Warringah Council v Kazi

Food Act 2003 Food Standards Code Crimes (Appeal and Review) Act 2001 LEGISLATION CITED: Criminal Procedure Act 1986 Criminal Procedure Regulation 2005 Local Government Act 1993 Local Court (Criminal and Applications Procedures) Rule 2003 Environmental Planning and Assessment Act 1979

Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 Corporate Affairs Commission v Bain (1991) 55 A Crim R 73 Gardner v R [2003] NSWCCA 199 Garrett v Freeman (2006) 147 LGERA 96; [2006] NSWCCA 278 Knaggs v Director of Public Prosecutions [2007] NSWCA 83 CASES CITED : Kew v Commissioner of Fair Trading and Robinson [2007] NSWSC 394 Potier v Huber (2004) 148 A Crim R 399 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 Rockdale Beef Pty Ltd v Industrial Relations Commission of New South Wales & Anor [2007] NSWCA 128 R v Janceski (2005) 64 NSWLR 10 Sasterawan v Morris [2007] NSWCCA 185 Sherritt Gordon Mines Ltd v FCT (1976) 10 ALR 441

Warringah Council (Appellant) PARTIES: Shamsul Kazi (1st Respondent) Kazi Mohammed Osman Goni (2nd Respondent)

COUNSEL: B Walker SC/T G Howard (Appellant) M Buscombe/S J Buchen (Respondents)

SOLICITORS: Matthews Folbigg (Appellant) Jack Rigg (Respondents)

LOWER COURT FILE NUMBER(S): 06/21/0485 06/21/0486

IN THE COURT OF CRIMINAL APPEAL 1107/2007

McCLELLAN CJ at CL HALL J PRICE J

WEDNESDAY 6 FEBRUARY 2008 WARRINGAH COUNCIL v KAZI & ANOR Judgment 1 McCLELLAN CJ at CL: The respondents were convicted in the Local Court of 26 offences against s 21(1) of the Food Act 2003 for failing to comply with provisions of the Food Standards Code in respect of the operation of a restaurant. Following their conviction they appealed to the District Court pursuant to s 11(1) of the Crimes (Appeal and Review) Act 2001. The appeals were upheld. 2 The essential finding of the judge on appeal was that the appellant had failed to enliven the jurisdiction of the Local Court by purporting to commence the proceedings in its corporate name, without first obtaining the signature of the registrar of the Local Court pursuant to s 174 of the Criminal Procedure Act 1986 ("the Act"). The appellant asked the judge to state a case for consideration of this Court. The question raised for consideration is expressed as follows: "Did I err in law in finding that the purported commencement of the proceedings in the Local Court by [the appellant] in its own name was invalid and of no effect." 3 The District Court judge determined that the appellant council had commenced proceedings in the Local Court by issuing and filing two court attendance notices ("CANs") pursuant to s 173 of the Act. Both court attendance notices were in the same terms. They named "the prosecutor" as "Warringah Council." The address of the prosecutor was recorded in each CAN as being care of a firm of solicitors. 4 There were four grounds of appeal in the District Court, one of which is presently relevant. It was:

1. That the proceedings were not commenced with appropriate authority or by an appropriate person.

The legislative scheme 5 The Criminal Procedure Act was amended in July 2003 to include Pt 2 of Chapter 4 which provides for the procedures for prosecutions in the Local Court. Sections 172, 173 and 174 are in the following terms: 172 (1) Proceedings for an offence are to be commenced in a court by the issue and filing of a court attendance notice in accordance with this Division. (2) A court attendance notice may be issued in respect of a person if the person has committed or is suspected of having committed an offence. (3) A court attendance notice may be issued in respect of any offence for which proceedings may be taken in this State, including an offence committed elsewhere than in this State. 173 If a police officer or public officer is authorised under section 14 of this 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. 174 (1) If a person other than a police officer or public officer is authorised under section 14 of this Act or under any other law to commence proceedings for an offence against a person, the person may commence the proceedings by issuing a court attendance notice, signed by a registrar, and filing the notice in accordance with this Division.

(2) A registrar must not sign a court attendance notice if: (a) the registrar is of the opinion that the notice does not disclose grounds for the proceedings, or (b) the registrar is of the opinion that the notice is not in the form required by or under this Act, or (c) the registrar is of the opinion that a ground for refusal set out in the rules applies to the notice.

(3) If a registrar refuses to sign a court attendance notice proposed to be issued by any such person, the question of whether the court attendance notice is to be signed and issued is to be determined by the court on application by the person. 6 It is significant that the procedure provided by s 173 is that proceedings are commenced by the issue and service of the CAN. It is only after service of the CAN that it is filed with the Local Court (see s 177(4)). Section 178 provides that proceedings are taken to have been commenced on the date on which the CAN is filed in the registry of the court. 7 Section 174 differs from s 173 in that it provides that before the CAN is filed it must be signed by a registrar of the Court. 8 Section 3(1) of the Act provides a definition of public officer in the following terms: public officer means any of the following persons, if acting in an official capacity:

(a) an employee in the Public Service or the Police Service, (b) an officer or employee of a statutory body representing the Crown, (c) an employee of a council within the meaning of the Local Government Act 1993, (d) an officer or employee of a rural lands protection board within the meaning of the Rural Lands Protection Act 1998, (e) the Director of Public Prosecutions, Deputy Director of Public Prosecutions or Solicitor for Public Prosecutions, (f) an officer or employee of a body declared by the regulations to be a public body for the purposes of this definition. 9 Local councils have primary responsibility for the enforcement of the Local Government Act 1993, the Environmental Planning and Assessment Act 1979 and many other statutes and regulations dealing with the responsibilities of individuals and corporations in areas of planning, building control and public health and safety. They are frequently required to prosecute for breaches of relevant statutes and regulations. To assist in those prosecutions the Local Government Act contains detailed provisions in relation to proceedings brought by a council or its employees. 10 Section 684 of the Local Government Act is one such provision. It was originally in the following terms: In any proceedings for an offence, the information may be laid:

(a) in the name of the council, if not required to be made on oath, or (b) in any case by the general manager or by any other employee of the council appointed generally or in respect of any special proceedings or by any police officer, or (c) in any case by a person appointed by the Director-General, generally or in respect of any special proceedings, or (d) in any case by an officer of the Department of Health appointed by the Director-General, Department of Health, generally or in respect of any special proceedings, or (e) by any other person. 11 When amendments were made to the Criminal Procedure Act pursuant to the transitional provisions being clause 38 of schedule 2, the reference to "laying of information" in s 684 is taken to be a reference to "issuing and filing a court attendance notice." The effect is that s 684(a) of the Local Government Act should be read as follows: "in any proceedings for an offence, the court attendance notice may be issued and filed in the name of the council, if not required to be made on oath."

Was it necessary for the appellant to comply with s 174? 12 The appellant submitted that it was expressly empowered by s 684(a) of the Local Government Act to issue and file the CANs in the Local Court in its own corporate name. It was submitted that s 684(a) was a specific provision addressing the position of a council which prevailed over the general provisions contained in s 173 and s 174 of the Act. 13 It was submitted that neither s 173 nor s 174 address the situation where a statutory corporation acting in a public capacity is empowered to commence summary proceedings in its own name. That matter is expressly addressed by s 684(a) which, being a beneficial and facultative provision, should be accorded a broad interpretation. 14 It was further submitted that the power conferred by s 684(a) of the Local Government Act is not conditional upon the obtaining of the endorsement of a registrar of a local court. Nor should s 174 of the Act be construed so as to impose a condition precedent to the exercise of the appellant's authority to commence summary proceedings in its own name under s 684(a). Rather, s 174 makes general provision for the commencement of proceedings by persons other than those identified in s 173 and the specific provision in s 684(a) prevails. 15 The respondents submitted that there were three significant factual findings made by his Honour: (i) the proceedings were commenced by CAN under s 173 of the Act; (ii) each CAN named Warringah Council as the prosecutor; (iii) it is not known who actually arranged the issue of the CANs. 16 It was submitted that Ch 4 Pt 2 Division 1 of the Act provides a code for the commencement of proceedings for the prosecution of summary offences. This is said to be apparent from s 172(1) of the Act and is consistent with the Second Reading Speech where it was stated that the legislation was intended to provide a clear statement of the process of prosecution in summary proceedings in the Local Court. 17 It was further submitted that the use of s 173 to commence proceedings is confined to "a police officer or public officer." The definition of "public officer" is contained in s 3 of the Act and the presence of the word "means" in the definition (rather than "includes") indicates that the definition is intended to be exhaustive (see Sherritt Gordon Mines Ltd v FCT (1976) 10 ALR 441; Gardner v R [2003] NSWCCA 199). The use of the words "employee" and "officer" throughout the provision suggests that it was intended to be confined to individuals and not the bodies of which they are an employee or officer. This is further suggested by the qualification that such employees and officers must be acting "in an official capacity" if they are to come within the section. 18 It was further submitted that the definition of "public officer" expressly includes "an employee of a council." It was argued that the inclusion of such an employee within the definition supports a construction of the provision which excludes a council itself from the definition. The presence of that phrase indicates that in enacting the definition, the Parliament specifically considered the position of councils established under the Local Government Act. Paragraph (f) of the definition was also submitted to support a construction that the definition is limited to individuals and does not include the body of which they are an officer or employee. See also clause 20 of the Criminal Procedure Regulation 2005 for a list of bodies declared to be public bodies for the purposes of para (f) of the definition. 19 The respondents acknowledge that the appellant submitted that it is significant that, "neither of these provisions [ss 173 and 174] expressly contemplates the position where a statutory corporation acting in a public capacity is empowered to commence summary proceedings in its own name." It was submitted that the significance attached by the appellant to this observation is misplaced as the legislature has specifically considered the position of councils in the terms in which it has enacted s 173 and the definition of "public officer." It also ignores the clear legislative intention expressed in the mandatory language of s 172 of the Act, that the provisions in Part 2 Division 1 provide a code in relation to the commencement of proceedings for summary offences. 20 It was submitted that all of these observations concerning the content of s 173 and the definition of "public officer" support a construction that the council as a statutory corporation does not fall within the class of officer that may utilise the procedure contained in s 173. The presence of the word "person" in s 174, (and its absence from s 173 and the definition of "public officer"), may permit a council, if it so choses, to commence proceedings as a statutory corporation, rather than by its employees. If it does so, it must comply with the requirements of s 174. 21 It was submitted that the purpose behind the different requirements in ss 173 and 174 was primarily to provide a safeguard against frivolous and vexatious private prosecutions and to provide a degree of accountability: Sasterawan v Morris [2007] NSWCCA 185 at [22]. However, it is clear from the presence of the words "or under any other law" in s 174, and the particularity of the definition of "public officer", that there will be prosecutors who might be considered to be a prosecutor "acting in an official capacity", who would not be a "public officer" for the purposes of s 173, and would be required to commence proceedings under s 174. 22 It was further submitted that to construe, as it appears the appellant seeks to do, s 684 of the Local Government Act as a separate means by which proceedings may be commenced is to ignore the mandatory language of s 172 of the Act, and the fact that in enacting the provisions in Ch 4 Part 2 Division 1 of the Act, the legislature has specifically considered the position of councils. It is also contrary to the stated Parliamentary intention contained in the second reading speech set out above. Any contention that s 684 of the Local Government Act in some way extends the class of persons that fall within the definition of "public officer" is contrary to the express words used in the definition of that term. 23 It was further submitted that s 684 of the Local Government Act, as amended by the transitional provisions in the Act, is capable of being construed consistently with s 174 of the Act. If a council opts to name itself as prosecutor, it may proceed pursuant to s 174 of the Act. Under s 684 of the Local Government Act a council is permitted to issue and file a CAN in its own name. The section is silent as to how that is to be done, and how the council may engage the jurisdiction of the Local Court. The jurisdiction of the Local Court is to be engaged in those circumstances by compliance with s 174 of the Act. Under s 174 of the Act the prosecutor issues and files a CAN. The two provisions are consistent in terms of what a council is empowered to do. In engaging the jurisdiction of the Local Court, however, the legislature has required prosecutors, when commencing proceedings in this way, to comply with the requirements of s 174 of the Act. 24 In the present case his Honour found that the prosecution was commenced under s 173 of the Act. It is implicit in his Honour's findings that the prosecution was not commenced by an employee of the council concerned. In those circumstances it was submitted the proceedings were invalidly commenced.

The Registrar's signature was not required 25 Part 2 of Chapter 4 of the Act has at least two objectives. Where proceedings are brought by a police officer or public officer, which includes an employee of a council, the proceedings will be commenced by the officer. However, the officer is acting in his or her capacity as the agent or delegate of the employer, which, in respect of a local government prosecution will be the employing council. In these circumstances the court plays no supervisory role in relation to the issue of a "CAN" and does not have to be satisfied that it identifies a known offence or is otherwise a regular CAN. There is no requirement for the officer to first approach the court; the officer may issue and, after service, file a CAN. 26 Where a prosecution is commenced by a person other than a police officer or public officer the supervisory process provided by s 174 operates. This section was intended to provide a form of "filter" so that prosecutions were confined to known offences, the potential consequences were understood by private informants and the form of the process complied with any relevant rule or regulation. These purposes are readily identified from the Report of the Justices Act Review Committee (JARC) which preceded the legislation. The Committee said: (p 20) "In regard to private informants, it was felt that the filtering achieved by the laying of informations before justices would continue to serve a useful purpose. Informants acting on their own behalf are not in the best position to assess the appropriateness or likely success of their proposed actions. They may also be under a misapprehension about taking the matter to court will achieve for them and they may be unaware of possible adverse consequences to them." 27 Section 684 of the Local Government Act makes particular provision for the prosecution of offences by councils. When read with the Transitional Provisions of the Criminal Procedure Act the section must be read as providing that in any proceedings for an offence the CAN may be issued and filed in the name of the council. Of course, the person who initiates the issuing of the CAN, even if it is prepared by an agent, perhaps a solicitor or other agent, will be an officer of the council. That person is by definition a "public officer." Before the proceedings could be lawfully commenced that person must have authority from the council. That authority may either be some general form of authorisation or particular to the individual case. Section 173 provides the mechanism for the officer to commence the proceedings. Section 684 provides that the CAN for those proceedings may be issued in the name of the council. The suggestion that because the CAN issued in the name of the council it was necessary to comply with s 174 is misconceived. 28 There was no suggestion in the present case that the proceedings were not lawfully commenced, in the sense that they were initiated by a person lacking the authority of the council to do so. Accordingly, as all council employees are by definition "public officers", although the "paper work" may have been completed by an agent of the council, the proceedings were commenced by the public officer within the meaning of s 173. Section 684 provides that the CAN which was issued could be issued in the name of the council rather than of the employee who initiated the proceedings. It follows that the proceedings were validly commenced pursuant to s 173. 29 The respondents' argument would have the consequence that although a council officer may pursuant to s 173 commence proceedings in his or her own name, that officer may not commence proceedings in the name of the council without the signature of the registrar. As I discuss below this result is surprising and lacks any credible justification. It would significantly diminish the efficiencies which the amendments to the Criminal Procedure Act which introduced s 173 were intended to achieve. 30 The question in the stated case should be answered "yes."

Further arguments 31 In the event that this Court found that the council should have complied with s 174 before issuing the CANs the appellant submitted, on two bases, that the proceedings were valid. Firstly, the council relied on the principles in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 and, secondly, on s 16(2) of the Criminal Procedure Act. Because I am satisfied that the appellant was not required to comply with s 174 and the proceedings were valid I will briefly deal with both arguments. 32 The Report of the Justices Act Review Committee confirms that the Act was intended to provide a more efficient process of prosecution by public bodies who can bring proceedings without first approaching the court, and a more regulated process for prosecutions by individuals (s 174). The present prosecution could have been brought by a council officer, acting in their official capacity, in his or her own name in which event s 174 was irrelevant. It was submitted by the respondents, and was apparently accepted by the District Court judge, that by requiring a prosecution on behalf of a council to be brought in the name of an officer, and if not, the CAN must be signed by a registrar, the Parliament intended to provide a form of accountability in the commencement of local government prosecutions. I cannot accept this argument. 33 It is true that if the proceedings are brought in the name of the officer he or she will be personally identified with the prosecution. If however, that officer or some other officer either personally or by an agent arranges for a CAN to issue, although his or her name may not appear upon it, there will inevitably be a documentary trail leading to that officer. The relevant documents have to be drawn up, issued, served and filed. The prosecution will either be commenced pursuant to a resolution of the council or, as is often the case, pursuant to authority delegated to a particular officer. Any suggestion that the officer who initiates the proceedings cannot be identified is unrealistic. The legislature when enacting s 684 had no concerns when providing that a council could prosecute in its corporate name that council officers would not be accountable for their actions. I see no reason to infer that s 173 and s 174 were intended to provide accountability mechanisms in relation to public bodies. All that was intended was that proceedings to be prosecuted by an individual would be subject to review, for limited purposes (s 174(2)), quite unrelated to accountability by a registrar of the court. 34 Section 174(2) provides a limited capacity in the registrar to refuse to sign a CAN. He or she may do so only if:

(a) the registrar is of the opinion that the notice does not disclose grounds for the proceedings, or

(b) the registrar is of the opinion that the notice is not in the form required by or under this Act, or

(c) the registrar is of the opinion that a ground for refusal set out in the rules applies to the notice. 35 If the registrar refuses to sign a CAN s 174(3) provides that it may be reviewed by the Local Court. 36 In the present case it is apparent that the CANs were such that the court would have required the registrar to sign them. The CANs did disclose grounds for an offence. In fact the respondents were found guilty and convicted of the offences after trial. During the proceedings the respondents challenged the form of the CANs in the Local Court on the grounds that each notice contained more than one offence and that the short particulars of the offences were described in a schedule attached to each notice rather than in the body of the notice. The magistrate ruled on that challenge holding the CAN to be valid. This ruling was effectively upheld in the District Court. The only defect which was found in the District Court, was the absence of the registrar's signature. 37 In R v Janceski (2005) 64 NSWLR 10 this Court considered the situation where an indictment had been signed by a person not authorised to do so under s 126 of the Criminal Procedure Act. The court, after consideration of the principles in Project Blue Sky, concluded that in these circumstances the legislature intended that the proceedings would be invalid. The principal purpose of s 126 was to ensure that the Director of Public Prosecutions would be in control of the process of instituting criminal proceedings on indictment. There are exceptions in relation to the Attorney-General's power, but otherwise the legislative intention was that other persons would not be able to validly initiate proceedings by signing the indictment. 38 The legislative purpose of s 173 and 174 is quite different to the purpose of s 126. Many persons may institute summary proceedings, including of course a council. When the proceedings are commenced by other than a police officer or public officer the registrar must first sign the CAN. The purpose of s 174 is to, inter alia, protect a defendant from frivolous proceedings. It is also to protect prosecutors from commencing proceedings which have no prospect of success or contain procedural irregularities. The consequences of failure may of course be proceedings for malicious prosecution or an order for costs. The irregularity in Janceski required the intervention of the court because the statute confined the authority to bring proceedings on indictment to the Director of Public Prosecutions. A failure to comply with s 174 does not have a similar consequence. The authority to bring proceedings is provided elsewhere (see s 14 of the Act). 39 The respondents submitted that the decision of a registrar to sign or not sign a CAN under s 174 is not simply a "clerical" task. It requires the registrar to exercise judgment and arrive at an opinion (see Potier v Huber (2004) 148 A Crim R 399 and 406; Kew v Commissioner of Fair Trading and Robinson [2007] NSWSC 394). 40 The respondents drew attention to clause 57 of the Local Court (Criminal and Applications Procedures) Rule 2003 which a registrar is required to apply when considering a CAN. At the time the appellant commenced these proceedings clause 57 provided as follows: "A registrar must not sign a CAN, or an application notice, in proceedings commenced by a person other than a police officer or a public officer if of the opinion that the proceedings are frivolous, vexatious, without substance or have no reasonable prospect of success." 41 Accordingly, it was submitted that a failure to comply with s 174 meant that the registrar never had the opportunity to exercise the judgment he or she was required to make. It was submitted that it was plain that the decision to sign a CAN was not simply some minor clerical task but one which must be completed and which was subject to review by a magistrate. 42 Notwithstanding that s 174 requires the registrar to exercise a judgment which may be reviewed by a magistrate, the section does not provide a constraint on the authority of a person to commence proceedings. In the event that there has been a failure to comply with s 174 the issues which must be the subject of judgment by the registrar and capable of review, are matters which will ultimately be determined in the proceedings themselves. Although a decision by the registrar to refuse to sign the CAN would have the effect that the prosecution cannot be initiated, it would not affect any substantive right of the defendant in that prosecution. A failure to comply with the provision does not preclude the defendant from raising as an issue in the proceedings any matter relevant to the registrar's determination. In my view the Parliament did not intend that a failure to comply with s 174 would invalidate the proceedings.

Section 16 of the Act 43 Section 16(2)(a) of the Criminal Procedure Act provides "(2) No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in a Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of:

(a) any alleged defect in it in substance or in form, or … " 44 Section 15(2) of the Act indicates that "indictment" includes a CAN. In Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 Mahoney JA considered the history and scope of s 65 of the Justices Act, the predecessor of s 16(2) of the Criminal Procedure Act. His Honour said at 515: "Where an information is defective, at least 3 questions may arise: may the information be amended to cure the defect?; may the defect be ignored or put aside; and (if it may not be amended or ignored) is the defect such that proceedings upon it will be stayed or a conviction quashed? It is to informations which are defective in this third sense that I use the term "void"." 45 In Garrett v Freeman (2006) 147 LGERA 96; [2006] NSWCCA 278 this Court was called upon to determine, inter alia, whether s 16(2)(a) could be applied to cure a summons which was defective in that the prosecutor had been described as "Stephen Garrett for and on behalf of the Director-General of the Department of the Environment and Conservation." Mr Garrett had authority to prosecute the proceedings, but the Director-General of the Department did not. 46 In these circumstances this Court found that the defect in the summons was curable pursuant to s 16(2)(a) of the Criminal Procedure Act. James J cited with approval the following passage from the judgment of this Court in Corporate Affairs Commission v Bain (1991) 55 A Crim R 73 at 78: "There is much authority for the view that s 65 should be given a wide construction. Thus, in Ex parte McAuley; Re Cam (1944) 44 SR (NSW) 258, Jordan CJ (with whom Halse Rogers J concurred) said (at 259-260): 'Section 65(1)(a) is a most valuable section, and it is important that it should not be whittled away by the allowance of objections to an information if they can be cured without causing injustice. As was pointed out by Griffiths CJ in Hedberg v Woodhall (1913) 15 CLR 531 at 534-5, the section means that 'if objections are taken which really do not go to the merits of the case the magistrate is not to stay his hand, but to proceed to dispose of the case on the merits.' If the defect is curable, it is the duty of the magistrate to aid in curing it.' …"

See also Knaggs v Director of Public Prosecutions [2007] NSWCA 83 at [48]-[49]. 47 In Rockdale Beef Pty Ltd v Industrial Relations Commission of New South Wales & Anor [2007] NSWCA 128 Basten JA observed that defects covered by s 16(2)(a) must be assessed by consideration of the purpose of the statutory requirements not complied with and the likely effect of the non-compliance in relation to the purpose for which the notice is given (at [132]). 48 In the present case if the registrar's signature was required, the defect of not having that signature on the CANs has had no substantive effect. It could not have resulted in any unfairness to the respondents. In fact the respondents did not take the point until their appeal in the District Court. Furthermore, it did not occasion any problem of the type which s 174(2) was designed to address. The defect, if it be one, did not go to the merits of the matter. Although not a clerical error, it has occasioned no injustice to the respondents. 49 This Court held that s 16 of the Act was not relevant to the situation in Janceski. It could not cure the lack of authority to prosecute. In the present case the appellant council had authority provided by the Local Government Act to bring proceedings in its own name. If the failure to obtain the signature of the registrar was a defect it was procedural and did not go to the authority to bring the proceedings. As I have already indicated, the purpose of s 174 of the Criminal Procedure Act is quite different from s 126. Section 126 provides the authority for the prosecution of proceedings on indictment. Section 174 provides a discipline on proceedings which may be brought by a prosecutor acting in a private capacity. 50 In these circumstances in my view the approach taken by the court in Garrett would be appropriate in the present case. Section 16(2) would operate so that the proceedings would be valid. 51 The question in the stated case should be answered "yes." The respondents should pay the appellant's costs of the stated case. 52 HALL J: I agree with McClellan CJ at CL. 53 PRICE J: I agree with McClellan CJ at CL.

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