Sydney Catchment Authority v Bailey

Sydney Catchment Authority v Bailey - [2006] NSWLEC 616 - NSWLEC 2006 case summary — Zoe

[31]

14 Section 14 of the Criminal Procedure Act 1986 was originally numbered s 18 and was inserted in the Criminal Procedure Act 1986 by the Fines Act 1996, which repealed s 4 of the Fines and Penalties Act 1901. Section 4 provided: "Any fine, penalty or forfeiture imposed or authorised to be imposed by any Act may be sued and proceeded for by any person whomsoever unless by the Act imposing the same such right to sue or proceed is expressly given to any officer or person by name or designation". In Bedingfeld v Keogh (1912) 13 CLR 601 Griffiths CJ was required to consider whether a prosecution for a breach of the Pure Food Act 1908 (NSW) could be instituted by anyone but an officer of the Board of Health. Section 9 of the Pure Food Act provided that 'The administration and the enforcing of the provisions of this Act shall primarily be the duty of the Board of Health, but may, by the direction of the Governor, be left in any case to the local authority, who shall, however, be subject to the provisions of sec. 24 of the Public Health Act 1902.' A member of the police force prosecuted the defendant for a breach of the Pure Food Act. The issue was whether a police officer could do so. The High Court held that a prosecution for an offence against provisions of the Pure Food Act could be instituted by any person under the general authority given by s 4 of the Fines and Penalties Act 1901, the right to prosecute not having been given by the Pure Food Act to any officer or person by name or designation. Griffith CJ said, at 604: The general rule of law was stated by Kay L.J. in R v Stewart (1896) 1 QB 300 at 303, as follows : 'Prima facie there is no doubt that anybody may take proceedings to recover a penalty. That is an old rule and is well established. The Act now under consideration in terms provides that penalties shall be imposed for certain acts, and that these penalties shall be regarded as though they were penalties incurred under the Summary Jurisdiction Acts . In order to prevent the application of the general rule, it must be shown that the Act in plain terms prevents anyone, except certain specified persons, from prosecuting for offences under the Act. I can find no such provision.' Apart from that general rule of law, in New South Wales the Fines and Penalties Act 1901, by sec. 4 provides that [section 4 was quoted]. What is necessary to be established, therefore, is that the Pure Food Act expressly gives some particular person the right to sue.

[36]

19 The common law was glad for a prosecution as to criminal behaviour to come from any quarter. In R v Norris (1825) Keny 300; 96 ER 1189 leave was granted to file an information against the defendant for conspiracy to raise the price of salt. Lord Mansfield CJ declared: "that if any agreement was made to fix the price of salt, or any other necessary of life (which salt emphatically was), by people dealing in that commodity, the Court would be glad to lay hold of an opportunity, from what quarter soever the complaint came, to shew their sense of the crime: and that at what rate soever the price was fixed, high or low, made no difference, for all such agreements were of bad consequence and ought to be discountenanced". This dictum was cited by Deane J in Phelps v Western Mining Corporation Ltd (1978) 33 FLR 327 at 333-334; 20 ALR 183 at 189-190. His Honour noted the modern trend of statutes providing for "any person" to enforce statutory rights in civil proceedings and commented that this was an approach which "has long been established in the ordinary administration of the criminal law". His Honour was speaking in the context of the well known example in the Trade Practices Act 1974 (Cth) s 80(1) which permits "any…person" to apply to the court for an injunction restraining contravention of Parts IV and V of the Act. These plain words of s 80 were unsuccessfully sought to be read down. Commenting on Deane J's judgment, Priestley JA in Sydney City Council v Building Owners and Managers Association of Australia Ltd (1985) 2 NSWLR 383 at 390 said, in the context of the open standing provision in s 123(1) of the EPA Act: "This paragraph should be read every time a locus standi argument is raised". Priestley JA also said, memorably, that: "when A raises a question whether B is in breach of a law, it is more rational for a court to ask whether it is true that B is in breach of that law than to ask why A should be allowed to ask the court to answer the question" (at 389F).

[61]

39 An illustration of things that are necessary or convenient to a statutory corporation's functions is provided by Kathleen Investments (Australia) Ltd v Australian Atomic Energy Commission (1977) 139 CLR 117. In that case, the Atomic Energy Commission had power under s 18 of its Act "to do all things that [were] necessary or convenient to be done for or in connexion with the performance of its functions". One of the Commission's functions was "to undertake, or arrange for or encourage other authorities or persons to undertake, exploration for, and mining and treatment of, uranium and minerals found in association with uranium". The Commission acquired shares in a company whose objects permitted it to engage in exploring for, mining and treating uranium and minerals of all kinds. A shareholder of the company brought an action against the Commission. The statement of claim alleged that the Commission was not authorised to hold shares in the company. The Commission demurred. The High Court held that the Commission had power to apply for and take up shares in a company if it was necessary or convenient to do so for the performance of its functions under the Act. The question whether that requirement had been satisfied in a particular case was one of fact which could not be determined adversely to the Commission merely on the basis of the objects in the company's memorandum. Hence, the demurrer was allowed but the plaintiff was given leave to amend its statement of claim. Mason J said that it was relevant to ascertain whether, when the Commission subscribed for shares, the company was carrying on any activities other than uranium mining in order to determine whether the transaction fell within the Commission's function. Even if the company was carrying on some other activity, it may be possible to conclude that the investment was intra vires (at 154). Gibbs J said that the Commission did not have an unfettered power to take up shares in any company no matter what the circumstances. The Commission could use the capacity it had to acquire property only for the purpose of carrying out the functions which the Act cast upon it. If the Commission acquired shares in a company for a purpose which had no connexion with its functions, its action would be unauthorised (at 138).

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