Gosford City Council v Tauszik

Bailey v Marinoff (1971) 125 CLR 529; CASES CITED: Farrell v Ussher & Ors [1991] NSWLEC 10; Gamser v The Nominal Defendant (1977) 136 CLR 145

DATES OF HEARING: 16/05/2005 EX TEMPORE JUDGMENT DATE : 05/17/2005

PROSECUTOR D Buchanan SC with M Fraser SOLICITORS P J Donnellan & Co LEGAL REPRESENTATIVES: DEFENDANT T G Howard SOLICITORS W Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 Cowdroy J: By notice of motion filed on 11 May 2005 the defendant seeks a stay of the Orders and Further Orders made by this Court on 22 April 2005 ("the Orders"). The Orders required the defendant, within one month of the making of the Orders, to pay a fine of $25,000, to pay the costs of the proceedings, to plant and maintain two Norfolk Island Pine trees on his land at 6 Pearl Parade, Pearl Beach and to lodge a bond with the prosecutor of $10,000. As the requirement for compliance with the Orders is imminent, this judgment is delivered ex tempore.

2 The stay is sought in view of the institution of an appeal by the defendant in the Court of Criminal Appeal from his conviction and from the Orders.

3 The prosecutor does not oppose the orders a stay of the Orders but submits that this Court has no jurisdiction to grant such relief. Defendant's submissions

4 The defendant relies upon r 15 of the Criminal Appeal Rules ("r 15") made pursuant to s 28 of the Criminal Appeal Act 1912. Rule 15 provides:-

Where a person is ordered to pay money as a penalty or for costs, the Judge of the Court of Trial may suspend the payment thereof upon such person entering into recognisances (Forms Nos XX and XXI) to prosecute an appeal and abide the judgment of the Court thereon, before such persons, in such amount and with or without sureties, or upon any other terms and conditions that such Judge directs.

5 The defendant submits that the rule applies not only in respect of an order to pay money as a penalty, but also applies where the defendant is directed to plant and maintain two trees, which will result in the expenditure of money. The defendant accordingly submits that r 15 confers jurisdiction to suspend the obligation to comply with the orders pending determination of his appeal.

(b) Application of Div 2 of Pt 75 of the Supreme Court Rules 1970 ("SCR")

6 As an alternative ground to the application of r 15, the defendant submits that Pt 2 r 3 SCR has application in class 5 proceedings in the Land and Environment Court. Part 6 r 2 of the Land and Environment Court Rules 1996 ("LEC Rules") adopts Div 2 of Pt 75 SCR in respect of class 5 proceedings. Division 2 of Pt 75 relates to summary jurisdiction and includes r 6, which relevantly provides:- 6. In addition to the rules mentioned in rule 2, the following rules apply, so far as applicable to proceedings to which this Division applies …

7 "The rules mentioned in rule 2" include Pt 2 SCR. The defendant submits that r 6 thus incorporates Pt 2 SCR, and accordingly Pt 2 applies to proceedings in class 5 of this Court's jurisdiction.

8 Part 2 r 3 SCR relevantly provides: 3(1) The Court may, on terms, by order, extend or abridge any time fixed by the rules or by any judgment or order. (2) The Court may extend time under subrule (1) as well after as before the time expires whether or not an application for the extension is made before the time expires.

9 The defendant submits that the incorporation of Pt 2 r 3 SCR into the LEC Rules invests this Court with power to grant a stay of execution.

10 The defendant submits that the Court has inherent jurisdiction to grant a stay and relies upon the observations of Cripps J in Farrell v Ussher & Ors [1991] NSWLEC 10. Whilst acknowledging that the section of the Land and Environment Court Act 1979 ("LEC Act") which formed the basis for Cripps J's decision has been repealed, the defendant says the Court retains inherent jurisdiction. If otherwise, a lacuna in the statutory powers of the Court would exist which could lead to injustice, abuse of process or unfairness. Prosecutor's submissions

11 The prosecutor submits that the Orders, having been entered, exhaust the jurisdiction of the Court conferred by s 21(f) of the LEC Act. Section 21 relevantly provides:- The Court has the jurisdiction (referred to in this Act as "Class 5" of its jurisdiction) to hear and dispose of in a summary manner: … (f) proceedings under s 127 of the Environmental Planning and Assessment Act 1979.

12 The defendant was convicted and the Orders were made as a result of proceedings commenced against him under s 127 of the Environmental Planning and Assessment Act 1979 and the proceedings have now been concluded. The prosecutor submits that the Court is thus deprived of any jurisdiction to extend time since the Court is functus officio. The prosecutor relies upon Bailey v Marinoff (1971) 125 CLR 529 and Gamser v The Nominal Defendant (1976) 136 CLR 145 which confirm that a Court is functus officio once its orders are perfected. The prosecutor submits that because there are no extant proceedings there is no basis for the grant of a stay.

13 The prosecutor further submits that in consequence of s 56 of the LEC Act decisions of the Court are final and conclusive. Section 56 provides:- 56 Nature of decision of the Court Except as provided: (a) by Division 2, in relation to proceedings in Class 1, 2, 3 or 4 of the Court's jurisdiction, or (b) by the Criminal Appeal Act 1912, in relation to proceedings in Class 5, 6 or 7 of the Court's jurisdiction, a decision of the Court shall be final and conclusive.

14 The prosecutor submits that the Court of Criminal Appeal, being created by statute, has no inherent power to stay the Orders. However the prosecutor acknowledges that r 15 empowers this Court to suspend the operation of an order requiring the payment of a fine or costs. It does not allow a stay of a remediation order made pursuant to s 126(3) of the EP&A Act since such order fails to meet the description of an order "to pay money as a penalty or for costs".

15 The prosecutor submits that the decision of Cripps J in Farrell should not be followed because it relied upon Pt 44 SCR which no longer has application to this Court.

16 The prosecutor submits that the execution of the Orders could not operate as an abuse of process. The prosecutor points out that in criminal proceedings where a sentence of imprisonment is imposed, it is not regarded as an abuse of process if a defendant is imprisoned pending the hearing of an appeal. Bail may be granted only in special or exceptional circumstances. The prosecutor submits that where a penalty is imposed not requiring a custodial sentence, the execution of the Orders could not constitute an abuse of process. Findings

17 The defendant's motion does not seek to set aside the Orders, but rather seeks an extension of the time for compliance. The Court accepts the defendant's submission that the provisions of Pt 2 r 3 SCR apply in summary proceedings in the Court's class 5 jurisdiction. Part 2 r 3(1) grants wide powers to the Court to extend or abridge "any time" fixed by the rules, a judgment or an order. The exercise of this jurisdiction may be invoked both before and after the expiry of the time for compliance.

18 Although not argued by either party, the Court considers that the provisions of Pt 1 r 8 of the LEC Rules, also provide the necessary power. Pt 1 r 8 provides:-

(1) The Court may by order and on terms extend or abridge any time fixed by these rules or by any judgment, decision, or order, of the Court. (2) The Registrar may by order and on terms extend or abridge any time fixed by these rules. (3) Time may be extended under this rule before or after the time expires, whether an application for the extension is made before or after the time expires.

19 The authorities which establish that the Court is functus officio once orders have been made do not apply in these circumstances since Pt 2 r 3 SCR (or Pt 1 r 8 LEC Rules) specifically empower the Court to extend the time for compliance with an order both before and after the time for compliance has expired. The defendant is not seeking to re-open substantive issues in the proceedings. The defendant instead seeks a temporary suspension of the Orders pending determination of his appeal. Accordingly the circumstances are different from those where an application is made to re-open a hearing, as considered in Bailey v Marinoff and Gamser. It follows that the prosecutor's submission that the Court is functus officio cannot be sustained.

20 Pursuant to Pt 2 r 3 SCR (or Pt 1 r 8 LEC Rules) the Court may suspend any order, not merely those requiring payment of money as a penalty or for costs. The Court's powers are not constrained to suspending orders only in the circumstances provided by r 15.

21 The Court is satisfied that Pt 2 r 3 SCR and Pt 1 r 8 LEC Rules invest the Court with jurisdiction to grant the orders sought. In the circumstances, the Court considers it appropriate to suspend the orders until 30 days after abandonment of the appeal or after the determination of the appeal by the Court of Criminal Appeal, subject to the condition that the appeal be prosecuted with due diligence.

22 In view of the findings made above it is unnecessary for the Court to consider the submissions relating to the application of r 15 and of the inherent jurisdiction of the Court to grant a stay. Orders

23 The Court makes the following orders:- 1. Conditional upon the defendant diligently prosecuting his appeal to the Court of Criminal Appeal, time for compliance with the Orders and Further Orders made on 22 April 2005 be extended until 30 days after abandonment of the appeal or determination by the Court of Criminal Appeal. 2. Liberty to either party to apply.

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.