Review order - Magistrates Court Act 2004 s 36 - Jurisdiction - Validity of prosecution notices - Defects - Correction of defects in prosecution notices - Discretion to grant review order

Criminal Procedure Act 2004 (WA)

Magistrates Court Act 2004 (WA)

Planning and Development Act 2005 (WA)

First Respondent : State Solicitor for Western Australia

1 EM HEENAN J: By an originating motion filed 22 April 2013 the applicants, Mr and Mrs Spagnolo, seek a review order under s 36 of the Magistrates Court Act 2004 (WA). The effect of the relief sought, if granted, would be to set aside a decision of his Honour, Magistrate Flynn in the Magistrates Court of Western Australia on 8 November 2012. The relief seeks, instead, an order dismissing or staying two charges against the applicants alleging offences of continuing or carrying out a development on a property within the City of Gosnells by causing landfill to be placed upon that property without authority and thereby contrary to the City of Gosnells' Town Planning Scheme and s 218(b) of the Planning and Development Act 2005 (WA).

2 Essentially, the applicants contend that the prosecution notices charging them with the alleged offences were defective in several respects and thereby invalid, with the result that the Magistrates Court had no jurisdiction to entertain or to determine the charges. When they made application to the Magistrates Court on these grounds to have the charges stayed or dismissed, the learned Magistrate accepted that the charges were defective but decided that the defects could be remedied in accordance with s 178 of the Criminal Procedure Act 2004 (WA) (CPA), permitted them to be corrected accordingly, and so ordered that the prosecutions should continue.

3 Although the two prosecution notices have now been 'corrected' in accordance with s 178 of the CPA neither has yet been determined because of challenges to the learned Magistrate's decision. Initially, the applicants sought leave to appeal from the decision of his Honour permitting the 'correction' of the prosecution notices but that appeal was eventually abandoned after it was realised that no appeal from such a preliminary/interlocutory decision would lie. Once the appeal was abandoned, this application for review was instituted. In the meantime, the original prosecutions have been adjourned, pending resolution of the issues raised.

4 In these proceedings the learned Magistrate who made the orders of 8 November 2012 has been joined as the first respondent by an order which I made on 28 January 2014. On his behalf, the State Solicitor for Western Australia has filed a notice of intention to abide by the decision of the Court indicating that the first respondent does not intend to take part in these proceedings save as to costs.

5 The City of Gosnells, which has been treated as the prosecutor in the Magistrates Court, has been joined as second respondent, again by my order of 28 January 2014. However, before then it has acted as if it were a respondent, although not named. It has now entered an appearance and was heard by counsel on this application.

6 Before this joinder of the two respondents on 28 January 2014 a review order had been made by Hall J on 21 May 2013 in the following terms:

1. Magistrate Martin M Flynn (Court Officer) and the City of Gosnells (Prosecutor) satisfy the Supreme Court at a hearing:

(a) that the decision to dismiss the Applicants' application to have certain proceedings against the Applicants in the Magistrates Court of Western Australia held at Armadale (the Magistrates Court) for alleged offences under [s 218(b) and 223 of the Planning and Development Act 2005 the subject] of prosecution notices dated 17 January 2012 (the Prosecution Notices) and being recorded by the Magistrates Court as charges AR 2881 of 2012 and AR 2883 of 2012 (the Proceedings), dismissed, alternatively stayed, on the basis that the Magistrates Court is without jurisdiction to hear the Proceedings, should not be set aside; and

7 The order of Hall J of 21 May 2013 then directed that the review order should be heard by a Judge and gave directions as to service of the review order and other procedural matters.

8 The grounds relied on by the applicants are those set out in the originating motion of 22 April 2013 as follows:

1. Section 20(3)(a)(i) of the Criminal Procedure Act 2004 ('the CPA') provides that a prosecution for an offence may be commenced by, and only by an 'authorised person' in relation to the offence, acting in the course of his or her duties. Section 20(1)(b) of the CPA provides that an 'authorised person in relation to an offence' means a person who is a public authority, or an employee of a public authority, or who is authorised in writing by a public authority to commence a prosecution for the offence.

1. The Proceedings (collectively 'the Defects'):

(i) have not been commenced by an authorised person for the purposes of s 20(3)(a)(i) of the CPA, in that the Prosecution Notices:

(a) have been signed by 'Lewis Blyth & Hooper', not being a person;

(b) have not been signed by a person who is authorised in writing by a public authority; and

(c) have not been signed by a person who is acting [in] the course of his or her duties.

(ii) have not been commenced given that the Prosecution Notices have not been signed by a person who is commencing the prosecution or the prosecutor for the purposes of s 21(3)(a) of the CPA;

(iii) do not identify the prosecutor for the purposes of cl 3(1) of Sch 1 Div 2 of the CPA given that the Prosecution Notices:

(b) do not identify the individual who issued the Prosecution Notices; and

(c) are not signed in accordance with s 23(3) of the CPA.

(iv) do not comply with s 23(2)(c) of the CPA in that the Prosecution Notices have attachments which are not signed, being the particularised charges.

1. Furthermore, the Defects are unable to be corrected by way of s 178 of the CPA, on account of the fact that:

(ii) the Defects are material to the merits of the case.

1. Accordingly, on account of the Defects, the Proceedings have never been commenced, alternatively, the Magistrates Court is without jurisdiction to hear the Proceedings and the Proceedings should be dismissed, alternatively stayed.

9 There are two prosecution notices. These are described in the affidavit of Mr S J Steenhof in support of the application for the review order sworn 22 April 2013. Omitting formal and immaterial parts, the first notice reads:

Accused - Francesco Antonio Spagnolo

Date or period 21 June 2011 to 16 January 2012 (inclusive)

Place 279 (Lot 20) Shreeve Road, Canning Vale

Description - See attached

Written law s 218(b) and 223 of the Planning and Development Act 2005 as amended

Attached

The accused being one of the registered proprietors of 279 (Lot 20) Shreeve Road Canning Vale, did unlawfully commence, continue and carry out development on such property by placing or causing landfill to be placed upon such property, without the authority of the City of Gosnells and thereby contrary to the City of Gosnells Town Planning Scheme s 218(b) of the Planning and Development Act 2005.

(This annexure also asserted that the relevant written law was in s 218(b) and s 223 of the Planning and Development Act 2005 as amended.)

10 The prosecution notice named the City of Gosnells as the prosecutor. Then in a box entitled 'Person Issuing This Notice' was the name Lewis Blyth & Hooper; official title - Solicitors, followed by provision for signature. The signature is in manuscript difficult to decipher but which appears to be and is acknowledged as Lewis Blyth & Hooper. The prosecution was signed before a witness, a justice of the peace, on 17 January 2012.

11 The second prosecution notice is in similar terms but it is directed to Lucia Spagnolo and alleges the same offence at the same time and place and names the same prosecutor, the City of Gosnells, and identifies the 'Person issuing this Notice' as Lewis Blyth & Hooper, solicitors, and has been signed before a justice of the peace.

The alleged defects and attempts to remedy them

12 At the hearing before the learned Magistrate on 24 October 2012 the applicants, by their counsel, took points that the prosecution notices had not been signed by the prosecutor, the City of Gosnells, nor by any person who was an officer of the City of Gosnells or who had the necessary authority of the City of Gosnells to institute such a prosecution. After hearing submissions the learned Magistrate later accepted that Lewis Blyth & Hooper were not authorised to sign the prosecution notices on behalf of the City of Gosnells and, accordingly, that the prosecutions had not been properly commenced. Nevertheless, his Honour held that the defects could be overcome by the provisions of s 178 of the CPA. Thereupon, the prosecution notices were there and then amended by manual corrections to show that the 'Person issuing the Notice' was 'City of Gosnells' and that the individual person's official title was Director of Planning and Sustainability who also thereupon signed the original notices in that capacity. Also the correction substituted the address of the City of Gosnells for that of the solicitors, Lewis Blyth & Hooper, as the address for the person issuing the notice.

13 Another point which had been taken by counsel for the applicants in objection to the original prosecution notices was that, while each had an 'Attachment' to the notice itself, specifying in more detail the offence alleged, neither Attachment was signed, as it was submitted it should have been signed, by any authorised person of the City of Gosnells. The learned Magistrate decided that each Attachment should have been signed by a public officer or duly authorised person of the City of Gosnells but, again, directed that this omission was a defect which could be overcome in accordance with s 278 of the CPA by having the Director of Development and Sustainability sign each of the original Attachments. This was then done.

14 His Honour had reserved his decision and gave detailed written reasons for his decision on 8 November 2012 when, as already noted, his Honour held that the defects which had been identified in the prosecution notices and attachments could be remedied and directed that they should there and then be so amended, following which the amendments were made. The result of the decision was to leave the prosecutions on foot to be heard at a date to be fixed.

15 The requirements for commencing a prosecution are contained in Div 2 of the CPA and, for present purposes, portions of s 20 and 23 are material. Those provisions are:

(1) In this section, unless the contrary intention appears -

authorised person in relation to an offence, means -

(a) if under another written law a person or class of person is authorised to commence a prosecution for the offence, that person or a person of that class; or

(i) who is a public authority or an employee of a public authority; or

(ii) who is authorised in writing by a public authority to commence a prosecution for the offence.

(2) If another written law limits who may commence a prosecution for an offence, a prosecution for the offence may only be commenced in accordance with that law.

(3) Subject to subsection (2), a prosecution for an offence may be commenced by, and only by -

(a) one of the following acting in the course of his or her duties -

(i) an authorised person in relation to the offence;

(ii) a person referred to in section 80(2)(a) to (e);

(b) a person who, acting in accordance with the terms of an appointment made under section 182, may prosecute the offence.

(It has never been contended that, in the present case, Lewis Blyth & Hooper was a person referred to in s 80(2)(a) to (e), or that some other written law limited or identified that firm, by description or otherwise, as authorised to commence this prosecution within the meaning of s 20(2)).

16 The formal requirements of a prosecution notice are set out in s 23 of the CPA and by Sch 1 to that Act. For present purposes, s 23(3) is material and it provides:

(a) if the prosecution is being commenced by an authorised investigator, either -

(ii) be signed by the investigator in the presence of either a JP or a prescribed court officer;

(b) in any other case - be signed by the person who is commencing the prosecution in the presence of either a JP or a prescribed court officer.

17 The provisions of the CPA allowing, in certain circumstances, defects in court notices to be corrected, are to be found in s 178. In issue in the proceedings before the learned Magistrate and again on this application for review was whether or not these provisions empowered the learned Magistrate to correct the defects identified in these two prosecution notices. So far as is material, that section provides:

(1) In this section, unless the contrary intention appears -

court document means a prosecution notice, indictment, summons, court hearing notice, section 155 notice, witness summons, warrant, or an order or other document issued by a court in a case.

(2) Any objection by an accused to a prosecution notice or indictment on the ground that it is defective must be made before the prosecutor's opening address.

(3) If a court document is defective in substance or form, the court, on an application by a party or on its own initiative -

(a) must order that the document be corrected if the defect is not material to the merits of the case;

(b) may order that the document be corrected in any other case.

(4) If a court makes an order under this section -

(a) the court document must be amended accordingly by the court or some person ordered to do so by the court; and

(b) each party is entitled to a copy of the amended court document; and

(5) This section is in addition to and does not affect the operation of section 132.

(There was no submission in the present case either before the learned Magistrate or on this application for review that the general power of amendment under s 132 was material.)

18 The standing arrangements and authorisations for the institution of the prosecutions by the City of Gosnells which applied at the time were set out in documents tendered to the learned Magistrate and which are also in evidence on the present application. There was no significant controversy about this background which was succinctly described by his Honour at [4] - [7] of his decision from which the following is taken.

At all relevant times the City of Gosnells had, by resolution at an Ordinary Council Meeting, delegated to the Chief Executive Officer, the power to 'act upon non-compliance with the City of Gosnells Town Planning Scheme' ('the Delegation Resolution').

19 The document recording this resolution and the delegation is an extract of the register of delegations required as a result of s 5.46 of the Local Government Act 1995 (WA). The delegation resolution, in turn, shows that the Chief Executive Officer had subdelegated this power to the Director Planning and Sustainability but both the delegation and the subdelegation were expressed to be subject to a condition that:

All prosecutions for non-compliance with the scheme or directions shall only proceed with express resolution of the Council.

20 On 11 October 2011, at an ordinary council meeting, the City of Gosnells passed the following resolution ('the Legal Proceedings Resolution'):

That Council authorize the Director of Planning and Sustainability to initiate legal proceedings against Francesco Antonio Spagnolo & Lucia Spagnolo ... for the unapproved placement of landfill ... and for the breach of the Direction Notice issued under s 214(2) and 214(3)(a) & (b) of the Planning and Development Act 2005 in the event the unauthorised fill has not been removed from the site within 60 days.

21 Then the Director of Planning and Sustainability, Mr Christopher Terelinck, wrote, by letter dated 20 December 2011, to the solicitors Lewis Blyth & Hooper in terms including the following:

The following instructions confirm the City's authority for Lewis Blyth & Hooper to proceed with legal action as detailed below.

In accordance with s 20(1)(b)(ii) and 20(3)(a)(i) of the Criminal Procedure Act please be advised that:

I, Christopher Terelinck, Director of Planning and Sustainability, being person authorised by the Council of the City of Gosnells to commence a prosecution against Francesco Antonio Spagnolo and Lucia Spagnolo for a breach of s 218(a) and (b) and s 214(2) and (3) of the Planning and Development Act 2005 as amended and furthermore being an employee of a public authority as defined in the Criminal Procedure Act 2004, namely City of Gosnells, authorise Stephen Blyth, for and on behalf of Lewis Blyth & Hooper, to commence a prosecution of Francesco Antonio Spagnolo and Lucia Spagnolo for a breach of clause(s) 12.4 of the City's Town Planning Scheme No 6 (TPS 6).

22 The prosecution notices were then prepared by Mr Blyth on or before 17 January 2012 and lodged with the Armadale Magistrates Court on 28 February 2012. From these it is apparent that:

(a) The Prosecutor is identified as 'City of Gosnells'.

(b) The person issuing the notice is identified as 'Lewis Blyth & Hooper', 'Solicitors'.

(c) The handwriting next to the heading 'Signature' is indecipherable. However, it may be a representation of the words 'Lewis Blyth & Hooper'.

(d) No relevant signature appears on page 2 [the Annexure].

23 In his reasons the learned Magistrate then set out the law relating to the commencement of the prosecutions, and in doing so examined the requirements of s 20(1) and (3), s 21(3), s 23 of the CPA as well as the requirements of sch 1 cl 3. His Honour then referred to the existence of the power by a court to correct the notice contained in s 178(3)(a) and (b). After analysis the learned Magistrate reached the following findings and conclusions: it was only the Director of Planning and Sustainability who was the authorised person for the purpose of commencing the prosecution for the offences alleged in the prosecution notices and it was he who was required to sign the prosecution notice identifying himself as the person commencing the prosecution; and neither Lewis Blyth & Hooper nor Stephen Blyth was an authorised person.

24 There was no express or implicit power of the Director of Planning and Sustainability to delegate the power to commence this prosecution to the solicitors or to a partner in that firm. Nor was there any express resolution of the council of the City of Gosnells to confer that power upon Lewis Blyth & Hooper or Mr Blyth. His Honour also concluded that there was nothing in the Local Government Act 1995 which empowered the Director to delegate further the power to commence a prosecution.

25 For these reasons, his Honour concluded that the two prosecution notices did not comply with the requirements of s 20(1)(a) of the CPA and that each prosecution notice was, therefore, defective. Nevertheless, his Honour concluded, at [17], that this non-compliance was not material to the resolution of the merits of the case, observing that the merits of this case would be determined by whether the evidence supported the allegation contained in the charge. His Honour also observed that the Director of Planning and Sustainability was entitled to engage any legal practitioner to conduct the prosecution on behalf of the Director and/or the City of Gosnells and that if the Director had signed the prosecution notice, having engaged the solicitors to act for him or the City, the prosecution would have taken an identical course to the one that it had then so far taken. By this observation, I consider that the learned Magistrate meant that if the correct procedure had been followed without defects, prosecution notices alleging these offences would still have issued, but under the hand of the Director.

26 His Honour then turned to what he regarded as the more difficult question of whether non-compliance with s 20(1)(a) of the CPA, in this case by a prosecution notice signed by someone other than the person required by law should properly be characterised as having resulted in (a) a defect in the prosecution notice of substance or form, which must be amended by an order under s 178; or (b), as the applicants' contended, an invalid exercise of the statutory power to commence a prosecution which could not be corrected by any power of the court under s 178, and which should have led to the dismissal of the charge by striking out the prosecution notice.

27 His Honour concluded [23] that the defect in this case was a defect in substance but not one which resulted in invalidity. It was, therefore, in his Honour's view, amenable to correction under s 178. In reaching this conclusion, his Honour referred to certain examples of prosecutions commenced which would be invalid and incapable of remedy. In this category the learned Magistrate included the case of a person commencing a prosecution when acting in a private capacity (prohibited by s 20(5) of the CPA) and, as another instance, a person signing a prosecution notice knowing that he or she was not authorised to do so, or of lodging a prosecution notice knowing that it has been signed by a person who is not authorised to sign it (s 173(a) and (b)) both of which are prohibited. Section 173 also creates an offence for a person to act in that way. A person acting in his or her private capacity cannot commence a prosecution (unless another written law expressly provides otherwise) as declared by s 20(5)). It is not an offence to do so but a private person does not have the power to initiate such a prosecution. Consequently, a prosecution notice issued in non-compliance with s 20(5) or s 173 would, in the first instance, be beyond power and, in the second, would be illegal and an offence. Although it is not necessary for me so to decide on this occasion, I observe that I respectfully agree with the learned Magistrate that a prosecution notice issued in contravention of those limitations contained in s 20(5) and s 173 could not be remedied or saved by the exercise of any power of correction contained in s 178 of the CPA.

28 His Honour observed that at least where the person who commenced the prosecution has exceeded his or her authority with the knowledge and consent of the person who does have the authority to commence the prosecution (this case) he would characterise the resulting prosecution notice as containing a defect in substance and, so, amenable to amendment [23]. In reaching these conclusions, his Honour had regard to the observations of McLure P in Russell v The State of Western Australia [2011] WASCA 246; (2011) A Crim R 326 [26]; and therefore directed himself to the questions of whether or not a prosecution notice is necessary to confer jurisdiction on the Magistrates Court to adjudicate on the charge and whether or not compliance with a statutory requirement is essential to the validity of the notice, both questions of statutory construction. Unlike the position in relation to indictments before criminal courts in New South Wales, R v Janceski [2005] NSWCCA 1; (2005) 64 NSWLR 10, his Honour applied the observations of McLure J in Russell at [27] to the effect that there are significant differences between the statutory regimes in New South Wales and Western Australia. The jurisdiction of the Magistrates Court in this State to hear and determine a charge of a simple offence is confirmed by s 11 of the Magistrates Court Act 2004. Hence, the question is not necessarily one of jurisdiction of the court but, rather, whether or not these prosecution notices, despite being defective, were capable of being corrected under s 178.

29 His Honour's final conclusion [27] was that the prosecution notices having been signed by the solicitors for the City of Gosnells rather than by the Director of Planning and Sustainability contained defects of substance and that the failure of any person authorised to sign the Annexure to each prosecution notice, as required by CP Reg, r 8(2), (4) constituted a defect of form. Both were capable of being corrected in the exercise of the court's power under s 178. Neither was regarded as being material to the merits of the case, with the consequence that the court was obliged to order that the notices be corrected - s 178(3)(a) CPA.

30 I consider that it is a significant finding and one supported by the evidence, that at all times the firm Lewis Blyth & Hooper were the authorised agents of the City of Gosnells to act as its solicitors in order to prepare and conduct the proposed prosecutions against Mr and Mrs Spagnolo. The solicitors had the authority of the City of Gosnells, through the Director of Planning and Sustainability, to prepare the prosecution notices, to arrange for their proper execution, to lodge the prosecution notices with the court and thereafter, on instructions by the municipality, to conduct the prosecutions. However, that authority did not include the authority to institute either prosecution as a 'person authorised to issue the prosecution notice' or to sign the prosecution notice on behalf of the named prosecutor, the City of Gosnells. The reason for this is because, notwithstanding what might be regarded as the breadth of the authority which Mr Terelinck purported to confer on the solicitors by the letter of 20 December 2011, the power to act as an 'authorised person' within the meaning of s 20(1) of the CPA is expressly confined, in these particular circumstances, to the public authority or one of its employees, or to a person authorised by the public authority (not by its delegate) to commence a prosecution for the offence.

31 Accordingly, the solicitors had every justification to act on the instructions given by the City of Gosnells through the Director of Development and Sustainability. But it was only he who could be named as the authorised person and only he who could sign the prosecution notice on behalf of the City. Despite the apparent readiness of Mr Terelinck to confer that power on the solicitors, no doubt prompted by his own appreciation of the unexpressed desires of the City of Gosnells, it was not possible for him to confer that authority on Lewis Blyth & Hooper or anyone else. There was, therefore, no suggestion of any deliberate or knowing signing or lodgement of these prosecution notices by a person who appreciated that he was not authorised to sign them or knowledge that the notice had been signed by a person not authorised to sign it and, for that reason, no offence or illegality by reason of s 173.

32 The nature of the power under s 36 of the Magistrates Court Act is described as being a judicial review power by McLure JA in Rayney v AW [2009] WASCA 203 which will only be enlivened if one or more of the grounds listed in s 36(1)(a), (b) or (c) has been established. In this case, the applicants contend there has been a jurisdictional error because compliance with the provisions of the CPA s 20 and s 21 are, according to this submission, prerequisites for the establishment for the jurisdiction of the Magistrates Court to hear and determine the charges. A jurisdictional error will render the proceedings and any consequent orders invalid: Craig v South Australia [1955] HCA 58; (1995) 184 CLR 163, 177.

33 In this regard, emphasis is placed on s 23(2)(b) which requires that a prosecution notice 'must' comply with sch 1 div 2 of the Act. This led to a reference to the observations of Merkel J in Wang v Minister for Immigration and Multicultural Affairs [1997] FCA 70; (1997) 71 FCR 386 that, in the context then under consideration, the use of the word 'must' was not merely directory but was 'a word of absolute obligation'; although counsel immediately accepted that the use of the mandatory/directory distinction as a test for invalidity was later disavowed in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. I referred to these and related authorities in Re Geoffrey Dudley Lawrence; Ex parte Westpork Pty Ltd [2012] WASC 487 [20] - [29] before concluding that any question about the validity of prosecutions commenced under the Criminal Procedure Act, in circumstances where there had then been noncompliance with s 24(2) of that Act, could not necessarily be determined by ascertaining whether the obligations imposed by the statute were mandatory or directory. I there observed, and now again conclude, that the better approach is to consider whether, in all the circumstances, non-compliance with the asserted obligation, in this case for the authorised prosecutor to sign the prosecution notice, should be regarded as depriving the court of jurisdiction or rendering the initiating process actually employed invalid or ineffective.

34 There are, of course, cases where non-compliance with some specified condition or other obligation will plainly render the proceedings wholly ineffective. I have already referred to examples of prosecution notices commenced in contravention of the requirements of s 20(5) or s 173 of the CPA which his Honour described as having this effect. Other examples are to be found in Palos Verdes Estates v Carbon (1991) 6 WAR 223 which was a prosecution without the necessary prior consent of the responsible minister.

35 However, I do not subscribe to any broad view that such non-compliance deprives a court, even a court of limited jurisdiction such as the Magistrates Court, of jurisdiction to hear and determine the charge. I have already indicated that I consider that jurisdiction is conferred on the court by s 11 of the Magistrates Court Act and it follows that the court will have the jurisdiction to hear and determine whether or not any particular charge has been wrongly commenced and, if so, should be dismissed or stayed. With respect to submissions to the contrary, I do not consider that the jurisdiction of the court to deal with the prosecution depends upon the formalities of the initiating process but rather that, in the case of a prosecution improperly commenced, the Magistrates Court has the jurisdiction and the obligation to decide whether or not the proceedings have been properly commenced and, if they have not, to dismiss them. Consequently, although such a defect in the institution of a prosecution will not deprive the Magistrates Court of jurisdiction, it will mean that if objection is made on the grounds of invalidity or informality and is upheld, the proper determination of the proceedings according to law will require that they be dismissed - compare Russell v The State of Western Australia and R v Janceski.

36 In the present case no express attention appears to have been given to the question of whether, if the charges had not been 'corrected' in the exercise of the power of the court under s 178 of the CPA, the proceedings would inevitably have been dismissed. Nevertheless, the implication from the submissions and his Honour's reasons seem to be quite clear that, had the 'correction' under s 178 not been possible or not made, the proceedings would have been defective and could not have continued. I consider that to have been a correct assumption. It is of significance because it demonstrates that non-compliance with the essential requirements of s 20 and s 21 of the CPA will mean that a prosecution notice is defective and should be dismissed or stayed unless corrected. I deliberately use the term that non-compliance with the requirements of s 20 and s 21 of the CPA will leave the prosecution notices being defective rather than invalid. This is because the concept of invalidity is notoriously prone to a multiplicity of meanings and connotations, which can lead the incautious into considerations of whether or not there was any proceeding, or any valid proceeding, before the court upon which it could adjudicate when a prosecution has been commenced in a defective manner. It seems that the better approach is to acknowledge that the court in which the proceedings have been instituted, whether correctly or not, is seised of the matter in order to determine whether or not the proceedings were properly commenced - compare Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369, 391 (Dixon J); see also Re David Scott Ellis; Ex parte Triple M Mechanical Services Pty Ltd [No 2] 2013 WASC 161 [84] - [88] and Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217 [11] - [12] (McLure P).

37 Therefore, while I am satisfied that the learned Magistrate had the 'jurisdiction' to determine whether or not the prosecution notices had properly been issued and, if not, whether any defects could be corrected by the use of the power under s 178 of the CPA, a further question remains as to whether or not his Honour's decision that the defects could be corrected under that latter section was correct in law. This is because, if it did constitute an error of law, that would provide a ground for review of the decision on this occasion. No submission was made to the effect that such an 'error', if in fact it existed, would not be so reviewable in this case.

38 By its terms s 178(3) of the CPA contemplates that if a document is defective in substance or in form it may be corrected. The subsection provides that it must be corrected if the defect is not material to the merits of the case and that it may be corrected in any other case. As already noted, the learned Magistrate concluded that the omission of the prosecution notice to name the 'authorised person' by whom the prosecution was being commenced and for the notice to be signed by that person were errors of substance and not form, whereas his Honour held that the failure to have the Annexures signed by the authorised officer were errors only of form. His Honour also held that those defects were not material to the merits of the case, which meant that there was an obligation on the court to correct them.

39 Before the learned Magistrate the applicants had submitted, as already noted, that these defects were material to the merits of the case but, as already seen, that submission was rejected by his Honour for reasons which he gave. On the hearing of this application for review the applicants submitted that, because of the defects, the jurisdiction of the court was not enlivened and that, therefore, the prosecution notices could not be the subject of correction, whether under s 178 or otherwise because there was 'no case until such time as a properly issued prosecution notice was before the court'.

40 I have already rejected the submission that the court was without any form of jurisdiction to hear and determine the matter, even if only to determine that the prosecutions had been ineffectively commenced. No submissions were advanced as to why these defects were material to the 'merits of the case' and, in this regard, I respectfully agree with his Honour that they were not. Despite these defects, the prosecution notices identified an offence created by law, gave particulars of the date, place and circumstances of the alleged commission of the offence, and named the applicants as, respectively, persons charged under the two notices. If the defects were corrected, the charge could and should be heard according to law and the notices are adequate to establish what charge each of the applicants had to answer. The evidence to be adduced in support of the charge would only be evidence relevant to the particular charge and the date, place and circumstances under which it was alleged to have been committed. The correction of the defects by the power under s 178 would not prejudice either of the applicants in the defence of these charges, nor would it affect the facts to be established by the prosecution on either of them. That being the case, this was clearly an occasion in which the court was obliged to order that the prosecution notices be corrected and that is what was done.

41 Accordingly, I consider, with respect, that the learned magistrate was correct to exercise the jurisdiction of the court to determine whether or not these prosecution notices had been properly issued and to conclude that they were defective for the reasons which his Honour gave. I am also of the view, with respect, that the learned Magistrate was correct in concluding that, in the circumstances, there was power to correct these defects under s 178 of the CPA and that in the circumstances the defects in the prosecution notices be corrected in the exercise of the power possessed by the court under s 178(3) of the CPA. It follows that no error has been demonstrated in the decision of the learned Magistrate and that this application for review must be dismissed.

42 For the sake of completeness, I should note that counsel for the second respondent also submitted that even if an error or errors by the learned Magistrate had been demonstrated, relief by way of a review order should be refused in the exercise of discretion, especially where, as here, if the prosecutions proceed and the applicants were to be convicted, they would have an alternative appropriate remedy by an appeal at the completion of those proceedings - see Dean v Legal Practice Board [2013] WASC 155 [24] (Hall J). It is unnecessary to do more than to note this submission because, in the absence of error, it is unnecessary to determine whether or not relief should be declined on discretionary grounds.