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2. The appellant was engaged in building operations on the land and the appellant admitted that it was the owner of the land. The appellant was convicted and fined $2000 on each conviction. On 4 April 1986 the appellant lodged a notice of appeal against sentence.
3. On the appeal coming before me on 11 August 1986, Mr Reeves, who appeared for the appellant, sought an amendment to the notice of appeal in order to appeal against the convictions. It is conceded by Mr Wallace, who appears for the respondent, that the respondent was verbally informed of this some time in mid May 1986 and that verbal notice was converted into a written notice by a letter from the appellant's legal advisors to the respondent dated 3 June
5. To that extent it can be said that the respondent has not been taken by surprise at this hearing and has had a reasonable opportunity to prepare and has not suffered any particular prejudice. It remains, however, a bold step for the appellant to make application to amend a notice of appeal against sentence, to convert it into a notice of appeal against conviction and sentence, particularly after it had pleaded guilty to the offences as charged.
6. Before determining whether the discretion of the court should be exercised in favour of the appellant, it is first necessary to determine whether this court has any discretion to exercise, that is, has it the power to permit an amendment in these circumstances?
7. Mr Reeves submits that the court has the power under section 166 of the Justices Act which reads, so far as relevant, as follow: No appeal shall be defeated merely by reason of any defect, whether of substance or of form in any notice or statement of the grounds of appeal, but if upon the hearing thereof the Supreme Court is of opinion that any objection raised to the notice or statement is valid, it may cause the notice or statement to be forthwith amended.
8. Section 172 provides that the Notice of Appeal shall be in writing, and shall state that the appellant appeals to the Supreme Court, and the nature and grounds of the appeal. By the terms "notice" and "statement" in section 166, I conclude, therefore, that the "notice" is the whole document, and the "statement" is that part of it which states that the appellant appeals, and the nature and ground of the appeal.
9. On first reading it would seem that the Notice of Appeal could not be amended within the terms of section 166. There is no defect in form in the terms of the notice itself, and no objection to its form or substance is raised by the respondent. But it seems that section 166 has a wider scope than it might initially appear to have.
10. In Tipping v Heinemann [1922] SAStRp 45; (1922) SASR 424, Poole J was confronted with a situation where, after argument on appeal had been heard and judgment reserved, a ground of appeal was discovered which went directly to the jurisdiction of the court below, but which had not been raised in the Notice of Appeal. His Honour concluded that: "There is clearly a defect in substance here in that this ground of the alleged error has not been mentioned in the Notice of Appeal."
11. Once His Honour had concluded that there was a defect in substance, it was open to him to apply section 166 of the South Australian Act, (which is in the same terms as the N.T. section and indeed its "on lie progenitor"). His Honour then felt capable of exercising his discretion to amend and allowed the amendment, and subsequently allowed the appeal on the amended ground and quashed the conviction.
12. That case, however, only takes the appellant part of the way because there the original Notice of Appeal was against conviction, so that once the conviction was attacked, it could be argued that the notice of appeal raised the general issue of validity of the conviction, and allowing an amendment of a ground not previously relied on was curing a defect in substance by adding particulars to the general request to the court to set aside the conviction.
13. Here there is nothing in the notice attacking the conviction, because the notice specifies only an appeal against sentence. That defect was considered fatal in Talbot v Bevan, (1961) SASR 47, where Chamberlain J said at page 50, "If on the original notice of appeal there was no notice upon which the court had jurisdiction to set aside the conviction, then the time from which it became possible to do so is when the notice is amended. It follows, in my judgment, that the notice of appeal cannot be amended after the statutory time limit so as for the first time to invoke jurisdiction to set aside the conviction".
14. However, Talbot v Bevan was expressly overruled by the Full Court of the Supreme Court of South Australia in Smith v Samuels (1975) 12 SASR 573. In that case the appellant had appealed against sentence. After the expiration of the prescribed time for service of Notice of Appeal, he sought leave to amend the original Notice of Appeal by adding an appeal against conviction. Bray C.J., at p 584, referred to section 166, and then said: "Looked at literally, the section might seem to authorise an amendment to a notice of appeal only as the result of an objection raised to it by the respondent on the ground of some defect of form or substance and hence impliedly to prohibit amendment in other circumstances. That, however, is not the way in which s. 166 has been interpreted. In Tipping v Heinemann [1922] SAStRp 45; (1922) SASR 424, decided only a year after the original Justices Act of 1921 in which s. 166 appeared in its present form, Poole J. held that he had jurisdiction to allow an amendment to raise a ground which apparently only occurred to anyone after the conclusion of counsels' argument on the appeal. The learned Judge though that there was 'clearly a defect in substance ... in that this ground ... has not been mentioned in the notice of appeal' (p 426). In my experience that judgment has always been followed and amendments have been regularly allowed to permit the addition of new grounds not raised in the original notice of appeal. With all respect to Chamberlain J.'s reasoning, I cannot draw any distinction for the present purposes between a new ground of appeal against conviction in a case where the original notice of appeal impeached the conviction or a new ground of appeal against sentence when the original notice of appeal impeached the sentence on the one hand and a new ground of appeal impeaching the conviction when the original notice only impeached the sentence or a new ground of appeal impeaching the sentence when the original notice only impeached the conviction on the other hand. If the discovery of a new ground in the first category produces a defect of substance in the original notice, so does the discovery of a new ground in the second category. I think that once the order under attack or some part of it is regularly impeached on some ground within the prescribed time the Court can allow a subsequent amendment to impeach it on some other ground or to impeach some other part of it. I think that there is power to allow the amendment under . Mitchell and Zelling JJ. agreed with this statement in His Honour's judgment - see page 592 - although they were not otherwise in agreement with him as to the result of the appeal.
15. It would also seem that the powers given by section 166 could be utilised to amend a notice of appeal which contained no valid ground of appeal at all. This was the view of Hogarth J in Buss v Phillips (1965) SASR 51 at 53, although those views were obiter since he did not find it necessary to amend in that case.
16. In summary, therefore, the South Australian cases establish a very wide power in the court to act under section 166 even to the extent of: (a) adding a new ground not mentioned in the notice - Tipping v Heinemann; (b) curing a notice in which the original ground given is nugatory, Buss v Phillips; (c) converting a notice of appeal against sentence, or a notice of appeal against conviction, into a notice of appeal against conviction and sentence - Smith v Samuels.
17. The rationale of these decisions may be put in various ways. For instance it could be pointed out that the classical definition of an appeal is "the right of entering a superior court and invoking its aid and interposition to redress the error of the court below", per Lord Westbury L.C. in A-G v Sillem [1864] EngR 352; (1864) 10 HLC 704 at 724.
18. On this view, the condition precedent to an appeal is the exercise of the right of entry; and that having been properly achieved the appellant should be allowed to bring in all materials necessary to demonstrate the error in the court below. Rules may govern the way he must present that material and his case generally; and non compliance with those rules may put him in peril; but the court should be slow to shut out matters which might establish that very error in the court below which the appeal court should redress.
19. It could also be urged that the Supreme Court on appeal from a court of summary jurisdiction is directed by section 177 of the Justices Act to hear and determine the appeal "in a summary way", and by section 177(2), upon the hearing of the appeal the Supreme Court is given very wide powers including the power to "substitute or make any conviction, error or adjudication which ought to have been made in the first instance."
20. The expression "which ought to have been made" indicates that if it is shown that the decision below is wrong, the Supreme Court should, if necessary on proper terms, allow all appropriate amendments and procedural steps to be taken which ensure that the order which ought to have been made is in fact made.
21. Further support for a broad interpretation of the section comes from Callender v Edwards (1972) 66 QJPR 102 where Judge Demack (now Demack J of the Supreme Court of Queensland) allowed a Notice of Appeal to the District Court to be amended by adding further grounds. In doing so, His Honour referred to section 228 of the Queensland Justices Act, which is in similar terms to section 177 of the Northern Territory and South Australian Justices Act.
22. He traced the origin of that section to section 3 of the United Kingdom Quarter Session Act 1849 which itself was in identical terms to section 4 of the United Kingdom Poor Removal Act (1848); and he then cited R v The Inhabitants of Llangenney (1863) 32 LJ (M.C.) 265 where a court consisting of Wightman, Crompton, and Blackburn JJ. confirmed the power of a Court of Quarter Sessions to allow an amendment under section 4 of the latter Act, to add a fresh ground of appeal. He points out that it was submitted in that case that the power of amendment was limited to amendment of formal defects in the stated grounds, but this contention was rejected and the wider power of amendment recognised.
23. Judge Demack says at page 105-6: In my opinion, the power of amendment given by section 228 should be construed widely to include the power to amend a notice of appeal by adding a fresh ground of appeal. This seems to me to give full weight to the words of the section. It also accords best with the general nature of an appeal under s. 222 which does involve in certain cases the rehearing de novo. It does ensure that the full merits of an appeal can be canvassed without undue restriction by technicalities (compare with the preamble of the Poor Removal Act 1848).
24. I should add that for the reasons given by His Honour, I would, with respect, prefer to follow the reasoning of Callender v Edwards than the contrary reasoning in Bone v Steffens (1972) 66 QJPR 99.
25. The wide interpretation of the section given by judges in other jurisdictions is followed by Forster C.J. of this court in Jabarula 14 ACR 309. In that case, His Honour followed Smith v Samuels and allowed an amendment to a Notice of Appeal which was against sentence, so as to appeal also against conviction.
26. I am, therefore, satisfied that this court has the power to make the amendments sought by Mr Reeves in this case. The next question is whether in the exercise of discretion the amendment should be allowed. While it is important that the substantial justice of a case should be determined on appeal, there are necessarily limits if the proper procedural steps are not taken. The respondent has a right to know the basis upon which the appeal is instituted and the community has a right to demand that there be a finis litium.
27. Furthermore, there should be no encouragement to inexact presentation; or to a philosophy that, provided some general basis is laid at first, particulars may follow at one's leisure. No doubt, in many cases, such matters can be cured by imposition of costs, but there will be others where the prejudice to the respondent or the confusion of presentation is so great that it should not be permitted to go further.
28. In this case there is a special difficulty in allowing an amendment because the appellant pleaded guilty in the court below and must, therefore, normally be taken to have made all appropriate admissions constituting the elements of the charge. Where there has been a plea of guilty it requires some special reasons to permit an appeal against the conviction. Those special reasons have been stated by Napier C.J. in Gray v Jones [1948] SAStRp 13; (1948) SASR 201 at page 206, in this way: The court will entertain an appeal notwithstanding that the appellant has pleaded guilty if it is satisfied that the plea was entered without a proper appreciation of the nature and quality of the offence, or that, upon the admitted facts, the appellant could not lawfully be convicted of the offence charged.
29. That statement was adopted by Blackburn J in this court in the case of Daniel v Belton (1967) 12 FLR 101. And see Rainbird v Samuels (1972) 4 SASR 187; Raap v Owens (1973) 21 FLR 466; R v Ford (1923) 2 KB 400.
30. In this case it could not be said that the appellant, in pleading guilty, did not have a proper appreciation of the nature and quality of the offence. It was legally represented and must be taken to have been properly advised on those matters.
31. Mr Reeves, therefore, properly relies upon the second alternative, namely, that it could not have lawfully been convicted of the offence charged and consequently a miscarriage of justice has occurred. Before, therefore, finally deciding whether the amendment should be allowed, I must examine the arguments put forward by Mr Reeves as to the validity of the conviction in each case.
32. The complaint was that the appellant failed to comply with a stop work notice dated 8 March 1985, and further failed to comply with a stop work notice dated 12 August 1985. The former date should in fact have been 8 July.
33. Section 30(1) of the Building Act provides, so far as is relevant, that where building work in a building area is being carried out by a person who has not obtained building approval for the building work, the building controller may by notice in writing prohibit the carrying out of further building work, or all such building work as he specifies in the notice.
34. Such a notice is referred to as a Stop Work Notice - see the heading to section 30. 35. The facts in the case were not contested below, nor are they contested here. The appellant was engaged in the construction of certain buildings on Lot 1139 Victoria Highway, Katherine. On 11 June 1985, the appellant wrote to the Building Board, informing it that it wished to change the existing building on the Katherine Drive site, and Lot 1139 Victoria Highway, Katherine, to a wine bar/steakhouse.
35. On 5 July 1985, Mr Steer, an officer of the Department of Lands, informed Mr Riley of the firm of Riley Buildings, which is the firm name of the appellant, that planning and building consent would have to be obtained. On 5 July 1985, Mr Steer attended at the building site, took certain photographs, and handed to the builder on the site a document headed "Unapproved Building Advice", which gave formal notice that the appellant would have to submit a building application and plans to meet the requirements of the Northern Territory Building Code.
36. On 8 July Mr Steer attended the site and took a photograph showing work being done on the site. He then delivered to the company's secretary a Stop Work Notice dated 8 July, which required the appellant to stop "all building and demolition work other than the erection of safety fencing". The permission to erect safety fencing was given by Mr Steer to prevent a "damp proof membrane", which was then being erected, from blowing away.
37. On 9 July Mr Steer again visited the site and took a photograph of the mesh placed over the damp proof membrane. Nothing in this photo indicates that any other work had been done since the Stop Work Notice of the previous day. On 18 July he returned to find that a concrete slab had been poured and he took a photograph of this.
38. On 12 July Mr Riley had a meeting with some officers of the Department of Lands, and expressed concern that "the bureaucratic machinery" was slowing him down. He said that from now on he would be employing a structural engineer to supervise all his jobs, and that he would start work without permission and pay any fines, and it would be cheaper to pay fines than to be held up.
39. On 12 August Mr Steer attended the site and found building work being done, and took photographs. On that date a further Stop Work Notice was issued and served on the appellant. Mr Steer took further photographs on 19 August, 23 August, and 1 October, all of which demonstrated that building work had continued after 12 August.
40. On 12 September the appellant applied for building approval for the Tavern Steakhouse, and on 18 October the appellant applied for building approval for flats. On 1 October, 2 building approvals were issued relating to construction of flats, and on 20 October the building approval was issued relating to the wine bar/steakhouse.
41. Proceedings were instituted against the appellant for the failures to comply with the Stop Work notices, and came before the learned stipendiary magistrate at Katherine on 7 March 1986. As previously mentioned, the appellant pleaded guilty. Evidence was given on behalf of the Department of Lands, and the appellant was convicted and fined $2000 on each complaint.
42. As to the first complaint, Mr Reeves points out that the offence alleged is that the appellant failed to comply with the Stop Work Notice dated 8 March
43. In fact, of course, the first stop work notice was dated 8 July, but no objection was taken to the misdating of the complaint in the court below. Mr Reeves, however, draws attention to the fact that no date is given as to when the failure to comply occurred.
44. While I do not consider this fatal to the complaint, I agree with Mr Reeves that one must then look to the time of issue of the Stop Work notice. So far as the first complaint occurred, the stop work notice was issued and served on 8 July and plainly enough an offence could not have occurred until after that issue and service.
45. The next step is to look to the provisions of section 30(3) which provide that a stop work notice ceases to be in force: " .... (b) on the expiration of 7 days after it was issued, unless the building controller within 7 days issues a notice specifying building work".

It follows that unless the building controller had issued a notice specifying building work on or before 15 July, that is, within 7 days of issue, the first Stop Work notice issued on 8 July would cease to be in force. There is no evidence that within that 7 day period the controller did issue a notice specifying building work, so that if any offence is alleged it must be proved to have taken place on or before 15 July 1985. But the only evidence produced by the informant of any activity within that period is the photograph taken on 9 July, and this does no more than illustrate that mesh had been placed over the damp proof membrane, and it is not disputed by the informant that permission was given by Mr Steer, as the officer of the informant, to do this. 47. See page 3 of the transcript where Miss McDonald appearing for the Building Board says, referring to the inspection which Mr Steer had on 8 July: The builders on the site requested permission to place mesh over the damp proof membrane to prevent it from being blown away and this permission was given buy Mr Steer. Mr Steer then prepared a stop work notice which the builders on the site refused to accept. Accordingly Mr Steer attended at Unit 1, 572 Pearce Street, Katherine and delivered the notice to a secretary. 48. Quite apart from the fact that Mr Steer gave permission to place the mesh over the damp proof membrane, there is, of course, no evidence that the mesh was not placed there immediately after Mr Steer had left and before he served the notice. 49. It is, therefore, quite plain that no offence or no failure to comply with the first Stop Work notice can be shown to have occurred during its existence, which would have been between 8 July and 15 July 1985. 50. Inevitably, therefore, if the attention of the learned stipendiary magistrate had been drawn to these matters the first complaint must have been dismissed on the evidence before the court. It is of no assistance to the informant to rely upon the photo taken on 17 July, which may well show that work was then being undertaken, but that occurred after the expiration of the 7 day period of the first Stop Work notice. There is no evidence of a Stop Work notice extending to 17 July and the photo would be inadmissible and irrelevant. 51. The second complaint alleges that the appellant failed to comply with the Stop Work notice dated 12 August 1985. Once again there is evidence that Mr Steer attended Lot 1139 and saw work apparently in progress relating to the flats. Mr Steer took 7 photographs, and issued a Stop Work notice on that day, but obviously after he had taken the photographs. This Stop Work notice contained apart from the formal wording, the following three sentences inserted into the body of the Notice:- "You are advised that the Stop Work Notice issued on 8 July is still in force for this allotment. Footings for dwellings, units in progress this date, or in other building work, has not been approved. In compliance with the Building Act clauses (sic) 27 and 28, failure to comply with this Notice may render you liable for prosecution under the Act." 52. The first sentence is incorrect. The second sentence is a piece of information which does not in its terms carry a prohibition, and the third sentence is merely a wording that failure to comply with the notice may render the appellant liable for prosecution. These insertions do not give the Notice any further force than it otherwise had. 53. But I consider that the respondent is entitled to rely upon the plain words earlier in the notice, which first set out that work is in progress on the building which is not in accordance with the Building Act or Building Code, and then states, "in accordance with the provisions of section 30(1) you are required to stop all building work." That notice, therefore, operates as a plain prohibition and pursuant to section 30(3)(b) it operated until 19 August 1985. 54. On 19 August 1985, Mr Steer visited the site and found building work in progress, and took photographs to establish that. In my view, and in the absence of any defence raised by the appellant, those photographs and Mr Steer's evidence establishes a failure to comply with the Stop Work Notice dated 12 August 1985. The expression "on the expiration of 7 days after it was issued" means that the Stop Work Notice would have remained in force until midnight of 19 August 1985. This, however, makes irrelevant the photographs exhibited as taken on 23 August and 1 October, because that was outside the Stop Work period. 55. It would appear, therefore, that an offence was committed in relation to the second complaint. But Mr Reeves disputes this. He draws attention to the fact that on 18 August 1985 an application for building approval was lodged by the appellant relating to the flats. A second application seeking building approval for the work to be done on the Tavern Steakhouse was lodged on 12 September 1985. Approval in relation to the flats was given on 1 October 1985, and in relation to the wine bar/steakhouse was given on 20 October 1985. 56. Mr Reeves draws attention to section 30(4), the terms of which are as follows:- "(4) Where, when a Stop Work Notice is given on the ground specified in subsection 1(a) - (a) an application is made under this Act for building approval in relation to the work within 7 days after the giving of the notice; and (b) having regard to all the circumstances and the building work so far carried out, the building controller grants building approval, the Stop Work Notice shall be deemed to have been revoked." 57. His submission is that once the existence of sub-paragraphs (a) and (b) of subsection (4) are established, the Stop Work Notice shall be deemed to have been revoked retrospectively. It is correct that the events required in sub-paragraphs (a) and (b) have now occurred. The application for building approval, so far as the flats are concerned, was made on 18 August; approval was granted on 1 October. But I cannot agree with Mr Reeves that once those two events had occurred, the expression in subsection (4), that "the Stop Work Notice shall be deemed to have been revoked", means that it is revoked retrospectively and for all purposes. 58. The terminology of section 30(3) is, in my view, against this submission. That provides that a stop work notice ceases to be in force: "(e) where it is deemed to have been revoked under subsection (4)." 59. In my view, it is plain that the combination of subsections (3) and (4) indicates that the "deeming" commences only after the happening of the two events set out in sub-paragraphs (a) and (b) of subsection (4), and until then the Stop Work Notice remains in full force and effect. 60. This, in my view, also accords with common sense because otherwise a builder who had committed a series of offences consisting of failing to comply with various Stop Work notices, but who eventually obtained approval, might move to quash any convictions obtained because of his failure to comply with the notices, on the basis that any such notice had become void and of no effect upon approval being given. I do not consider that this was the purpose of the legislation. It's purpose is to control and direct the proper manner and erection of buildings, to ensure compliance with and if necessary punish breaches of those controls and directions but to allow construction to continue once breaches had been corrected and construction proceeded in an approved form. 61. For that purpose, the Stop Work notices are a useful device for correcting errors at any early stage, and giving the builder the opportunity to do so without penalty if he conforms with the notice. 62. In my view, in this case the first complaint has not been made out, and could not have been made out on the evidence before the learned stipendiary magistrate. The second complaint is amply proved here and in the court below. 63. I return, therefore, to consider whether the amendment sought by Mr Reeves should be allowed in the circumstances now revealed. I believe the amendment should be allowed; firstly because a miscarriage of justice has been demonstrated to have occurred in so far as the appellant has been convicted of one offence for which it should not have been convicted; secondly, because, the appellant, upon having discovered the existence of this defence gave verbal notice and then written notice to the respondent within a time which, in all the circumstances of this case, I consider reasonable. Finally, I see no prejudice arising to the respondent by allowing the amendment. I therefore give leave to amend the Notice of Appeal in the terms sought by Mr Reeves which are: "That on the facts disclosed, the learned stipendiary magistrate should not have proceeded to enter a conviction in respect of either of the complaints." 64. On the Notice of Appeal, as amended, I find that there was no evidence upon which the learned stipendiary magistrate could have found that an offence had been committed in relation to the first complaint, and the conviction in relation to that first complaint is quashed. On the second complaint, I am satisfied that there was evidence upon which the learned stipendiary magistrate could convict, and indeed should have convicted, and I dismiss the appeal against conviction in relation to the second complaint. 65. That brings me to the question of penalty. I entirely agree with the observations of the learned stipendiary magistrate that the Building Board has a function to perform, and it is a necessary function. It is a matter of importance for the whole of the community that buildings are constructed in a proper manner, and the appellant's failure to comply with the second stop work notice was quite blatant. 66. However I am prepared to accept that the statement made by Mr Riley to the affect that he (speaking for the appellant) would rather pay the fines than submit to the delay, was made in the heat of the moment, and Mr Steer very fairly agreed that it could have been an excitable comment. The evidence is also that Mr Riley has since employed an engineer who has satisfactorily co-operated with Mr Steer. 67. There is no suggestion of any earlier convictions of this nature, and the appellant has been described as the major builder in the area, with a large workforce, and acting under great pressure. 68. Mr Reeves has filed an affidavit of a Mr Cole, solicitor, of Katherine, which contains what might be called a tariff of the amounts of fines in relation to offences of failing to comply with a notice for requirements under the Building Act. 69. This tariff sets out 12 convictions between April 1985 and May 1986 with fines ranging between $50 and $300. I note, however, that in each case there are private individuals involved. The appellant must by the very extent and importance of its operations, be in a very different position from private individuals, and failure by the appellant to obey directions of the Building Board would have more serious consequences because of the extent of its operations than the individual cases set out. 70. Furthermore, as a company charged with much of the future development of an important and growing urban area in the Northern Territory, it carries a special responsibility to the community and should not be seen as blatantly disobeying provisions designed for the good of the community. 71. If it has any proper complaints in relation to over officious bureaucratic interference (and I stress on the material before me and before the learned stipendiary magistrate there is no evidence of this in this case) it has proper channels for complaint. 72. Bearing in mind however, that this was a first offence, and in the hope and understanding that the appellant has now properly corrected its procedures, I am prepared to reduce the fine to $1000. In doing so, however, I am in no way critical of the remarks of the learned stipendiary magistrate, and I do so only on the basis that the appellant may feel that the court places some trust in its responsibility and usefulness to the community, and with a reasonable expectation that this sort of offence will not occur again. 73. The orders, therefore, will be: amendment allowed in the terms stated by Mr Reeves; appeal against conviction on first complaint allowed, and conviction quashed; appeal against conviction on second complaint dismissed; appeal against sentence on second complaint allowed, and fine of $2000 reduced to $1000.