Hussain v Liverpool City Council

EX TEMPORE Judgment 1On 25 September 2013 Mohiz Hussain pleaded guilty to and was convicted of an offence against s 125 of the Environmental Planning and Assessment Act 1979 (NSW) in the Local Court at Liverpool. The offence was committed when he failed to obey an order given by Liverpool City Council (the Council) under s 121B of the Environmental Planning and Assessment Act requiring that he cease parking trucks at premises owned by him at Casula and that he cease using those premises as a truck depot. He was fined the sum of $75,000 for that offence. 2A Notice of Appeal to the District Court from the decision of the Local Court was lodged by him with the Registrar of the Local Court at Liverpool on 22 October 2013. The single ground of appeal nominated in that Notice was stated to be the severity of the penalty imposed. The Notice of Appeal was said to be lodged under the provisions of the Crimes (Appeal and Review) Act 2001 (NSW) (the Appeal Act). 3The appeal was first mentioned in the District Court at Parramatta on 21 November when it was stood over for further mention to 13 December 2013. Shortly prior to the latter date, counsel retained by the Council questioned with Mr Hussain's counsel the jurisdiction of the District Court to entertain the appeal, as the offence to which Mr Hussain had pleaded guilty was an "environmental offence" within the meaning of the Appeal Act. Any appeal from a sentence imposed by the Local Court for such an offence was required to be made to this Court (s 31(1)) and not to the District Court (s 29(1)(a)). 4Counsel acting for Mr Hussain acknowledged this to be a correct summary of the statutory provisions. As a consequence, on 13 December 2013 he sought and was granted leave by a judge of the District Court to "withdraw" or "discontinue" Mr Hussain's appeal to that Court. Both parties accept that such a course was taken in anticipation that a similar appeal against severity would be prosecuted in this Court. 5However, the Notice of Appeal to this Court was not lodged until 30 December 2013. Although it appears that the letter from Mr Hussain's solicitor forwarding the Notice of Appeal to this Court was posted on 24 December, the intervening public holidays impacted upon its delivery, such that the letter and accompanying Notice was not received by and therefore was not "lodged" with this Court until 30 December. 6The Notice of Appeal to this Court was lodged as if Mr Hussain was entitled, as of right, to do so. However, no doubt as a consequence of those advising him reviewing the Appeal Act, on 31 January 2014 a notice of motion was filed on his behalf seeking leave to appeal out of time. The time to appeal as of right was limited to 28 days after the date upon which the fine was imposed upon him. 7The notice of motion for leave to bring the appeal was heard by me as List Judge on 14 February 2014. The motion was supported by affidavit evidence revealing the erroneous commencement of an appeal in the District Court. The Council was represented by its solicitor on the hearing of the motion. He indicated that the Council neither consented to nor opposed the grant of leave to appeal. No basis upon which leave could not or should not be granted was identified. As a consequence of the Council's position and having regard to the affidavit evidence then read on behalf of Mr Hussain, I granted the leave that had been sought. 8The Council's position on the grant of leave has now changed. However, before dealing with that position and the reason for it, it is appropriate to refer to the relevant provisions of the Appeal Act. 9The entitlement of Mr Hussain to appeal to this Court against the severity of the penalty imposed upon him in the Local Court is found in s 31 of the Appeal Act. Relevantly, the section provides: "31 Appeals as of right (1) Any person who has been convicted or sentenced by the Local Court with respect to an environmental offence may appeal to the Land and Environment Court against the conviction or sentence. ... (2) An appeal must be made: (a) within 28 days after sentence is imposed ... ". As would be apparent from the recitation of facts already given, no appeal to this Court was lodged within that 28 day period. Thus, the necessity for the leave that was sought if an appeal could otherwise be prosecuted under the Appeal Act. 10The entitlement to appeal by leave is addressed in s 33 of the Appeal Act. Subsection (1) provides that a person who could appeal under s 31, but for a failure to observe the 28 day limit imposed by s 31(2), may appeal but only by leave of the Court. That leave is not to be granted unless the Court is satisfied "that it is in the interests of justice that leave be granted": s 36(2). 11Section 33(2) imposes a qualification on the entitlement to apply for leave to appeal which is presently of primary importance in light of the events that have occurred. The subsection provides: "(2) An application for leave to appeal must be made within 3 months after the relevant conviction, sentence or order is made or imposed." 12Following the leave that I granted on 14 February, Mr Hussain's appeal was fixed for hearing. It came before me today for that purpose. Although an outline of submissions had been filed by counsel appearing for Mr Hussain, no such outline of submissions had been provided to the Court on behalf of the Council prior to the commencement of the hearing this morning. However, Mr Accoto, who appeared for the Council, frankly acknowledged that a point not previously raised by the Council in the course of preparing for the hearing had been notified to counsel appearing for Mr Hussain only yesterday, a public holiday, and was not a point that had previously been identified to the Court. His point in short is this. By operation of s 33(2) of the Appeal Act, the appeal is incompetent and the leave that was granted by the Court on 14 February was granted without the power so to do. 13As a consequence, he filed in Court a motion in which he sought, relevantly, an order that the order made on 14 February 2014 granting leave to appeal be set aside. His application was founded upon the provisions of r 36.15 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR), made applicable to these proceedings by r 5.2(2)(h) of the Land and Environment Court Rules 2007 (NSW). Rule 36.15 of the UCPR allows an order made by the Court to be set aside upon cause being shown if the order was made "irregularly, illegally or against good faith". Having regard to the provisions of s 33(2) of the Appeal Act, the Council submits that the order was made "irregularly". 14Mr Singh, who appeared for Mr Hussain, neither opposed the Council's motion being filed in Court nor did he oppose the motion being argued today. In opposing the order sought and contending that leave to appeal was properly granted, he relied upon the decision of Preston CJ in Denning v Department of Environment and Conservation [2007] NSWLEC 258; 153 LGERA 200. In that case, like the present, an appeal from the Local Court had wrongly been made to the District Court. Upon the parties appreciating that the District Court lacked jurisdiction to entertain the appeal, having regard to the statutory provisions to which I have earlier referred, they requested that the proceedings be transferred to this Court. An order to that effect was made by a judge of that Court, notwithstanding that there was no power for the District Court to transfer any proceedings to this Court. 15Nonetheless, the Notice of Appeal to the District Court, which had been lodged with the Registrar of the Local Court, was forwarded to this Court to give effect to the transfer order. By the time that Notice was received in the Registry of this Court, more than three months had elapsed from the date upon which the appellant in that matter had been convicted and fined. 16Notwithstanding this course of events, Preston CJ determined that the appeal was competent. His Honour reasoned that the Notice of Appeal had been lodged with the Registrar of the Local Court as the provisions of s 34 of the Appeal Act then provided for the institution of an appeal to this Court. Having lodged the Notice with the Local Court Registrar within 28 days of the fine being imposed, the appeal was properly instituted. His Honour considered that the only defect in the Notice was that it nominated the District Court as the Court to which the appeal was to be made rather than this Court. That was a defect that could be amended pursuant to s 62 of the Appeal Act (at [44]). The tortuous route by which the Notice of Appeal reached this Court did not affect the validity of that Notice (at [46]). 17Had the provisions of the Appeal Act applied by the Chief Judge in Denning remained unchanged, I would, without hesitation, apply his Honour's reasoning to sustain the competency of the Appeal in the present proceedings. However, since the decision in Denning, s 34 of the Appeal Act has been amended. That amendment was effected by the Crimes (Appeal and Review) Amendment Act 2009 (NSW). 18Section 34 specifies the means by which either an appeal under s 31 or an application for leave to appeal under s 33 is to be made. Prior to its amendment, the section relevantly required that a written notice of appeal to this Court be lodged with "the registrar of any Local Court". The 2009 Amendment omitted reference to the registrar of any Local Court and inserted instead the requirement that the written notice of appeal be lodged with the Registrar of this Court. That is to be contrasted with the position that continues to apply to appeals from a Local Court to the District Court. A notice of appeal for an appeal under the Appeal Act to the District Court is to be lodged with "a registrar of the Local Court"; s 14. 19The decision in Denning essentially turned upon the sequential application of ss 34 and 62 of the Appeal Act. The first and essential step in the reasoning was that the initiating process, namely the Notice of Appeal, was lodged with the Registrar of the Local Court as s 34 then required. As that Notice of Appeal complied with the requirements of s 34 for instituting an appeal, the defect in nominating the incorrect appellate court could be cured by applying the provisions of s 62. However, that first and fundamental step in the argument no longer holds true in the case before me, by reason of the amendment to s 34. The present terms of that section are clear in requiring that an appeal under s 31 is to be instituted by lodging a written notice of appeal with the Registrar of this Court. 20Section 62 of the Appeal Act relevantly provides: "62 Effect of defect in notice of appeal or application for leave to appeal (1) A notice of appeal or application for leave to appeal is not invalid merely because of a defect, whether of substance or form, in the notice or application. (2) An appeal court hearing an appeal or application for leave to appeal may amend any such notice or application if it is satisfied that the notice or application is capable of amendment and ought to be amended." It seems to me that where the statute is specific as to the manner in which and the court in which the process initiating an appeal is to be lodged, a purported notice that complies with neither requirement does not evidence a "defect" that can be cured by application of s 62. Unlike the position that pertained in Denning, there is no Notice of Appeal lodged in this Court under s 34 to which the provisions of s 62 can be applied. 21My conclusion that the claimed "defect" cannot be cured by application of s 62 is supported by the 2009 amendment to s 34 of the Appeal Act whereby, the manner of commencing an appeal to this Court was changed. It must be assumed that when enacting the Amending Act, Parliament intended that the means of instituting an appeal to this Court should be differentiated from the means by which an appeal is to be instituted to the District Court. 22As I have earlier recorded, the Notice of Appeal to this Court, having been lodged on 30 December 2013, was obviously outside the 28 day period from the date of Mr Hussain's conviction on 25 September 2013. Even if I was to treat that Notice of Appeal as an application for leave to appeal under s 33 of the Appeal Act, that would not avail Mr Hussain as the hypothesised application for leave was not made within 3 months after 25 September 2013, with the consequence that s 33(2) would operate to prevent the leave application being entertained. 23The evident purpose of the statutory provisions, so it seems to me, is to ensure that following a conviction and sentence being imposed in the Local Court, there is a time limited right to appeal from such orders in order to bring finality to the proceedings. That purpose is reflected in the initial limitation of 28 days to appeal as of right and thereafter to require that leave be obtained if the right of appeal is to be exercised but with the limitation that any application for leave be made within three months from the date of conviction. If an appeal as of right or the process of seeking leave has not been exercised within that period, the penalty imposed by the Local Court must stand. 24It is clear that at all relevant times Mr Hussain intended to appeal against the severity of the fine imposed on him by the Local Court. However, the statutory provisions to which I have referred constrain my power to allow the process to be pursued. In so indicating I should not be taken to be reflecting any view as to the outcome of the appeal, should it otherwise have been competent. 25Returning then to the Council's motion to set aside the order granting leave to appeal, it seems to me that the operation of the statutory provisions to which I have referred make it inevitable that the order granting leave to appeal must be set aside. The latter order was made irregularly. The sympathy that one may have for Mr Hussain's position cannot result in the Court purporting to exercise a jurisdiction that it does not have. Section 33(2) of the Appeal Act denies the power of the Court to entertain the application for leave to appeal. Had application for leave to appeal been made following the "withdrawal" or "discontinuance" of the "District Court appeal" on 13 December and prior to 25 December 2013, s 33(2) would not have operated to bar that application. 26In the result, the order granting leave to appeal must be set aside. The consideration that I have given to the provisions of the Appeal Act also leads to the inevitable result that the appeal commenced on 30 December 2013 is incompetent. 27The orders that I make are therefore as follows: (1)Set aside order made on 14 February 2014 granting leave to appeal. (2)Appeal dismissed as incompetent. (3)Exhibits may be returned.