Bolton v Perry

[2003] HCATrans 691

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P8 of 2002

B e t w e e n -

ALLAN WILLIAM BOLTON

Applicant

and

WILLIAM THOMAS PERRY

Respondent

Application for special leave to appeal

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 9 MAY 2003, AT 2.06 PM

Copyright in the High Court of Australia

MR I.A. MORISON:   May it please the Court, I appear with my learned friend, MR A.W. BUCHAN, for the applicant. (instructed by Hotchkin Hanly)

MR R.J. DAVIES, QC:   May it please the Court, I appear with my learned friend, MR J.M WOODHOUSE, for the respondent.  (instructed by Altorfer & Stow)

McHUGH J:   Yes, Mr Morison.

MR MORISON:   At page 255 of the appeal book there appears the letter which this whole set of proceedings turns upon.  It is a letter that was written under the hand of the Shire Clerk of the Shire of Greenough.

HEYDON J:   It is 234 of ours.

MR MORISON:   I see, thank you.  I was referring to her Honour Justice Wheeler’s decision, but that would be a more convenient place, 234, thank you.  We say about this letter that it is, on its face, an approval, the lack of which we were charged with that there is nothing patent or branded upon this letter to suggest that it is not the approval, that is, an approval for use as a residence.  We say that this letter, as an approval, has been impugned by the respondent and we say that it ought not to have been allowed to do that but that on the present state of the law in Australia it is not clear that the respondent was precluded from doing that.  The Court will note that it refers to an inspection of living quarters.

McHUGH J:   But is not your problem that the Full Court upheld the conviction on the ground that there was no application?  That reasoning does not rest on any conclusion about the letter of 21 December 1995.

MR MORISON:   Save to say that our argument on the application was that given that there was an approval it should be presumed that there was an application and the Full Court held that there was no approval, therefore no basis upon ‑ ‑ ‑

HEYDON J:   Yes, but a presumption – you said “presumed”.  It can be rebutted by evidence and they pointed to quite a lot of evidence to the effect that there never had been an application.

MR MORISON:   Yes, indeed, but without the approval that we relied upon it was a blank canvas.  In fact, the exercise that was done neither by his Worship or by the Supreme Court was done by reference to the presumption that because ultimately in the Full Court it was held that the approval letter that we rely upon was not an approval and without reference to any presumption the Full Court then went to a number of – well, not a number, but a very few pieces of evidence and from that concluded that it could be found, whatever way the magistrate had expressed himself, that there was no application.

Now, we candidly say that we have no particular evidence to prove there was an application but what we were entitled to do was to rely upon the approval and work back from that and we say that when one looks at all of the evidence – and we do not deny that they are entitled to rebut the presumption by reference to the evidence, but the starting point must be the approval and we must have the opportunity to bring the approval into the picture.  They can then, from that, bring forward whatever evidence they wish to show that the presumption ought to be rebutted.

The particular collateral challenge that was made here was – well, it had three features which make it quite an extraordinary set of circumstances.  First, the collateral challenge here was not defensive, as it often is, for example, in answer to a prosecution as in Selby v Pennings.  It was offensive in that it was being relied upon in the course of a prosecution, that is, the challenge to the approval was being relied upon in the course of a prosecution that was to show the lack of the approval.

Now, I concede that at the day of the hearing, they having found this letter – the Council having found this letter – they amended the charge to include a failure to apply for the approval and so we had the added difficulty which exists in relation to the application.

McHUGH J:   The words “without prior application in writing” were added by amendment, were they not, at the commencement of the trial?

MR MORISON:   They were, yes, on the first day of the hearing, against the objection of the applicant.  That is the first feature, that it was offensive rather than defensive.  The second feature is that this collateral challenge was made in the course of a prosecution.  In criminal law quasi‑criminal proceedings, not in civil proceedings, for example, for the establishment of a private right or for the recovery of money, as in many of the cases, in which the collateral challenge has been allowed.

Then the third feature is that the alleged invalidity of this approval was entirely latent, not at all, we say, patent and the prosecution brought evidence at the hearing to impugn the approval by suggesting that it was issued at the instigation of a building officer rather than a planning officer and that the whole thing essentially was rather a mistake or ill advised in any event does not reflect any real approval.  That was therefore a latent invalidity which they sought to bring out and the fact that it was a latent invalidity was brought out by the way in which his Honour Justice White in the Full Court expressed himself where he referred to the letter not constituting any real approval.

Now, we say that with these three features, that is, the collateral challenge was made offensively in a prosecution and in respect of an invalidity which is alleged which is only latent, one has a very unfair and unsatisfactory state of affairs arising.  It is a collateral challenge because the only issues in the case before his Worship were, first, was there an approval and, secondly, was there use as a residence?  There was no issue arising as to whether the approval was a valid approval or could be impugned on some basis and therefore the attack on the approval was entirely collateral.

I note that many of the cases refer to the desirability of requiring that a collateral challenge be made in other proceedings but not so where it may be difficult to bring other proceedings, or not practical, but I note in this case that no declaration was necessarily required.  All that the respondent had to do was to withdraw this letter, withdraw its approval at least for it to do so and if it had done so then the position would have been crystallised very satisfactorily.

In the first place, it would have given the applicant the opportunity to consider whatever remedies that arose out of that.  Secondly, of course, it would have marked the point from which the applicant was breaching the law, that is, acting without the approval if he continued to reside in the property.

The reason that I say that this is a matter of public importance is because there is only, and most lately from your Honours’ Court, the decision of Ousley which goes to the issue of whether challenges can be made to search warrants.  As we know, search warrants occupy a special place in this context because whilst challenge can be made to the validity of the search warrant no challenge can be made to the sufficiency of the material.

There has been a repetition of statements that were made by the High Court earlier in Posner to the effect that it is necessary for a challenge to be made in the appropriate way and that where there has been a failure of the due process of the law to describe it as void is not unnatural but except when the alleged invalidity is upon its face then it is only as a result of the construction placed upon a statute that the order can be considered so entirely and absolutely devoid of legal effect for every purpose as to be described accurately as a nullity.

Now, I was reading there, or paraphrasing, the judgment of his Honour Justice Dixon in Posner which is set out in Justice Lehane’s judgment in Federal Airports Corporation.  What we have is seeming

agreement that a collateral challenge must be made by the appropriate person in the appropriate proceeding but little guidance as to the nature of the circumstances indicating that the appropriate proceeding is the present proceeding.

The decisions that I have cited, both English and Australian, indicate that there have been various outcomes and that there is no clear means of determining whether a collateral challenge is going to be allowable and so that one has the outcome that one has here where a local council and a prosecutor considers that it may prosecute for lack of an approval where, as it happens, it was not aware of this fact until about the hearing, where it finds that the approval, or at least the letter that we rely upon, exists, and then in the course of the hearing seeks the hearing for a conviction of acting without the approval impugns that approval.

That result, which I submit is a most unsatisfactory result, reflects the lack of guidance that there exists, with respect, in English and, indeed, English law but Australian law also in connection with this matter.  Those are my submissions, if it please the Court.

McHUGH J:   Yes, thank you.  No, we need not hear you, Mr Davies.

MR DAVIES:   Yes, thank you, your Honour.

McHUGH J:   The applicant seeks to raise an issue of law concerning the extent to which a local authority can challenge the validity of an approval contained in a letter under the hand of the shire clerk dated 21 December 1995 in a prosecution for acting without approval. 

The applicant was charged with using a building without proper application in writing and without prior approval in writing.  The magistrate convicted the applicant and fined him $400 with costs.  That conviction was upheld by the Full Court on the ground that there was no application and, hence, no approval.  That reasoning does not rest on any conclusion about the 21 December 1995 letter in isolation, and is correct.  The issue of law does not arise.  Accordingly, special leave must be refused with costs.

AT 2.19 PM THE MATTER WAS CONCLUDED