Auburn Council v Zizikas
[1999] NSWLEC 222
•09/23/1999
Land and Environment Court
of New South Wales
CITATION:
Auburn Council v Zizikas and Ors [1999] NSWLEC 222
PARTIES
APPLICANT
Auburn CouncilRESPONDENT
Zizikas and Ors
NUMBER:
40182 of 1997
CORAM:
Cowdroy J
KEY ISSUES:
Contempt; Question of Law :- Power of Court to order a moiety of a fine - proceedings for contempt of Court do not relate to an offence as defined in the Fines Act 1996 - no power to make order for payment of moiety of fine under s 122(2) of Fines Act 1996
LEGISLATION CITED:
Fines Act s 4, s 122(2)
Fines and Penalties Act 1901
DATES OF HEARING:
09/13/1999
DATE OF JUDGMENT DELIVERY:
09/23/1999
LEGAL REPRESENTATIVES:
APPLICANT
Mr A Hawkes (Solicitor)SOLICITORS
Pike Pike & Fenwick SolicitorsRESPONDENT
SOLICITORS
No appearance
n/a
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMATTER No. 40182 of 1997
CORAM: Cowdroy J
DECISION DATE: 23/9/99
Applicant
First Respondents
Second Respondent
Background
1. In these ex parte proceedings, Auburn Council (“the applicant”) seeks an order pursuant to s 122(2) of the Fines Act 1996 (“the Fines Act”) that a moiety of the fines imposed upon each of the respondents be paid to it as prosecutor. This application raises a threshold question concerning the power of the Court to make such order.
2. Section 122 of the Fines Act provides:-
122 Payment of share of fine to prosecutor
(1) This section applies where:
(a) the Act imposing or authorising the imposition of a fine or other penalty does not make any provisions for its application when recovered, and
(b) the prosecutor is not a police officer.
- (2) The court before which proceedings are taken to recover any such fine or other penalty may direct that such portion of it (not exceeding one-half) is to be paid to the prosecutor.
Precedent
3. In Hawkesbury City Council v Mushroom Composters Pty Ltd [No 2] 1995 89 LGERA 132) Pearlman J held that s 5(3) of the Fines and Penalties Act 1901 (NSW) (“the FP Act”) did not permit the Court to make an order for the payment of a moiety for the fine imposed for a contempt of Court.
4. Section 5(3) of the FP Act provided:-
Section 5(3) of the FP Act was replaced by s 122 of the Fines Act. In Hawkesbury [No 2] Pearlman J determined that since the fine in question was not “ imposed ” by an Act, s 5(3) had no application. In Hawkesbury City Council v Foster and Mushroom Composters Pty Ltd (1997) 97 LGERA 12 the New South Wales Court of Appeal by majority upheld Her Honour’s judgment on all issues.
Where the Act imposing or authorising the imposition of a fine penalty or forfeiture makes no direction as to the application thereof the court before which such fine penalty or forfeiture is recovered may where the informer or other person prosecuting or suing portion of the fine penalty or forfeiture as the Court thinks fit (but not exceeding a moiety thereof) shall be paid to the informer or other person prosecuting or suing for the same.
6. Since the fine the subject of this application was not imposed by an Act as required by s 122(1)(a) but has been imposed resulting from a finding of contempt, the same consequence as determined in Hawkesbury [No 2] applies. The principle is clear, namely that an act, in this case the fine, is only imposed by or under an enactment if it results directly from the source of power to impose it; see Glasson v Parkes Rural Distributions Pty Ltd (1984) 155 CLR 234; Ansett Transport Industries Ltd v Secretary Department of Aviation (1986-87) 70 ALR 743 at 752; Lewins v Australian National University (1995) 133 ALR 452.
Relevant Provisions of the Fines Act 1996
7. The FP Act did not provide a definition of “ fine ”. The Fines Act does, in s 4 as follows:-
(1) For the purposes of this Act, a fine is:
(a) any monetary penalty imposed by a court for an offence, or
(b) any amount payable under a penalty notice enforcement order, or
(c) any court fees or charges payable by a person under an order made by a court in proceedings for an offence, or
(d) - (g) not relevant
The term “ offence ” is not defined in the Fines Act nor is there any definition of such term contained in the Interpretation Act 1987. In Zimmerman v Commissioner of Inland Revenue [1960] NZLR 8, Hardie Boys J at 13 said:-
“Offence” generally is regarded as an action which offends against some statutory provision or involves some crime or misdemeanour known to the common law. Re Derbyshire County Council and Derby Corporation [1896] 2 Q.B. 53, and on appeal to the House of Lords [1987] A.C. 550, is authority for the proposition that, while the use of the word “offence” is not conclusive in creating a misdemeanour, none the less the criterion is whether it is followed by a penalty.
8. In Derbyshire Collins J, at 58 observed, prima facie, an offence is “equivalent to a crime ”. In Pooley v Whethan (1880) 15 Ch. D.435 it was held that for the purposes of the Extradition Act 1870 contempt of court in a civil action was not “ an offence ” within the meaning of that Act. In Garvin v Domus Publishing Ltd and another [1989] 2 All ER 344 Walton J applied Pooley and determined that proceedings for contempt of court were not proceedings for a criminal offence for the purposes of s 14(1)(a) of the Civil Evidence Act 1968 (UK). In Cobra Golf Ltd and another v Rata and others [1997] 2 All ER 150 Rimmer J said of Pooley :-
This principle has been followed repeatedly in Australian decisions. In Kemsley v Kemsley (1984) FLC 91-567 the Full Court of the Family Court said at 79,593:-
Although that case concerned s 19 of the Extradition Act 1870, it is in my view a decision of the Court of Appeal to the effect that a contempt in the nature of a failure to comply with an order of a superior court is not a criminal offence.
A civil contempt constituted by the wilful disobedience of a decree does not appear to be an offence against a law of the Commonwealth.
Similarly the Full Court of the Family Court of Australia has determined that proceedings for breach of the court’s orders instituted pursuant to the provisions of the Family Law Act 1975 (Cth) do not constitute a prosecution for “ an offence against or arising under an Australian law ” within the meaning of the Evidence Act 1995 (Cth) and are civil proceedings within the meaning of that Act; see In Marriage of Lindsey (1995) 128 FLR 95.
9. These authorities make it clear that proceedings for contempt of court are not criminal proceedings. Whilst contempt proceedings may be criminal in nature, they remain civil proceedings (see Witham v Holloway (1995) 183 CLR 525 at 530 -531). Applying such principle, the term “ an offence ” as used in the definition contained in s 4(1)(b) of the Act relates to an offence against a statutory provision or crime or misdemeanour known to the common law.
10. In South Sydney C.C. v Sunny Soon Kiat Liu (unreported 40239 of 1997, 30 October 1998) Bignold J made an order that a moiety of a fine be paid to the applicant purportedly pursuant to s 122(2) of the Fines Act. The judgment however does not record that the issue concerning the power of the Court to make such order was considered.
11. The decision relied upon by the applicant in Council of the City of South Sydney v Forte Enterprises Pty Ltd (unreported no 40073 of 1992) was not followed by Pearlman J in Hawkesbury [No 2]. The decision of the New South Wales Court of Appeal in Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 also relied upon by the applicant does no more than confirm the inherent power of the Court to set aside its own orders. These authorities are not pertinent to this application.
12. In Hawkesbury the New South Wales Court of Appeal has unequivocally confirmed that a fine resulting from contempt does not arise under an Act. The Fines Act s 122(1)(a) requires that a fine be imposed by an act. It was not. Further the definition of “ fine ” in the Fines Act expressly limits the fine to one imposed for an “ offence ”. A successful contempt action does not give rise to the creation of “ an offence ”.
13. In view of the findings made above there is no scope for the application of s 122(2). Accordingly there is no power in the Court to make the order sought in the notice of motion.
Discretion
14. The applicant claims that the Court has a discretion to award a moiety of the fine. Discretion only arises in the event that the applicant has established a right to such payment. Since the Fines Act has no application, no occasion arises for the exercise of the Court’s discretion.
Orders
15. The Court orders that the application be dismissed.
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