Bonsell v Development Consent Authority - [2003] NTSC 3

Bonsell v Development Consent Authority [2003] NTSC 3
PARTIES:BONSELL, Jennifer Betty
AND

BONSELL, Peter Walter

v

THE DEVELOPMENT CONSENT AUTHORITY

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURIDISDICTION
FILE NOS:JA 87, JA 88, JA 108 & JA 109 of 2002
DELIVERED:  15 January 2003
HEARING DATES:  9 December 2002
JUDGMENT OF:  MARTIN CJ
CATCHWORDS:
REPRESENTATION:
Solicitors:
Appellant:Self represented
Respondent:  Ward Keller
Judgment category classification:      B
Judgment ID Number:  mar0302
Number of pages:  14

Mar0302
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Bonsell v Development Consent Authority [2003] NTSC 3
Nos. JA 87, JA 88, JA 108 and JA 109 of 2002

BETWEEN:
JENNIFER BETTY BONSELL and PETER WALTER BONSELL

Appellants
AND:
THE DEVELOPMENT CONSENT AUTHORITY

Respondent

CORAM: MARTIN CJ
REASONS FOR JUDGMENT
(Delivered 15 January 2003)

Appeal against a refusal to set aside findings of guilt, made on 31 July 2002, in ex parte proceedings in the Court of Summary Jurisdiction upon application made by the appellants under s 63A of the Justices Act.
On 4 May 2001 consent was given by the respondent pursuant to s 53(a) of the Planning Act 1999 (NT) to an application made by the appellants to clear in excess of fifty percent of their land situated at Humpty Doo.
The consent was subject to conditions:
(a)that the work be in accordance with a plan which was attached to the permit;
(b)an area of native vegetation measuring 40 metres by 50 metres was to be retained in the south western corner of the land;
(c)the remaining area was to be selectively cleared to the extent required to facilitate drainage works. Liaison with the Natural Resources Division of the Department of Lands and Planning and Environment was required prior to that clearing;
(d)a buffer of native trees was to be planted on the eastern boundary to the satisfaction of the Chairman of the Authority – no time was stipulated for this condition;
(e)firebreaks along the boundaries were to be provided to the satisfaction of the Northern Territory Fire Services.
The permit so granted was stated on its face to lapse two years from the date of issue (see definition “base period of the permit” in s 3(1) and s 58 of the Planning Act).
On 30 April 2002 the respondent Authority (s 70H(2) of the Planning Act) laid two complaints under the Justices Act, each of which charged each appellant with 20 identical counts alleging breaches of the permit conditions. To say the least of it there was obvious significant duplication of charges as against each appellant as recognised by counsel for the respondent. The only charges pursued at the ex parte hearing were that vegetation on the land had been cleared contrary to each of three separate conditions, and that the appellants had failed to plant the buffer of native trees. All of the offences were alleged to have taken place between 1 November 2001 and 23 March 2002.
The precis of prosecution facts provided to his Worship was that after the permit was granted little clearing was conducted until December 2001, but by 12 January 2002 almost all the property had been cleared of native vegetation, including the area in the southwestern corner. It was also put that as of 22 March 2002 the land had been completely cleared apart from some tree stumps and a number of pine trees. The buffer had not been planted.
The appellant, Peter Walter Bonsell (“Mr Bonsell”), was found guilty of each charge, convicted and fined $5,000 and his wife, Jennifer Bonsell (“Mrs Bonsell”), was found guilty of three only of the charges, convicted and fined $3,000. Both of those fines were imposed in the aggregate. They were ordered to pay costs and jointly and severely directed to comply with a “revegetation order”. They then sought to have the findings of guilt and orders set aside pursuant to s 63A of the Justices Act upon the grounds that they could not appear because of illness. Upon the hearing of such an application the court may refuse it or then and there set aside the findings or orders, s 63A(7) Justices Act.
On 9 September 2002 Mr Wallace SM refused the application in so far as it related to the findings of guilt, but allowed it in relation to the convictions, penalties and revegetation order. It is from the first of those determinations that these appeals are brought.
It is helpful to briefly record the events leading up to the ex parte hearing. They are detailed in his Worship’s reasons, but may be summarised:
·     The appellants were summonsed to appear before the Court of Summary Jurisdiction on 22 May 2002. On that day Mr Bonsell appeared, but Mrs Bonsell did not. He informed the Court that he had applied for legal aid and that his wife was unable to appear because of an unspecified disability. The hearing was adjourned to 12 June 2002 for mention.
·     Between then and 12 June the respondent sought to obtain information about Mrs Bonsell’s disability from Mr Bonsell, but did not receive any.
·     On 12 June 2002 neither of the appellants appeared, but it appears that by a telephone call to the court’s office on 11 June, Mr Bonsell advised that he was the carer for his disabled wife and sought an adjournment as they were both ill and needed to see a doctor on 12 June.
·     On 19 June 2002 the matter was again in the list for mention. Neither appellant appeared. This time there was a facsimile message from Mr Bonsell saying that he and his wife were unable to attend due to illness. It asserted as well that they were awaiting results from an appeal against a refusal for the grant of legal aid.
·     The solicitor for the respondent unsuccessfully continued to try and obtain details of Mrs Bonsell’s alleged disability and on 27 June received copies of medical reports from Mr Bonsell.
·     On 3 July the matter was again in the list for mention. Neither appellant appeared, nor was there any communication from either of them. The matter was set down for an ex parte hearing on 31 July (Justices Act s 62). The solicitor for the respondent swore an affidavit provided to Mr Loadman SM as to his efforts to serve a letter giving notice of the date of hearing upon the appellants.
·     Mr Wallace SM records that on the morning of 31 July there was received in the court office a facsimile message from the appellants advising, inter alia, that they denied guilt of all allegations, that they were unable to attend due to illness, of which details were provided, and they had not been granted legal aid. Mr Wallace SM proceeded on the assumption that the material had not been placed on the court file prior to Mr Loadman SM proceeding with the ex parte hearing. There is no indication in the transcript of the proceedings before Mr Loadman SM that he had notice of that material.
·     The application to set aside the findings of guilt and orders first came before Mr Wallace SM on 8 August. In answer to a question from the learned Magistrate, Mr Bonsell indicated that he was unsure whether he wished to contest the charges, he and his wife had been seeking representation, but indicated that untruths were put forward by the prosecutor when they were found guilty in their absence. Because of lack of proper notice to the respondent, the matter had to be adjourned for 14 days. His Worship told the appellants that they should indicate on that day whether the relief sought went to the question of guilt of any or all of the charges, or whether their real grievance was about the penalties.
His Worship added that the court would probably want to be satisfied that there was a good reason for the appellants’ non attendance at court and that the appellants should produce any evidence they had to excuse that failure. Amongst the submissions made by the appellants to this Court were that his Worship failed to advise them that they should also produce evidence going to their proposed defences to the charges, but I find nothing in his Worship’s reasons to indicate that their failure to produce such evidence was a factor bearing upon his decision.
At the commencement of the hearing on 22 August, Mr Bonsell handed to his Worship medical reports apparently going to the appellants’ inability to attend at court on the appointed day and at other times. According to Mr Bonsell, his wife’s incapacity arising from rheumatoid arthritis was particularly bad in the mornings and he had to care for her then. He added that had they known that a time later than 10am could be fixed for hearing, “that would have made a great difference”.
Mr Bonsell informed the Court that he and his wife were contesting all of the charges, they were not guilty. In addition to that, Mr Bonsell informed his Worship that they were “contesting the validity of the action, whether the time limit was exceeded before prosecution was issued”. His Worship did not seek to obtain any explanation as to what Mr Bonsell meant by that. Mr Bonsell also informed his Worship that he and his wife disputed the dates during which the offences were alleged to have been committed, saying that that was during the wet season and any clearing they did was finished before then. He added that they were obtaining evidence to prove that.
Counsel for the respondent confirmed to his Worship that the usual time bar applied for the respondent to commence prosecution, that is, the complaint must be made within six months from the time when the matter of complaint arose (Justices Act, s 52). Mr Bonsell asserted that he and his wife could prove that the time had expired before the complaints were laid.
It seems to me the avenues of defence which the appellants sought the opportunity to pursue were made sufficiently clear to his Worship. Firstly, the respondent could not succeed in discharging the onus of proof as to the time the offences were allegedly committed as specified in the complaint and summons. Secondly, such clearing as was done was carried out more than six months prior to the complaint being laid and accordingly they could not be charged in relation to them.
The application was opposed upon the grounds that the appellants had not shown sufficient reason for their failure to attend Court, and in any event, had not demonstrated a real defence, no detail had been provided.
The medical evidence before Mr Wallace SM, as disclosed in his Worship’s reasons, may be summarised:
·     Dr Wilson reported that as of 29 May 2002 Mrs Bonsell was suffering from severe rheumatoid arthritis and anxiety attacks; she was being treated by a psychiatrist and was on medication; and
Mr Bonsell suffered from anxiety attacks which prevented him from speaking in a group when tension exists;
·     A medical certificate from Dr Wilson giving the opinion that Mr Bonsell would be unfit for work or a court appearance during the period 12 June to 3 July;
·     Dr McLaren, psychiatrist, reported that he had seen Mr Bonsell on 18 June 2002 and referred to symptoms of a long standing anxiety state and other illnesses for which specific treatment was commenced which was likely would enable Mr Bonsell to attend a public hearing “before too long”. The doctor accepted that Mr Bonsell’s complaints of inability to speak in public were genuine.
·     As to Mrs Bonsell, Dr McLaren referred to the history of rheumatoid arthritis and long term anxiety state. Treatment had brought about some improvement, but she would need continuing treatment.
·     Dr Zurouskas, a rheumatologist, referred to Mrs Bonsell’s condition and his Worship expressed himself to be persuaded of the genuineness of it. His Worship’s observations of Mrs Bonsell in court supported his opinion.
That medical evidence and Mr Bonsell’s assertion that he was his wife’s carer was further supported by evidence from Centrelink, to which his Worship referred, showing that Mr Bonsell was receiving a carer’s pension. It will be recalled that Mr Bonsell had informed the Court that his wife’s condition and need of assistance from him was particularly related to the morning hours.
Notwithstanding the evidence and Mr Bonsell’s assertions, which he was not invited to put before the Court on oath, his Worship expressed himself entirely unpersuaded that as his wife’s carer he could not leave her in the mornings. With respect, his Worship’s reasons are not persuasive. They are based upon assumptions that Mr Bonsell’s attendance at Court to file the applications, the subject of this appeal, was during the morning and that Mrs Bonsell had a medical appointment on one of the mornings that the matter was listed in Court. I have not been directed to any evidence to support those findings which in their turn led his Worship to make further adverse findings concerning the appellants.
His Worship also rejected Dr McLaren’s opinion concerning Mr Bonsell’s ability to speak in public because he was well able to speak in Court on 8 and 22 August. The difficulty I have with that finding is that Dr McLaren referred to a consultation on 18 June at which time the treatment was prescribed which the doctor thought would enable Mr Bonsell to overcome the problem “before too long”. His Worship Mr Wallace may well have observed the successful outcome of the treatment prescribed by Dr McLaren.
I find that his Worship erred in his findings of fact going to the appellants’ ability to attend at court on the previous occasions including 31 July 2002. On the whole of the uncontested material before his Worship I am satisfied that the appellants had shown that the reasons they were unable to attend Court at the times appointed was primarily because of Mrs Bonsell’s physical condition and the need of care from her husband during the morning hours. Had the appellants been represented, or knew more about the court system, they could have applied to have the matters concerning them listed for mention or hearing at a time when it was likely they would be able to attend.
His Worship also asked himself the question as to whether there was any real likelihood of injustice in the findings of guilt, and answered in the negative upon the ground that the only matters put forward by the appellants was that they would “like to put the prosecution to proof as to the date of the clearing”. In his Worship’s opinion that was “a long way from an assertion of innocence and some distance from the demonstration of an arguable defence”.
His Worship referred to a number of cases, principally from South Australia, dealing with the procedures adopted in that jurisdiction prior to the enactment of the equivalent of s 63A of the Justices Act and thereunder. There do not appear to have been any cases reported in this jurisdiction. Although s 63A(1) refers to stating the grounds of the application, they are not restricted by the legislation.
Some of the cases disclose the following:
·     Aston v Hincks, vice Fitzgerald (1950) SASR 182. The offence charged was related to the cutting of timber on Crown lands. The appellant did not attend at court because of mishap and he was stranded by the wayside many miles from the courthouse. The grounds of the appeal, the then procedure, interestingly, include that there was no proof that the timber was on Crown land and that the complaint was not laid within six months from the time the matter of complaint arose. The appeal was allowed, but the report does not reveal upon what ground or grounds.
·     Van Ryswick v Hicks (1974) 8 SASR 376 had to do with an offender who did not attend at court when required because he was careless. It was held, at p 379, that in those circumstances he bore the onus of establishing “at least a probability that he would suffer injustice if the convictions were allowed to stand”. It does not assist in the consideration of this case. The appellants were not careless.
·     In Hind v Keech (1979) 21 SASR 237, however, the appellant was unable to be at court because of misadventure and Walters J said, at p 238:
“Unless there are compelling reasons to suspect maneuvering, or deliberate dilatoriness or inaction, I think that in the case of proven misadventure the court should ordinarily lean towards the exercise of its jurisdiction in favour of a litigant who desires to put his case before the lower court”.
His Honour doubted that the appellant had sufficient grounds to resist the charge but allowed the appeal.
·     Bollen J reviewed these and other cases in Rough v Rix (1982) 30 SASR 301. The appellant had been careless about attendance at court and his Honour regarded the proposed offences as being “substantial answers” to the charges. One raised an issue as to whether a prosecutor could succeed in proving that there was a theatrical performance in a particular building on a particular day. His Honour said at p 311:
“He (the appellant) would know when performances were held. Perhaps he has records in support of what he says. I think that the appellant has shown a probability of injustice … .”
His Honour apparently did not think it was necessary for the appellant to produce all of the evidence to support the answers to the charges upon the hearing of the application.
It seems to have been the case that the greater degree of culpability of the accused in his or her failure to attend at court, then the more substantial must be a defence made out to the charge. On the other hand, if the failure to attend was due to misadventure and not down to the accused at all, then the substance or otherwise of the proposed defence did not assume much significance. However, on my reading of the cases there is no established pattern and no suggestion that such tests as may have emerged are inflexible. Whether relief is to be granted or not depends upon the exercise of a judicial discretion in the circumstances of each case. See generally the remarks of Cox J in Maider v Dancis (1985) 39 SASR 136 at 142. With respect, I agree with his Honour that it is a matter of doing what the justice of the case requires.
His Worship erred in his findings of fact in this case in regard to the appellants’ failures to appear in court. For their part they did not convey to the court their particular difficulty in attending in the morning until late in the piece. Had they been better informed or advised, they may not have lost the chance to be heard. They are entitled to the presumption of innocence and to put the complainant to proof. They have frankly disclosed the defences they seek to raise. They do not seek to put the complainant to proof on any frivolous basis. They make the positive assertion that such clearing of vegetation as was done on the land in question took place at a time other than that specified in the complaint. An amendment to the complaint in that regard would not avail the complainant since, if what the appellants’ say is so, then they were entitled to the protection afforded by the time bar in s 52 of the Justices Act. That matter was not touched upon by his Worship in his reasons, although clearly raised by Mr Bonsell in the course of submissions.
During the course of the hearing on this appeal it was apparent that the appellants had a good ground of defence to the charge relating to their failure to plant the buffer of native trees. They had two years at least within which to carry out that work. The complaint was laid prior to the expiry of that period. Counsel for the respondent rightly conceded that the finding of guilt could not stand in relation to that count.
The respondent has not advanced any submissions going to injustice which it would suffer if there were to be a trial of the charges.
The appeal is allowed. The findings of guilt are all set aside. The orders setting aside the convictions and orders in respect of penalties and revegetation made by his Worship stand. The matters are remitted to the Court of Summary Jurisdiction.

Prior to hearing this appeal Mr Loadman SM had again penalised the appellants flowing from the orders made by Mr Wallace SM. Given the orders I have made, those penalties must also be set aside.
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