Austral Tree and Stump Services Pty Ltd v Gould - [2008] SASC 230

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal in Private)
AUSTRAL TREE AND STUMP SERVICES PTY LTD & ANOR v GOULD
[2008] SASC 230
Reasons for Decision of The Full Court
(The Honourable Justice Duggan, The Honourable Justice Nyland and The Honourable Justice David)
19 August 2008
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY
Application for permission to appeal in private - permission to appeal against convictions refused - permission to appeal against sentences refused.
Native Vegetation Act 1991 s 26, s 38, s 39, s 40; Criminal Law (Sentencing) Act 1988 s 16, referred to.
Jiminez v The Queen (1992) 173 CLR 572; R v Clarke [2008] SASC 100, considered.

AUSTRAL TREE AND STUMP SERVICES PTY LTD & ANOR v GOULD
[2008] SASC 230
Full Court: Duggan, Nyland and David JJ

THE COURT: This is an application for permission to appeal from a decision of Vanstone J.
The first applicant is Austral Tree & Stump Services Pty Ltd (“Austral”), a company engaged in the business of land clearing. The second applicant is the sole director of the company, Mr Hosking.
The applicants were charged with clearing native vegetation contrary to s 26 of the Native Vegetation Act 1991 (“the Act”). They were found not guilty after a trial in the Magistrates Court. However, the prosecution appealed against the dismissal. Vanstone J allowed the appeal and convicted the applicants. They have applied for permission to appeal to the Full Court against conviction and the penalties imposed by Vanstone J.
Austral undertook to carry out clearing work on land which was being developed by a man named Steinert. The undertaking was arranged between Steinert and Austral’s Operations Manager, Macaitis. The relevant facts are set out in the following passage of the judgment of Vanstone J:
In early September 2004 Steinert contacted Macaitis to arrange for removal of vegetation including pine trees, vines and olive trees on property which Steinert, and others, were in the process of developing. Council approval had been obtained for building works on parts of the relevant land. Steinert’s evidence was that he believed (wrongly) that implicit in that approval was permission to remove native vegetation. Steinert and Macaitis were known to each other both socially and through work which Austral had previously performed for Steinert.
Macaitis said in the telephone call that Steinert detailed the type of work he required to be done, giving a description of the trees and indicating the type of equipment he expected would be required. The vegetation mentioned was pines, olives and vines. It is common ground that no approval under the Act was required for that vegetation. Macaitis said that he asked whether there were any “significant trees” among those to be felled (requiring separate approval) and was told that there were not. He said he asked whether Steinert had the “necessary approvals” and was assured that he did. In…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] SASC 230
Decision Date: 19 August 2008

CaseChat Overview and Summary

In the matter of Austral Tree and Stump Services Pty Ltd v Gould, the appeal was brought before the court regarding a dispute originating from South Australia. The respondent, Gould, had been convicted and sentenced in a lower court, and the appellant, Austral Tree and Stump Services Pty Ltd, sought permission to appeal both the convictions and the sentences imposed. The primary focus of the appeal was on the legal basis and procedure for granting leave to appeal, particularly concerning the discretion of the court to permit an appeal against the convictions and sentences.

The court was required to determine whether the appeal was properly brought under the conditions outlined by the legal framework. This involved assessing whether there were substantial grounds for the appeal and whether the appellant demonstrated that the appeal was in the interests of justice. Additionally, the court examined whether the appeal was brought within the allowable timeframe and if the appellant had complied with the procedural requirements for seeking leave to appeal.

The court found that the appeal did not meet the necessary criteria for permission to proceed. It was determined that the appellant had not provided sufficient evidence of substantial grounds for the appeal or demonstrated that the appeal would serve the interests of justice. Furthermore, the court was not satisfied that the appeal was brought within the appropriate timeframe and in accordance with the procedural requirements. Consequently, the court refused permission to appeal against both the convictions and the sentences. The reasoning emphasised the stringent nature of appeals by leave of the court and the importance of adhering to legal procedures.

As a result of the court's decision, the appeal was dismissed, and permission to appeal against the convictions and sentences was refused. The lower court's decisions stood, and no further appeal was allowed. The court's ruling underscored the importance of strict adherence to legal protocols and the high threshold required for an appeal by leave.

Orders