (2005) 142 LGERA 1; CASES CITED: Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105; Little v The Commonwealth (1947) 75 CLR 94; Scala v Mammolitti (1965) 114 CLR 153

DATES OF HEARING: 05/06/2006; 06/06/2006; 07/06/2006; 08/06/2006; 09/06/2006; 13/06/2006 and 14/06/06

PROSECUTOR: D A Buchanan SC SOLICITOR: Stephen Garrett Department of Environment and Conservation

DEFENDANT: I J Hemmings (barrister) and E Y Ozen (barrister) SOLICITORS: Donovan Oates Hannaford

JUDGMENT:

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

1 HIS HONOUR: The defendant, Geoffrey Noel Freeman, is charged with two offences against s 118D(1) of the National Parks and Wildlife Act 1974 in that, whilst acting in his capacity as a person concerned in the management of Port Macquarie-Hastings Council, by reason of s 175B(1) of the Act he caused damage to the habitat (not being critical habitat) of threatened species knowing that the land concerned was habitat of that kind. 2 The defendant has entered a plea of not guilty. The hearing of the prosecutor's case has proceeded for the last seven days and at close of prosecutor's case the defendant's counsel, Mr I J Hemmings, with him Mr E Y Ozen, submitted that there is no case for the defendant to answer. 3 The evidence adduced by the prosecutor has established the following facts (at least, on a prima facie basis) beyond a reasonable doubt: that the defendant was, at all relevant times, concerned in the management of the council; the council constructed two roads, running through an area owned by the council and known as the Partridge Creek area west of Port Macquarie Airport; the defendant caused the council to construct the roads; the area through which the roads were constructed was habitat of the Eastern Chestnut Mouse and also the Grass Owl, both being threatened species within the meaning of the National Parks and Wildlife Act; the roads damaged the habitat of those species, both directly and indirectly; and, when the defendant caused the roads to be constructed, he knew that the area was habitat of those species. That is, the evidence as it stands establishes that the offences described in the charges have been proved beyond reasonable doubt. 4 The submission now made is not a true no case to answer submission in the normally understood sense. It is more correct to describe it as a submission that there is no cause of action against the defendant. The submission turns on s 731 of the Local Government Act 1993 (the "LG Act") , which is as follows: 731 Liability of councillors, employees and other persons

A matter or thing done by the Minister, the Director-General, a council, a councillor, a member of a committee of the council or an employee of the council or any person acting under the direction of the Minister, the Director-General, the council or a committee of the council does not, if the matter or thing was done in good faith for the purpose of executing this or any other Act, and for and on behalf of the Minister, the Director-General, the council or a committee of the council, subject a councillor, a member, an employee or a person so acting personally to any action, liability, claim or demand. 5 According to the submission, it is said that in causing the road to be constructed the defendant did so, "in good faith for the purpose of executing" the LG Act "and for and on behalf of the council". The relevant purpose was the construction of the road. It is submitted that the section requires two conditions to be satisfied: the matter or thing was done (1) in good faith for the purpose of executing the Act and (2) for and on behalf of the council. 6 It is further submitted that the words, "any action, liability, claim or demand" are not limited to civil claims; and the LG itself expressly limits certain provisions to civil actions where appropriate. Thus s 8(1) sets out a council's charter and sub-s (2) of s 8 states: A council, in the exercise of its functions, must pursue its charter but nothing in the charter or this section gives rise to, or can be taken into account in, any civil cause of action.

7 Section 439 of the LG Act places certain duties of honesty, care and diligence upon councillors and members of a council staff, but sub-s (2) of s 439 states that: "…nothing in this section gives rise to, or can be taken into account in, any civil cause of action."

8 Section 440 of the LG Act refers to a code of conduct applicable to councillors, and the staff of councils, but sub-s (8) of that section states: Nothing in this section or such a code gives rise to or can be taken into account in any civil cause of action, … 9 Sections 647 and 679 enable the service of penalty notices, but sub-s (5) of each section states: Payment under this section is not regarded as an admission of liability for the purpose of, and does not in any way affect or prejudice, any civil claim action or proceeding arising out of the same occurrence. 10 Section 731, however, is not expressed to be so limited. 11 The defendant's counsel also rely upon the judgment of Dixon J in Little v The Commonwealth (1947) 75 CLR 94. That was the trial of an action for damages before a single justice of the High Court. The plaintiff had sued the Commonwealth for damages for false imprisonment, purportedly made pursuant to regs 25 and 26 of the National Security (General) Regulations and on s 13(3) of the National Security Act 1939-1940. Dixon J held that the arrest of the plaintiff was unlawful, but also held that no action would lie against the Commonwealth by reason of s 13(3) of the Act, which provided that: (3) No action shall lie against the Commonwealth, any Commonwealth officer, any constable or any other person acting in pursuance of this section in respect of any arrest or detention in pursuance of this section, … 12 Dixon J made some general observations about provisions such as this. His Honour said: Protective provisions requiring notice of action, limiting the time within which actions may be brought or otherwise restricting or qualifying rights of action have long been common in statutes affecting persons or bodies discharging public duties or exercising authorities or powers of a public nature. In provisions of this kind it is common to find such expressions as "acts done in pursuance of this section" or "statute", "anything done in execution of this statute" or "of the powers or authorities" given by a statute, or "under and by virtue of", a statutory provision. Such enactments have always been construed as giving protection, not where the provisions of the statute have been followed, for then protection would be unnecessary, but where an illegality has been committed by a person honestly acting in the supposed course of the duties and authorities arising from the enactment. (at 108) Clearly the purpose of a provision limiting or qualifying rights of action against officers and others acting under a statute would not be fulfilled by an interpretation excluding from its operation cases arising from mistaking the law or failing to comply with the requirements of the law . (at 111). The truth is that a man acts in pursuance of a statutory provision when he is honestly engaged in a course of action that falls within the general purpose of the provision. The explanation of his failure to keep within his authority or comply with the conditions governing its exercise may lie in mistake of fact, default in care or judgement, or ignorance or mistake of law. But these are reasons which explain why he needs the protection of the provision and may at the same time justify the conclusion that he acted bona fide in the course he adopted and that it amounted to an attempt to do what is in fact within the purpose of the substantive enactmen t. (at 112.) 13 These passages are cited to show that provided a person is acting honestly or bona fide in the course of performing his or her duties under an enactment, a provision such as that with which the Court is concerned here will protect the individual from other actions. 14 In the present case it is submitted that the phrase in s 731 of the LG Act, "in good faith for the purpose of executing this or any other Act", is a compendious phrase and the reference to "good faith" is related to what is authorised by the Act. The prosecutor concedes that this is a correct reading of the phrase. I would have thought otherwise - that is, that the reference to "good faith" is a separate limb which qualifies the words which follow and are not limited so as to apply only to the authorised Act. Nevertheless, the prosecutor having made the concession, I do not propose to depart from it. 15 In the present case it is clear from the evidence that the defendant's responsibilities extended to the construction of roads on land owned by the council, that he had authority to expend money on the roads for the purpose of maintaining the land and providing access through it and that such access was required, not only for maintenance purposes, but also for future investigations and for bushfire management purposes. That is, I accept that the matter or thing done was the construction of roads being a purpose of executing the Act and there is nothing to suggest any lack of good faith for that purpose. 16 Mr D A Buchahan SC, appearing for the prosecutor, submits, however, that s 731 of the LG Act does not operate to furnish an immunity from criminal proceedings. According to the submission, the section does not apply to an exemption from criminal proceedings, both as a matter of statutory construction and as a matter of policy. The defendant, however, as I have already noted, relies upon the express distinction made elsewhere in the Act to civil causes of action or civil claims. I now turn to consider this question. 17 The exemption from liability applies, to use the words of s 731, to "any action, liability, claim or demand". The words "action", "claim" and, "demand" are not usually used to denote a criminal prosecution - they are words that are commonly associated with civil proceedings. It is only the word "liability" which may arguably apply to a criminal prosecution. 18 Section 731 may be described as an exemption from liability provision. In Bankstown City Council v Alamdo Holdings Pty Limited (2004) 135 LGERA 312, Spigelman CJ (Giles and Ipp JJA concurring) held that an exemption from liability provision must be strictly construed. Spigelman CJ cited (at 321) Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105 as the basic Australian authority on the interpretation of an exemption from liability provision, quoting Kitto J (at 116): …the protective nature of the provision is such that a most strict interpretation of its words is plainly demanded. 19 Spigelman CJ went on to say that "since Ardouin, exemption from liability provisions have often been strictly, even jealously construed" (at 321). 20 Alamdo Holdings was reversed by the High Court, although the principle of construction described by Spigelman CJ was undisturbed: see Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 79 ALJR 1511; (2005) 142 LGERA 1. That was a case about s 733(1) of the LG Act which states that a council "does not incur any liability" in respect of any advice, or anything done, in good faith relating to the likelihood of any land being flooded. In considering the expression "not incur any liability", the joint judgement of Gleeson CJ, Gummow, Hayne and Callinan JJ contains the following words of caution (at par [27]): It would be unsafe to attempt an exhaustive definition of a conception such as "incur any liability" which is susceptible of various applications, giving the normative complexity of the legal system, with the interaction between the rules of law, principles of equity, requirements of statute, and between legal, equitable and statutory remedies. Much must depend upon the subject, scope and purpose of s 733. 21 Their Honours concluded at par [34] as follows: The expression in s .733(1) "not incur any liability" confers protection from liability in a general sense of "amenability to claims, or (to describe it from the opposite point of view) the range of claims to the possibility of which the general principles of the law expose [a council]" …

The quoted words are those of Kitto J in Scala v Mammolitti (1965) 114 CLR 153 at 157. 22 It was submitted on behalf of the defendant that an employee of the council would be protected by s 731 from criminal prosecution provided she or he was otherwise acting in good faith for the purpose of executing the Act and for and on behalf of the council. An example was cited of a need on the part of an employee to hurry to the site of a bushfire for the purpose of controlling it, in which event it was suggested that he would be excused for exceeding the speed limit. But what would happen if in doing so the employee caused the death of a pedestrian or the occupant of another vehicle? It could not be suggested in such an event that the employee would be immune from prosecution for an offence of culpable driving causing death. The circumstances may be a mitigating factor on the question of sentence, but I cannot see any policy reason providing an exemption from liability or immunity from prosecution in such circumstances. In applying the principles referred to in the Court of Appeal and in the High Court in Alamdo Holdings - that is, to give the exemption from liability provision the most strict interpretation its words demand, and by having regard to the scope and purpose of the section - I conclude that it does not offer protection from criminal prosecution. If an employee of a council commits a criminal offence which applies to all citizens generally, then any subsequent criminal prosecution is not an "action, liability, claim or demand" within the meaning of s 731 of the Act. 23 The judgment of Dixon J in Little v Commonwealth was itself a civil action and his Honour's comments must be seen in that context. The language of the High Court in Alamdo Holdings describes s 733(1) and the words "does not incur any liability" as applying to "claims or (to describe it from the opposite point of view) the range of claims to the possibility of which the general principles of the law expose [a council]". This is the language of civil actions. Apart from the policy consideration to which I have referred, in giving the words of the section the most strict interpretation that they demand, there is no suggestion in the language used that the exemption from liability, both under s 733(1) and s 731 of the LG Act, extends to criminal prosecutions.

24 It follows that the submission that there is no case to answer must be rejected.

I hereby certify that the preceding 24 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

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