239 CLR 27
Attorney General v Till [1910] AC 50
Australian Gas Light Co v Mine Subsidence Board [2006] NSWLEC 494
147 LGERA 433
Beckwith v The Queen [1976] HCA 55
135 CLR 569
Bros Bins Systems Pty Ltd v Industrial Relations Commission of New South Wales [2008] NSWCA 292
74 NSWLR 257
Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55
Source
Original judgment source is linked above.
Catchwords
239 CLR 27
Attorney General v Till [1910] AC 50
Australian Gas Light Co v Mine Subsidence Board [2006] NSWLEC 494147 LGERA 433
Beckwith v The Queen [1976] HCA 55135 CLR 569
Bros Bins Systems Pty Ltd v Industrial Relations Commission of New South Wales [2008] NSWCA 29274 NSWLR 257
Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55250 CLR 503
Cranbrook School v Woollahra Municipal Council [2006] NSWCA 15566 NSWLR 379
Davern v Messel [1984] HCA 34155 CLR 21
Director of Public Prosecutions (NSW) v Majok [2009] NSWSC 192194 A Crim R 265
Director of Public Prosecutions (NSW) v Wunderwald [2004] NSWSC 182
Director of Public Prosecutions (NSW) v Zhang [2007] NSWSC 30837 MVR 137
Director-General Department of Environment and Climate Change v GleesonDirector-General, Department of Environment and Climate Change v Epacris Pty Ltd (No 2) [2009] NSWLEC 200
Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28214 CLR 318
Eastman v The Queen [2000] HCA 29241 CLR 390
Ku-ring-gai Council v Steve Nolan Constructions Pty Ltd [2012] NSWLEC 258
Maritime Authority (NSW) v Rofe [2012] NSWSC 544 MVR 60
Sasterawan v Morris [2007] NSWCCA 185
69 NSWLR 547
Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300
Judgment (13 paragraphs)
[1]
Background
The premises occupied by Mrs Kovacevic are located in Collett Street, Queanbeyan (the Premises). Mrs Kovacevic is accredited by Roads and Maritime Services (formerly the Roads and Traffic Authority) as a driver trainer and licence assessor. For many years, she has conducted both driver training and licence assessment tests for people seeking a licence to drive heavy vehicles.
Frequently, heavy vehicles are parked on or immediately adjacent to the grounds of the Premises, which also serves as the home of Mrs Kovacevic. These vehicles comprise prime movers, trucks and trailers, with between three and five such vehicles parked in those locations at most times. The largest of these is a trailer to be attached to a prime mover, the sides of the trailer being marked prominently with the words "DRIVE TO SURVIVE DRIVING ACADEMY" and "DRIVER TRAINING AND LICENCE ASSESSMENT".
The Premises were, at all relevant times, within the 3(a) Business A Zone under Queanbeyan Local Environmental Plan 1998 (the LEP). By cl 27 of the LEP, use of land so zoned for the purpose of a transport depot first required the grant of development consent. No consent had been granted under the EPA Act to use the Premises for that purpose.
Correspondence between the Council and Mrs Kovacevic concerning the use of the Premises commenced as early as December 2008. While Mrs Kovacevic acknowledged in correspondence that she conducted a driving school from her home and, for that purpose, had three heavy vehicles and a trailer parked on or adjacent to the Premises, the need for development consent was denied.
On 6 August 2009 the Council gave an order to Mrs Kovacevic under s 121B(1) of the EPA Act. The terms of that order were expressed to require:
"Cessation of the use of premises for the purpose of a transport depot as defined in the Queanbeyan Local Environmental Plan 1998 (QLEP) 1998."
The nominated period for compliance was 30 days and the reasons for giving the order were stated as being the "parking of multiple trucks and trailers in conjunction with business as occurring on the premises", asserted to be a "transport depot". The reasons further identified the use for that purpose as being "prohibited" in Zone 3(a), as a transport depot "has not been approved by Council on the premises". The premises identified in the order were those occupied by Mrs Kovacevic in Collett Street.
Following the issue of that order, further correspondence ensued between the Council and Mrs Kovacevic or her solicitors, concerning the use of the Premises.
[2]
The alleged offence
I have earlier stated that the offence alleged against Mrs Kovacevic was an offence against s 125(1) of the EPA Act. That section relevantly provided:
"125 Offences against this Act or the regulations
(1) Where any matter or thing is by or under this Act … directed … to be done … and that matter or thing if so directed to do be done remains undone … a person offending against that direction … shall be guilty of an offence against this Act."
Relevant to the present case, the "matter or thing" under the EPA Act that was "directed" to be done was the cessation of the use of the Premises conformably with the order under s 121B(1) of the EPA Act. Item 1 of the Table to s 121B(1) authorised a council to give an order to the owner of premises or the person by whom those premises are being used, to cease using the premises for a purpose specified in the order, where the premises are being used for a purpose for which development consent is required but has not been obtained.
[3]
The right of appeal under the Appeal Act
Part 4 of the Appeal Act contains provisions directed to appeals from a Local Court to this Court. Division 2 within that Part identifies the circumstances in which appeals by prosecutors may be brought. Relevantly, s 42 is headed "Appeals as of right". Subsection (2B) of that section provides:
"(2B) The prosecutor (including the Director of Public Prosecutions or the Environment Protection Authority) may appeal to the Land and Environment Court against:
(a) an order made by the Local Court that stays any summary proceedings for the prosecution of an environmental offence, or
(b) an order made by the Local Court dismissing a matter the subject of any summary proceedings with respect to an environmental offence, or
(c) an order for costs made by the Local Court against the prosecutor in any summary proceedings with respect to an environmental offence, but only on a ground that involves a question of law alone."
It will be noticed that the subsection affords "the prosecutor" the right to appeal. The term "prosecutor" is defined in s 3 of the Appeal Act in the following way:
"prosecutor, in relation to proceedings from which an appeal or application for leave to appeal is made, means the person responsible for the conduct of the prosecution in those proceedings."
Specific provisions directed to the determination of appeals to the Court are found in s 48 of the Appeal Act. Subsection (3) of that section provides:
"(3) The Land and Environment Court may determine an appeal against an order referred to in section 42(2B):
(a) by setting aside the order and making such other order as it thinks just, or
(b) by setting aside the order and remitting the matter to the original Local Court for redetermination in accordance with any directions of the Land and Environment Court, or
(c) by dismissing the appeal."
Subject to an exception that is not presently relevant, s 49(4) of the Appeal Act empowers this Court to make such order as to costs of the appeal "as it thinks just".
[4]
Issue 1: Is the Council competent to bring the appeal?
The submission by Mrs Kovacevic on this issue may be succinctly stated. The prosecutor named in the CAN was Mr Reynders. There cannot be multiple prosecutors. While the Council was competent to prosecute the offence against Mrs Kovacevic in its own name, it did not do so. As Mr Reynders was nominated as prosecutor, only he is competent to bring the appeal pursuant to s 42(2B) of the Appeal Act. Reliance is placed upon the decision of the Court of Appeal in Price v Ferris (1994) 34 NSWLR 704 to support the submission.
The Council submits that its appeal is competent as it is the "prosecutor" within the meaning of s 42(2B) of the Appeal Act. For the purpose of supporting that submission, the Council has tendered evidence directed to the relationship between Mr Reynders and the Council, which, so it is submitted, explains the circumstances in which Mr Reynders caused the CAN to be issued. I allowed that evidence to be tendered over objection by Mrs Kovacevic. In summary, she submitted that, as an appeal under s 42(2B) is restricted to "a question of law alone", it was not open to the Court to receive additional or new evidence.
I will address, in due course, the objection taken by Mrs Kovacevic to that evidence. However, I have concluded that the Council is competent to bring the appeal without the need to have recourse to that additional evidence. That conclusion requires elaboration.
Applying the definition of "prosecutor" in s 3 of the Appeal Act to the provisions of s 42(2B), the "person" responsible for the conduct of the prosecution in the Local Court is the "prosecutor" entitled to institute an appeal under that section. The word "person", where used in the definition, is not confined to a natural person but includes "a body corporate or politic": s 21 Interpretation Act 1987 (NSW). A local council, such as the appellant, is a body politic: s 220(1) Local Government Act 1993 (NSW).
The procedure adopted to institute the prosecution against Mrs Kovacevic in the Local Court was that for which provision is made in Ch 4 of the Criminal Procedure Act 1986 (NSW). Reference to a "Local Court" in the Appeal Act includes a Magistrate or court exercising any function under Ch 4 of the Criminal Procedure Act: s 3 of the Appeal Act.
Section 172(1) of the Criminal Procedure Act, which is within Div 1, Pt 2 of Ch 4, requires that proceedings for an offence be commenced in a court by the issue and filing of a court attendance notice "in accordance with this Division". Section 173, also within Div 1, then provides:
"173 Commencement of proceedings by a police officer or public officer
If a police officer or public officer is authorised under section 14 of the Act or under any other law to commence proceedings for an offence against a person, the officer may commence the proceedings by issuing a court attendance notice and filing the notice in accordance with this Division."
As the right to institute a prosecution for an offence against the EPA Act is not expressly conferred by that Act on a specified person or class of persons, such a prosecution may be instituted "by any person": s 14 of the Criminal Procedure Act, the "common informer" section.
[5]
Issue 2: Is the order of the Local Court at Queanbeyan an "acquittal" from which no appeal lies?
The submission of Mrs Kovacevic that the Appeal Act confers no jurisdiction upon this Court to entertain the Council's appeal because she was acquitted by the Local Court involves a number of steps. First, she contends that a prosecutor has no right of appeal at common law once a trial court has determined to acquit the alleged offender. Such a right can only be conferred by statute, expressing that right in clear and unambiguous terms (Davern v Messel [1984] HCA 34; 155 CLR 21 (per Gibbs CJ at 31, Mason and Brennan JJ at 48 and Deane J at 68). That proposition is not controversial.
Second, the order made by Magistrate Bone in the present case to dismiss the proceedings was tantamount to an acquittal. As a consequence, the Council's appeal should be seen as one from an acquittal.
Third, the right of appeal afforded by s 42(2B)(b) of the Appeal Act is not a right of appeal from an acquittal. The "order" from which the subsection affords a right of appeal is an order disposing of proceedings before an acquittal is pronounced, such as dismissal for "irregularity, want of prosecution or failure to be ready on the day set down for hearing" or when an application is made to withdraw and dismiss the charge (Respondent's outline of submission at par 53). Those contentions are controversial.
Fourth, the only part of the Appeal Act that addresses an appeal from an acquittal are the provisions of Pt 8. None of the provisions of that Part apply so as to found the present appeal. As expressed, that submission is accepted.
The power available to the Local Court when determining a summary prosecution is also governed by the provisions of Pt 2 of Ch 4 of the Criminal Procedure Act. Relevantly, s 202 of that Act provides:
"202 Determination by court
(1) The court must determine summary proceedings after hearing the accused person, prosecutor, witnesses and evidence in accordance with this Act.
(2) The court may determine the matter by convicting the accused person or making an order as to the accused person, or by dismissing the matter.
(3) In the case of a matter heard in the absence of an accused person, the court may adjourn the proceedings to enable the accused person to appear or be brought before the court for sentencing."
[6]
Issue 3: The proper construction of "transport depot" in Queanbeyan Local Environmental Plan 1998
It was essential to the prosecution case brought against Mrs Kovacevic to establish that her use of the premises constituted a use that engaged the definition of "transport depot" in the LEP. Magistrate Bone dismissed the prosecution because of the manner in which he construed that definition.
The Council contends that the Magistrate has wrongly construed the phrase as defined in the LEP. The proper construction of that phrase in a statutory instrument "involves a question of law alone" and as a consequence founds a right by a competent appellant to appeal under s 42(2B)(b) of the Appeal Act. I do not understand that proposition to be challenged by Mrs Kovacevic.
Clause 5(1) of the LEP provides that the terms used in the instrument have the meaning as set out in the Dictionary in Sch 1 to that instrument. The term "transport depot" is defined in the Dictionary in the following way:
"transport depot means a building or place used for the parking or storage of motor powered or motor drawn vehicles used in connection with a passenger transport undertaking, business, industry or shop and includes a bus depot or a road transport terminal."
Several of the words or phrases used in that definition are themselves also defined in the Dictionary. Those definitions include: "bus depot", "industry", "road transport terminal" and "shop". It will be necessary to refer those definitions in due course.
[7]
The Magistrate construes the phrase
At [8] of his judgment, the Magistrate identified two possible meanings to be attributed to the definition of "transport depot". Those alternative meanings were identified in the submissions of the parties as either being the conjunctive meaning or the disjunctive meaning. As the Magistrate noted, the first involved an interpretation that each of the uses of "undertaking", "business", "industry" and "shop" be qualified by the adjectival phrase "passenger transport". Thus, it should be construed as involving a use in connection with a passenger transport undertaking, a passenger transport business, a passenger transport industry or a passenger transport shop. This was the conjunctive meaning.
The alternative or disjunctive meaning of the definition that he articulated was that it identified a building or place used for the parking or storage of motor vehicles that are used in connection with a passenger transport undertaking, a business of any kind, an industry of any kind or a shop of any kind. He continued at [8]:
"…in other words, … the adjectival use of the phrase 'public transport' only relates to the word 'business' [sic]".
It is difficult to understand his Honour's reference both to "business" and to "public transport" in that passage. The intended reference is probably to the word "undertaking", as that is the word immediately preceded by the words "passenger transport" in the definition. Again, I assume that the intended reference was to "passenger transport" rather than "public transport". His Honour continued at [8] by saying:
"It is difficult to accept that, as a matter of semantics or interpretation, this second meaning could be intended because the definition concludes by stating '… and includes a bus depot or a road transport terminal' and, if the second meaning was the one intended, there would have been no need to add that final phrase."
His Honour followed that observation by stating at [10] that in the absence of authority to the contrary, he considered the definition "should be interpreted as referring to a passenger transport undertaking, a passenger transport business, a passenger transport industry or a passenger transport shop". After then referring to and distinguishing the decision of this Court in Fairfield City Council v Mangos [2004] NSWLEC 298, he said at [14]:
"I have already indicated that the Queanbeyan Local Environmental Plan definition concludes with '… and includes a bus depot or road transport terminal' and that if the second meaning specified by the prosecution was the one intended, there would have been no need to add that final phrase. I will expand upon that observation. A bus depot is most certainly connected to passenger transport and a road transport terminal may well be connected to passenger transport. If the definition was intended to apply to any business, industry or shop, whether connected to passenger transport or not there would be no need whatsoever to conclude the definition with reference to bus depots and road transport terminals. On the other hand, the inclusion of those facilities suggests very strongly (if not conclusively) that the draftsman intended to remove any suggestion that those facilities might not be within the framework of an undertaking, a business, an industry or a shop dealing with passenger transport."
[8]
The submissions of Mrs Kovacevic
Mrs Kovacevic supports the conclusion reached by the Magistrate as to the manner in which the definition of "transport depot" should be interpreted. As articulated at par 69 of her written submissions, she contends that:
"…the adjective [sic] 'passenger transport' qualified each of the terms that followed, so that the use had to be in connection with:
(a) a passenger transport undertaking; or
(b) a passenger transport business; or
(c) a passenger transport industry; or
(d) a passenger transport shop;
(e) The court will note that this does not require an addition of any other words." (original emphasis).
Four reasons are advanced as to why the Council's disjunctive interpretation is incorrect. First, it is contended that "the heading, structure and deliberate use of the article 'a' favours a conjunctive interpretation". The "heading" referred to in that submission is not identified.
Secondly, the consequence of the Council's construction of the phrase is said to involve the connected use as being:
"(a) a passenger transport undertaking; or
(b) a business; or
(c) an industry, or
(d) a shop." (original emphasis).
The use of "an" as the grammatically correct article before "industry" means that "the use of the term 'transport depot' becomes meaningless." In support of the submission, reference is made to the definition of "person" in s 21 of the Interpretation Act as including "an individual, a corporation and a body corporate or politic." According to the submission, the need to introduce the indefinite article "an" adds an additional word that the legislature has not used (sic).
Thirdly, the meaning for which the Council contends renders the definition "unworkably vague". In that context the submission asks, what qualifies as "an industry"?
Fourthly, the disjunctive interpretation would render the word "passenger" as one that has no purpose. The submission contends that this is so because "it would surely fall within the definition of a transport undertaking, a business or a shop".
Finally, Mrs Kovacevic differs from the approach taken by the Magistrate to the decision of this Court in Fairfield City Council v Mangos. Whereas the Magistrate sought to distinguish that decision, Mrs Kovacevic submits that the finding in the case supports the conjunctive interpretation for which she contends.
[9]
Consideration
As I have earlier observed, the proper construction of the phrase "transport depot" is fundamental to a determination as to whether Mrs Kovacevic has committed the offence with which she is charged. The offence against s 125(1) of the EPA Act turns upon her failure to comply with the order given under s 121B(1) of that Act to cease using the premises "for the purpose of a transport depot" as defined in the LEP.
The LEP is a species of delegated legislation (s 3(1) Interpretation Act). As such, it should be interpreted conformably with general principles of statutory interpretation (Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; 66 NSWLR 379 at [36]). While application of those principles requires that focus be upon the text of the provision being construed, the context of that provision is also important. That context may inform the legislative intent of the provision although that intent must be discerned from the language of the instrument itself and not by reference to "pre-conceived ideas or vague notions of what might or might not be desirable" (Matic v Mid-Western Regional Council [2008] NSWLEC 113 at [8]).
In Matic, having made observations to the effect that I have just stated, Jagot J continued at [9]:
"These requirements have particular significance for the construction of environmental planning instruments. The planning purpose of an environmental planning instrument is to be determined by reference to the language of the instrument considered in context. There is no room for 'some preconceived general notion of what constitutes planning' (Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 at [56] citing Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490 at 500). Further, and as noted in Callega v Botany Bay City Council (2005) 142 LGERA 104 at [25] 'any attempt to always find planning logic in planning instruments is generally a barren exercise'."
The meaning of "transport depot" as defined in the LEP must be determined in accordance with these principles.
I have earlier recorded that the Premises are within the Business 3(a) Zone under the LEP. Clause 27(1) identifies the objectives of that zone. Those objectives include:
"(a) to recognise the Queanbeyan City central business district as the main commercial/retail centre of the city, and
(b) to recognise the Jerrabomberra shopping centre as a future important commercial/retail centre, and
(c) to provide for a wide range of retail, commercial and tourist uses as well as residential development opportunities in the zone, and
(d) to encourage alterations, additions or redevelopment within the central business district which acknowledges the scale, form and character of existing development …".
[10]
Issue 4: Disposition of the Proceedings
Mrs Kovacevic submits that if I found legal error, there was nonetheless a discretion to dismiss the appeal. At a level of generality, that proposition is not challenged by the Council. It is an order that is expressed to be available under s 48(3)(c) of the Appeal Act.
As I understand her submission, Mrs Kovacevic contends that I should dismiss the appeal in any event for the following reasons (pars 24-25 of her written submissions):
1. she was entitled to defend the prosecution in the Local Court and even if she was unsuccessful in so doing, conviction for the offence charged would only "attract a small fine";
2. she had no control over the Council exercising a right of appeal available to it under s 42(2B)(b) of the Appeal Act;
3. as an appeal under the subsection was confined to a question of law alone, it was "proper" that she assist the Court to determine the law, differentiating her role in so doing from that which would pertain if the appeal necessitated that the merits of the case be addressed; and
4. as the present appeal "was not the most appropriate case for the [Council] to test the law", it was "oppressive and unfair" to her to be placed in the position of defending the appeal.
In oral submissions, reference was made to the decision of Rothman J in Director of Public Prosecutions (NSW) v Majok [2009] NSWSC 192; 194 A Crim R 265 as a demonstration of the exercise of discretion even where legal error founded the dismissal of a prosecution in the Local Court.
I am not persuaded that, in exercising my discretion, I should take the course advocated by Mrs Kovacevic. In so concluding, it is appropriate that I briefly address each of the reasons advanced for the order that she sought.
Whether the offence with which Mrs Kovacevic was charged would, if proved, have attracted "a small fine" can only be the subject of speculation. The maximum penalty for an offence against s 125(1) of the EPA Act was, at the time of the alleged offence, $1,100,000: s 126(1) of the EPA Act. Even accepting the jurisdictional limit of the Local Court, imposed by s 127 of the EPA Act, the maximum penalty able to be imposed in that Court was $110,000. Understandably, no evidence of matters relevant to sentence was led in the proceedings before the Local Court. In the absence of evidence of that kind, directed, for example, to environmental harm consequent upon commission of the offence, I could not properly conclude that only "a small fine" was likely.
[11]
Costs
In the event that it is successful, the Council seeks an order for payment of its costs of this appeal. Mrs Kovacevic seeks an order that, whatever the outcome of the appeal, the Council should be ordered to pay her costs. The latter submission is, as I understand it, essentially founded upon the same four reasons advanced by her as to why the order made in the Local Court should not be set aside, even if error of law is established. To those submissions are added the contention that the appeal raised important questions of law for which Mrs Kovacevic should not have to bear costs. In support of the latter submission, reliance is placed upon the decision of the Court of Appeal in Director of Public Prosecutions v Deeks (1994) 34 NSWLR 523.
I need not repeat my response to the four reasons advanced by Mrs Kovacevic as to why the order dismissing the proceedings should not be set aside. If the question of law raised by the Council for determination had required consideration of novel or untested propositions of law, I would understand the force of the submission that an order for costs should not be made against Mrs Kovacevic, even if she was unsuccessful in supporting the decision of the Local Court. However, her submission loses force when it is recognised that the "important questions of law" requiring consideration of this appeal were those raised by Mrs Kovacevic. The Council's statutory construction question did not, of itself, give rise to a question or questions that could be so characterised.
In these circumstance, the claim for costs does not find support in the judgments delivered in Director of Public Prosecutions v Deeks. The Court in that case did not lay down any general principle from which to determine that an unsuccessful defendant in an appeal of the present kind should nonetheless be entitled to costs where an important question of law is determined. The decision on costs in that case turned upon its own facts.
Ms Deeks was successfully prosecuted and sentenced in the District Court for a drug offence. Subsequently, the DPP made an application to that court for a property forfeiture order against Ms Deeks under the Confiscation of Proceeds of Crime Act 1989 (NSW). That application was unsuccessful. The DPP was ordered to pay the costs of that application after the Crown Prosecutor appearing in the proceedings did not seek to be heard on the question of costs.
[12]
Orders
For the reasons that I have stated, the orders that I make are as follows:
1. Appeal allowed.
2. Set aside the order made by the Local Court at Queanbeyan dismissing the prosecution against the respondent.
3. Remit the matter to the Local Court at Queanbeyan for determination according to law.
4. Order that the respondent pay the appellant's costs of the appeal.
5. The Appeal Book and Exhibit B may be returned.
[13]
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.
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.
Decision last updated: 14 October 2015
Parties
Applicant/Plaintiff:
Queanbeyan City Council
Respondent/Defendant:
Kovacevic
Legislation Cited (17)
Criminal Procedure Amendment (Justices and Local Courts) Act 2001(NSW)
Factories, Shops and Industries Act 1962(NSW)
Justices Act 1902(NSW)
Justices Legislation Repeal and Amendment Act 2001(NSW)
Road Transport (Safety and Traffic Management) Act 1999(NSW)
Suitors' Fund Act 1951(NSW)
(NSW), the Crimes (Appeal and Review) Act 2001(NSW)
Director of Public Prosecutions (NSW) v Zhang [2007] NSWSC 308; 48 MVR 78
Director of Public Prosecutions v Darby [2002] NSWSC 1157
Director of Public Prosecutions v Deeks (1994) 34 NSWLR 523
Director of Public Prosecutions v Hardman [2002] NSWSC 714; 37 MVR 137
Director-General Department of Environment and Climate Change v Gleeson; Director-General, Department of Environment and Climate Change v Epacris Pty Ltd (No 2) [2009] NSWLEC 200
Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318
Eastman v The Queen [2000] HCA 29; 203 CLR 1
Fairfield City Council v Mangos [2004] NSWLEC 298
Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390
Ku-ring-gai Council v Steve Nolan Constructions Pty Ltd [2012] NSWLEC 258
Maritime Authority (NSW) v Rofe [2012] NSWSC 5; 84 NSWLR 51
Matic v Mid-Western Regional Council [2008] NSWLEC 113
Price v Ferris (1994) 34 NSWLR 704
Roads and Traffic Authority (NSW) v Field [2005] NSWSC 606; 44 MVR 60
Sasterawan v Morris [2007] NSWCCA 185; 69 NSWLR 547
Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; 71 NSWLR 230
Williams v Blackley [2010] NSWCA 246
Category: Principal judgment
Parties: Queanbeyan City Council (Appellant)
Mary Lucy Kovacevic (Respondent)
Representation: Counsel:
T To (Appellant)
J Masters (Respondent)
Where a prosecution is to be commenced by a person, other than a police officer or a public officer, on the basis that the person so doing is a common informer within the meaning of s 14, the procedure for commencing such proceedings differs from that identified in s 173. Section 174 requires that such proceeding be commenced by "issuing a court attendance notice, signed by a registrar, and filing the notice in accordance with this Division". Subsection (2) of that section identifies circumstances in which the registrar must not sign the court attendance notice, including the circumstance in which the registrar forms the opinion "that the notice does not disclose grounds for the proceedings". There is no comparable provision in s 173.
The term "public officer" is defined in s 3 of the Criminal Procedure Act to mean, among others, an employee of a council within the meaning of the Local Government Act. Section 3 of the former Act also defines "prosecutor" in the following way:
"prosecutor means the Director of Public Prosecutions or other person who institutes or is responsible for the conduct of a prosecution and includes (where the subject-matter or context allows or requires) an Australian legal practitioner representing the prosecutor."
The CAN commencing the prosecution against Mrs Kovacevic was included in the Appeal Book (Exhibit A). Under the heading "Details of Prosecutor" the following appears:
"Prosecutor: PETER REYNDERS
Department/Organisation: Queanbeyan City Council - 100936."
No challenge was made in the Local Court to the validity of the CAN commencing the prosecution against Mrs Kovacevic. As it was not a court attendance notice signed by the registrar, it must be assumed that it was validly issued under s 173 of the Criminal Procedure Act (Sasterawan v Morris [2007] NSWCCA 185; 69 NSWLR 547 at [21]). The identification of the Council in the CAN against the side heading "Department/Organisation", appearing immediately beneath Mr Reynders' name, not only supports the issue of the CAN under s 173 by a "public officer" but is also evidence of the "person" responsible for the conduct of the prosecution. Consistent with the definition of "prosecutor" in s 3 of the Criminal Procedure Act, the CAN both identifies Mr Reynders as the person instituting the prosecution and also identifies the Council, constituted under the Local Government Act, as the "person" by whom Mr Reynders is employed, thereby demonstrating the right to issue the CAN under s 173. As such, it also identifies the Council as the person "responsible for the conduct of the prosecution".
The tenor of the reserved judgment delivered by Magistrate Bone is that it was the Council who was, for all practical purposes, maintaining the prosecution. The coversheet of the judgment delivered by him identifies the parties. The prosecutor is identified as being "Peter Reynders (Queanbeyan City Council)". Perhaps of greater significance for present purposes is [2] of that judgment which states:
"2 The facts are not in dispute. Evidence was given by the (now retired) Peter Reynders, an experienced compliance planner with Queanbeyan City Council, and that evidence consisted of his own observations and a significant amount of correspondence between the accused and Queanbeyan City Council."
At [3] of the judgment, reference is made to documents tendered "as part of the prosecution file" being the file of the Council. In that context, reference is made to correspondence between Mrs Kovacevic, her solicitors, and the Council concerning the order ultimately issued under s 121B(1) of the EPA Act, requiring cessation of use of the Premises for the purpose earlier identified.
At [4] the Magistrate said:
"Council's Director of Environmental Services wrote to the accused on 8th December 2008. The accused was advised that Council knew she operated 'a home base for driving lessons' from her address, that a number of trucks and trailers had been seen parked on her premises and she was invited to give an explanation … The accused was advised that, in Council's opinion, the accused was using her premises and the land adjacent to it as a 'transport depot' within the meaning given to that phrase in Council's local environmental plan … There was correspondence between Council and the accused's solicitor and then Council formally issued an order. The accused did not comply with that order."
The reference at [2] in the judgment to the "now retired" Mr Reynders, identifies a circumstance that, to my mind, the definition of "prosecutor" in both the Criminal Procedure Act and the Appeal Act, seeks to address. Retirement from office, medical indisposition, frailty of mind or death are but some of the reasons why the person instituting proceedings may be prevented from prosecuting them to conclusion or from exercising a right of appeal otherwise available from the determination made in the Local Court. Where proceedings prosecuting an offence are regularly commenced under s 173 of the Criminal Procedure Act, that is, commenced by reason of employment or office in a statutory entity or public body nominated in the definition of "public officer" in s 3 of the Criminal Procedure Act, it would surely lead to an unintended result if the continued prosecution of that offence or the exercise of the right of appeal was dependent upon the personal circumstances of the nominated officer, including his or her continued employment in the entity which founded the entitlement to institute the prosecution. Extending the definition of "prosecutor" to include reference to the 'person' responsible for the conduct of the prosecution is intended, so it seems to me, to avoid such a result.
The proper construction of the legislative provisions to which I have referred, together with the content of the CAN and relevant findings in the judgment from which the present appeal is brought, satisfies me that the Council is a "prosecutor" entitled to bring the present appeal. That conclusion is consistent with the finding made by Kirby J in similar circumstances in Roads and Traffic Authority (NSW) v Field [2005] NSWSC 606; 44 MVR 60. His Honour was there determining an appeal under s 56(1)(c) of the Appeal Act, being a provision equivalent to s 42(2B), enabling an appeal by a prosecutor from a Local Court to the Supreme Court on a question of law when summary proceedings for an offence, other than an environmental offence, have been dismissed by the Local Court.
While the appeal to the Supreme Court in that case was commenced by the Roads and Traffic Authority (RTA), the court attendance notice instituting the prosecution had been issued in the name of an employee of the Authority. In that circumstance, his Honour was required to determine whether the RTA was the "prosecutor" for the purpose of s 56 of the Appeal Act. After referring to the definitions of "prosecutor", as they appeared in the Criminal Procedure Act and the Appeal Act respectively, his Honour concluded at [25] that the RTA was the party responsible for the conduct of the prosecution, notwithstanding the fact that the court attendance notice had nominated an employee as the prosecutor.
The reported decision in Field indicates that the hearing before Kirby J proceeded without any appearance by the respondent. As a consequence, there was no contradictor to the argument advanced on behalf of the RTA. However, the absence of a contradictor does not diminish the reasoned decision of Kirby J as one supporting the conclusion that I have reached on the same topic, namely, the identification of the party responsible for the conduct of the prosecution where that prosecution was commenced by a "public officer" within the meaning of s 3 of the Criminal Procedure Act.
Although not essential to my determination that the Council was "the person" responsible for the conduct of the prosecution before the Queanbeyan Local Court, it is apparent that Mrs Kovacevic considered that the prosecution was being conducted on behalf of the Council. The written submissions of her solicitor before Magistrate Bone are included in the Appeal Book. Those submissions are headed "Kovacevic ats Queanbeyan City Council" and commence:
"This matter was before the Court on Tuesday, 24 July 2012. Evidence was presented on behalf of Queanbeyan City Council and evidence cross-examined [sic]."
The next paragraph of those submissions commences by identifying a concession "by Queanbeyan City Council that [Mrs Kovacevic] has been operating a driving school … since 1998".
Although I have reached the conclusion that the Council is competent to bring the present appeal without recourse to the additional evidence tendered by it on this issue, it is appropriate to address the admissibility of that evidence and its substance, so far as it bears upon the present issue.
As I have earlier stated, Mrs Kovacevic objects to this additional evidence on the basis that the appeal instituted by the Council is confined to a question of law alone. This has the consequence, so it is submitted, that no issue raised by her entitles this Court, on appeal, to receive any evidence, even if the issue raised by her is one of mixed fact and law, as the identification of the "prosecutor" must be. In support of her written submission, reliance was placed upon the decision of the High Court in Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318. No pinpoint reference is made in her written submissions to the judgments in that matter and none was given in oral submissions. I am unable to discern from the judgments in that case any support for the present submission.
It may be that reference was intended to be made to an earlier decision of the High Court in Eastman v The Queen [2000] HCA 29; 203 CLR 1. In that appeal Mr Eastman sought to contend, for the first time, that his conviction for murder in the ACT Supreme Court should be set aside because he was, at the time of trial, unfit to plead. Evidence, including expert evidence, was sought to be tendered to the High Court. The issue had not been raised at trial or before the Full Federal Court to whom an appeal was taken against conviction. In the High Court appeal, the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) determined that s 73 of the Constitution did not authorise the Court, on appeal, to receive the new evidence sought to be relied upon. The Constitutional constraint imposed by s 73 upon the High Court in the exercise of its appellate jurisdiction, cannot be equated to the exercise of power to determine a jurisdictional dispute arising in an appeal under s 42(2B) of the Appeal Act.
There can be no doubt that the challenge brought to the competency of the present appeal is a challenge to jurisdiction. As such, the Court must determine that challenge before turning to consider the substance of the appeal. As Biscoe J observed in Australian Gas Light Co v Mine Subsidence Board [2006] NSWLEC 494; 147 LGERA 433 at [44], the first duty of the Court "is to satisfy itself that its jurisdiction has been properly invoked and its jurisdiction depends upon the facts".
The jurisdictional challenge by Mrs Kovacevic raises an issue of mixed fact and law. That issue requires a determination as to whether the Council is a "prosecutor"' as the person responsible for the conduct of the prosecution before the Local Court. The admission of evidence directed to that issue does not derogate from the limitation imposed upon the substantive issue in the appeal, raised by the Council as appellant, confined, as that issue is, to a question of law alone. The jurisdictional issue is a preliminary issue and only if that issue is determined favourable to the exercise of jurisdiction can the Court then embark upon the substantive question. On that basis the evidence was admitted, limited to the determination of the jurisdictional issue. That issue was not raised in the Local Court.
The additional evidence tendered on this issue by the Council, admitted as Exhibit B, is a folder of documents containing procedural records of the Council, correspondence and emails. Apart from the objection to the tender of the documents on the basis I have already identified, I do not understand the submission made on behalf of Mrs Kovacevic to contend that the documents do not prove the facts and events relied upon by the Council. It is convenient to identify those facts and events in a summary way.
By resolution dated 17 December 2008 and amended on 27 October 2010, the Council delegated all of its functions that it was able to delegate, conformably with s 377 of the Local Government Act, to its general manager. The general manager, in turn, exercised the power available under s 378(2) of the Local Government Act to sub-delegate various functions delegated to him to the holders of nominated offices within the Council. Relevantly, that included sub-delegation to Mr Reynders of presently relevant functions under the EPA Act.
In exercise of his power as an authorised person within the meaning of s 127A of the EPA Act, on 11 August 2011 Mr Reynders issued a penalty infringement notice to Mrs Kovacevic relating to the use of the Premises. The issue of the infringement notice is the origin of the prosecution that is the subject of the present appeal. Mr Reynders' position as an authorised person was a consequence of the general manager's sub-delegation of power to him.
The penalty infringement notice issued on 11 August 2011 was also a penalty notice for the purpose of the Fines Act 1996 (NSW): s 20(2)(a) and Sch 1 to that Act. Having been served with that notice, Mrs Kovacevic exercised the right available to her under s 23A(1) of the Fines Act by electing to have the offence alleged in the notice determined by the Local Court. That election was conveyed to the State Debt Recovery Office by the solicitors acting for Mrs Kovacevic.
In the form which s 113 of the Fines Act took in August 2011 when the election was made, the State Debt Recovery Office (the SDRO) was both a body corporate and a statutory body representing the Crown. Section 114 of that Act enabled the SDRO to enter arrangements with persons "who issue penalty notices, or on whose behalf penalty notices are issued" to provide what might be characterised as administrative services with respect to such notices, including the issue of court attendance notices consequent upon the issue of an infringement notice.
Included among the documents tendered as Exhibit B is a "Service Level Agreement for Premium Processing and Service" entered into between the SDRO and the Council on 28 September 2007. One of the functions performed by the SDRO for the Council under that agreement was to receive penalties paid pursuant to a penalty infringement notice and thereafter to account to the Council for that payment.
Clause 3.28 of the agreement is directed to the circumstance that the recipient of an infringement notice elects to have the offence alleged in that notice determined by a court. In that circumstance, the SDRO is required to cause a court attendance notice to be issued in the Local Court for the hearing of the offence described in the penalty notice. The SDRO also accepted responsibility to serve that notice and to arrange for a police prosecutor to seek leave to appear for the Council on the first occasion upon which the matter is listed before the Local Court. Should the prosecution not be resolved on that occasion, the agreement requires that the Council "assume full responsibility" for the prosecution thereafter, including undertaking any appeal.
The agreement between the SDRO and the Council also provided for the nomination of "the Prosecutor for the purposes of issuing a court attendance notice". That nomination was to be made by the SDRO "following consultation with the Council". One such nominee was a "public officer" of the Council, the expression being defined by reference to its definition in s 3 of the Criminal Procedure Act.
The CAN instituting the present prosecution before the Local Court in Queanbeyan was filed in that court by the SDRO under its service agreement with the Council. So much is apparent from an email dated 7 November 2011 providing a copy of the CAN to Mr Reynders with a request that he "draw up a statement for the Police Prosecutor".
The remaining email that forms part of Exhibit B is an email dated 14 November 2011 from Mr Reynders to the solicitors who acted on the hearing of the prosecution. That email instructed those solicitors to "act for Council in this case", noting that Mrs Kovacevic was challenging the matter in the Local Court.
This evidence establishes beyond a shadow of a doubt that it was the Council who was responsible for the conduct of the prosecution brought against Mrs Kovacevic.
The definition of "prosecutor" aside, Mrs Kovacevic submits that the decision of the Court of Appeal in Price v Ferris speaks against the Council's entitlement to appeal. I do not accept that submission as being correct.
In Price, an information had been laid by a senior police officer alleging a firearms offence by another police officer. Before the proceedings were heard in the Local Court, the Director of Public Prosecutions gave notice pursuant to s 9 of the Director of Public Prosecutions Act 1986 (NSW) that he had taken over the prosecution in the matter. The prosecution in the Local Court was dismissed. An appeal to the Supreme Court by way of stated case was then instituted in the name of the original informant. The summons instituting the latter proceedings was struck out by a single judge of the Supreme Court on the basis that the appellant had no standing to prosecute the proceedings. An appeal from that decision was taken to the Court of Appeal.
The leading judgment in the Court of Appeal was delivered by Kirby P (Meagher JA agreeing). As his Honour observed at the outset of his judgment (at 705), the appeal concerned "the meaning of certain provisions of the Director of Public Prosecutions Act". No statement of principle from the judgment of the President, relevant to the determination of the issue before me was identified by Mrs Kovacevic. The determination by the Court of Appeal to uphold the decision of the trial judge, striking out the summons on the basis that the original informant lacked standing to institute the appeal, turned upon the interpretation of s 9 of the Director of Public Prosecutions Act. The section authorised the Director to take over the whole matter from the original informant, with the consequence that once that was done the right to conduct proceedings, including to maintain any appeal, were powers vested solely in the Director (at 709E).
There are no provisions within either the Criminal Procedure Act or the Appeal Act that are comparable to the provisions of s 9 of the Director of Public Prosecutions Act. The manner in which the Court of Appeal interpreted the provisions of the latter Act provides no assistance to the interpretation of "prosecutor", as that word is defined in the Appeal Act, identifying the "person" entitled to appeal under s 42(2B) of that Act. In short, the decision in Price v Ferris provides no support for the submission advanced on behalf of Mrs Kovacevic.
Accordingly, the challenge made to the standing of the Council to bring the present appeal is rejected.
No operative provision in Pt 2 of Ch 4 makes reference to the acquittal of a person charged with a summary offence. The only order open to Magistrate Bone when determining the prosecution brought against Mrs Kovacevic was that for which provision is made in s 202.
So far as the Appeal Book reveals, no formal order disposing of the proceedings in the Queanbeyan Local Court is recorded. That is to be regretted. His Honour's reserved judgment concludes at [15] by stating that "the charge will be dismissed". No order formally dismissing the proceedings appears to have been pronounced. Nonetheless, the matter has been argued by both parties as if an order dismissing the proceedings was made. I propose to consider the matter on that basis.
I record that no issue is taken with the characterisation of the alleged offence as being "an environmental offence" within the meaning of the Appeal Act. As a consequence, if an appeal is available from the decision of Magistrate Bone, it is an appeal that must be brought in this Court.
There can be no doubt that by reason of the manner in which Magistrate Bone interpreted the phrase "transport depot", as defined in the LEP, the prosecutor did not discharge the onus of establishing the offence with which Mrs Kovacevic was charged. As a result, the only decision available to him was that provided by s 202(2) of the Criminal Procedure Act, namely by making an order "dismissing the matter". Upon the making of that order, Mrs Kovacevic was entitled to seek a certificate of dismissal under s 205(1) which, when given, would have the effect of preventing "any later proceedings in any court for the same matter [against her]": s 206. The combined effect of these provisions has the hallmarks of an acquittal at common law.
Whether the provisions of s 42(2B)(b) of the Appeal Act should be construed so as to deny a right of appeal where the basis for an order dismissing proceedings in the Local Court has the hallmarks of an acquittal at common law, necessarily engages ordinary principles of statutory construction. Those principles are usefully stated by the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47] where their Honours said:
"This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention."
After citing that passage, the plurality in the later case of Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 observed at [39] that the task of statutory construction must also conclude with consideration of the text.
On its face, the text of s 42(2B)(b) is clear. No limitation is expressed in the subsection by reference to the facts or circumstances that found the making of the order. Had it been the intention of the legislature so to do, the limitation could readily have been expressed.
The context in which the provisions of s 42(2B)(b) must be interpreted include the provisions of the Criminal Procedure Act as the Act that founds the institution and determination of the proceedings from which the appeal is brought. The fact that the lexicon of "acquittal" finds no expression in Pt 2 of Ch 4 of that Act, governing the summary prosecution of proceedings in the Local Court, is significant. So also is the circumstance that reference to "acquittal" in that Act is confined to those provisions directed either to the trial of indictable offences or to the summary prosecution of offences commenced in the Supreme Court or in this Court.
By contrast, the only relevant order available to the Local Court in circumstances of the present kind is an order "dismissing the matter" under s 202(2). That circumstance supports the reference to an order "dismissing the matter" in s 42(2B)(b) of the Appeal Act as being the same order as that referred to in s 202(2) of the Criminal Procedure Act, the latter being unconfined as to the circumstances that found its making.
The provisions of s 205 and s 206 of the Criminal Procedure Act also speak against the restricted meaning of the "order" for which Mrs Kovacevic contends. If a certificate of dismissal is given under s 205(1), being a certificate that must be given at the request of the accused if an order dismissing proceedings is made, it has the effect stated in s 206. I have earlier identified that effect. Had the "order" that founds the right of appeal under s 42(2B)(b) of the Appeal Act been intended to exclude an order for which a certificate had been or could be issued under s 205 of the Criminal Appeal Act, the legislature could readily have so provided in the Appeal Act. Clearly, it did not do so. That fact speaks against a legislative intent that an appeal from an order under s 42(2B)(b) of the Appeal Act should be confined in the matter for which Mrs Kovacevic contends.
There is a broader context in which the provision in Ch 4 of the Criminal Procedure Act and the provisions of the Appeal Act must be considered. The conduct of summary proceedings in the Local Court have their origin, in this State, in the Summary Jurisdiction Act 1848 (UK). The provisions of that Act applied in this State until 1902. Section 14 of that Act provided for the determination of proceedings by a conviction, "an order upon the defendant" or an order for the dismissal of the Information or Complaint.
The Summary Jurisdiction Act was repealed and replaced by the Justices Act 1902 (NSW) which provided for the determination of summary proceedings in almost identical terms to that used in the legislation that it replaced. The provisions of the Justices Act were, in turn, repealed and replaced by a suite of legislation comprising the Criminal Procedure Amendment (Justices and Local Courts) Act 2001 (NSW), the Crimes (Appeal and Review) Act 2001 (NSW) and the Justices Legislation Repeal and Amendment Act 2001 (NSW). By that suite of legislation, the provisions of the Justices Act directed to summary procedure before the Local Court were incorporated into Ch 4 of the Criminal Procedure Act. Those provisions of the Justices Act that had made provision for appeals to this Court were incorporated into the Act that became the Appeal Act.
In short, the manner in which proceedings for summary prosecution of offences may be determined before the Local Court are provisions of long standing. The provisions of s 202(2) making reference to an order "dismissing the matter", along with the statutory predecessors to that provision, expressed in similar terms, reflect the final order to be made after hearing evidence and submissions directed to the subject matter of the proceedings. As Lloyd J accepted in Director-General Department of Environment and Climate Change v Gleeson; Director-General, Department of Environment and Climate Change v Epacris Pty Ltd (No 2) [2009] NSWLEC 200 at [18] and [24], the "dismissal of a charge is the completion of the proceedings commenced by the charge, entitling the defendant to a plea of autrefois acquit". It is an order having that effect that is comprehended by s 42(2B)(b) of the Appeal Act.
An appeal by a prosecutor from a Local Court as it now is, or formerly from a Court of Petty Sessions, against the dismissal of a prosecution on a question of law, has been the subject of legislation for many years, without being limited in the way for which Mrs Kovacevic contends. In Davern v Messel, Gibbs CJ observed at 37-38:
"A decision of a court of summary jurisdiction discharging a complaint or information has never been regarded with the same sanctity as the verdict of a jury. The consistent trend of the legislation, both in England and Australia, has been towards allowing the prosecution to appeal against an order of a magistrate or justices dismissing a charge and empowering the court on appeal to quash the order and to direct that the defendant be convicted … In Australia also the procedure of the appeal by way of case stated has been held to be available to an aggrieved complainant: Kench v Bailey [citation omitted]. In addition, however, there is available the more ample remedy of appeal by order to review, and in some of the Australian States an unsuccessful complainant may appeal by this means against the dismissal of a complaint by a magistrate or justices … It is apparent that it is no longer exceptional, or thought to be contrary to public policy, in Australia, to allow an appeal from an acquittal by a magistrate or justices. What is even more important is that if a person convicted in summary jurisdiction does appeal successfully to a Supreme Court under the statutory procedure provided, and secures an order quashing the conviction, there is no doubt of the power of this Court to grant special leave to appeal, allow the appeal and restore the conviction."
The observations of Mason and Brennan JJ in the same case are presently pertinent. Their Honours said at 55:
"The powerful considerations which made it unfair and unjust that a man should be prosecuted twice for the same offence seem to lose some of their force when an appeal is sought to be equated with a second prosecution. A second prosecution for the same offence immediately raises the spectre of persecution. Although the pursuit of a Crown appeal might be carried to the point of persecution, the risk of that occurrence is more remote, if only because the accused would be protected by the courts against an appeal which was instituted mala fides or amounted to an abuse of process and, as already noted, the courts would not go behind a jury's verdict. Moreover, the Crown has a legitimate interest in securing a review of a trial, more particularly if it appears that the trial judge has made an erroneous ruling on a question of law or departed from correct procedures."
The observations made in the judgments in Davern v Messel support the contention that legislation establishing a prosecutor's right to appeal from the dismissal of proceedings in the Local Court will not too readily be construed as infringing the double jeopardy principle.
The provisions of s 42(2B)(b) of the Appeal Act, reflect provisions in almost identical terms formerly found in the Justices Act, enabling a prosecutor to appeal to the Supreme Court and later to this Court in respect of an environmental offence prosecuted in the Local Court. The relevant provision of the Justices Act prior to its repeal was s 104(2). Examples of appeals to the Supreme Court under that section, following dismissal of summary criminal proceedings in the Local Court, include Director of Public Prosecutions v Darby [2002] NSWSC 1157 and Director of Public Prosecutions v Hardman [2002] NSWSC 714; 37 MVR 137. Both appeals were from orders made by a magistrate dismissing the summary prosecution for an offence following a hearing of the substantive facts. In neither judgment was any question raised as to the entitlement to maintain the appeal because the dismissal of the charge by the magistrate was tantamount to an acquittal.
I have earlier recorded that the provisions of s 42(2B)(b) of the Appeal Act are replicated in s 56(1)(c) of that Act in providing for a prosecutor appeal to the Supreme Court from an order dismissing a summary prosecution in the Local Court, other than a prosecution for an environmental offence. Section 56(1)(c) founded the appeal to the Supreme Court in Director of Public Prosecutions (NSW) v Zhang [2007] NSWSC 308; 48 MVR 78. A Local Court Magistrate had, by order, dismissed a charge against the defendant for an offence against the Road Transport (Safety and Traffic Management) Act 1999 (NSW) at the conclusion of the prosecution case. Having stated that the appeal was founded upon s 56(1)(c), Johnson J observed at [25]:
"That an appeal to this Court by a prosecutor from an acquittal in summary criminal proceedings is confined to a question of law alone is not surprising. Such an appeal constitutes a statutory exception to the rule against double jeopardy: Davern v Messel [citation omitted]".
In Williams v Blackley [2010] NSWCA 246 Basten JA (Campbell JA agreeing) made observations about the operation of s 56 of the Appeal Act. At [10] his Honour said:
"The principle that there can be no challenge to an acquittal is a general law principle, subject to statutory variation. The principle has in fact been varied significantly in respect of the criminal jurisdiction of the Local Court. Thus, a prosecutor has a right of appeal to either the District Court or to the Supreme Court, pursuant to the Crimes (Appeal and Review) Act 2001 … However, the prosecutor's right of appeal to the District Court does not extend to an order of acquittal: see s 23. The right of appeal to the Supreme Court is broader, and extends to an appeal from an order made by a Local Court dismissing a matter the subject of any summary proceedings, but 'only on a ground that involves a question of law alone': s 56(1) …".
There are many other cases in which judges of the Supreme Court have identified an appeal under s 56(1)(c) as being an appeal from an acquittal, without questioning the ambit of the subsection to found such an appeal.
According to my researches, three earlier appeals had come to this Court pursuant to s 42(2B) of the Appeal Act, the last being the decision of Pain J in Ku-ring-gai Council v Steve Nolan Constructions Pty Ltd [2012] NSWLEC 258. All involved an appeal from the dismissal of a summary prosecution in the Local Court following a substantive hearing. In none of those three decisions was the jurisdiction of the Court challenged on the basis that the subsection did not afford a right of appeal because the decision from which the appeal was brought was an acquittal.
I accept that none of the decisions to which I have referred in this Court, the Supreme Court or the Court of Appeal appear to have required the determination of the issue raised by Mrs Kovacevic in this appeal. However, statements of high authority, including those made by members of the High Court in Davern v Messel, together with the observations of judges of both the Supreme Court and the Court of Appeal, specifically addressing the provisions of s 56(1)(c) or its equivalent, all support the conclusion that the subsection does afford a right of appeal when the order made in the Local Court dismissing a prosecution equates to an acquittal at common law.
Mrs Kovacevic relies upon the decision of the Court of Appeal in Bros Bins Systems Pty Ltd v Industrial Relations Commission of New South Wales [2008] NSWCA 292; 74 NSWLR 257 in support of her submission. As I understand the submission, reference is made to the leading judgment delivered in that case by Spigelman CJ (Giles JA and Handley AJA agreeing) for two reasons. First, it is to draw attention to the confirmation by the Chief Justice at [60]-[61] that clear statutory language is required in order to abrogate the principle against double jeopardy when conferring a right upon a prosecutor to appeal from a lower court decision acquitting an alleged offender. The second purpose of reference to that case was to identify the terms in which s 197A(3) of the Industrial Relations Act 1996 (NSW) were expressed, affording a right of appeal from an acquittal, and to compare those provisions with s 42(2B)(b) of the Appeal Act.
Statements of principle expressed by the Chief Justice at [60]-[61] of the judgment are not in contest in the present appeal. However, I do not discern any relevant difference of substance between the language conferring a right of appeal in s 197A of the Industrial Relations Act and that right conferred by s 42(2B)(b) of the Appeal Act. It is certainly the case that s 197A confers, in terms, a right of appeal by a prosecutor, among others, from the decision of a member of the Industrial Commission or a magistrate sitting in the Local Court "to acquit a person of an offence against the occupational health and safety legislation". Mrs Kovacevic places particular emphasis upon the express reference to an acquittal.
I do not see that as reflecting any difference in substance from the right afforded to a prosecutor to appeal from an order made in the Local Court dismissing "a matter the subject of any summary proceedings". The "order" to which reference is there made has, as I have sought to demonstrate, long and consistently been held to include an acquittal. That conclusion follows as a matter of statutory construction. The decision in Bros Bins Systems does not detract from that conclusion.
In summary, both the text and context of s 42(2B)(b) of the Appeal Act support the exercise of the Council's right to bring the present appeal, accepting that the "order" made by Magistrate Bone was equivalent to an acquittal. The jurisprudence addressing the subsection and its equivalent expression in earlier legislation supports that conclusion.
For these reasons, I reject the challenge by Mrs Kovacevic to the jurisdiction of the Court to entertain the Council's appeal.
The judgment concludes at [15] as follows:
"I therefore conclude that the definition relates (among other things) to a passenger transport business. The accused does not operate a passenger transport business and the charge will be dismissed."
The Magistrate had earlier observed at [9] that where a person was charged with the commission "of a statutory criminal offence" and the statutory provision was reasonably capable of being interpreted in two ways, the court was required to apply the interpretation that was "more favourable to the accused". The decision in Attorney-General v Till [1910] AC 50 was cited in support of that proposition.
In construing the definition of "transport depot", his Honour made no reference to any other provision of the LEP. In particular, no reference is made to zone objectives, the way in which the land use table is framed nor to the definition of any of the development activities nominated in the "transport depot" definition that are themselves also defined in the Dictionary.
Clause 27(3) identifies development allowed only with development consent. Under the heading to that effect, the subclause commences with the words "[d]evelopment for the purpose of …" followed by a list of nominate development activities, almost all of which are defined in the Dictionary to the LEP. At the end of the list of specific activities the following is stated:
"Any other development not included in subclause (2) or (4), subject to clause 13(3)."
Subclause (2) identifies development permitted without development consent while subclause (4) identifies development that is prohibited. Clause 13(3) requires that the Council not grant consent to development on land within a zone unless it "is of the opinion that the development is consistent with the objectives of the zone".
The reference to development that is permissible with the consent of the Council by reference to the "purpose" of that development reflects conventional planning law. Land use controls are traditionally concerned with the purpose for which land or buildings are used. That purpose may not reflect the actual use of any part of that land at a given point in time. The use of land immediately adjacent to a shopping complex to provide customer parking would usually reflect use of land for the purpose of a shop or shops, notwithstanding that retail activities are not taking place on that part of the land physically being used for the parking of motor vehicles. The distinction between use and purpose is important when interpreting the definition being considered.
If a building or place is to be characterised as being used for the purpose of a "transport depot", it must have each of two critical elements. First, the use that engages the purpose must involve the parking or storage of motor powered or motor drawn vehicles. Second, the use of vehicles meeting that description must be connected with a use of land or buildings for the purpose of any one or more of the four development activities nominated in the definition and commencing with "passenger transport undertaking". The building or place being used for the parking or storage of the vehicles described in the definition need not be the same building or place in or on which the connected development is undertaken.
The further reference in the definition to the inclusion of "a bus depot" or "a road transport terminal" identified those development purposes as also comprehended by the defined activity of "transport depot". The logic of expressly including the latter two categories of development is that the definition of "bus depot" and "road transport terminal" in the Dictionary to the LEP each contain some elements that are also elements of the definition of "transport depot".
Where any of the expressions used in the definition are themselves defined in the Dictionary, those latter definitions must be considered. They necessarily bear upon the proper construction of the "transport depot" definition.
For the purpose of resolving the issue arising in the present case, it is necessary to focus upon the manner in which the definition addresses the four nominated development activities that are expressly required to be connected with the use of vehicles described in the definition and that are parked or stored in the building or, at the place being used or proposed to be used for the purpose of a "transport depot". The conjunctive interpretation for which Mrs Kovacevic contends requires that the parked or stored vehicles be used in connection with one or more of the four development purposes, with the qualification that each of those purposes must include a "passenger transport" characterisation. Expressed differently, each of the nominated forms of development must exhibit the adjectival requirement of "passenger transport".
The disjunctive interpretation identifies the need for the vehicles parked or stored in the building or the place under consideration to be used in connection with one or more of the same four development activities. No "passenger transport" qualification applies to a connected use for the purpose of "business", "industry" or "shop".
For my part, I am of the opinion that the disjunctive interpretation is correct. There are several reasons for so concluding.
In the ordinary use of language, an enterprise could be described as "a passenger transport undertaking" if its purpose is to provide the means and/or facilitate the infrastructure to transport people, as distinct from goods, by any form of conveyance appropriate so to do, whether by road, rail, sea or air. It may also be consistent with the ordinary use of language to describe the conduct of any one or more of the activities consistent with that description as "a passenger transport business". The operator of a private bus or coach service or the operator of a taxi fleet may be described as conducting a "passenger transport business". As the term "business" is not defined in the Dictionary to the LEP, it is unnecessary to add any qualification to the latter observation.
However, it is inconsistent with the ordinary use of language to speak of a "passenger transport industry" when regard is had to the definition of "industry" in the Dictionary to the LEP. The word is there defined as follows:
"industry means:
1. any manufacturing process within the meaning of the Factories, Shops and Industries Act 1962, or
2. the breaking up or dismantling of any goods or any article for trade or sale or gain or as development ancillary to carrying on any business."
Applying this definition, language becomes somewhat convoluted to require that the motor powered or motor drawn vehicles be used in connection with a passenger transport "handicraft or process in or incidental to the making, assembling, altering, repairing, renovating, preparing, ornamenting, finishing, cleaning, washing, breaking up, or adapting of any goods or any articles … for trade or sale or gain", applying the relevant definition of "manufacturing process". Even less elegant is language that the required vehicles be used in connection with passenger transport "breaking up or dismantling of goods", applying par (b) of the definition of "industry". Conversely, no convoluted or inelegant use of language is required to read the definition of "transport depot" as requiring the relevant vehicles to be connected with use for the purpose of a "manufacturing process" or use for the purpose of "breaking up and dismantling of goods".
The ordinary use of language renders the conjunctive interpretation of "transport depot" even less plausible when the qualifying purpose in connection with which the relevant vehicles are to be used is identified as a "passenger transport shop". The juxtaposition of the phrase "passenger transport" with the word "shop" is, on its face, inappropriate. Nothing otherwise in the language of the definition requires such a result.
The adjectival qualification of the generic development for which Mrs Kovacevic contends cannot be applied selectively. For the submission to be made good, the adjectival qualification must apply to each of the development purposes "business", "industry" and "shop". The circumstance that its application cannot readily be juxtaposed so as to give rational meaning to all three development activities, renders her conjunctive interpretation improbable.
Further, the conjunctive interpretation relies upon an identified genus of development purposes to which the relevant vehicle parking or storage is required to be connected. However, the contention that the genus of connected activity is "passenger transport" is gainsaid by the definition of "road transport terminal". That phrase is defined in the Dictionary to the LEP as follows:
"road transport terminal means a building or place used primarily for the bulk handling of goods for transport by road and includes related facilities for the loading and unloading of vehicles used to transport those goods and for the parking, servicing and repair of those vehicles."
That definition makes clear that it is a purpose of land use directed to the transport of goods and not passenger transport.
I have earlier recorded that in favouring the conjunctive interpretation of the "transport depot" definition, Magistrate Bone observed at [14] that "a road transport terminal may well be connected to passenger transport". It is, with respect, difficult to understand that observation having regard to the definition of "road transport terminal".
In the same paragraph in his judgment, the learned Magistrate also concluded that the inclusion of "a road transport terminal" as one of the qualifying purposes of development would have been unnecessary if the disjunctive interpretation was correct. I do not agree. It is not uncommon for definitions in a planning instrument to define one category of land use in a manner that has elements or characteristics that overlap with the elements or characteristics of another defined category of land use. In such circumstances, it is open to the drafter of the instrument to identify where one of two categories of land use, having similar characteristics or elements, will be included in another defined category of land use.
As the present definition provides, a "transport depot" is taken to include "a road transport terminal". However, the definition of the latter category of development is not expressed to include the former. The utility of this drafting device can be illustrated by reference to the land use tables found in the LEP.
In the Residential 2(b) Zone, cl 20(2) of the LEP identifies exempt development for land so zoned, while cl 20(3) identifies development that may be carried out with consent as being "any development not included in subclauses (2) or (4)". Subclause (4) lists specific purposes of development that are prohibited in that zone, almost all of those listed purposes being separately defined in the Dictionary. Transport depots are so listed but road transport terminals are not. The inclusion of road transport terminals within the definition of "transport depot" means that it is also a form of land use that is prohibited, although not identified, in terms, in the list of prohibited uses.
A further factor relevant to my determination that the disjunctive interpretation is correct arises from the use of the disjunctive "or" in the definition of "transport depot". The interposition of "or" between "industry" and "shop", as well as between "bus depot" and "road transport terminal" reinforces my opinion that the drafter intended to identify disparate development purposes to which the use of motor powered or motor drawn vehicles being parked or stored in "a building or place" were required to be connected.
Contextually, the disjunctive interpretation is consistent with the objectives expressed in the LEP for both the business and industrial zones. Reference to the land use tables in the LEP reveals that it is only on land falling within those zones that a transport depot is a permissible form of development. Nothing expressed in the objectives of any of those zones identifies the need to limit the activities of a transport depot in the manner required to give effect to the conjunctive interpretation for which Mrs Kovacevic contends.
In a sense, the definition of "transport depot" identifies a facility or kind of warehouse, intended to accommodate motor powered or motor drawn vehicles that are required or intended for use in connection with the conduct of those four development activities nominated in the definition. Where a transport depot is identified in the land use tables as permissible development, there is no basis upon which to interpret the objectives of those zones as limiting the enterprises with which the nominated vehicles may be used to those which necessarily have a passenger transport element.
Each of the matters that I have identified collectively inform my conclusion that the disjunctive interpretation of the definition of "transport depot" is correct. What is said on behalf of Mrs Kovacevic to give rise to inconvenient or absurd results does not dissuade me from maintaining that conclusion.
At par 67 of her outline of submissions, Mrs Kovacevic contends that the disjunctive interpretation has this consequence:
"… it [is] meant to include any business which had no connection with a transport depot including child care facilities, doctors' surgeries and legal practices. It makes an absolute nonsense of the heading."
Reference to "the heading" has, with respect, no meaning. There is no relevant "heading". However, the substance of the submission overlooks the law directed to the distinction between "use" and "purpose". That distinction is well exemplified in the leading judgment of Glass JA in Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 at 161. The parking of a vehicle used for the purpose of a childcare centre, a doctor's surgery or legal practice would be subsumed by those individual purposes in the sense that staff parking, visitor parking or the parking of delivery vans would be ancillary to the primary purpose of use. That primary purpose would identify the land use characterisation under the LEP.
I identified at [98]-[102] four reasons advanced on behalf of Mrs Kovacevic as to why the disjunctive interpretation was incorrect. I do not accept any of those reasons.
First, the imposition of the indefinite article before each of the four qualifying enterprises "passenger transport undertaking", "business", "industry", or "shop" for the purpose of explaining the definition adds nothing that the conjunctive explanation does not also add. Nothing turns upon the grammatically correct indefinite article "an" before the only identified development purpose commencing with a vowel, namely "industry".
Secondly, the definition does not become meaningless if "an" is notionally inserted before "industry". Although it was not made clear, the submission may be founded upon the contention that it is the "building or place" that is to be used in connection with one of the four nominated categories of development. Upon its proper interpretation, the relevant connection is between the use of the parked or stored motor powered or motor drawn vehicle and one or more of the four nominated development categories.
Mrs Kovacevic sought to support her "meaningless" submission by reference to s 21 of the Interpretation Act. It is not apparent to me how the definition of "person" in that section assists Mrs Kovacevic other than illustrating that "an" is used as the indefinite article before a noun commencing with a vowel.
Thirdly, I discern no basis upon which to conclude that the disjunctive interpretation of the definition renders it "unworkably vague". The submission asks what qualifies as "an industry"? The answer lies in the definition found in the Dictionary to the LEP.
Fourthly, the submission that the word "passenger" would have no work to do if the disjunctive interpretation is adopted does not stand scrutiny. Neither the phrase "passenger transport undertaking" nor the phrase "transport undertaking" is defined in the Dictionary. Yet, the submission of Mrs Kovacevic is that if the word "passenger" is given no work to do, the qualifying development purpose ought "fall within the definition of transport undertaking, a business or a shop". The drafter of the LEP has chosen to select a particular kind of "transport undertaking" as an undefined activity, perhaps to distinguish it from a "road transport terminal" which would be a particular form of transport undertaking but by definition would not comprehend passenger transport.
The underlying premise of the fourth submission would appear to be that each of the four qualifying development purposes are mutually exclusive. Such a premise is neither supported in principle nor by the text of the definition. As would be apparent, a number of definitions have elements that overlap. While the term "business" is not defined in the Dictionary, the ordinary meaning of that word is capable of comprehending other forms of development, including those nominated in the definition. For planning purposes, the definitions do no more than identify particular activities that may otherwise fall within a generic and undefined description.
Both parties have made reference to the decision of Bignold J in Fairfield City Council v Mangos. While Magistrate Bone briefly recited the facts in that case and the definition there being considered, he placed no reliance upon the decision because of the "significant difference between the definition of 'transport depot' in the two local environmental plans" (at [14]). Neither the significance of the differences between the definitions nor the reasoning of Bignold J were discussed by his Honour.
The expression being considered in Mangos was "transport depot". That expression was defined in the Dictionary to the Fairfield planning instrument as:
"Transport depot means a building or place used for the servicing, garaging, parking or repair of motor powered or any motor drawn vehicle used in connection with passenger or goods transport, business or industry, but does not include a building or place elsewhere defined in this plan."
Clearly, there are differences between the definition in that instrument and that found in the LEP presently being considered. However, the elements of the definition in the Fairfield instrument and, importantly, the grammar and syntax used to link those elements, closely follows that found in the definition of "transport depot" in the LEP.
Like the present case, the debate in Mangos was whether the definition of "transport depot" should be construed conjunctively or disjunctively. His Honour held that the disjunctive interpretation was correct. At [41] he said:
"Ultimately, I have concluded that the qualifying clause does not constitute a compound or composite expression and that the words 'passenger or goods' are not intended to operate adjectivally in a manner that would govern each of the words 'transport', 'business' and 'industry'. The principal reason for so concluding is that the word 'transport' cannot reasonably be regarded as being in apposition with the words 'business', and 'industry'."
At [42], his Honour added that he could discern no relevant genus created by the word "passenger or goods transport" such as would require any limitation upon the meaning to be ascribed to the words "business" and "industry", as used in the definition.
I accept that caution must always be sounded when seeking to apply a decision reached in respect of one statutory definition to the interpretation of a differently worded definition in a different statutory instrument. However, it seems to me that the definitions being compared bear sufficient similarity, such that the process of reasoning applied by Bignold J has considerable force in supporting the conclusion that I have reached as to the proper construction of the definition of "transport depot" in the LEP.
Finally, I have earlier recorded the observation by Magistrate Bone at [9] of his judgment that where a person is charged with the commission of a statutory offence and the statutory provision is reasonably capable of being interpreted two ways, one of which is favourable to the accused, the court is required to apply the interpretation that is more favourable to the accused. To the extent that Mrs Kovacevic adopted before me the submission made on her behalf in the Local Court, it may be assumed that the statement made by the Magistrate accepted her submission to that effect. However, the observation made by the learned Magistrate does, with respect, require some qualification.
First, it is to be noted that the definition upon which the case before the Magistrate turned is not, itself, a penal provision. The relevant penal provision is s 125(1) of the EPA Act about which there is no reasonably competing interpretation. The definition of "transport depot" in the LEP must be construed consistently, whatever the context may be that requires it to be construed.
Secondly, the existence of the "rule" or principle articulated by his Honour does not abrogate the requirement for the provision under consideration to be construed by application of the ordinary principles of statutory interpretation. That proposition was articulated in the High Court by Gibbs J (Stephen J agreeing) in Beckwith v The Queen [1976] HCA 55; 135 CLR 569 at 576 where his Honour said:
"The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute, the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences … The rule is perhaps one of last resort."
In construing the definition of "transport depot" in the manner that I have, I do not consider that its meaning remains "ambiguous or doubtful".
For all these reasons I reject the construction for which Mrs Kovacevic contends. This has the consequence that I do not accept the interpretation of the definition of "transport depot" adopted by Magistrate Bone. As his interpretation was the foundation for the order dismissing the prosecution in the Local Court, it was an order that cannot, in law, be sustained.
I accept that a successful defendant in the Local Court has no control over the exercise by a prosecutor of the right to appeal under s 42(2B)(b) of the Appeal Act. That circumstance is the product of the legislation and, of itself, seems to me to be neutral in considering the exercise of discretion.
While the Court is generally assisted by the presence of a contradictor where a "question of law alone" founds on appeal, nothing compels a respondent to an appeal under s 42(2B)(b) to take an active role in the hearing of that appeal. The interest of a respondent in seeking to maintain the dismissal order made by the Local Court is perfectly understandable. However, even in the absence of the respondent, an appellant prosecutor is still bound to establish that the question agitated is a "question of law alone" and that there was legal error that resulted in the making of the Local Court order "dismissing a matter the subject of the proceedings". The absence of a respondent on the hearing of an appeal could not, by default of appearance, result in an order upholding the appeal.
As to the fourth ground agitated by Mrs Kovacevic, I do not understand the gravamen of the submission that it was "oppressive and unfair" for her to defend a case "to test the law". The ground of appeal advanced by the Council, directed to the proper construction of a definition in the LEP, did not give rise to any novel or untested legal proposition. Although it may not have been simple, the interpretation exercise involved the application of conventional principles of statutory construction.
The novel issues raised in the present appeal, such that it might be described as a case brought "to test the law", were the jurisdictional issues raised by Mrs Kovacevic. Those were issues that did not arise for consideration in the Local Court. As I have earlier recorded, a number of appeals to this Court under s 42(2B)(b) and many appeals to the Supreme Court under the equivalent provision in s 56(1)(c) of the Appeal Act have been determined in which there was no challenge, either to the status of the prosecutor or to the right to bring the appeal, where the order dismissing the matter in the Local Court was characterised as an acquittal. The decision in Director of Public Prosecutions v Majok, cited by Mrs Kovacevic, exemplifies that last proposition.
Having regard to the reliance placed by Mrs Kovacevic on the decision in Majok, it is important to summarise the facts in that case. Mr Majok was charged with two traffic offences alleging that he did not keep wholly to the correct side of the road and that he did not stop at a red arrow. The commission of the alleged offences was observed by a police officer who subsequently spoke to Mr Majok when he admitted that he was the driver of the vehicle at the time of the offences. That admission was the only evidence of the identity of the driver at the time of the offences.
On the hearing of the prosecution for those offences in the Local Court, the Magistrate rejected the evidence of the police officer in which Mr Majok's driver admission was made. He did so in purported exercise of a discretion under s 90 of the Evidence Act 1995 (NSW).
On appeal under s 56(1)(c) of the Appeal Act, Rothman J held at [17] that the Magistrate was wrong to have rejected the police officer's evidence, with the consequence that an error of law had caused the dismissal of the proceedings. His Honour then had to consider the order that he should make for disposal of the appeal. He observed that the appeal concerned a traffic offence said to have been committed in circumstances "where there is no suggestion that any action of Mr Majok was a threat to the safety of the public".
The statement upon which Mrs Kovacevic relies is at [18] where his Honour said:
"This is an appeal against an acquittal. As such, it raises special issues relating to double jeopardy and the like. Those issues affect the kind of orders that ought to be made. In the circumstances, I do not consider it appropriate to force the defendant through another proceeding and I will not remit the matter or issue any order in the nature of mandamus. The issue of principle has been determined, and the matter should now cease."
It was in the preceding paragraph of the judgment in which his Honour recorded that the matters before him were traffic offences and that Mr Majok's actions in committing the offences did not constitute a threat to the safety of the public. It must be assumed that they are the matters that informed his Honour's exercise of discretion not to remit the matter for further hearing.
The orders made in Majok were to set aside the order made in the Local Court dismissing the proceedings; require Mr Majok to pay the appellant's costs of the appeal summons; grant him an indemnity under s 6 of the Suitors' Fund Act 1951 (NSW) and otherwise dismiss the proceedings.
The Council submits that not only should I uphold the appeal but that I should also find Mrs Kovacevic guilty of the offence as charged and then remit the matter to the Local Court for a hearing on sentence. My power so to do is said to be founded both in fact and in law. The relevant fact is said to arise from a concession made by the solicitor acting for Mrs Kovacevic in the Local Court where he is recorded as saying (Tpt 5:6-12):
"MARJASON: Just before you do, your Honour. A lot of the information there is not going to be contested. This is really an argument only over whether or not it's a transport depot. My friend's saying it is, we're saying it's not. So that's really the only question which has to be considered. If your Honour finds it is a transport depot, obviously my client's guilty; if you find that it's not the penalty notice was incorrectly issued and she's entitled to be acquitted. That's the only issue you have to determine."
The legal basis upon which it is submitted that I have the power to make the orders sought is s 48(3) of the Appeal Act. The subsection permits the Court to determine an appeal against an order referred to in s 42(2B) by setting aside that order and "making such other order as it thinks just". For reasons that will become apparent, I do not need finally to determine the scope of that power. However, I would not have thought that the provisions of s 48(3)(a) extended to the entry of a conviction when the Local Court from which the appeal is brought had not, itself, considered that question. At best, the subsection may provide a source of power to find an offence proved if otherwise uncontroversial facts were before the Court and accepted by the parties to the appeal as having that consequence. Even then, the power is not beyond doubt when regard is had to the observations of the Court of Appeal in Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; 71 NSWLR 230 insofar as that decision reflected the limited power of a court on appeal to make factual findings when the right to appeal is limited to a question of law (see also Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 at [32]).
The culmination of the Magistrate's fact finding exercise is expressed at [15] of his judgment where he found that Mrs Kovacevic "does not operate a passenger transport business". However, it is now necessary that facts be found to determine whether the manner in which Mrs Kovacevic does use the Premises engages the provisions of the "transport depot" definition. The recitation of fact and finding of the Magistrate in his judgment does not directly address what are now relevant factual questions. While there was a finding that Mrs Kovacevic did not operate a passenger transport business, that finding cannot be taken as a finding that she operates a business at the Premises.
In short, before the offence can be found to have been proved, on the interpretation of "transport depot" that I have determined, factual findings are necessary to determine that -
1. a purpose for which the Premises ("the building or place") are used is for the parking or storage of vehicles meeting the description in the definition, and
2. that the activity or activities in connection with which those vehicles are or are to be used is or are, as a matter of fact, any one or more of the development purpose of "passenger transport undertaking", "business", "industry" or "shop" or that they meet the LEP definition of "bus depot" or "road transport terminal".
In the present case it is not open to me to make those findings of fact.
Whether I should accede to the submission of Mrs Kovacevic by adopting the course taken in Majok requires further consideration in the context of the discretion available to this Court under s 48(3)(a) and the equivalent provision directed to appeals to the Supreme Court under s 59(2)(a). In Majok, Rothman J accepted, without discussion, the availability of the discretion to dismiss an appeal even though the error of law found by his Honour was one that was fundamental to the dismissal of the proceedings in the Local Court (at [17]). No reference to authority on that issue appears in his Honour's judgment.
In Director of Public Prosecutions (NSW) v Wunderwald [2004] NSWSC 182, Sully J determined an appeal on a question of law from the Local Court under s 56 of the Appeal Act. He found that the error was material to the decision in the Local Court to dismiss the prosecution against the defendant. The submission was made before his Honour that notwithstanding the finding of error, there remained an overriding discretion to refuse relief on appeal because of what was referred to as "double jeopardy". At [36]-[37] his Honour said:
"36 As to all of those considerations, I would say this: I am not persuaded that the words 'may determine' which appear in section 59(2) of the Appeal and Review Act do confer an overriding discretion of the kind to which the submissions of learned counsel for the first defendant refer. It is, however, unnecessary to determine finally that point, because even if I were persuaded that the statutory expression carried with it such an overriding discretion, I would not think it right to exercise such a discretion adversely to the plaintiff in the present proceedings.
37 If it be correct to suppose that a Local Court magistrate has made an order vitiated by fundamental error of law; and more so, if one of those fundamental errors of law is a failure to accord procedural fairness to the prosecution; then I cannot suppose it to be correct, either in principle or in practice, to refuse to intervene in order to correct such a state of affairs. To do so would be, in my view, not to give effect to the statute, but to deprive it of the effect which, as it seems to me, the Legislature clearly intended that it should have."
The observations of his Honour in Wunderwald, were cited with apparent approval by Brereton J in Maritime Authority (NSW) v Rofe [2012] NSWSC 5; 84 NSWLR 51 at [105]. In the latter case, Brereton J continued by observing that an order allowing an appeal would not necessarily be made just because legal error was established. As his Honour observed at [108], if it appeared that the error by the magistrate was irrelevant to or did not affect the ultimate decision, the order of the Local Court dismissing the proceedings would not be set aside. His Honour also determined that another circumstance in which the Local Court order dismissing a prosecution would not be set aside on appeal, even if material error was found, was where that error was established on a ground raised for the first time on appeal, being a ground that could have been, but was not, raised at the hearing before the Local Court. Obviously, the error identified in the present appeal is not one falling within the latter category.
I favour the view that where, as here, material legal error affecting the dismissal order has been found, the Court should be slow to deny the prosecution some form of remedial order within the bounds established by s 48(3) of the Appeal Act. I take the decision by Rothman J in Majok, declining a remitter to the Local Court, to be founded upon the nature of the offences being considered and the fact that no harm or danger was occasioned by them. The only possible analogy in the circumstances of the present case is that the Council initially considered it appropriate to proceed against Mrs Kovacevic by issuing a penalty infringement notice to her.
However, unlike the position in Majok, the circumstances giving rise to the offence with which Mrs Kovacevic is charged are, or at least were at the time of the alleged offence, ongoing. It is apparent from the facts stated in the judgment under appeal that Mrs Kovacevic claimed a legal entitlement to continue the course of conduct that gave rise to the prosecution against her. Whether her claim in that regard is legally correct does not call for determination in the present appeal. Nonetheless, it is in the interests of both Mrs Kovacevic and the Council, presumably acting in the public interest, to have determined whether that conduct does constitute an offence against s 125(1) of the EPA Act and, if so, what penalty, if any, should be imposed.
I therefore propose to make an order remitting the matter for determination by the Local Court.
Subsequently, the DPP sought to challenge the power of the District Court to have made the costs order. Initially, the judge of the District Court who had made the order was asked to vacate it on the ground that it was made beyond power. That application was rejected.
Subsequently, the DPP appealed to the Court of Criminal Appeal. That court determined that it had no jurisdiction to hear the challenge to the costs order.
The DPP then sought prerogative relief against the District Court in the Supreme Court. It was successful in so doing. Having determined that an order should be made quashing the costs decision made in the District Court, the question arose as to the appropriate order to be made for the costs of the proceedings in the Court of Appeal.
That question was addressed by Kirby P (Mahoney and Handley JJA agreeing). His Honour noted what he described as the "tortuous course" which the proceedings seeking to challenge the costs order had taken, being the course that I have briefly described. Having acknowledged (at 535) that costs were in the discretion of the Court, his Honour observed that Ms Deeks had been "put to considerable inconvenience", essentially because the DPP was responsible for the inappropriate steps taken to challenge the order made in the District Court. While the question raised by the DPP was seen to be important to the administration of the Confiscation of Proceeds of Crime Act, it was essentially "the tortuous course" taken by the DPP to have the decision reviewed that resulted in an order requiring the DPP to pay Ms Deeks' costs of the proceedings before the Court of Appeal (at 535D - 536A).
The circumstances there considered to justify the order in favour of the unsuccessful respondent are very different from the circumstances of the present litigation. There is no conduct on the part of the Council in the present case that imposed an unnecessary costs burden upon Mrs Kovacevic. As I have said, the complexity of the appeal arose primarily from the issues raised by her. Moreover, the manner in which the learned Magistrate determined the question of law that founded the Council's appeal was the determination advocated by her. This is not a case where the legal error was one made on a basis that was not advocated by either party.
Having regard to the circumstances that I have identified, in the exercise of the discretion available under s 49(4) of the Appeal Act, I propose to order that Mrs Kovacevic pay the Council's costs of this appeal. It is to be regretted that, unlike the position that pertains in respect of a comparable appeal made to the Supreme Court, s 6 of the Suitors' Fund Act does not empower this Court to grant an indemnity certificate in respect of the present appeal. This would seem to be the consequence of legislative oversight when framing that section (cp s 6(1AA)).