Authorised Officer Ian Beer v D'Aquino

[2006] NSWSC 821

CITATION:	Authorised Officer Ian Beer v D'Aquino & Ors [2006] NSWSC 821
HEARING DATE(S):	15/6/06
JUDGMENT DATE :	18 August 2006
JUDGMENT OF:	Bell J at 1
DECISION:	1. Answer questions (a) “yes” and (b) “yes” and dismiss the defendants’ motion filed on 9 November 2005 in each of the proceedings; 2. The defendants have 14 days from today’s date in which to file any further submissions on the orders claimed in the prosecutor’s motion and with respect to costs. The prosecutor has seven days thereafter to file any submissions in reply.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Food Act 2003 Industrial Relations Commission Rules 1996 Land and Environment Court Act 1979 Supreme Court Rules 1970 Supreme Court (Summary Jurisdiction) Act 1967 Uniform Civil Procedure Act 2005
CASES CITED:	John Holland Group Pty Ltd v Industrial Relations Court of NSW [2006] NSWCA 93 Hamilton v Oades (1988) 166 CLR 486 McConnell Dowell Constructors v Environment Protection Authority [2000] NSWCCA 367; 50 NSWLR 127 McGerty v Dairy Farmers Co-operative Ltd (1989) 43 A Crim R 308 R v Janceski (2005) 64 NSWLR 10
PARTIES:	Authorised Officer Ian Beer v Fernbrew Pty Ltd T/as D’Aquino Bond Wholesalers Authorised Officer Ian Beer v Fernbrew Pty Ltd T/as D’Aquino Bond Wholesalers Authorised Officer Ian Beer v Fernbrew Pty Ltd T/as D’Aquino Bond Wholesalers Authorised Officer Ian Beer v D’Aquino Bros Pty Ltd (ACN 000 106 472) Authorised Officer Ian Beer v D’Aquino Bros Pty Ltd (ACN 000 106 472) Authorised Officer Ian Beer v D’Aquino Bros Pty Ltd (ACN 000 106 472)
FILE NUMBER(S):	SC 14217/04; 14219/04; 14222/04; 12447/05; 12455/05; 12456/05
COUNSEL:	I. Temby QC / J Atkin (Plaintiff/Prosecutor) B. Hodgkinson SC / M. Shume (Defendant)
SOLICITORS:	Moray & Agnew Solicitors (Plaintiff/Prosecutor) Cheney & Wilson Solicitors (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

014217/04 Authorised Officer Ian Beer v Fernbrew Pty Ltd T/as D’Aquino Bond Wholesalers
014219/04 Authorised Officer Ian Beer v Fernbrew Pty Ltd T/as D’Aquino Bond Wholesalers
014222/04 Authorised Officer Ian Beer v Fernbrew Pty Ltd T/as D’Aquino Bond Wholesalers
012447/05 Authorised Officer Ian Beer v D’Aquino Bros Pty Ltd (ACN 000 106 472)
012455/05 Authorised Officer Ian Beer v D’Aquino Bros Pty Ltd (ACN 000 106 472)
012456/05 Authorised Officer Ian Beer v D’Aquino Bros Pty Ltd (ACN 000 106 472)

JUDGMENT

1 BELL J: In each of these proceedings a summons was filed claiming an order that the defendant appear before a judge of the court to answer to an offence under the Food Act 2003 (NSW). The defendants submit that the proceedings have not been validly commenced and that the Court is without jurisdiction to deal with them.

2 On 4 November 2005 the defendants filed notices of motion in each proceeding claiming orders including that:

1. Before the defendant is required to plead pursuant to SCR Pt 75 r 11B, the Court decides separately pursuant to UCPR r 28.2 whether the Court can take cognisance of the proceedings and whether the Court has jurisdiction to hear and determine the proceedings pursuant to s 245 of the Criminal Procedure Act 1986 .

3 On 5 December 2005 the Registrar made orders in each of the proceedings which included that the Court determine as separate questions, before the defendant is required to plead pursuant to SCR Part 75 Rule 11B:

(a) whether the Court can take cognisance of the proceedings;
(b) whether the Court has jurisdiction pursuant to section 245 of the Criminal Procedure Act 1986 to hear and determine the proceedings.

On that day the prosecutor was given leave to file in court Notices of Motion, which claimed orders that:

1.The Court pursuant to s 245(2) of the Criminal Procedure Act 1986 issue an order forthwith in terms of the Minute of Order attached hereto in annexure “A”.
2. The Court dispense with the requirements of Pt 75, r 9 of the Supreme Court Rules 1970.


The orders made by the Registrar included a timetable for the filing of affidavits. Order 5 set aside an earlier order that required the defendant to file and serve affidavit evidence in the substantive proceedings. This was the subject of the second prayer for relief in the defendants’ motions. It is not necessary to further refer to it. The Registrar ordered that the determination of questions (a) and (b) above and the prosecutor’s motion be listed for hearing.

4 The issues raised by paragraph 1 in the motions filed on behalf of the defendants (being the subject of the separate questions) are common to each of the proceedings, as are the issues raised by the prosecutor’s motion.

5 Each of the motions came on for hearing on 15 June 2006. It was agreed that it was convenient for me to deal with the motions in each of the six proceedings together. At the conclusion of the hearing the prosecutor sought and was given leave to file supplementary written submissions. These were received on 30 June 2006. Submissions in reply were received on 17 July 2006.

6 The facts are not in issue. The New South Wales Food Authority (the Authority) is constituted under Pt 9 of the Food Act. The prosecutor in each case is described as an authorised officer. An authorised officer for the purposes of the Food Act is a person appointed under Division 3 of Pt 9.

7 In July 2004 the Authority instructed solicitors to advise it in relation to alleged breaches of the Food Act committed by the defendants.

8 In early December 2004 the Authority instructed its solicitors to prepare documents in relation to alleged breaches of the Food Act by the defendants to be filed in this Court. The solicitor responsible for the conduct of the matters on the Authority’s behalf took advice from counsel and the thereafter sought to file two documents, a summons (which was accepted) and a minute of order, which was returned to him. An officer in the Registry advised him that the Judge would make an order at a later time in the proceedings. These events occurred on 16 December 2004 and related to summonses in proceedings 14178/2004. Proceedings on this summons have been discontinued.

9 On 21 December 2004 summonses in proceedings 14217/02, 14218/02, 14219/094, 14220/04, 14221/04 and 14222/04 were filed. No other document was filed in any of these proceedings.

10 Solicitors acting for the defendant, Fernbrew Pty Ltd trading as D’Aquino Bond Wholesalers (Fernbrew), agreed to accept service of the summons in each of the proceedings and copies of the summonses were sent to them. Subsequently the solicitors acting for Fernbrew entered an appearance in each of the seven sets of proceedings.

11 On 25 May 2005 proceedings on summonses 14178/04, 14218/04, 14220/04 and 14221/04 were discontinued.

12 On 8 June 2005 three further summonses, 12447/05, 12455/05 and 12456/05 against D’Aquino Bros Pty Ltd (D’Aquino) were filed in the Registry of the Court by the solicitors acting for the Authority. No other documents were filed. The solicitors acting for D’Aquino agreed to accept service in relation to the three further summons matters and subsequently entered an appearance on behalf of D’Aquino in each proceeding.

13 The proceedings are brought in respect of offences that are alleged to have been committed under s18(3) and s 21(2) of the Food Act.

14 Section 18(3) of the Food Act provides that it is an offence for a person in the course of carrying on a food business to sell food that is packaged or labelled in a way that falsely describes the food.

15 Section 21(2) of the Food Act makes it an offence for a person to sell any food that does not comply with a requirement of the Food Standards Code that relates to the food.

16 The maximum penalty for an offence under s 18(3) and s 21(2), when committed by a corporation, is 2,500 penalty units.

17 Section 118 of the Food Act provides that proceedings for an offence under the Act may be dealt with summarily before a Local Court or before this Court in its summary jurisdiction. If proceedings are brought before a Local Court the maximum monetary penalty is $10,000, despite any higher maximum monetary penalty provided in respect of the offence. The maximum penalty that may be imposed by this Court in relation to a conviction for an offence contrary to s 18(3) or s 21(2) is $275,000 (a penalty unit at the present time being the equivalent of $110) .

18 The determination of whether proceedings for an offence under s 18(3) or 21(2) of the Food Act are to be brought in the Local Court or in this Court is made by the prosecutor.

19 Section 119(1)(a) provides, inter alia, that proceedings for an offence under the Food Act may only be instituted within 12 months after the date on which the offence is alleged to have been committed.

20 The summonses issued in 2004 each relate to an offence which is alleged to have been committed on 6 July 2004. The summonses issued in 2005 relate to an offence which is alleged to have been committed on 10 June 2004.

21 Part 5 of Ch 4 of the Criminal Procedure Act 1986 (the CPA) governs proceedings in this Court in its summary jurisdiction. Section 245 provides as follows:

245 (1) If, under any Act, proceedings may be taken before the Supreme Court in its summary jurisdiction, the Court has jurisdiction to hear and determine those proceedings in a summary manner.
(2) The summary jurisdiction conferred on the Supreme Court by subsection (1), or under any other Act on any other court to which this Part applies, is to be exercised by a Judge sitting alone, and not otherwise.

22 Division 2 of Pt 5 of Ch 4 deals with the appearance of accused persons in summary proceedings before the Supreme Court, it includes s 246 which provides:

246 (1) A prosecutor may apply for an order:
( a) that a person alleged in the application to have committed an offence that may be dealt with summarily by the court must appear at a time and place specified in the order to answer to the offence charged in the order, or
(b) for the apprehension of any such person for the purpose of being brought before a Judge to answer to the offence charged in the order.

(2) The application must be in accordance with the rules.
(3) The order may be made in the absence of one or both parties.
(4) An order for the apprehension of a person may be made whether or not an order has been made under subsection (1) (a).
(5) An order for the apprehension of a person:
(a) must be addressed to all police officers, and
(b) may be addressed to any other person specified in the order, and
(c) may be executed by any police officer or by any person to whom it is addressed at any place at which, had the offence specified in the order been committed at that place, that offence would be triable in the court.
(6) A Judge before whom a person apprehended under an order made under this section is brought may, if bail is not dispensed with or granted, issue a warrant:
(a) committing the person to a correctional centre or other place of security, and
(b) ordering the person to be brought before a court at the date, time and place specified in the order.

23 In each of the proceedings the summons claims an order that the defendant (Fernbrew or D’Aquino, as the case may be) appear before a judge of the Court to answer to the offence of which particulars are given.

24 The Supreme Court Rules 1970 (the SCR) deal with criminal proceedings in the summary jurisdiction of the Court in Pt 75 Div 2. Part 75 r 7 provides that proceedings for an offence under any Act which may be taken before the Court in its summary jurisdiction shall be commenced in the court by summons claiming an order under s 246 of the CPA in respect of the offence and claiming that the defendant be dealt with according to law for commission of the offence.

25 The summons in proceedings 12447/05 is in these terms:

The plaintiff claims:
An order that the defendant D’Aquino Bros Pty Ltd (ACN 000 106 472) a body corporate whose registered address is at level 1102, 309 Pitt Street, Sydney in the State of New South Wales appear before a judge of the Court to answer to the offence that in breach of s 18(3) of the Food Act 2003 on 10 June 2004 at 129 Bathurst Road, Orange in the State of New South Wales the defendant, being the proprietor of food business, to wit a liquor business known as D’Aquino’s Liquor, did sell food, namely bottled whisky, known as “Regency Whisky” which was falsely described in that the label on the bottle stated that the contents were Regency Whisky when it was not.
TO THE DEFENDANT:
D’AQUINO BROS PTY LTD [000 106 472] of: Level 1102, 309 Pitt Street, SYDNEY NSW 2000
If there is no attendance before the Court by you or by your counsel or solicitor at the time and place specified below, the proceedings may be heard and you will be liable to suffer judgment or an order against you in your absence.
…
Time: 9.00am on 18 July 2005
Place: Queen’s Square, Sydney

26 Each of the summonses in the other proceedings is in like terms, save that the particulars of the offence differ and that the defendant in the summonses issued in 2004 is, in each case, Fernbrew. No complaint is made as to the description of the offence or the sufficiency of the particulars in any proceeding.

27 The defendants submit that the summons does not claim an order under

s 246(1) of the CPA and does not state that the defendant is to be dealt with according to law for the commission of the offence. In their submission it follows that the proceedings have not been commenced in accordance with the SCR or the CPA, which by s 246(2) requires that the application be made in accordance with the rules. A further complaint that is said to go to the valid commencement of the proceedings, is the absence of an affidavit in support of the application for an order under

s 246(1).

28 In Mr Temby’s submission it is unthinkable that an order might be made under s 246(1) (a) or (b) in the absence of a supporting affidavit. In the latter case the order is for the apprehension of the accused person, however, the consequences of failure to obey an order made subs (1)(a) may also affect liberty: s 250.

29 Section 250 of the CPA is concerned with cases in which the accused person does not appear on the day and at the time and place set by an order made under s 246 (or on a day to which a hearing has been adjourned) and it allows the Court to proceed to hear and determine the matter in the absence of the accused person or, if it thinks the matter should not proceed on that day or without the accused person, to adjourn the hearing to a specified time and place and make an order for the apprehension of the accused person. The Court may only proceed in one of these ways if satisfied that the order was served on the accused person. To my mind recourse to the provisions of s 250 does not strengthen the defendants’ submission, that the scheme of the SCR and the CPA with respect to the commencement of proceedings for an offence that is to be dealt with in the summary jurisdiction of this Court, requires that the prosecutor file an affidavit in support of an application for an order under s 246(1).

30 Mr Temby referred to the decision of the Court of Appeal in John Holland Group Pty Ltd v Industrial Relations Court of NSW [2006] NSWCA 93 noting that in that case the application for an order under s 246(1) had been supported by an affidavit and that the Court had commented on that circumstance with apparent approval. The proceedings in that case were commenced in the Industrial Court in relation to an alleged offence under the Occupational Health and Safety Act. Mr Hodgkinson SC, who with Mr Shume appeared for the prosecutor, observed that under

r 217B(3)(a) of the Industrial Relations Commission Rules 1996 the Commission may require the prosecutor to file in support of the application for an order an affidavit verifying the allegations.

31 Nothing in the provisions of Pt 5 of Ch 4 of the CPA or in Div 2 of Pt 75 of the SCR requires that a prosecutor applying for an order under s 246(1) file an affidavit in support of the application. Part 75 r 9 contemplates that an affidavit may be filed with the summons and, in that event, it is to be served personally on the defendant with the summons and a copy of the minute of order. However, in the absence of a requirement under the Act or rules I do not consider the filing of an affidavit to be a condition of the valid commencement of proceedings for an offence in the summary jurisdiction of this Court. In this respect the scheme is to be distinguished from that under s 41 of the Land and Environment Act 1979 (as it then stood) and the Land and Environment Court Rules, which was considered in McConnell Dowell Constructors v Environment Protection Authority [2000] NSWCCA 367; 50 NSWLR 127 per Spigelman CJ at 135 136; [58] – [59].

32 Mr Hodgkinson acknowledged that the provisions of s 246 and the SCR had not been complied with in any of the proceedings. He submitted that nonetheless proceedings for an offence had been validly commenced in each case. He relied on the decision of the Court of Criminal Appeal in McGerty v Dairy Farmers Co-operative Ltd (1989) 43 A Crim R 308. The appellant in McGerty filed a summons in the Registry of the Land and Environment Court claiming an order that the respondent appear before a Judge of the Court to answer to an offence, which was alleged to have been committed under the Clean Waters Act. The Registrar purported to make the order. It was conceded that he had no power to do so. Subsequently, the prosecutor sought an order from a Judge of the Court. The Judge declined to make the order, holding that proceedings for an offence under the Clean Waters Act are instituted by application to a Judge pursuant to s 41 of the Land and Environment Act and not by summons. A six-month limitation period applied to the offence. The summons had been filed within time but the period had expired by the time the application for the order was made to the Judge. The proceedings were in Class 5 of the Land and Environment Court’s jurisdiction and their commencement was subject to the SCR. Part 75 Div 2 of the SCR made applicable to proceedings to which it applied Pt 7 r 6 and the Supreme Court (Summary Jurisdiction) Act 1967. Part 75 r 7 provided that proceedings were to be commenced by summons claiming an order under s 4 of the latter Act and claiming that the defendant be dealt with according to law for the commission of the offence.

33 The Court in McGerty held that the proceedings had been commenced by the filing of the summons in the Registry of the Court. The order made by the Registrar had no effect, but the Court had jurisdiction to deal with the matter when it came back before the Judge. Gleeson CJ said (at p 311):

The provisions of Pt 75, rr 6, 7,8 and 9 and Pt 7, r 6 of this Court, to my mind, make it clear that the method of commencement of proceedings such as these is by filing in court a summons. The time of commencement is the time of filing the summons.
The scheme is that when an order to a person that he attend court to answer a particular charge within the court’s summary jurisdiction is made it issues in response to the filing of a summons seeking such an order. The Rules require that the summons be filed and that the prosecutor shall also lodge with the Registrar copies of a minute of the order sought. An application for the order may be made ex parte. It is a matter for the court, having regard to the exigencies of its business, to decide exactly when and where a judge will consider the summons and any supporting material.
In (sic) order may or not be made on the day on which the summons if filed, but where an order is made then, should a question arise as to when the proceedings were commenced, the answer to that question is that they were commenced when the summons was filed.

34 The Court in McGerty was dealing with the provisions of Pt 75 Div 2 of the SCR and s 4 of the Supreme Court (Summary Jurisdiction) Act. That section provided:

4 Orders for appearance or apprehension of defendants

(1) Upon an application being made by any person (in this Act referred to as the Prosecutor ) in accordance with the rules, a Judge shall make an order:
(a) ordering any person alleged in the application to have committed an offence punishable in the Court in its summary jurisdiction to appear at a time and place specified in the order to answer to the offence charged in the order, or
(b) ordering the apprehension of any such person for the purpose of the person’s being brought before a Judge to answer to the offence charged in the order.
(2) An order under subsection (1) may be made ex parte.

35 The Supreme Court (Summary Jurisdiction) Act was repealed by the Justices Legislation Repeal and Amendment Act 2001 in association with the repeal of the Justices Act 1902 and the enactment of the Criminal Procedure Amendment (Justices and Local Courts) Act 2001 with the result that provisions relating to the conduct of criminal proceedings in all courts in this State are now to be found in the CPA. The commencement of proceedings for an offence in the summary jurisdiction of this Court under Pt 75 Div 2 of the SCR and the CPA does not differ in substance from the scheme under the SCR and the Supreme Court (Summary Jurisdiction) Act. I consider that the decision in McGerty provides support for Mr Hodgkinson’s contention.

36 Mr Temby referred to the decision of the Court of Criminal Appeal in R v Janceski (2005) 64 NSWLR 10 per Howie J (with whose judgment Hunt AJA and Johnson J concurred) at [228] as to the need for strict observance of the technicalities of a criminal trial. Janceski was a case in which a criminal trial proceeded upon an indictment that was signed by a person who was not authorised to sign indictments. The Court held that the consequence of this failure, which went to the authority to bring proceedings on indictment, was invalidity. The Chief Justice noted at 29; [98]:

[F]or good reason, the courts have always insisted on punctilious compliance with legal formalities which have any substantive purpose, before the State imposes the stigma of a criminal conviction on any citizen.

37 The issue is whether the proceedings have been validly commenced and, hence, whether the court has jurisdiction to determine them. The prosecutor accepts that an order under s 246(1) of the CPA was not made. Section 246 is directed to the means by which the accused person is brought before the court to answer to the offence charged in the order. Subsection (2) requires that the application for the order be made in accordance with the rules. I do not consider that the failure to apply for an order in accordance with the rules deprives this Court of jurisdiction to determine the proceedings.

38 In my opinion proceedings for the offence was in each case commenced by filing the summons in the Registry of the Court. The summons claimed an order under s 246 in respect of the offence, that is to say, it claimed an order that the defendant appear before a judge of the court to answer to the offence the particulars of which were stated. The circumstance that the summons did not, in terms, claim an order that the defendant be dealt with according to law for the commission of the offence is a matter of form, which I do not consider results in invalidity. I accept Mr Hodgkinson’s submission that, if it be a defect, it is one to which s 16(2)(b) of the CPA applies. This provides that no objection may be taken to any indictment by which criminal proceedings for any offence that is to be dealt with summarily are commenced on the grounds of any alleged defect in it in substance or in form. “Indictment”, for the purposes of s 16, includes any document by which criminal proceedings are commenced: s 15.

39 The defendants’ motions claimed an order that before the defendant was required to plead to the charge under Pt 75 r 11B the Court decide as a separate question under UCPR r 28.2 whether it can take cognisance of the proceedings and whether it has jurisdiction to hear and determine the proceedings pursuant to s 245 of the CPA. Subsequently by consent directions were made in the proceedings for the separate determination of these two questions. Rule 28.2 does not apply to criminal proceedings in the summary jurisdiction of the Court. The two questions seem to me to raise the same issue, which is whether the court has jurisdiction to determine the proceedings. For the reasons that I have given I hold that it does.

40 By his motion in each proceeding the prosecutor seeks an order that the Court issue an order in terms of a draft Minute of Order being an order that the defendant appear before a judge of this Court at the date and place specified to answer to the offence which is stated therein and to be dealt with according to law for the commission of the stated offence. In paragraph two of his motion the prosecutor claims an order dispensing with the requirements of Pt 75 r 9 of the SCR.

41 In his amended outline of submissions Mr Hodgkinson noted that when the proceedings were commenced the Court had the discretion to waive compliance with the requirement of the Rules: Pt 1 r 12 of the SCR, which applied by force of Pt 75 r 2. As a result of the commencement of the Uniform Civil Procedure Act 2005 (the UCPA) and the UPCR, Pt 1 r 12 has been repealed. Section 14 of the UCPA, which makes provision for the court to dispense with the rules, is limited in its application to civil proceedings. There is no equivalent section or rule with respect to criminal proceedings. In his submission the inherent power of the Court to control and supervise proceedings must be taken to include a power to waive compliance with the rules: Hamilton v Oades (1988) 166 CLR 486 at 502. He submitted that the Court should in the exercise of inherent power waive the requirement for personal service of an order under s 246(1) of the CPA in each of these proceedings. The defendants have at all times been on notice of the charges brought against them. They gave instructions to their solicitors to accept service of the summonses on their behalf. The solicitors have entered appearances in each of the proceedings. The consequence of filing an appearance is that the originating process is taken to have been served on the defendant personally: r 10.20(5) of the UCPR, which applies to proceedings in the summary jurisdiction of the Court under Pt 75 Div 2 of the SCR by operation of Pt 75 r 3.

42 I raised with Mr Temby the basis on which the Court would decline to make the orders sought by the prosecutor (if it were considered necessary), that the defendant appear to answer the charge in each case, in the event that the proceedings were found to have been validly commenced. He said that he would wish to be heard in opposition to an order being made in the absence of a supporting affidavit, noting that there is no committal procedure in criminal proceedings brought in the summary jurisdiction of the Court. The submission was not developed, Mr Temby observed that it was for another day (T 26.22). Strictly this was not so: the prosecutor’s motions were before the Court for hearing. However, Mr Hodgkinson put nothing in opposition. The matter was not addressed by either of the parties in their supplementary written submissions. In these circumstances I propose to give the parties an opportunity to make any further submissions concerning the relief claimed by the prosecutor in his motion in light of my determination of the jurisdictional question. Any issue with respect to the costs may be addressed in these submissions.

ORDERS

1. Answer questions (a) “yes” and (b) “yes” and dismiss the defendants’ motion filed on 9 November 2005 in each of the proceedings;

2. The defendants have 14 days from today’s date in which to file any further submissions on the orders claimed in the prosecutor’s motion and with respect to costs. The prosecutor has seven days thereafter to file any submissions in reply.

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