Rodney Morrison v Joy Manufacturing Co Pty Ltd - [2004] NSWIRComm 107 - NSWIRComm 2004 case summary — Zoe

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Rodney Morrison v Joy Manufacturing Co Pty Ltd

[2004] NSWIRComm 107

Industrial Relations Commission (NSW)|2004-07-01|Before: Wright J, Walton J, Boland J

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2004-07-01

Before

Wright J, Walton J, Boland J

Source

Original judgment source is linked above.

Judgment (84 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Rodney Morrison v Joy Manufacturing Co Pty Ltd [2004] NSWIRComm 107 APPELLANT Rodney Morrison PARTIES : RESPONDENT Joy Manufacturing Co Pty Ltd FILE NUMBER: IRC 316 of 2003 CORAM: Wright J President; Walton J Vice-President; Boland J CATCHWORDS : Appeal - Occupational health and safety - Decision at first instance permanently staying proceedings in prosecution under Occupational Health and Safety Act 1983 - Notice of motion that appeal be dismissed as incompetent - Whether s5F of Criminal Appeal Act 1912 gives right of appeal to prosecutor against an interlocutory judgment or order made by a judicial member of the Commission in Court Session in the Court's summary jurisdiction - Meaning of "indictment" and "information" in Criminal Appeal Act - Distinction between regular criminal jurisdiction and summary jurisdiction - Whether s5C of Criminal Appeal Act gives right of appeal to prosecutor against interlocutory order staying proceedings - "Quashed" - Whether an order permanently staying proceedings is an interlocutory order - Held that Commission in Court Session does not have jurisdiction under the combined operation of s 196 of the Industrial Relations Act 1996 and s5F of Criminal Appeal Act to hear and determine an appeal against an interlocutory judgment or order - Held further that an order permanently staying proceedings is not appealable under the combined operation of s 196 of the Industrial Relations Act and s5C of the Criminal Appeal Act Consumer Protection Act 1969 (repealed) Costs in Criminal Cases Act 1967 s2(a) Courts Legislation Further Amendment Act 1998 Crimes Act 1900 s4 Crimes (Local Courts Appeal and Review) Act 2001 Criminal Appeal (Amendment) Act 1986 Criminal Appeal Act 1912 s2 s5 s5AA s5AB s5AC s5AE s5C s5F s10 Criminal Procedure Act 1986 Industrial Relations Act 1996 s 168 s 196 LEGISLATION CITED : Justices Act 1902 (repealed) Justices Legislation Repeal and Amendment Act 2001 Land and Environment Court Act 1979 s21 Land and Environment Court Rules 1980 Part 6 Occupational Health and Safety Act 1983 s 18(2) (a) Pesticides Act 1978 s59 Protection of the Environment Operations Act 1997 s214 Supreme Court (Summary Jurisdiction) Act 1967 s4(1) Supreme Court Act 1970 s17(1) s76 Third Schedule Fourth Schedule Supreme Court Rules 1970 Part 75 Adler v District Court (NSW) (1990) 19 NSWLR 317 Austeck Pty Limited v Charalambos Atsalos [2003] NSWIRComm 290 Bienstein v Bienstein (2003) 195 ALR 225 Coal & Allied Operations Pty Limited v AIRC (2000) 203 CLR 194 Coldham, Ex parte Brideson Re (No.2) (1990) 170 CLR 267 Concrete Constructions Group Limited v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 99 IR 16 Cooke v Purcell (1988) 14 NSWLR 51 EPA v Land and Environment Court of NSW [2004] NSWCA 50 Fraser v The Queen (No 2) (1985) 1 NSWLR 680 John L Pty Limited v Attorney-General for the State of New South Wales (1987) 163 CLR 508 Luck Re: (2003) 203 ALR 1 McMillan Britton and Kell Pty Limited v WorkCover Authority of New South Wales (Inspector Blake) (1999) 89 IR 464 CASES CITED : Mitchforce v Industrial Relations Commission (2003) 57 NSWLR 212, 124 IR 79 Murphy v Farmer (1987) 87 FLR 149 72 ALR 691 (NSWCA) Murphy v Farmer (1988) 165 CLR 19 R v Cheng (1999) 48 NSWLR 616 R v Hull (1989) 16 NSWLR 385 R v King [2003] NSWCCA 399 R v Powch (1988) 14 NSWLR 136 R v Vincent [2002] NSWCCA 110 Registrar of Titles (WA) v Franzon (1975) 50 ALJR 4 Ridge Consolidated Pty Limited v WorkCover Authority of NSW (Inspector Mauger) (2000) 100 IR 156 Rodney Morrison v Joy Manufacturing Co Pty Ltd [2002] NSWIRComm 366 Taylor v Environment Protection Authority (2000) 50 NSWLR 48 WorkCover (Inspector Keenan) v Lucon (Australia) Pty Ltd (2002) 112 IR 332 WorkCover Authority of New South Wales (Inspector Mansell) v TMG International Pty Ltd (2002) 116 IR 128 HEARING DATES: 07/28/2003 DATE OF JUDGMENT: 04/28/2004

[20]

13 The relevant provisions in the Summary Jurisdiction Act are: Orders for appearance or apprehension of defendants 4(1) Upon an application being made by any person (in this Act referred to as the "prosecutor") in accordance with the rules, a Judge shall make an order: (a) ordering any person alleged in the application to have committed an offence punishable in the Court in its summary jurisdiction to appear at a time and place specified in the order to answer to the offence charged in the order; or (b) ordering the apprehension of any such person for the purpose of the person's being brought before a Judge to answer to the offence charged in the order. (2) An order under subsection (1) may be made ex parte. (3) An order in respect of an offence alleged to have been committed by a person may be made under paragraph (b) of subsection (1) whether or not an order in respect of that offence has been made under paragraph (a) of that subsection. (4) An order under paragraph (b) of subsection (1): (a) shall be addressed to all members of the police force; (b) may be addressed to any other person specified in the order; and (c) may be executed by any member of the police force or by any person to whom it is addressed at any place at which, had the offence specified in the order been committed at that place, that offence would be triable in the Court. 14 Section 196 of the Industrial Relations Act lays down the procedure on appeal to the Full Bench in criminal proceedings in the following terms: 196 Appeals from and references by members of Commission in criminal proceedings (1) This section applies (and the other provisions of this Part do not apply) to appeals and references to the Full Bench of the Commission in Court Session in respect of criminal proceedings taken before a judicial member of the Commission. (2) The Criminal Appeal Act 1912 applies to any such appeal or reference in the same way as it applies to an appeal or reference to the Court of Criminal Appeal in respect of criminal proceedings taken before a Judge of the Supreme Court in its summary jurisdiction. (3) For the purposes of subsection (2), a reference (however expressed) in the Criminal Appeal Act 1912 : (a) to the Court of Criminal Appeal - is taken to be a reference to a Full Bench of the Commission in Court Session, and (b) to the Supreme Court - is taken to be a reference to the Commission in Court Session, and (c) to rules - is taken to be a reference to rules of the Commission, and (d) to the Attorney General - is taken to include a reference to the Minister, and (e) to the Director of Public Prosecutions - is taken to include a reference to the prosecutor in the proceedings before the Commission in Court Session, and (f) to the registrar - is taken to be a reference to the Industrial Registrar. (4) Subsection (2) does not apply to any provision of the Criminal Appeal Act 1912 relating to costs.

[22]

16 The other relevant sections of the Criminal Appeal Act are in Part 3 of the Act: 5AA Appeal in criminal cases dealt with by Supreme Court in its summary jurisdiction (1) A person: (a) convicted of an offence, or (b) against whom an order to pay any costs is made, by the Supreme Court in its summary jurisdiction may appeal under this Act to the Court of Criminal Appeal against the conviction (including any sentence imposed) or order. (2) For the purpose of this Act, a person acquitted on the ground of mental illness, where mental illness was not set up as a defence by the person, shall be deemed to be a person convicted, and any order to keep the person in custody shall be deemed to be a sentence. (3), (3A) (Repealed) (4) The Court of Criminal Appeal, in proceedings before it on an appeal under this section, may confirm the determination made by the Supreme Court in its summary jurisdiction or may order that the determination made by the Supreme Court in its summary jurisdiction be vacated and make any determination that the Supreme Court in its summary jurisdiction could have made on the evidence heard on appeal. (5) Section 7 (4) applies to an appellant on an appeal under subsection (1) in the same way as it applies to an appellant on an appeal under section 5 (1). (6) Provisions shall be made by rules of court for detaining an appellant on an appeal under subsection (1) who has been sentenced to imprisonment until the appeal has been determined, or for ordering the appellant into any former custody. 5AB Appeal in criminal cases dealt with by Land and Environment Court in its summary jurisdiction Section 5AA applies to and in respect of a person: (a) convicted of an offence, or (b) against whom an order to pay costs is made, or whose application for an order for costs is dismissed, or (c) in whose favour an order for costs is made, by the Land and Environment Court in its summary jurisdiction in the same way as it applies to a person referred to in section 5AA (1), and, for the purposes of this section, a reference in section 5AA to the Supreme Court shall be read and construed as a reference to the Land and Environment Court. 5AC Appeal in criminal cases dealt with by Court of Coal Mines Regulation in its summary jurisdiction Section 5AA applies to and in respect of a person: (a) convicted of an offence, or (b) against whom an order to pay costs is made, or whose application for an order for costs is dismissed, or (c) in whose favour an order for costs is made, by a Court of Coal Mines Regulation in its summary jurisdiction in the same way as it applies to a person referred to in section 5AA (1), and, for the purposes of this section, a reference in section 5AA to the Supreme Court shall be read and construed as a reference to a Court of Coal Mines Regulation. … 5AE Point of law stated during summary proceedings (1) At any time before the completion of proceedings before the Supreme Court in its summary jurisdiction, the Land and Environment Court in its summary jurisdiction or a Court of Coal Mines Regulation in its summary jurisdiction, the judge hearing the proceedings may, or if requested by the Crown must, submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination. (2) The Court of Criminal Appeal may make any such order or give any such direction to the court concerned as it thinks fit. … 5C Appeal against quashing of an indictment Where the Supreme Court or the District Court has quashed any information or indictment or any count thereof or the Supreme Court in its summary jurisdiction, in any proceedings to which the Crown was a party, has quashed any application made under section 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 or any charge specified in such an application, or the Land and Environment Court in its summary jurisdiction, in any proceedings to which the Crown was a party, has quashed any application made under section 41 (1) of the Land and Environment Court Act 1979 or any charge specified in such an application, or a Court of Coal Mines Regulation in its summary jurisdiction, in any proceedings to which the Crown was a party, has quashed any application made under section 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967, as applied by section 152 (3) of the Coal Mines Regulation Act 1982 , or any charge specified in such an application, the Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against the order made, and such court may thereupon determine the appeal and if the appeal is sustained may make such order for the prosecution of the trial as may be necessary. ... 5F Appeal against interlocutory judgment or order (1) This section applies to: (a) proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court, and (b) proceedings under section 51A of the Justices Act 1902 , and (c) proceedings in Class 5 of the Land and Environment Court's jurisdiction (as referred to in section 21 of the Land and Environment Court Act 1979 ). (2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies. (3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings: (a) if the Court of Criminal Appeal gives leave to appeal, or (b) if the judge, justice, justices or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal. (4) An appeal under this section shall, unless the Court of Criminal Appeal gives leave to adduce fresh, additional or substituted evidence, be determined on the evidence (if any) given in the proceedings to which the appeal relates. (5) The Court of Criminal Appeal may: (a) affirm or vacate the judgment or order appealed against, or (b) give or make an interlocutory judgment or order instead of the judgment or order appealed against. (6) If leave to appeal under this section is refused by the Court of Criminal Appeal, the refusal does not preclude any other appeal following a conviction on the matter to which the refused application for leave to appeal related. (7) A person may not appeal to the Court of Criminal Appeal under this section against an interlocutory judgment or order if the person has instituted an appeal against the interlocutory judgment or order to the Supreme Court under Part 5 of the Justices Act 1902 .

[27]

21 Mr Rushton submitted that the legislature in New South Wales has always maintained a distinction between the Supreme Court's "regular" criminal jurisdiction and the Court's summary jurisdiction and this is evidenced in the Supreme Court Act 1970, Supreme Court Rules 1970 and the Criminal Appeal Act. Mr Rushton's submissions regarding the distinction that exists between the Supreme Court's regular criminal jurisdiction and the Court's summary jurisdiction were as follows: (a) Section 17(1) of the Supreme Court Act provides that: (1) Except as provided in this section this Act and the rules do not apply to any of the proceedings in the Court which are specified in the Third Schedule, and no claim for relief lies to the Court against an interlocutory judgment or order given or made in proceedings referred to in paragraph (a1) or (a2) of that Schedule. (The reference to "the Court" in s 17 is a reference to the Court of Appeal). (b) The Third Schedule of the Supreme Court Act concerns criminal proceedings and provides: (a) Proceedings in the Court for the prosecution of offenders on indictment ( indictment including any information presented or filed as provided by law for the prosecution of offenders) including the sentencing or otherwise dealing with persons convicted, (a1) proceedings (including committal proceedings) for the prosecution of offenders on indictment ( indictment including any information presented or filed as provided by law for the prosecution of offenders) in the Court or in the District Court, (c) The Act's Fourth Schedule refers to the provisions of the Courts Legislation Further Amendment Act 1998, which abolished certain divisions of the Supreme Court. Up to 1998 there was a Criminal Division but by virtue of the Courts Legislation Further Amendment Act this Division was abolished and its proceedings were assigned to the Common Law Division. That is, up to 1998 the Criminal Division dealt with proceedings for the prosecution of offenders on indictment, but after that date they were assigned to the Common Law Division. (d) Part 75 of the Supreme Court Rules concerns criminal proceedings. Division 1 - General, Rule 1 provides: Subject to section 17 of the Act and except as provided in this Part, the rules do not apply to any of the proceedings in the Court which are specified in the Third Schedule to the Act. (e) Part 75 r 2(1) provides: 1) The following rules apply, so far as applicable, to proceedings which are specified in the Third Schedule (except clause (d) of the Schedule, which clause relates to proceedings in the Court under the Criminal Appeal Act 1912 ) to the Act and to proceedings to which Division 2 applies: [the rules are then set out]. (f) Part 75 Division 2 of the Rules concerns the Court's summary jurisdiction. Rule 4 provides: This Division applies to proceedings in the Court under the Part 5 of Chapter 4 of the Criminal Procedure Act 1986 (in this Division called the subject Act ). (g) Rule 5A (which was inserted in 1984) provides: Proceedings to which this Division applies are assigned to the Common Law Division.

[34]

27 The respondent also referred to the legislative history of ss 5C and 5F. This may be summarised as follows: (a) The enactment of Criminal Appeal (Crimes) Amendment Act 1979 was intended to divest the Court of Appeal of jurisdiction in criminal matters heard by the Supreme Court in its summary jurisdiction. The Act did this by vesting such jurisdiction in the Court of Criminal Appeal. The specific amendments that achieved this object were: (i) the introduction of s 5AA of the Criminal Appeal Act which gave to a person convicted by the Supreme Court in its summary jurisdiction a right of appeal against conviction and sentence; (ii) an amendment to s 5C of the Criminal Appeal Act whereby it took away the right of a defendant to request that a case be stated but gave to the Crown a right of appeal where the Supreme Court in its summary jurisdiction had quashed an application made under the Supreme Court (Summary Jurisdiction) Act or any charge specified in such an application. (b) Thus it was submitted, in 1979 two objects were achieved, namely: (i) the defendant's rights of appeal in summary matters were transferred from the Court of Appeal to the Court of Criminal Appeal (s 5AA); (ii) the Crown was given a right to appeal any "quashing" of an application made under s 4 (1) of the Supreme Court (Summary Jurisdiction) Act or any charge specified in such an application. (c) By the Criminal Appeal (Amendment) Act 1986 the right of appeal vested in the Crown was extended to a case where an indictment was "stayed" as distinct from "quashed" . This amendment was also designed to divest the Court of Appeal of jurisdiction. In other words, where a defendant had obtained a stay, the Crown's only recourse was to appeal to the Court of Appeal rather than the Court of Criminal Appeal. The words "or stayed" were inserted into s 5C following the word "quashed" where first occurring. This had the result that as a consequence of the Criminal Appeal (Amendment) Act , the opening words of s 5C read as follows: Where the Supreme Court or the District Court has quashed or stayed any information, or indictment or any count thereof or the Supreme Court in its summary jurisdiction in any proceedings to which the Crown was a party has quashed any application made under s. 4 (1) of the Supreme Court (Summary Jurisdiction) Act or any charge specified in such an application ... (d) Whereas Parliament gave to the Attorney-General or the Director of Public Prosecutions a right to appeal where an information had been "quashed" or "stayed" in the "regular" criminal jurisdiction of the Supreme Court or the District Court, such an appeal only lay to the Court of Criminal Appeal in the case of proceedings in the Supreme Court in its summary jurisdiction where the application or any charge specified in such application had been "quashed" . (e) Accordingly, there was, as at 1986, no right vested in the Crown or the Attorney-General or the Director of Public Prosecutions to challenge a "stay" granted by a Judge exercising the summary jurisdiction of the Supreme Court. Clearly, Parliament had the opportunity when amending s 5C by the Criminal Appeal (Amendment) Act 1986 to further amend the section to permit appeals from "a stay" of proceedings in the summary jurisdiction of the Supreme Court to be taken on appeal to the Court of Criminal Appeal. It did not do so then and it has not done so since. (f) Indeed, the addition of the words "or stayed" after the word "quashed" where first appearing in s 5C did not completely divest the Court of Appeal of jurisdiction. The right of an accused person when an application for a stay had been refused was, and remained, one of appeal to the Court of Appeal (see R. v Powch (1988) 14 NSWLR 136 at 138). Consequently, to solve this problem Parliament enacted the Criminal Appeal (Amendment) Act 1987 . The words "or stayed", which twelve months earlier had been inserted in to s 5C, were omitted therefrom. At the same time s 5F was enacted. (g) Section 5F was not inserted to give the Court of Criminal Appeal jurisdiction over proceedings which had been "stayed" in the summary jurisdiction of the Supreme Court but rather was inserted to overcome a continuing anomaly, namely, that where a Judge of the Supreme Court or District Court in proceedings on indictment had refused to quash an indictment, the defendant could still appeal to the Court of Appeal (see Adler v District Court (NSW) (1990) 19 NSWLR 317).

[39]

32 Whilst the appellant sought to address the various contentions put forward by the respondent, the main strands of its argument were: (a) Section 5F of the Criminal Appeal Act has on at least three occasions since July 2000 been found by a Full Bench of the Commission in Court Session to be applicable in relation to the summary jurisdiction of the Court; (b) Notwithstanding that there is now specific reference to appeals to the Court of Criminal Appeal from the Land and Environment Court in s 5F(1), no specific reference is required in relation to the internal appellate system of the Industrial Relations Commission. Section 196 of the Industrial Relations Act calls for the adapted provisions of the Criminal Appeal Act to be construed in the context of the jurisdiction of the Industrial Relations Commission. Section 196(3)(a) of the Industrial Relations Act requires that a reference in the Criminal Appeal Act to the Court of Criminal Appeal is taken to be a reference to a Full Bench of the Commission in Court Session. It is thus the words of the Criminal Appeal Act that are to be read as incorporating references to a Full Bench of the Commission in Court Session, not their construction in other contexts; similarly, with the other paragraphs of s 196(3). Their construction is to be determined by their own context. The reference in s 196(2) to "applies…in the same way" is to be read in this way, subject to s 196(3). (c) In the context of the s 196 adaptation, the definition of "indictment" in s 2 of the Criminal Appeal Act is not to be construed more narrowly than s 2 itself provides. This is reinforced by the general substitution by paragraphs (d) and (e) of s 196(3) of references to the Attorney General and the Director of Public Prosecutions in the Criminal Appeal Act with references to the Minister and the prosecutor respectively. This substitution is clearly intended to apply to both s 5C and s 5F, giving effect to the policy also reflected by s 5F(1)(c). On the construction urged by the respondent, the substitution of the references in paragraphs (d) and (e) of s 196(3) could not be given the general application that is clearly intended. (d) In order to understand the appeal scheme under s 196, the time sequence of the amendments must be examined. It must be recognised that the Industrial Relations Act scheme was grafted onto the Criminal Appeal Act . Section 196 of the Industrial Relations Act was enacted in 1996, well after s 5F, which was inserted in 1987 to address specific statutory considerations and appeal rights in respect of them. In examining the legislature's intention in 1996, it would be beyond understanding that the legislature intended that an accused person would have a right of appeal but none effectively to a prosecutor. It would not make sense to approach the scheme as proposed by the respondent as the meaning given would not result in the scheme working in a sensible and practical fashion.

[53]

43 The appellant in John L argued that the first limb of s 5C did not apply at all in respect of an information instituting proceedings in the summary jurisdiction of the Supreme Court since the second limb of the section, which expressly dealt with appeals from a decision of the Supreme Court in its summary jurisdiction quashing an application under s 4(1) of the Summary Jurisdiction Act, should be construed as exhaustively defining the right of appeal in any case with the consequence that there was no right of appeal lies unless the Crown was "a party" to the proceedings at first instance. In support of its argument, the appellant relied on the legislative history of s 5C, which showed that the second limb of the section, which was added in 1979, transferred the jurisdiction to hear appeals from the Supreme Court in its summary jurisdiction from the Court of Appeal to the Court of Criminal Appeal. The majority of the High Court (Mason CJ, Deane and Dawson JJ) said that there might be considerable force in the appellant's argument if the ordinary procedure for making an application under the Summary Jurisdiction Act was by way of information. However, as otherwise observed in the judgment, the procedure for making such an application was by way of summons and the application in the present matter was made not under either procedure but pursuant to the apparent legislative intent that proceedings under the Consumer Protection Act 1969 should be made pursuant to its particular provisions which required that an information should be filed. The majority, in concluding that the first limb of s 5C conferred a right to appeal, did so on the following basis: In terms, the first limb of s.5C confers a right of appeal to the Court of Criminal Appeal from a decision quashing an information, regardless of whether the proceedings upon the information, if it had not been quashed, would have been heard by a judge and jury or summarily by a judge alone. We can find no warrant, in either the legislative history of s.5C or the words of the second limb of that section, for constricting the plain general words of the first limb in the manner for which the appellant contends. Indeed, as has been seen, the words of the first limb are more appropriate to refer to a decision quashing an information as defective than are the words of the second limb. It follows that an appeal lay to the Court of Criminal Appeal under the first limb of s.5C from the decision of Yeldham J. that the information in the present case was invalid by reason of its failure adequately to identify the alleged offence.

[54]

44 Their Honours noted that it was, therefore, strictly speaking, unnecessary to examine the question whether an appeal was also available pursuant to the second limb of s 5C but, having formed a clear view on the section and since this was the primary basis upon which special leave to appeal had been granted, a brief indication was provided of their Honours' view on the issue. It was concluded that an appeal did not lie to the Court of Criminal Appeal pursuant the second limb of the section because the proceedings before the Supreme Court were not proceedings to which the "Crown" was a "party". This conclusion resulted from an analysis of the role of the informant as an officer of the relevant New South Wales Government Department, and an examination of the nature of his authority to prosecute. Their Honours concluded: The requirement of the second limb of s.5C is not however that the proceedings be "public" or that they be brought on behalf of "the State" or by "the State" as a party or that they can be equated with "Crown proceedings". It is that "the Crown", which is a limited aspect of "the State" in the broad sense, be itself "a party". In the context of a provision conferring rights of appeal against a decision quashing an information or an indictment, there is no reason to give the reference to "the Crown" being "a party" a wider meaning than that which the words are, as a matter of ordinary language, apposite to convey. The proceedings were not brought in the name of the Crown or by the Attorney-General or even by an officer such as the Director of Public Prosecutions in the exercise of a statutory entitlement to prosecute criminal proceedings on behalf of or in the name of the Crown. They were brought by Mr. Clayton as "a person" (s.56(1)) and could be maintained by him, in that capacity, regardless of whether he remained in the employment of the Department of Consumer Affairs (contrast, e.g., proceedings to which "the Minister" (s.56B) or "the Commissioner with the consent of the Minister" (s.56A(1)) is a party). They were not proceedings to which the Crown was a party in any accepted meaning of the words "Crown" and "party".

[67]

(c) (i) Reference is made in s 5F(1)(c) to appeals from proceedings "in Class 5 of the Land and Environment Court's jurisdiction (as referred to in section 21 of the Land and Environment Court Act 1979 )." Section 21 of the Land and Environment Court Act 1979 provides that: The Court has jurisdiction (referred to in this Act as "Class 5" of its jurisdiction) to hear and dispose of in a summary manner: [the section then lists a number of proceedings including in s 21(a) proceedings under Parts 8.2 and 8.3 of the Protection of the Environment Operations Act 1997 ]. (ii) Section 214 of the Protection of the Environment Operations Act in Part 8.2 of that Act provides: (1) Proceedings for an offence arising under Part 5.2 may be dealt with: (a) summarily before the Land and Environment Court in its summary jurisdiction, or (b) on indictment before the Supreme Court. (2) If any such proceedings are brought in the Land and Environment Court, the maximum period of imprisonment that the Court may impose for the offence is 2 years, despite any other provision of this Act. (iii) Part 5.2 of the Protection of the Environment Operations Act refers to "tier 1" offences which are the more serious offences. As s 214 makes clear , these offences may be dealt with summarily by the Land and Environment Court or on indictment by the Supreme Court. Therefore, it became necessary for the legislature to include s 5F(1)(c) in the Criminal Appeal Act to address the fact that an offence that could be dealt with on indictment in the Supreme Court could also be dealt with summarily in the Land and Environment Court. That the legislature chose to include s 5F(1)(c) in the Criminal Appeal Act reinforces the distinction between proceedings by way of indictment on the one hand and summary proceedings on the other. (d) Counsel were not able to identify any instances of an appeal under s 5F from the Supreme Court's summary jurisdiction. We note, however, there have been a number of instances of stated cases to the Court of Appeal from the Land and Environment Court pursuant to s 5AE of the Criminal Appeal Act and its predecessor provision s 5A(1A).