Bell v Unimin Australia Pty Ltd (No3)
[2012] QMC 16
•12 July 2012
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Bell & Anor v Unimin Australia Pty Ltd (No3) [2012] QMC 16
PARTIES:
GRAHAM BELL
(complainant/ respondent)
WILLIAM GORDON
(complainant/ respondent)
v
UNIMIN AUSTRALIA LIMITED
(defendant/ applicant)
FILE NO/S:
MAG245636/09(1), MAG245626/09(6), MAG113031/10(7)
DIVISION:
Magistrates Courts
PROCEEDING:
Complaint – Application to strike out or permanently stay proceeding
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
12 July 2012
DELIVERED AT:
Warwick
HEARING DATE:
7 December 2011, 8 December 2011, 9 December 2011, 19 December 2011, 20 December 2011, 20 February 2012
MAGISTRATE:
Lee G
ORDER:
The application to strike out or permanently stay two complaints charging the applicant with an offence under the Integrated Planning Act 1997 and an offence under the Environmental Protection Act 1994 is refused.
The application to strike out or permanently stay a complaint charging the applicant with an offence under the Forestry Act 1959 is granted.
CATCHWORDS:
ENVIRONMENTAL LAW – PRACTICE AND PROCEDURE - complaints made under the Justices Act 1886 – application by applicant before trial to strike out or permanently stay the complaints for abuse of process – what constitutes “made” - issuing of summons upon complaint made under Justices Act 1886 – discretion to issue summons to be exercised judicially by Justice of the Peace – what required - limitation period – when offence came to knowledge of complainant – when time starts to run for continuing offences - whether complaint made outside limitation period – information and complaint – form and sufficiency – duplicity and uncertainty - whether latent duplicity
Acts Interpretation Act 1954 (Qld), s 36, s 38
Environmental Protection Act 1994 (Qld), s 427(1), s 490(6), s 497
Forestry Act 1959 (Qld), s 53, s 88(3), s 88(4), s 95(g)
Integrated Planning Act 1997(Qld), s 4.3.1, s 4.4.2, s 4.4.10
Justices Act 1886 (Qld), s 4, s 42(1), s 43, s 51, s 53, s 54, s 83A
Justices of the Peace and Commissioners for Declarations Act 1991 (Qld), s 29
Mineral Resources Act 1989 (Qld), s 6
Australian Broadcasting Commission v XIVth Commonwealth Games Ltd (1988) NSWLR 540
Bell & Anor v Unimin Australia Limited [2010] QMC 1
Bell & Anor v Unimin Australia Limited(No 2) [2011] QMC 24
Cohen v Macefield Pty Ltd [2010] QCA 95
Cross Country Realty v Peebles [2006] QCA 501
Electronic Rentals Pty Limited et al v Anderson et al (1970-1971) 124 CLR 27; [1971] HCA 13
Ellis v Ellis [1896] P. 251
Environment Protection Authority v CSR t/as Woodpanels [2001] 114 LGERA 217
Ex parte Electronic Rentals Pty Ltd (1970) 92 WN (NSW) 672
Furnell v Betts (1978) 20 SASR 300
Galaxy International Pty Ltd v Bates [1988] V.R. 948
Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77
Metaxas v Ferguson (1991)4 WAR 272
Moti v R [2011] HCA 50
Mount Isa Mines et al v Commissioner for Mine Safety and Health [2011] QMC 38
Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493
Police v Korber [2003] SASC 69
Postermobile plc v Brent London Borough Council The Times Law Reports, 8 December 1997 627; 1997 WL 1103943
Power v Heyward [2007] 2 Qd R 69; [2007] QSC 26;
Regina v Brentford Justices, Ex parte Wong [1981] 1 QB 445
R v Industrial Appeals Court Ex Parte Barelli’s Bakeries Pty Ltd [1965] V.R. 615
R v Peacock ex parte Whelan [1971] Qd R 471
Rogers v R [1994] HCA 42; (1994) 181 CLR 251
S v The Queen (1989) 168 CLR 266; [1989] HCA 66
Smith v Baldwin [1979] Qd R 380
Stanton v Federal Commissioner of Taxation [1955] HCA 56; (1955) 92 CLR 630
The StateofNew South Wales v Bardolph [1934] HCA 74; (1934) 52 CLR 455
Unimin Australia Ltd v State of Queensland [2009] QSC 384
Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26
Witheyman v Van Riet [2008] 2 Qd R 587; [2008] QCA 167
COUNSEL:
R Devlin SC, R Byrnes and M Le Grand for applicant
A Glynn SC and K Mellifont SC for respondents
SOLICITORS:
Sparke Helmore Lawyers for applicant
Department of Environment and Resource Management for respondents
Table of Contents
Introduction........................................................................................................................... 1
Abuse of Process.................................................................................................................. 4
Flawed IPA and EPA Complaints of 1 December 2009..................................................... 377
Making of the FA Complaint............................................................................................... 52
Complaints otherwise fundamentally flawed and must inevitably fail....................................... 64
Latent Duplicity of Further Particulars Provided.................................................................... 67
Choice of Complainants an abuse of process........................................................................ 75
Summary............................................................................................................................. 83
Introduction
This is an application by Unimin Australia Limited (Unimin) to strike out or permanently stay three complaints made pursuant to the Justices Act 1886 (the JA) charging it with offences under the Integrated Planning Act 1997 (IPA), the Environmental Protection Act 1994 (EPA) and the Forestry Act 1959 (FA) respectively. In response to the charges, Unimin appears under protest.
The application is based on two grounds. As to the first ground, that the charges under IPA and EPA were insufficient in law to found the jurisdiction of this court because they failed to plead essential factual ingredients, by judgment delivered 23 December 2010[1] I concluded that those two complaints were not incurably defective so as to deny jurisdiction in this court. The applicant had not pressed this ground in respect of the FA complaint. I refer to that judgment for the history of this application and an analysis of the legislative provisions.
[1] Bell & Anor v Unimin Australia Limited [2010] QMC 1 (23 December 2010);
The second ground of the application, which was adjourned pending the outcome of the first ground, is that all three complaints be struck out or permanently stayed as an abuse of process[2]. Before the substantive hearing of this limb of the application a dispute arose between the parties as to how the application should be conducted. Unimin sought orders that the complainants call a number of departmental witnesses to be available for cross examination. The complainants opposed such a course. In reasons for judgment delivered 9 September 2011 I declined to make the orders sought by Unimin[3]. I refer to the two previous judgements for the context of this application.
[2] Paragraph 5 Unimin’s first submissions;
[3] Bell & Anor v Unimin Australia Limited(No 2) [2011] QMC 024 (9 September 2011);
As a result, Unimin called a number of those witnesses in the substantive hearing.
I set out the substance of the three complaints again as follows:
Complaint 1
On dates unknown on or between 4 October 2005 and 18 December 2008 at North Stradbroke Island …Unimin…did, in contravention of section 4.3.1. Integrated Planning Act 1997, carry out assessable development without an effective Development Permit for the development
PARTICULARS
1. Assessable development: Making a material change of use of premises for an environmentally relevant activity, namely extracting sand (other than foundry sand) from a pit or quarry using plant or equipment having a design capacity of 100 000t or more a year
And the offence came to the complainant’s knowledge on the 1st day of December 2009[4].
Complaint 2
On dates unknown on or between 3 December 2003 and 18 December 2008 at North Stradbroke Island …Unimin …did, in contravention of section 427(1) of the Environmental Protection Act 1994, carry out a level 1 chapter 4 activity, not being a registered operator for the activity and not acting under a Registration Certificate for the activity
PARTICULARS
1. Level 1 chapter 4 activity: extracting sand (other than foundry sand) from a pit or quarry using plant or equipment having a design capacity of 100 000t or more a year
And the offence came to the complainant’s knowledge on the 1st day of December 2009[5].
Complaint 3
On dates unknown on or between 1 October 2005 and 18 December 2008 at North Stradbroke Island …Unimin …did, in contravention of section 53 of the Forestry Act 1959, get quarry material on lands, the property of the Crown, that were included in a lease or other entitlement granted under the Mineral Resources Act 1989 otherwise than in accordance with a permit, lease, licence, agreement or contract granted or made under the Forestry Act 1959, the Mineral Resources Act 1989 or another Act.
And the offence came to the knowledge of the complainant on 3 December 2009.
[4] Section 4.4.10 IPA provided “In a complaint starting a proceeding a statement that the matter of the complaint came to the complainant’s knowledge on a stated day is evidence of the matter”.
[5] Section 490(6) EPA provides “In a complaint starting a proceeding, a statement that the matter of the complaint came to the complainant’s knowledge on a stated day is evidence of the matter”.
PARTICULARS
1. Get: dig, gather, remove, convert, or obtain
2.Quarry material: sand that is not a mineral within the meaning of the Mineral Resources Act 1989
3.Lands, the property of the Crown, included in a lease or other entitlement granted under the Mineral Resources Act 1989: Mining Leases 1108, 1124, 1132 and 7064
4.Without authority: there did not exist any permit, lease, licence, agreement or contract to get the quarry material.
For convenience, oral evidence was given in the “abuse of process” application on
7 September 2010 by former Mines and Energy Minsters The Hon Tony
Mc Grady and The Hon Tom Gilmore as well as Bob Harris who was at material times the Mines Administrator for Unimin. These witnesses were primarily called for the purposes of tendering documents (exhibits 1 to 14) including correspondence between Unimin’s predecessor (Australian Consolidated Industries Limited [ACI]) and the Department of Mines and Energy from 1996, departmental memoranda to the minister, mining leases, and quarterly “Mineral Royalty Returns” lodged by Unimin (or ACI) with the Department of Mines and Energy covering the period 1 January 2001 to 31 March 2010.
In addition Unimin called the following witnesses:
·Ms Laurene Huddlestone – Holmes (Justice of the Peace for the IPA and EPA complaints)[6]
·Mr Graham Bell[7] (the complainant in the IPA and EPA complaints)
·Mr Andrew Kwan[8] (legal officer of DERM)
·Mr Matthew Peate[9] (legal officer of DERM)
·Mr Dave Johnson[10] (Departmental Manager of Royalty and Rent)
[6] Transcript 1-9 to 1-27;
[7] Transcript 1-28 to 1-93;
[8] Transcript 1-94 to 1-108; 2-5 to 2-29;
[9] Transcript 2-31 to 2-44; 2-47 to 2-57;
[10] Transcript 2-58 to 2-76;
The complainants called the following witnesses:
·Mr William Gordon[11] (the complainant in the FA complaint)
·Mr David Trezise[12] (chief scientific advisor to former Environmental Protection Agency (EPA) at relevant times)
·Ms Lousie Jordan[13] (manager EPA Redlands Unit)
·Ms Deanne Caruso[14] (DERM investigator)
·Mr Parma Nand[15] (principal environmental officer DERM at relevant times)
·Mr James Belford[16] (principal environmental officer DERM at relevant times)
·Ms Kate Fyfe[17] (principal environmental officer DERM at relevant times)
[11] Transcript 3-11 to 3-54;
[12] Transcript 3-54 to 3-75;
[13] Transcript 3-75 to 3-90;
[14] Transcript 4-12 to 4-85; 5-44 to 5-47; 6-2 to 6- 33;
[15] Transcript 5-3 to 5-18;
[16] Transcript 5-19 to 5-27;
[17] Transcript 5-54 to 5-62;
During the hearing of this limb of the application and after hearing lengthy submissions, the issues have expanded beyond “abuse of process”. Other more technical challenges have also been made. I shall deal with each issue as set out in Unimin’s written submissions extending over 166 pages plus numerous additional appendices.
Abuse of Process[18]
[18] Pages 1 to 36, 45 to 49 and Appendices A & G submissions for Unimin;
The application seeks all three complaints be permanently stayed as an abuse of process. The grounds relied on are broad ranging and are summarised at paragraph [1.2] of Unimin’s submissions all of which are said to amount to oppressive and unfair conduct by the prosecution:
a)
Conflicting judicial determinations – the proceedings litigate anew propositions which have already been disposed of by Applegarth J in Unimin Australia Ltd v State of Queensland [2009] QSC 384 delivered
30 November 2009 in which Unimin sought declaratory relief in the Supreme Court exercising civil jurisdiction.
b)A subsisting arms length commercial arrangement of 18 years whereby royalties were paid by Unimin to extract and on sell B Grade silica sand by-product.
c) The attempt to invoke retrospective criminal liability.
d) The selective reading of the judgement of Applegarth J (cited above).
e) Actions based on official advice.
f)The improper institution of the EPA and IPA proceedings because the complaints were made before approval by the Director General had been granted and by the failure to provide the requisite information to Ms Huddlestone-Holmes, the Justice of the Peace who issued the summonses.
g)The laying of the FA complaint after the expiration of the limitation period.
h) The duplicitous nature of the IPA and EPA charges.
i) Serious errors in the investigation undertaken by officers for the Department of Environment and Resource management (DERM).
j) The initiation of three prosecutions which are doomed to fail.
This was put another way later in Unimin’s submissions, namely, that the following matters amount to an abuse of process[19]:
a)The State entered into a commercial agreement with Unimin to categorise B Grade sand as a mineral;
b)ACI, Unimin’s predecessor in title, accepted that determination and that it could be lawfully dealt with under the existing mining leases;
c)The State required royalty payments for B Grade sand and that the term “royalty” indicated “the right to take the substance”;
d)The prosecution knew about these issues but still brought the IPA & EPA complaints;
e)If the State had not sought royalty, Unimin would have sought licences which are claimed to be required.
[19] Paragraph 14.2 at p 42 submissions for Unimin;
All of these issues, it is submitted, collectively amount to “vexation, oppression and unfairness” in launching and maintaining the prosecution and this is an abuse of process because they are of such character and degree that it “will bring the administration of justice into disrepute”[20].
[20] Paragraphs 19.1 & 19.2 at p 45 submissions for Unimin;
I shall now consider each matter in paragraph [10].
Laying of FA Complaint after limitation period (para (g))
In respect of paragraph (g), for reasons that follow under the heading “Making of the FA Complaint”, I found that it was “made” out of time and, for that reason, it should be permanently stayed.
Duplicitous Nature of IPA & EPA Charges (para (h))
As to paragraph (h) above, for reasons that follow under the heading “Latent Duplicity of Further Particulars Provided”, I concluded that the IPA and EPA complaints were not duplicitous. Whether or not the charges are continuous in nature should be determined after a trial.
Prosecutions doomed to fail (para (j))
Likewise, for paragraph (j) above, for reasons that follow under the heading “Complaints otherwise fundamentally flawed and must inevitably fail”, I found that, at this stage, it could not be concluded that the prosecution was doomed to fail and that the matter needed to proceed to trial to determine the facts.
Failure to provide requisite information to Justice of the Peace (para f))
Returning to paragraph (f), there are two propositions. The second one, namely that there was a failure to provide the Justice of the Peace, Ms Huddlstone-Holmes, with the requisite information, has been addressed below under the heading “Flawed IPA and EPA Complaints of 1 December 2009”. I concluded that those complaints were properly “made” to her and that she had properly issued the summonses on 1 December 2009.
Complaints made prior to approval by Director General (para (f))
Regarding the first proposition in paragraph (f), that the IPA and EPA complaints were made before approval, I would conclude, for reasons to follow, that if it be the case that prior approval of the Director General was not obtained before the IPA and EPA complaints were made, that prior approval was not necessary and that a decision had been made to prosecute prior to when the IPA and EPA complaints were made.
The history of these matters is the subject of some dispute. In my opinion it is unnecessary to resolve that in this application. Included in this context is a complaint by the Stradbroke Island Management Organisation (SIMO) to the Criminal Misconduct Commission (CMC) in about June 2008 alleging that DERM had failed to investigate Unimin as to its activities[21].
[21] For example see exhibit 28 – a letter from SIMO to the Premier dated 1 December 2009; see also exhibit 48 – a ministerial briefing note dated 15 April 2009;
The legal officer for DERM Mr Kwan commenced drafting the IPA and EPA complaints 30 November 2009 after being tasked by his immediate supervisor Mr Peate to consider the brief of evidence from mid November 2009. He was instructed by Assistant Director General Mr Dean Ellwood to arrange the making of the IPA and EPA complaints but not to lodge them with the court as the Director General was not available at that point. Mr Kwan said he had not been instructed like this beforehand but has since[22]. It was submitted for Unimin that the briefing note to the Director General was not in final form until 3 or
4 December 2009. On 4 December 2009 the Director General approved it.
[22] Transcript 1-99 lines 33 to 38;
Mr Kwan was questioned at length about internal processes leading up to commencement of prosecution proceedings within DERM[23] from delivery of a brief of evidence from the investigations team to the litigation unit. A briefing note is prepared based on legal advice and the Director of Litigation sends it to the Assistant Director General (Mr Ellwood) who in turn forwards it to the Associate Director General (Mr T Wall). Normally the Associate Director General would make a policy decision to commence a prosecution. However, as he was unavailable at this time, it was thought the matters required the attention of the Director General.
[23] Transcript 1-102 lines 3 to 60;
The complaints were made by Mr Bell on 1 December 2009 and the Director General approved the Ministerial briefing note on 4 December 2009[24]. Consistent with Mr Kwan’s evidence[25], the date stamps on the original IPA and EPA complaints indicate they were filed in the court on 4 December 2009 in compliance with section 54(2) Justices Act 1886 (JA)[26]. Summonses for the IPA and EPA matters issued 1 December 2009 required Unimin’s appearance at the Cleveland Magistrates Court 22 January 2010. Oaths of service could not be located on the court files. However, there is a letter from Unimin’s solicitors Sparke Helmore dated 21 January 2010 on the court file consenting to a two month adjournment. Therefore, it follows that Unimin must have been served with both summonses sometime before 21 January 2010[27]. I also note from DERM’s Investigation Running Sheet (exhibit 16) that DERM had received a letter from Sparke Helmore on or around 8 December 2009 indicating they were acting for Unimin in these matters. The matters were subsequently transferred to Brisbane.
[24] Transcript 1-100 lines 20 to 25; 2-21 lines 46 to 54; (Mr Kwan’s evidence);
[25] Transcript 2-21 lines 55 to 60;
[26] Section 54(2) provides that a summons together with the complaint must be filed within 3 days of the summons being issued;
[27] Section 56 Justices Act 1886 governs service; it is not known whether Unimin was served by post or personally; if it was by post, it had to be posted at least 21 days before 22 January 2010; Sparke Helmore’s letter of 21 January 2010 does not take issue with service;
The evidence is that Mr Bell was an authorised person to make complaints under the JA charging Unimin with an IPA and EPA offence[28]. Unlike in other legislation, there is no provision in the IPA or EPA restricting who can commence proceedings by way of making a complaint. Such an example can be found in section 234(5) of the Mining and Quarrying Safety and Health Act 1999 where only the Commissioner for Mine Safety and Health can make a complaint under the JA.
[28] Section 490(2)(a) & (b) EPA provides that appointment and authority of an authorised person is presumed unless a party, upon giving reasonable notice, requires proof thereof; there appears to be no like provision in the IPA for an authorised person; there is a similar provision in s 95(a) & (b) FA;
Further, there is no provision in the IPA or EPA requiring prior approval (whether oral or written) of a particular person before a complaint is made: see for example Thorpe v Priestnall [1896] 1 QB 159 where legislation provided that prior written consent of the Chief Constable was necessary before the institution of proceedings. Another example of a statutory condition precedent before institution of proceedings is Walsh v Doherty (1907) 5 CLR 196, an appeal from the Full Court of Queensland. Under the liquor laws at the time a notice of intention to prosecute had to be given to the person to be prosecuted before the prosecution was instituted. There, the information was laid and summons issued five minutes before the notice was served. The summons was served after the notice was served. It was held that the statutory requirement of giving a notice of intention to prosecute before the information was laid had not been satisfied. The information was dismissed. There are no such restrictions here.
Therefore, I come to the view that there was no statutory requirement to secure approval by the Director General before Mr Bell made the IPA and EPA complaints on 1 December 2009. Mr Bell was an authorised person to make the complaints on behalf of DERM and there was no statutory restriction in doing so.
If there is a suggestion that by not seeking formal approval of the Director General before making the complaints is an abuse of process, I would disagree in the circumstances of this case which is to be contrasted to the position in, for example, Regina v Brentford Justices, Ex parte Wong [1981] 1 QB 445. In that case, an information was laid before a decision had been made to prosecute. The offence occurred 30 January 1978. The information was laid and summons issued 28 July 1978 just within the 6 month limitation period. By letter dated 25 October 1978 the prosecutor decided to prosecute. The summons was served 7 December 1978. There was no dispute that a decision had not been made to prosecute by
28 July 1978 and that there was a deliberate attempt to gain further time in which to reach that decision by laying the information within the limitation period and then delaying the service of the summons[29]. It was held that this was an abuse of process even though the prosecutor thought he could legitimately do this. Donaldson L.J. said at 450:
The process of laying an information is, I think, assumed by Parliament to be the first stage in a continuous process of bringing a prosecution…… That purpose is wholly frustrated if it is possible for a prosecutor to obtain summonses, and then, in his own good time and at his convenience, serve them.
[29] [1981] 1 QB 445 at 450 per Donaldson L.J. with whom Mustill J agreed;
Regina v Brentford Justices, Ex parte Wong was distinguished in Metaxas v Ferguson (1991) 4 WAR 272[30] per White AJ. In that case the complainant formed a belief on 2 February 1990 that the defendant had committed an offence. He sought counsel’s confirmation of that. On 27 February 1990 counsel confirmed that belief and also advised it was common practice to invite defendants to give an explanation. The complainant swore complaints on 28 February 1990. The limitation period expired 1 March 1990. No explanation was forthcoming from the defendant so he was served 26 days later on 26 March 1990.
[30] Referred to in Unimin’s “Book of Authorities” Volume 1;
In upholding an appeal by the complainant against the Magistrate’s decision dismissing the complaints because a decision had not been made to prosecute before the complaints were sworn constituting an abuse of process, White AJ found that there had been a decision to prosecute by the time the complaints were sworn. This was so despite the complainant’s evidence on appeal that even though there had been a firm decision to prosecute, “that decision might have altered had the [defendant] offered some exculpatory evidence or argument supporting a defence”[31]. He further found that it was not an abuse of process in delaying service by 26 days after the complaints were sworn “to an extent which would warrant the dismissal of the complaints. No prejudice has been occasioned to the [defendant] by that delay and the interests of justice …did not require that the complaints be dismissed”[32].
[31] (1991) 4 WAR 272 at 276 (point 9);
[32] (1991) 4 WAR 272 at 277 (lines 35 to 40);
In the present case, in my opinion there was a decision to prosecute by the time the complaints were made before Ms Huddlestone-Holmes on 1 December 2009. There had been an investigation and legal officers of DERM had been involved beforehand[33]. The fact that Mr Bell was asked to make the complaints but not lodge them does not take the matter any further given the timelines in this case. That does not constitute an abuse of process sufficient to warrant dismissal of the complaints in the circumstances of this case. There is no statutory requirement to lodge a complaint immediately after it has been made although section 54(2) JA requires lodgement within 3 days of the summons issuing. That was complied with here. As an authorised person Mr Bell sufficiently apprised himself of the matters as outlined in his evidence cited later in these reasons[34].
[33] See for example transcript 2-25 lines 39 to 45 where Mr Kwan was tasked by his supervisor Mr Peate to review the brief of evidence between mid November [2009] and 20th or 21st;
[34] Under the heading “Flawed IPA and EPA Complaints of 1 December 2009”;
Secondly, after the complaints were made and summonses issued on 1 December 2009, they were served promptly for the first court appearance on 22 January 2010[35]. Therefore, I do not consider that timeline to be an abuse of process. I note also the intervening Christmas period. Nor do I think it was an abuse of process merely because the Director General did not sign off on it until 4 December 2009. I find there was a decision to prosecute by the time the IPA and EPA complaints were made before Ms Huddlestone-Holmes on 1 December 2009.
[35] See Sparke Helmore letter date 21 January 2010 consenting to an adjournment; I also note Sparke Helmore’s letter dated 27 April 2010 at 12 (exhibit 21) says Unimin became aware of the prosecution prior to service of the summonses through a journalist;
The present case is more closely aligned with Metaxas although in my opinion the position is stronger for the prosecution in this case. Here there was a decision to prosecute by 1 December 2009. Mr Kwan fully expected the Director General to sign off on it but if for some reason he did not, the complaints and summonses would have been destroyed[36]. This is not unlike Metaxas, where there was a decision to prosecute at the time of commencement of proceedings but that decision may have been reviewed to discontinue the prosecution depending on any response by the defendant.
[36] Transcript 2-21 lines 38 to 46; 1-105 lines 36 to 40;
Further, in this case the summonses were issued immediately after the complaints were made on 1 December 2009. It is not clear from the report in Metaxas when the summons issued. The focus seemed to be on service of the summons. In this case the period between the making of the complaints on 1 December 2009 and service of the summonses for a first appearance in court on 22 January 2010 is probably shorter than in Metaxas. Also, it should be noted that, unlike in Metaxas, in this case the summons that issued the same day as the complaint specified 22 January 2010 as the first return date in court. The time appointed under the summonses issued 1 December 2009 was not extended pursuant to section 54(3) & (4) JA so that the complaints and summonses had been served for the initial date in court on 22 January 2010. In Metaxas, the period from the making of the complaints on 28 February 1990 to the first return date in court on 22 November 1990 due to delaying service of the summons is considerably longer.
Therefore, I conclude that the circumstances surrounding the making of the complaints and issuing of the summonses do not amount to an abuse of process so as to warrant a permanent stay of proceedings.
Arms Length Commercial Arrangement for 18 Years (para (b))
Actions Based on Official Advice (para (e))
It was submitted there had been an existing commercial arrangement over
18 years where ACI (Unimin’s predecessor) and then Unimin paid royalties to the government to extract and on sell B Grade silica sand by-product: paragraph (b) at [10] above. I also think that the issue at paragraph (e), namely, actions based upon advice is closely related.
Around 1973 the Governor in Council granted ACI mining leases for the purposes of mining silica sand on North Stradbroke Island. From the 1992/93 financial year it appears that ACI had paid royalties for B Grade sand which is a by-product generated in the course of mining for glass grade sand under ACI’s mining leases. Unimin took over operations on 1 March 2001[37].
[37] Exhibit 8 – letter dated 25 September 2001 from Bob Harris of Unimin to Department of Natural Resources and Mines;
On 17 September 1995, Minister for Mines and Energy The Hon T McGrady approved, in the words of submissions for Unimin, “a recommendation that …. by–product ‘building sand/reject sand’ be categorised as a ‘mineral’ for the purposes of payment of a mining royalty in respect of the extraction and sale of that sand by ACI Glass”[38]. It was submitted for Unimin that this approval, followed by a course of conduct of paying royalty for “building/reject sand” over 18 years reflected in the royalty returns (exhibit 13), constituted a commercial arrangement or contract between ACI and then Unimin with the government to sell that sand for any use. On the other hand the complainants submit that this was purely a decision about the rate of royalty to be paid and not an open decision for ACI to do what it likes with the B Grade sand.
[38] Exhibit 1 Memo to Minister from A/Executive Director Policy, Department of Mines;
The relevant definitions of “mineral” are in section 6(3)(b) & (d)(i) Mineral Resources Act 1989 (MRA) respectively as follows:
(b) …. silica and silica sand is only a mineral if it is mined for use for its chemical properties; …..
(d) each of the following is not a mineral—
(i) soil, sand, gravel or rock …if it is to be used,
or to be supplied for use, as sand, gravel or rock,
whether intact or in broken form;
The 1995 briefing note is entitled “ACI Industrial Minerals Royalty on Reject/Building Sand”. After referring to the definition of “mineral” in the MRA it reads in part as follows:
The royalty on silica sand is $0.50 per tonne or 5% of value whichever is the greater. Royalty payable to Forest Services for extractive materials taken from Crown Land is currently $1.10 per cubic metre.
Discussions with Mr J Marshall, Operations Manager [of ACI], revealed that the building sand is sold to the Rocla group for manufacturing concrete. Apparently the sand has certain chemical qualities that are beneficial to Rocla……
Mr Marshall’s comments concerning the chemical properties of the sand were supported by Mr B Butler, Quality Manager, Rocla Concrete who advised by facsimile:
Because of the course nature of Brisbane river sand it is necessary to include minor additions of fine blending sand in Brisbane concrete. The suitability of the ACI Stradbroke Island sand as a blending sand depends in no small measure on its high silica content and low clay content. Sands containing clay are detrimental to the properties of the concrete, influencing both setting rate and cracking tendency. Attempts to remove the clay from less pure sources also remove much of the required silica sand.
…….
The question arises as to whether royalty on such material should be paid to the Department at $0.50/tonne or Forest Services at $1.10/cu.m. If one assumes a density factor of 1.50 the additional royalty for extractive materials would be approximately $17,000 per annum. However, the following arguments can be advanced to support its inclusion with silica sand for royalty purposes:·It results from the process of mining silica sand for its chemical properties
·The company has a mining lease for silica sand and already pays royalty thereon
·The reject material constitutes only 10% of the total material sold
·The extractive materials royalty rate of $1.10/cu.m. would equate to approximately 17% of the value of the material for what is clearly a low value product. The rate of $0.50/tonne is already some 12% of the value
·The company has paid royalty in good faith at the rate of $0.50/tonne over the past 3 years
·The company considered the need for an Extractive Industries Permit but was advised this would not be necessary
·There is evidence that the reject sand material does have chemical properties that are sought by Rocla
·It is administratively more expedient to capture the full royalty within the Department
Notwithstanding that State royalty would increase if this material was administered by Forest Services, it is considered that the above points can justify the product being categorised as a mineral in this instance. Accordingly it is proposed that the rate of $0.50 continue to apply and be collected by the Department….(my emphasis)
This was reaffirmed along similar lines by, for example, an email dated 20 February 2003 from the Manager of Royalty and Rent, David Johnson, to Bob Harris of Unimin[39]. After referring to the statutory definition of “mineral” in that email Mr Johnson said:
[39] Exhibit 14; also in exhibit 29 (a folder of “Documents for David Johnson”);
The Department has collected royalty from “reject” building sand from Stradbroke Island for many years. The issue of whether the royalty should have been paid to the Department was addressed in 1995, and Ministerial approval was given to continue to collect the current rate of royalty. In reaching this decision, consideration was given to a number of issues, for example:
·Comments concerning the coarse nature of Brisbane River sand, and the need to include minor additions of fine blending sand in Brisbane concrete. In particular, the suitability of the (formerly) ACI Stradbroke Island sand as a blending sand depended in no small measure to its high silica content and low clay content. Sands containing clay are detrimental to the properties of the concrete, influencing both the setting rate and cracking tendency.
·The company had a mining lease for silica sand on which it was already paying royalty, and if it was not paid to the Department then an alternative royalty arrangement would have applied at the time involving Forest Services.
·The “reject” sand itself resulted from the process of mining silica sand for its chemical properties, on which royalty was payable, rather than being extracted independently.
·The company had considered the need for obtaining an Extractive Industries permit some 18 months earlier, but Redlands Shire Council was apparently not concerned given that there was already a mining lease over the area.
·The “reject” sand constituted only 10% of the total material sold, and was clearly a by product rather than being the principal “mineral”.
Given the above, it was considered that the product could be categorised as a mineral in this instance with royalty continuing to be paid to the Department. ….. (my emphasis)
Mr Johnson gave evidence that the department’s position was, given that context, it believed that reject silica sand called “building sand” was a “mineral” as defined because of information provided to them at the time[40].
[40] Transcript 2-64 lines 20 to 25;
Having regard to that, it appears the decision to accept royalty for reject sand was based on representations by Mr Marshall of ACI and Mr Butler of Rocla Concrete[41] that reject sand was used for its chemical properties by Rocla in making Brisbane concrete so that it fell within the definition of “mineral”. Mr Johnson, who has a solid understanding of the definition of “mineral”[42], said this during evidence:
Yes?‑‑ And the one very concluding point that was made was the fact that the sales of this - the company acquiring this so-called reject sand, was acquiring it for its chemical properties.
Right?‑‑ And that was the distinction between sand being used, you know, for its chemical properties and sand being used for physical properties.[43]
[41] Exhibit 31 – facsimile W B Butler to Department of Mines dated August 1995;
[42] See for example transcript 2-63 lines 40 to 50;
[43] Evidence in Chief - Transcript 2-64 lines 20 to 28;
After referring to the facsimile from Mr Butler, the Quality Manager of Rocla Concrete, dated August 1995 (exhibit 31), Mr Johnson said this:
MR GLYNN: You referred also to discussions with Mr Marshall, in the lead-up to making this recommendation?‑‑ Yes.
All right. The - in those discussions again, Mr Marshall, who was from ACI‑‑‑‑‑?‑‑ Yes?
‑‑‑‑‑told you that the sand had certain chemical qualities which are beneficial to Rocla, for whom Mr Butler worked?‑‑ Yes, I had to comment whether - well yeah, I think he worked there, but was then a consultant.
As a consultant, or something?‑‑ Yeah, yeah.
Okay. And so again, this underlay the decision or the treatment of this sand, as a mineral rather than something else?‑‑ Yes.
Okay. Now‑‑‑‑‑?‑‑ I remember the words, it was due in no small part to its chemical properties, or something or other. Yeah.
So what you were doing in drafting this was drawing a recommendation for the Minister not that he should find this to be, or declare this to be a mineral, but rather to decide whether to treat it for the purposes of royalty, as a royalty under the Mineral Resources Act, or a royalty under the Forestry Act?‑‑ Yes.
Okay. And in the process, your recommendation was that, for a number of reasons which you set out on the second page, it be treated as - under the Mineral Resources Act?‑‑ Yes.
And of course that was significantly or significantly persuasive in that was the fact that you'd been led to believe that it was being used for its chemical properties?‑‑ Yes.
Okay?‑‑ Yes, I was well aware that - of the distinction between - with sand. In terms of the definition of mineral‑‑‑‑‑
That's right?‑‑ ‑‑‑‑‑and it was that chemical properties was the underlying attribute that determined it was a mineral.
It was submitted for Unimin that there was a commercial relationship or a contract evidenced partly in writing and partly by conduct as it had been determined that
B Grade sand or reject sand was a mineral in 1995 and the government accepted royalties on it for years. Compliance inspection reports were prepared in 2000 and 2003 and officials within the government knew that royalties were being paid for B Grade sand[44]. I interpolate, while that may be so, it does not necessarily follow that the government knew that it was being sold for any use. In this respect, The StateofNew South Wales v Bardolph [1934] HCA 74; (1934) 52 CLR 455 and Australian Broadcasting Commission v XIVth Commonwealth Games Ltd (1988) NSWLR 540 were referred to.
[44] See exhibit 39 – “Compliance – Inspection Program” dated 23 May 2003 & exhibit 40 “Environmental Compliance Assessment Report” dated 4 April 2000;
In Bardolph, there was a written agreement between a private citizen with a State in which the private citizen would place advertisements in a newspaper for a specified period. There was a change in government. The new government did not honour the contract. The citizen performed his part of the contract over the agreed period and payment was refused. He successfully litigated the matter in the High Court. Relevantly, there were statements in the judgments to the effect that contracts entered into by officers of the Crown binds the Crown. I agree with that as a general proposition. However, in this case it is difficult to conclude there was a binding contract as contended by Unimin where the parties intended to create legal relations to be bound by the 1995 determination for an indeterminate period. It appears that, in contrast with Bardolph, the determination could have been unilaterally changed by the government at any time without the need to be released from any contractual obligation by Unimin. Even if there was a contract of sorts, the terms of it are uncertain. The prosecution submits that the 1995 determination merely sets a rate of royalty on the assumption that B Grade sand was being used for its chemical qualities. Based on the evidence so far, I think this more likely to be the case. In my opinion it may also be open to suggest this was an “arrangement” to treat “reject” sand as a mineral for a specific use in making Brisbane concrete because it was determined in 1995 that it was being used for its chemical properties. This view is also supported by reference to ACI’s Environmental Compliance Assessment Report dated 4 April 2000 (exhibit 40) where it said at 6:
ACI produces some silica sand for specialised cement manufacture in the construction industry. This material is regarded as a mineral under the [MRA] and ACI does not require an Extractive Industry Permit …(my emphasis)
Australian Broadcasting Commission was cited for the proposition that the intention of the parties is to be ascertained by reference to objective words and conduct having regard to the commercial circumstances surrounding the exchange. While, as a general statement of principle that is undoubtedly correct, even if it could be said a contract existed, the terms of that contract remain unclear. As presently advised on the evidence adduced in this application, there is at least a dispute as to what the 1995 Ministerial approval encompassed. Unimin submits that it covers all B Grade sand used for any purpose. It is a by-product of its lawful mining activities under its mining leases. The prosecution submits that it does not apply to B Grade sand not used for its chemical properties. This in turn suggests that B Grade sand may be a “mineral” in certain circumstances but not in others. These are matters for trial.
It was submitted for Unimin that to accept the prosecution’s view that the decision was only about the rate of royalty would be to read down those documents. I respectfully do not agree. Mr Johnson was relying on the initial determination in 1995 when advising Bob Harris in 2003. It may be open to suggest it was based on information provided by persons who were not entirely independent. The initial determination itself makes it clear that as the reject sand was to be used for its chemical properties as advised by those persons, then it would be treated as a mineral. At that stage, Rocla was going to use North Stradbroke Island B Grade sand in concrete instead of Brisbane River sand because B Grade sand had less clay content. I agree with the prosecution’s submissions that it is more likely that the Minister gave no approval for the general sale of B Grade. Nor did he enter into a contract for its general use. If an agreement can be found, it might be one where B Grade sand would be treated as “mineral” if it is used in concrete for its chemical properties[45]. After accepting that, the Minister had to decide whether royalties should be paid at a lower rate to Department of Mines or at a higher rate to Forest Products. He decided to charge the royalty of $0.50/ tonne to the Department of Mines rather than $1.10 cu.m. to Forest Products.
[45] Paragraph [32] submissions for prosecution;
Stanton v Federal Commissioner of Taxation [1955] HCA 56; (1955) 92 CLR 630 was referred to in Unimin’s submissions as to the meaning of “royalty” to support the view that because that word has been used, there must have been a “right” in Unimin to take B Grade sand for any use[46]. A farmer contracted with a sawmill for the sawmill to take timber from his land over a certain period. In return, the sawmill agreed to pay a total contract price by regular instalments whether or not the sawmill had taken the timber. Pursuant to that agreement regular payments were made although timber had not been harvested. The High Court held that the payments made did not constitute a royalty for the purposes of income taxation laws applicable at the time and therefore they did not constitute assessable income for taxation purposes[47]. “Royalty” connoted an amount of payment calculated in respect of quantities of something that has been taken and the payments here were not in respect of timber actually taken. I do not accept that the decision in Stanton has the effect as agitated in submissions for Unimin.
[46] Paragraphs 3.6 & 3.7 and Appendix H2 paragraphs 2.1 to 2.7;
[47] Section 26(f) Income Tax and Social Services Contribution Assessment Act 1936-1953 (C’th);
Further, that submission is prefaced on the basis there was a right to take
B Grade sand for any use. In Stanton a right was created by an agreement to simply take the timber for agreed periodical payments. There was no agreement as to ultimate use of that timber. However, Unimin submits that B Grade sand is a by-product of its lawful mining activities under its mining leases and that pursuant to the Minister’s approval in 1995 together with Mr Johnson’s later communications, it had the right to sell off B Grade sand as it chooses. I do not think that automatically follows. Further, consistent with that, Applegarth J in Unimin Australia Limited v State of Queensland made it clear that no rights of a “non-mineral” could pass here. At [27] and [32] respectively:
Section 310 of the MR Act relevantly provides for passing of property to the holder of the mining lease in respect of “all minerals lawfully mined under the authority of a mining lease”. ….
I conclude that the principal purpose for which the undifferentiated mass of silica sand is mined, namely for use in glass manufacturing, does not mean that all of the silica sand, including the by-product or B Grade silica sand that is not suitable for glass manufacturing, is a mineral. The B Grade silica sand that is stockpiled at the end of the applicant’s mining operation will be a “mineral” if it is mined for use for its chemical properties and if
s 6(3)(d)(i) does not apply to it. It does not qualify as a mineral because earlier in the mining operation it formed part of an undifferentiated mass of silica sand that included Glass Grade silica sand.
A number of cases were cited for the proposition that where citizens act on the representation of a public official later proved to be incorrect, it can be an abuse of process to then prosecute the person who acts on that representation; and further that it is in the public interest to hold officials to promises made by them.
In Postermobile Plc v The London Borough of Brent 1997 WL 1103943 the defendant had consulted the council about erecting signs and was advised, incorrectly, that no planning consent was necessary. The defendant then erected a number of signs. Without warning, the council laid 25 informations against the defendant. They were quashed by the High Court on the basis that a citizen ought to be able to rely and act upon the advice of a public official. Other English authorities were cited in support, for example R v Horseferry Road Magistrates Court, ex parte Bennett [1944] 1 AC 42 and The Queen on the Application of City of Westminster v National Car Parks [2002] EWHC 285.
In the latter case, Sullivan J at para [31] noted the particular features in Postermobile including the fact that the defendant was lulled into a false sense of security by incorrect advice, that prosecution was commenced without warning, and without affording the opportunity to the defendant a reasonable time to remove the signs. If that opportunity had been given, Sullivan J considered that Postermobile may have been decided differently.
Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493, referred to in Unimin’s submissions, was an appeal after trial about whether section 22 (mistake of law) or section 24 (mistake of fact)[48] applied in respect of a fisheries offence. A stay for abuse of process was not applied for. The defendant was a commercial fisherman who attended the fisheries government office seeking copies of relevant regulations to determine if there was any prohibition on lobster fishing in a certain area. The official photocopied what she said were the complete set of regulations. They were not. The documents provided did not indicate prohibition of lobster fishing in a certain area. The applicable regulations did. He commenced lobster fishing in that area and was prosecuted. The purpose of citing this case was to show that representations by public officials that are acted on can have consequences and that discretion should be exercised in deciding to prosecute[49]. In Ostrowski, in sympathising with the defendant, the High Court reluctantly upheld the prosecutor’s appeal and found that section 22 applied. Callinan & Heydon JJ said at [521] that for the prosecution to continue in those circumstances had “the appearance of an act of mindless oppression”.
[48] Criminal Code of Western Australia;
[49] Appendix G para [3.4] submissions for Unimin;
Unlike in Postermobile and Ostrowski, the prosecution submit that Unimin well knew what it was doing was unlawful. In this respect reference was made to exhibits 23, 24, 25 & 26[50]. The admissibility of the facts contained in exhibits 23, 25 & 26 as to their truth have been challenged by Unimin in this application on the basis that the authors of those documents were not called and the documents cannot be tendered as truth of their contents without their authors being called because section 93 Evidence Act 1997 has not been complied with[51]. A number of authorities were cited including R v Ross [2010] QCA 63 (23 March 2010). In order to tender a document as to the truth of its contents without calling the author, it was submitted the prosecution needed to place material before the court to satisfy the conditions in section 93(1)(b) Evidence Act 1997, for example, that the author was dead, or is out of the State and not reasonably practicable to secure attendance. Nothing has been placed before the court to this effect. I accept the submissions for Unimin that those exhibits cannot be relied on as to the truth of their contents in this application. They were, however, taken into account by DERM’s legal officer Mr Kwan, whether true or not.
[50] Paragraphs 8, 9 & 21 submissions for prosecution;
[51] Appendix H3 submissions for Unimin;
Exhibit 23 is a 1 paged letter dated 30 August 1996 from Clayton Utz Solicitors to ACI enclosing part of a Mining Warden’s judgment (3 pages) in respect of mining in North Queensland. Mr Kwan gave evidence that it was found in a filing cabinet on Unimin’s site at North Stradbroke Island during the execution of a warrant on 16 December 2008[52]. The Mining Warden among other things said:
Silica sand or sand, when used in conjunction with concrete (eg to make blocks) without heat is not being utilized for its chemical properties, and is therefore quarry material under the Forestry Act 1959.
[52] Transcript 2-25 lines 55 to 60; 2-26 lines 1 to 40;
While it was submitted for Unimin that there was no evidence it knew of that letter[53], it was found in its possession.
[53] Paragraph 11.3(a)(3) submissions for Unimin;
Exhibit 25 is “Pre-lodgement Meeting – Notes of Meeting” held 21 November 2007 and 12 December 2007 attended by three representatives of Unimin including Greg Watkins and a number of departmental and council officers. The proposal discussed was the selling of sand by Unimin to the local construction and landscaping industries.
Exhibit 26 (also exhibit 57) is Unimin’s situation report dated 14 July 2008 by John Flynn (Unimin’s site Manager) in which it is noted that Unimin’s environmental officer Greg Watkins had requested the site cease the sale of construction material as the Minister had questioned the EPA “weather [sic] we are selling this product (The site doesn’t have the appropriate licence)”. Under the heading “Action Plans/Required Actions” it said “Progress application for an extractive industries licence”. Contrary to submissions for Unimin, in my opinion if those comments were true, they would lend support for the view that Greg Watkins at least was aware that there was an issue. Again, Mr Kwan took exhibit 26 (and 57) into account. I note this situation report was located at the offices on Unimin on North Stradbroke Island by Ms Fyfe on 16 December 2009 during the execution of a warrant[54].
[54] Transcript 5-56 lines 45 to 60; 5-57 lines 1 to 7;
Exhibits 23, 25 & 26 were tendered on the limited basis that they are documents that Mr Kwan took into account in relation to prosecuting the matter.
Exhibit 24 is an email from David Trezise to Greg Watkins of Unimin dated
30 July 2007 concerning the removing of sandy loam for other purposes such as construction purposes. It was in response to an email from Greg Watkins of Unimin dated 23 July 2007 (exhibit 38) as follows:
Subject: Unimin Nth Stradbroke Is – Sandy Loam Extraction
Hi David
We are exploring potential opportunities on site to further maximize the beneficial use of resource on our MLs. Some of the non-glass grade material on site had been identified as being suitable for other applications (e.g. construction material). Potential tonnage extracted would still be within our current quantities under our EA. Would the activity may be considered a different ERA? Could we include it on our existing EA as a variation or do we need a separate registration certificate?Mr Trezise was the Chief Scientific Advisor (Mines). After referring to the definition of “mineral”, in reply he said that essentially Unimin will require dual permits, one for mining activities (in place) and a second permit or development approval issued by Redland Shire Council under the IPA. He referred to an ERA 20 application. As Mr Trezise was called to give evidence, there was no objection to this exhibit being tendered as to the truth of its contents.
Submissions for Unimin were that this proposed new activity involving “construction material” did not relate to by-product sand which it called B Grade sand sold as building sand. It was submitted the email referred to “sandy loam” which is not almost pure silica sand that was still not suitable for glass making as is B Grade sand[55]. There was much cross examination on this distinction. I note that in the body of Mr Watkins’ email he still referred to it as “non-glass material on site”. By sending that email he was obviously acutely aware to the possible need for a separate certificate for that proposed activity, whatever that was. The fact that Mr Trezise said during cross examination that “sandy loam” generally had 40% silt, 40% sand and 20% clay[56] which is not the same as B Grade silica sand with a far higher silica content, does not necessarily lead to the conclusion that that is what was being referred to in that email exchange when one has regard to Mr Trezise’s response and what Mr Watkins is alleged to have said to Ms Jordon during a site inspection on 17 November 2008 to be discussed later. In relation to the various descriptions of sands, Mr Trezise’s answers during cross examination were general and, in my view, do not lend the degree of support to Unimin’s submissions as suggested: For example he said[57]:
[55] Paragraphs 9.24 & 9.25 submissions for Unimin;
[56] Paragraph 9.27 submissions for Unimin;
[57] Transcript 3-63 lines 1 to 38;
Have you ever heard of the term "construction sand"?‑‑ Yes.
Is construction sand in your understanding building sand or don't you know?‑‑ It - it could be used as building sand.
It could be but it mightn't be?‑‑ That is correct it could be top soil.
Thank you. And so the same as with sandy loam, it could be building sand but it might not be?‑‑ That’s correct.
And because building sand is the by-product of the glass grade sand, it's called B-grade glass sand, isn't it?‑‑ I don't know.
That's another term for it?‑‑ I haven't seen that term. I - I refer you back to Mr Watkins' letter‑‑‑‑‑
Yes?‑‑ ‑‑‑‑‑construction material.
Construction material?‑‑ Yeah.
Yes?‑‑ Construction materials are crushed aggregates.
Yes?‑‑ For concrete.
Yes?‑‑ Road metal.
Yes, exactly?‑‑ Sand for building purposes.
And nowhere‑‑‑‑‑?‑‑ Construction purposes.
You'd agree with this, wouldn't you, nowhere in Mr Watkins' email to you is the term "building sand" used?‑‑ He used the term "construction material".
And he used the term in his title‑‑‑‑‑?‑‑ Sandy loam‑‑‑‑‑
Another reason why those answers do not assist greatly is that descriptions of the sands seem to vary from time to time and from individual to individual. The phrase “B Grade sand” seems to have been a description introduced by Unimin at some stage. At para [1] of his judgement Applegarth J in Unimin said during his introduction “[Unimin] also extracts silica sand of a lower purity, which the applicant refers to as “B Grade” silica sand” (my emphasis)[58]. I also note an undated notice to truck drivers found attached to the weighbridge on North Stradbroke Island tendered during cross examination of Ms Caruso (exhibit 46)[59]. It provided that “building sand” was now to be called “B Grade Glass” even though the same code (code 2) was maintained. There is no apparent reason for this change nor is any given in that notice. The notice provided:
[58] The applicant being Unimin;
[59] Transcript 4-36 lines 55 to 60; 4-37 lines 1 to 60; 4-38 lines 1 to 42;
To All Truck Drivers
Please Note the updated Product Code list.
The product name for two of our products has been updated. The codes remain unchanged.
Code 2, formerly called Building Sand, is now B Grade Glass ……
All information entered when producing a weighbridge docket is exactly the same as before, however, when the docket prints, it will show the updated names.
If it is necessary to write out a Manual Docket, please use the updated names – B Grade Glass and …..
While the contents of exhibit 23 (the Clayton Utz letter) are not admitted as to their truth, Mr Kwan gave evidence that it was found in Unimin’s offices. One would have thought that, whether or not its contents are true, those contents would have put the reader of it on inquiry. On the state of the admissible evidence in this interim application, I would not put Unimin’s level of knowledge of wrongdoing as highly as suggested by the prosecution. However, I think there were factors present to at least put Unimin on inquiry coupled with some evidence of declarations against interest. These are matters for trial.
Ms Jordon, who was the Manager of the Redlands Unit of then Environmental Protection Agency (EPA), conducted site visits on North Stradbroke Island. One such visit occurred on 17 & 18 November 2008. Mr P Nand, who worked with the EPA, and Mr Greg Watkins, who was the environment manager for Unimin at the time, were present as they were driving out on 17 November 2008. In a conversation about the stockpiles on the left of the driveway as they were driving out, Ms Jordon gave this evidence[60]:
Right. And before having the conversation, or immediately at having the conversation, did you indicate to Mr Watkins a set of stockpiles?‑‑ Yes.
Okay. So what did you do and what did you say?‑‑ I motioned to the stockpiles to the left of the window and I asked him if they were construction or building sand.
And what did he say to you?‑‑ Mr Watkins replied, saying that he didn't have approval to do that. That one of my predecessors had said that they didn't have approval to do that and that the predecessor had told them to stop doing that.
Did he use the word "predecessor" or did he name someone?‑‑ He used the word "predecessor".
[60] Transcript 3-77 lines 35 to 51;
The IPA, EPA and FA each provide for alternative periods of limitation. Sections 4.4.2 IPA, 497 EPA and 88(4) FA respectively provide:
4.4.2 Limitation on time for starting proceedings
A proceeding for an offence against this Act must start—
(a) within 1 year after the commission of the offence; or
(b) within 6 months after the offence comes to the
complainant’s knowledge. (my emphasis)
497 Limitation on time for starting summary proceedings
A proceeding for an offence against this Act by way of
summary proceeding under the Justices Act 1886 must start—
(a) within 1 year after the commission of the offence; or
(b) within 1 year after the offence comes to the
complainant’s knowledge, but within 2 years after the
commission of the offence. (my emphasis)88 Time for commencement of prosecutions
(4) A prosecution for an offence against this Act may be
instituted at any time within 12 months after the commission
of the offence or within 6 months after the commission of the
offence comes to the knowledge of the complainant,
whichever is the later period. (my emphasis)
In support of that submission reference was made to statements in authorities that limitation provisions such as these provide for firm temporal limits and the selection of the complainants in this case was contrary to public policy considerations identified by Fraser JA in Witheyman v Van Riet [2008] 2 Qd R 587; [2008] QCA 168 concerning similar limitation provisions in a prosecution for an offence under the Vegetation Management Act 1999: section 68(3)(a) & (b). Fraser JA, with whom Holmes JA and Daubney J agreed, said at paragraph [15] of Qd R:
[15] …..The requirement that a “proceeding for a vegetation clearing offence must start ….within one year after the offence comes to the knowledge of the complainant’s knowledge …” does not necessarily imply knowledge of the identity of the offender. Where someone knows of specific facts that constitute the elements of a particular offence at a particular place and within a particular period, but is in doubt as to the identity of the offender, it is perfectly natural language to say that the person knows the offence has been committed.
In referring to section 68(3)(b) of the Vegetation Management Act 1999 which provides that a proceeding must start within 1 year after the offence comes to the complainant’s knowledge, but within 5 years after the offence is committed”, in agreeing with McGill DCJ[149] Fraser JA said at [17]:
[17] This provision is an exception to the general rule [s 68(3)(a)] allowing 12 months in which to commence a prosecution after a summary offence is committed. It concerns the prosecution of an offence. One purpose of the limitation provision is to provide protection to citizens who may have committed offences. Another purpose is to encourage the efficient and timely investigation of offences. As his Honour observed, these matters also suggest that s 68(3) should not be given a wider construction than is clearly indicated by its text.
[149] At (2008) 29 Qld Lawyer 109;
I interpolate that section 68(4) of the Vegetation Management Act 1999 provides power in the court to extend time if “just and equitable”. No such provision appears to exist in the IPA, EPA or FA. Although not determinative of the point, this power was referred to by Fraser JA in support of his conclusion that section 68(3)(b) does not necessarily imply that knowledge of the identity of the offender is necessary: see paragraph [18].
Next, under the heading “The discretion to extend time” pursuant to section 68(4), in which an extension was refused due to the prosecution’s tardiness, Fraser JA said in conclusion at [28]:
The limitation period enacted in s 68(3) serves very important public purposes. An inevitable result of such provisions is that some prosecutions that otherwise might proceed cannot do so. That fact itself does not itself establish any injustice and none is evident in this case. The applicant has already had the benefit of two hearings in which to seek an extension of time. Leave to appeal should not be granted for the purpose of granting the applicant a third hearing.
A similar question arose for determination in Cross Country Realty Pty Ltd v Peebles [2007] Qd R 254; [2006] QCA 501 regarding section 598(1)(b) Property Agents and Motor Dealers Act 2000 providing that proceedings must commence “within ..6 months after the commission of the offence comes to the complainant’s knowledge, but within 2 years after the commission of the offence”.
The argument for the applicant, which was rejected by unanimous decision of the Court of Appeal, was that time runs under [s 598(1)(b)] as soon as anyone in the [Office of Fair Trading] entitled to lay the complaints has reasonable grounds to believe the applicants have committed an offence..”. McMurdo P, who wrote the leading judgement, adopted the reasoning of the District Court at paragraph [7] of her reasons:
[7]…[The District Court judge] considered that s 589(1)(b) was “… not satisfied by the fact that information sufficient to found a reasonable belief that an offence has been committed, has come into possession of the complainant or has become available to him, if he has not in fact acquainted himself with that information. Until that situation occurs it is not possible …to say the commission of the offence has ‘come to the complainant’s knowledge’”.
In comparing the level of knowledge required for the purposes of section 550 in issuing a search warrant and the limitation provision of section 589(1) (b), McMurdo P said at paragraph [10]:
[10]….The knowledge and belief necessary to satisfy a Magistrate under s 550 of the Act that there are reasonable grounds for suspecting that there may be evidence obtained at a place the subject of the search will not necessarily equate to the knowledge to which s 598(1)(b) refers. The knowledge referred to in s 598(1)(b) requires a higher degree of certainty than the reasonable grounds for suspicion required for the issue of a search warrant under s 550(1) of the Act. It involves the complainant having knowledge of facts sufficient to establish a person’s contravention of the Act.
While it was conceded in submissions for Unimin that reported cases have “shied away” from constructive knowledge or collective knowledge within a prosecuting body, it was urged that having regard to the purpose of limitation provisions as outlined by Fraser JA in Witheyman v Van Riet, the selection of ignorant complainants manipulates the limitation periods and constitutes an abuse of the court’s process. Even assuming there was manipulation (unintended or otherwise), I have not been referred to any authorities suggesting that it is an abuse of process for an officer otherwise authorised to make complaints and who has had no involvement in an investigation into the matter to make a complaint in respect of the matter under the JA.
On the other hand the complainants submit that the requisite knowledge is not merely constructive or collective knowledge. This, it appears is not in contest. It was submitted however that to suggest that the complaints in this case are statute barred is contrary to the principles outlined in Peebles.
In reply Unimin’s submissions are that the thrust of their argument is not based on constructive or collective knowledge. Rather, it is based on an abuse of process to manipulate time limits by either quarantining appropriate complainants from investigations or selecting complainants based on ignorance.
There is nothing in the limitation provisions in this case which impose restrictions on who should be a complainant in any given set of circumstances. Unlike, for example, section 234(5) MQSHA referred to earlier, anyone can be a complainant relying on the public officer provisions of the Justice Act 1886[150]. These cases must necessarily involve complex investigations arguably more complex than many traditional offences dealt with summarily under a wide range of statutes including, for example, The Criminal Code (Qld), Summary Offences Act 2005 and the Transport Operations (Road Use Management) Act 1995. While only the Commissioner for Mine Safety and Health can be a complainant under the MQSHA, he was not briefed with all relevant facts in Mt Isa Mines until late in the piece and only after the investigator had fully completed his investigation and report encompassing four large bound volumes (see footnote 46 Mt Isa Mines) including records of interview and statements from all witnesses and after first meeting with members of a Compliance Committee within the department not including the Commissioner for Mine Safety and Health. The essential issue is the discovery by the actual complainant after becoming aware of relevant facts of the offence and not to be confused with the decision to prosecute: see for example Tesco Stores Ltd v London Borough of Harrow [2003] EWHC 2919 cited in argument in Witheyman v Van Riet. The fact that Mr Bell and Mr Gordon were not involved with the investigation in this case, in my view, does not matter. I respectfully reject submissions for Unimin on this ground.
[150] Section 4 Justices Act 1886 relevantly defines “public officer” as an officer or employee of the public service of the State or of a statutory body that represents the Crown in right of the State.
Indeed, this is implicit in what McMurdo P said in Peebles in rejecting the submission advanced by the applicant in that case: see para [243] above. Some support for this can also be found in the flexibility accorded to the prosecution in Environment Protection Authority v CSR Ltd t/as Woodpanels [2001] 114 LGERA 217, a decision of the New South Wales Land and Environment Court. In that case the prosecutor sought and was granted leave to amend the complaint by inserting dates representing the period of the offence which was absent in the original pleading and by removing the averment that the offence came to the complainant’s knowledge on a certain date. That is, well after the complaint had been served on the defendant, the prosecutor was allowed to shift reliance on the coming to knowledge provision to the provision that proceedings were commenced within three years of commission of the offence. In this respect Pearlman J said at 228:
It [the relevant provision] provides alternative periods of limitation depending upon the particular offence, and alternative methods of computing the time from which the relevant limitation period commences to run. I cannot discern anything in the language of [the relevant provision] which would indicate that the prosecutor must choose between the alternatives at the outset of proceedings and must thereafter be bound by that choice.
Unimin’s application on this ground is refused.
At this juncture, in deference to the extensive submissions for Unimin, I should address the question of limitation periods as they apply to continuous offences.
I was referred to R v Industrial Appeals Court Ex Parte Barelli’s Bakeries Pty Ltd [1965] V.R. 615, a decision of the Full Court of the Victorian Supreme Court in relation to an offence of failing to pay wages to a specified employee within a prescribed time. One question was whether that was a continuing offence where the limitation period was “6 months after the commission thereof”. The information was held to be laid within time even though the six months had elapsed since the obligation to pay first arose on 18 April 1963 because it was a continuing offence. There was a continuing failure to pay on
4 March 1964. The information was laid 20 April 1964. O’Bryan & Gillard JJ (with whom Smith J agreed) said at 620:
A continuous or continuing offence is a concept well known in the criminal law and is often used to describe two different kinds of crime. There is the crime which is constituted by conduct which goes on from day to day and which constitutes a separate and distinct offence each day the conduct continues. There is, on the other hand, the kind of conduct, generally of a passive character, which consists in the failure to perform a duty imposed by law. Such passive conduct may constitute a crime when first indulged in but if the obligation is continuous the breach though constituting one crime only continues day by day to be a crime until the obligation is performed. In such a case in measuring the period of limitation, if one is applicable, the right to lay an information is not barred if the breach has continued up to the day the information was laid, or if the breach was cured before the information was laid, time counts from the day when the obligation was satisfied. The question whether an offence is of a continuing or continuous nature generally arises in the case of statutory offences and the question is solved by ascertaining what is the precise nature of the offence.
Submissions for Unimin also referred to De Bray v Cohen; Macefield Pty Ltd v Cohen [2008] QDC 275 per Wall DCJ and to Cohen v Macefield Pty Ltd [2010] QCA 95, on appeal. That case was primarily a duplicity case on appeal from the decision of a Magistrate after a trial. The provision creating the offence provided “A person must not damage or permit to be damaged protected vegetation”. The charge as amended at trial pleaded two separate offences, namely “damage or permit to be damaged”.
Wall DCJ’s findings that the charge as pleaded was duplicitous was confirmed on appeal. In distinguishing Environmental Protection Authority v CSR Woodpanels Pty Ltd (2001) 114 LGERA 217, at paragraph [64] his Honour concluded that the pleaded offence was not an offence of a continuing or continuous nature even though the acts of poisoning involved a series of acts. The prosecution was required to prove that two things occurred within the limitation period; first, the acts of poisoning; secondly, that those acts destroyed or interfered with the natural growth of the vegetation. It was not enough to prove an act outside the limitation period destroyed or interfered with the natural growth of vegetation within the limitation period.
Each case will depend on the precise nature of the offence. The offence in Environmental Protection Authority v CSR Woodpanels Pty Ltd was negligently causing a substance to leak in a manner which harmed or was likely to harm the environment without lawful authority. Like this case, that case was an application before trial. It was held most likely to be a continuing offence and that a final determination on that should be left for trial after all the evidence is given: paragraph 33. It was also held that a limitation period for a continuing offence starts on the day upon which the commission of the offence ceased: paragraph 35.
Unimin’s submissions are that the limitation period for continuous offences constituting conduct from day to day and which constitutes a separate and distinct offence each day the conduct continues runs from each day the conduct occurs (para 3.4). As I understand the submission, it follows that it is inappropriate to include in the charges conduct outside the limitation period. Having regard to the above, I respectfully do not agree. A strikingly similar submission at paragraph [32] in Environmental Protection Authority v CSR Woodpanels Pty Ltd was expressly rejected. In the words of Pearlman J. at [35]:
[35] First, I am of the view that, whilst the defendant is correct in contending that a continuing offence may be the subject of prosecution on any day during the stipulated period, it is not correct in asserting that the limitation period commences to run from any day of that period. Rather, the limitation period commences to run from the day upon which the commission of the offence has ceased. Accordingly, if this offence is ultimately found to be a continuing offence, then no question of infringement of the limitation period will arise, because the period will commence to run some date in 1995, and the proceedings were instituted within three years thereafter.
I respectfully agree with those remarks. Time runs from when the offending conduct ceases if it is a continuing offence however characterised.
In my view the charges in the present case appear to be more akin to the charge in Environmental Protection Authority v CSR Woodpanels Pty Ltd. The IPA charge is the carrying out of assessable development without a development permit. The EPA charge is the carrying out of a Level 1 Chapter 4 activity while not being a registered operator. The FA charge is getting quarrying materials. These charges are contrasted to the charges in Cohen v Macefield where the prosecution had to prove the act of poisoning and the consequent damage occurred in the limitation period. However, in saying this, ultimate determination as to whether they are continuing offences should be left for trial after all the evidence has unfolded.
Summary
The application to permanently stay the FA complaint because it was made outside the limitation period is successful.
The application to permanently stay the complaints on all other grounds is refused.
I will hear the parties as to costs.
Graham C Lee
Magistrate
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