Wallace & Anor v Director General - NSW Department of Primary Industries & Anor - [2007] NSWSC 654 - NSWSC 2007 case summary

Supreme Court of NSW|2007-06-21|Before: Harrison J

CITATION : Wallace & Anor v Director General - NSW Department of Primary Industries & Anor [2007] NSWSC 654

DECISION : (1) The summons filed 16 August 2006 is dismissed; (2) The plaintiffs are to pay the defendants' costs as agreed or assessed.

CATCHWORDS : Judicial review - decision of Local Court Magistrate - s 175(3)(c), Criminal Procedure Act - name of prosecutor

Courts Legislation Miscellaneous Amendments Act 2002 Criminal Procedure Act 1986 - ss 172, 175 LEGISLATION CITED : Fisheries Management Act 1994 - ss 3, 289 Justices Act 1902 Fisheries Management (Lobster Share Management Plan) Regulation 2000 - s 65, cll 22, 42, 48

Graham Blight v Inspector Barber [2007] NSWSC 448 CASES CITED : John L Proprietary Limited v Attorney-General (NSW) (1987) 163 CLR 508 Knaggs v Director of Public Prosecutions [2007] NSWCA 83

Paul Charles Wallace - First Plaintiff PARTIES : Paul Anthony Harrison - Second Plaintiff Director General - NSW Department of Primary Industries - First Defendant Shaughan McCosker - Second Defendant

COUNSEL : Mr M Preece - Plaintiffs Ms D Ward - First Defendant

SOLICITORS : Merrick Spicer & Associates - Plaintiffs Mr I V Knight, Crown Solicitor - First Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

14032/2006 - PAUL CHARLES WALLACE & ANOR v DIRECTOR GENERAL - NSW DEPARTMENT OF PRIMARY INDUSTRIES & ANOR

JUDGMENT (Judicial review - decision of Local Court Magistrate - s 175(3)(c), Criminal Procedure Act - name of prosecutor) 1 HER HONOUR: By summons filed 16 August 2006, firstly, the first plaintiff seeks a declaration that proceedings with respect to a Court Attendance Notice (CAN) issued 11 March 2005 for sequences numbered 1-8 were carried on by the Magistrate without jurisdiction and that ipso jure the convictions recorded against him in respect thereof are null and void. Secondly, the second plaintiff seeks a declaration that proceedings with respect to a CAN issued 11 March 2005 were carried on by the Magistrate without jurisdiction and that ipso jure the convictions recorded against him in respect thereof are null and void. 2 The first plaintiff is Paul Charles Wallace (Mr Wallace). The second plaintiff is Paul Anthony Harrison (Mr Harrison). The first defendant is the Director General - NSW Department of Primary Industries (the Director General). The second defendant is Local Court Magistrate Shaughan McCosker. There is no submitting appearance on file on behalf of the second defendant. For convenience, in this judgment, I shall refer to the parties by name. 3 On 11 March 2005 Mr Wallace and Mr Harrison were both convicted in the Local Court at Taree of offences arising under the Fisheries Management Act 1994 (NSW) (the Fisheries Management Act) and the Fisheries Management (Lobster Share Management Plan) Regulation 2000 (NSW) (the Fisheries Management Lobster Regulation).

Grounds of review 4 Mr Wallace and Mr Harrison seek declarations that the Local Court proceedings were without jurisdiction due to an alleged failure to comply with a statutory requirement, thereby rendering the convictions null and void on the grounds that each of the Court Attendance Notices (CAN) served upon them were deficient because they did not identify the prosecutor by name as required by s 175(3)(c) of the Criminal Procedure Act 1986 (NSW). 5 Under the old regime contained in the Justices Act 1902, proceedings for summary offences were usually commenced by the laying of an information. It was the laying of the information that founded the court's jurisdiction to deal with the offence - see John L Proprietary Limited v Attorney-General (NSW) (1987) 163 CLR 508. Provision to secure the attendance of the defendant at court was made separately by the issue of a summons. So under the old regime, summary offences were initiated by means of two documents, an information and a summons. 6 The information and summons regime was replaced by a Court Attendance Notice. Section 172(1) of the Criminal Procedure Act provides that proceedings for an offence are to be commenced in a Court by the issue and filing of a Court Attendance Notice in accordance with that Division. The CAN incorporates both the information and summons. 7 Counsel for the plaintiffs referred to the Second Reading Speech for the Courts Legislation Miscellaneous Amendments Act 2002 (NSW) where Mr Moss, Parliamentary Secretary on behalf of the Attorney General said that it was not intended that the Justices Act reform package change the law in relation to the contents of the initiating process and therefore ss 50 and 175 will be amended to more closely reflect the language of the current law - see NSW Hansard, Legislative Assembly, 23 October 2002. Hence, the approach taken by Counsel for the plaintiffs is that the requirements set out in s 175 are the same as they were under the Justice Act. 8 On each of the CANs the following information appeared in relation to the prosecutor. Prosecutor: Director-General, NSW Department of Primary Industries Responsible Officer: N. Hams Address: [Supplied] Telephone: [Supplied] Date of issue of Court Attendance Notice: 11th March 2005

9 When the proceedings were listed for hearing before the Magistrate, formal objection was taken to each CAN on the basis that the notices failed to nominate the "prosecutor". The Magistrate stated that he was satisfied that the documents describing the person responsible did comply with the legislation. After that ruling, Mr Wallace and Mr Harrison pleaded guilty. They were convicted and fines were imposed for each offence.

The offences 10 Section 3(1) of the Fisheries Management Act provides that "the objects of this Act are to conserve, develop and share the fishery resources of the State for the benefit of present and future generations." This Act and the FM Lobster Regulation create various offences consistent with the broad object of the Fisheries Management Act. The offences set out in the Fisheries Management Lobster Regulation are made pursuant to s 289 of the Fisheries Management Act. 11 These criminal penalty provisions in the Fisheries Management Act and Fisheries Management Lobster Regulation relevantly include s 65, contravention of plan, cl 22, rock lobster to have tag attached, cl 42, storage of live rock lobsters, cl 48, daily log sheet and cl 55, endorsement holder offence. These are the offences contained in the CAN.

The interpretation of s 175(3) of the Criminal Procedure Act 12 Section 175(3) of the Criminal Procedure Act reads: "(3) A court attendance notice must do the following: (a) describe the offence,

(b) briefly state the particulars of the alleged offence,

(d) require the accused person to appear before the court at a specified date, time and place, unless a warrant is issued for the arrest of the person or the person is refused bail,

(e) state, unless a warrant is issued for the arrest of the person or the person is refused bail, that failure to appear may result in the arrest of the person or in the matter being dealt with in the absence of the person." 13 The plaintiffs submitted that the terms of s 175(3) are mandatory, not directory and that the description of the prosecutor does not comply with the requirements of subsection (3). The Director General submitted that s 175(3)(c) does not require the prosecutor to be identified by the officer's proper name or as a natural person. In any event, according to the Director General the identity of the prosecutor could only be one natural person as there is only one person who occupies the position of the Director General. Thus, the identity of the prosecutor responsible for the instituting and conducting the prosecution is known. 14 It is trite law that an accused person is entitled to know the identity of the prosecutor responsible for instating or conducting the prosecution. Section 175(3) says that a CAN must contain the name of the prosecutor. 15 Section 175 has been the subject of a recent decision of this Court and a decision of the Court of Appeal. They are Knaggs v Director of Public Prosecutions [2007] NSWCA 83 and Graham Blight v Inspector Barber [2007] NSWSC 448. Knaggs involved whether the particulars of the offence in the CAN fulfilled the requirements of s 175(3)(b) and Blight involved whether a CAN issued without the information contained in s 175(e) was invalid. 16 In Knaggs, Campbell JA (with whom Mason P and Tobias AJA agreed) canvassed the statutory interpretation with particular focus upon s 175(3)(b). While I refer to it, I do not need to repeat all of it here. 17 Relevantly Campbell JA in Knaggs stated at [53]: "53 …, another aid to construction is that the word "must" appears in both section 175(1) and in section 175(3). Section 175(1) states that a CAN "must" be in the form prescribed by the rules - yet section 175(2) confers a mere permission for the rules to prescribe court forms, rather than a positive requirement. The form of the legislation therefore left open the possibility, which has in fact happened, that there is no prescribed form. It would be strange if a failure to comply with section 175(1), through not using "the form prescribed by the rules" for a CAN, made that CAN void. Indeed, if that were so, every CAN that the Local Court has issued since the commencement of section 175 would be void, all convictions obtained pursuant to proceedings commenced by such a CAN would be void, and all acquittals obtained in proceedings commenced by such a CAN would be likewise void and so would not give rise to a defence of autrefois acquit . I doubt that the legislature is likely to have intended those consequences. If a failure to comply with what section 175(1) says "must" be done does not necessarily result in invalidity of the CAN, that suggests that failure to comply with what section 175(3) says "must" be done does not necessarily result in invalidity of the CAN either." 18 The Court of Appeal in Knaggs concluded at [60]: "In all these circumstances, and purely as a matter of construction of the legislation, I do not conclude that the legislature intended that a contravention of section 175(3)(b) would result in the invalidity of the CAN, and of any convictions that result in proceedings commenced by such a CAN." 19 And in Blight, Price J stated at [28]-[29]: "28 It is well established that a failure to comply with a legislative requirement that some act must be done in a particular way does not necessarily result in invalidity. The test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid: see Project Blue Sky Inc & Others v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-390. There are, as was recognised in Knaggs [at 34-37] particular considerations that relate to legislative provisions concerning the manner in which the jurisdiction of courts is exercised or invoked. When a statutory provision relates to the exercising by a court of jurisdiction, particular principles of construction of legislation come into play. There is a "basic rule" that it is presumed that the Parliament does not intend to cut down the jurisdiction of courts save to the extent that the legislation in question expressly so states or necessarily implies: see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 505 [72], Berowra Holdings Pty Ltd v Gordon [2006] HCA 32 at [31].

29 No express provision is made in s 175(3)(e) or in the CP Act itself for the consequences of a failure to provide the required statement. There is no express statement that proceedings commenced by a CAN, which does not comply, will be invalid. Nor is there, in my view, a necessary implication of invalidity." 20 Hence, it is also my view, that although s 175(3) says "must" be done it does not necessarily result in the invalidity of the CAN. 21 In any event, there is another provision in the Criminal Procedure Act which is relevant to s 175(3)(c). It is s 16(1)(f) which reads: "16(1) An indictment is not bad, insufficient, void, erroneous or defective on any of the following grounds: … (f) for designating any person by the name of his or her office, or other descriptive appellation, instead of by his or her proper name." 22 In relation to whether the name of the prosecutor was insufficient because it did not refer to his proper name, s 16(1)(f) provides that in this circumstance the indictment is not bad, insufficient, void, erroneous or defective. 23 It is my view that firstly, the description of the prosecutor in the CANs was sufficient; secondly, if the description of the prosecutor was not sufficient, s 16(1)(f) provides that the indictment is not void or defective; and thirdly, if there was a contravention of s 175, it does not result in the invalidity of the CAN. 24 No error has been established which entitles the plaintiffs to the declaration sought. The Magistrate had the jurisdiction to hear the proceedings. The summons filed 16 August 2006 is dismissed. 25 Costs are discretionary. Costs usually follow the event. The plaintiffs are to pay the defendants' costs as agreed or assessed.

(2) The plaintiffs are to pay the defendants' costs as agreed or assessed. **********

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Courts Legislation Miscellaneous Amendments Act 2002(NSW)

Wallace & Anor v Director General - NSW Department of Primary Industries & Anor

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