Byron Shire Council v Vigden C J & Donna's Beach Pty Limited

[1999] NSWLEC 198

Land and Environment Court

of New South Wales

CITATION:

Byron Shire Council v Vigden C J & Donna's Beach Pty Limited [1999] NSWLEC 198

PARTIES

PROSECUTOR
Byron Shire Council

DEFENDANTS
Vigden C J & Donna's Beach Pty Ltd

NUMBER:

50148-51 of 1998

CORAM:

Cowdroy J

KEY ISSUES:

Practice & Procedure :- Stated case applied for after delivery of judgment but before entry of minute of judgment - court functus officio - no power to state case

LEGISLATION CITED:

Land & Environment Court Act 1979 s 23 s 56
Land & Environment Rules 1996 Pt 15 Rule 4, Pt 15 Rule 5, Pt 15 Rule 9
Supreme Court Rules 1970 Pt 40
Criminal Appeal Act 1912 s 5AE

DATES OF HEARING:

08/19/1999

DATE OF JUDGMENT DELIVERY:

09/08/1999

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr W Davison SC

SOLICITORS
Wroth Wall

DEFENDANT
Mr J Webster (Barrister)

SOLICITORS
Halliday & Stainlay

JUDGMENT:

Facts

1. By judgment delivered on 1 June 1999, the Court found the defendants were entitled to a permanent stay of the proceedings for the reasons therein stated. The practical result was that the proceedings could not be re-activated. The Court in the exercise of its power under s 23 of the Land and Environment Court Act 1979 (“the LEC Act”) ordered that the summons be dismissed. The prosecutor was ordered to pay costs in view of its conduct.

2. By notice of motion filed on 24 June 1999 Byron Shire Council (“the prosecutor”) seeks the following orders:-

1.

That His Honour Mr. Justice Cowdroy state a case for the decision of the Court of Criminal Appeal.

2. Further or other orders.

3. The prosecutor has formulated the questions which it would seek to raise upon the stated case as follows:-

1.

Do I have power to dismiss the proceedings?

2. Is the prosecutor in breach of any rule of Court?

3. Has my discretion miscarried?

4. The prosecutor relies upon s 5AE of the Criminal Appeal Act 1912 (“the CA Act”) as the basis of its entitlement to seek a stated case. This section provides:-

5AE. (1) At any time before the completion of proceedings before the Supreme Court in its summary jurisdiction, the Land and Environment Court in its summary jurisdiction or a Court of Coal Mines Regulation in its summary jurisdiction, the judge hearing the proceedings may, or if requested by the Crown must, submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination.
(2) The Court of Criminal Appeal may make any such order or give any such direction to the court concerned as it thinks fit

The prosector submits that until a minute of the final order has been entered as provided by the LEC Rules, the proceedings have not been completed and the Court has power to state a case. Part 15 r 4 of the Land and Environment Court Rules 1996 (“the LEC Rules”) provide:-

4. The Registrar is to sign and file a minute of a final order disposing of proceedings, and is to seal the minute with the seal of the Court.

Furthermore, Pt 15 r 5 of the LEC Rules provide:-

5. A final order disposing of any proceedings takes effect when it is given or made, unless otherwise ordered by the Court.

A final order has not been signed by the Registrar.

5. The prosecutor says there is no final judgment in view of its application for a stated case read with s 56 of the LEC Act. Section 56 provides:-

56 Except as provided

(a) not relevant

(b) by the Criminal Appeal Act 1912 in relation to proceedings in Class 5 or 6 of the Court’s jurisdiction a decision of the Court shall be final and conclusive.

6. In support of its submissions the prosecutor relies upon the decision of the High Court of Australia in Smith v New South Wales Bar Association (1992) 176 CLR 256 at 265 in which the court observed that at common law a court may review, correct or alter its judgment at any time until its order has been perfected. The Rules of the Supreme Court of New South Wales (“SC Rules”) make specific provision for such circumstance, as set out in Pt 40 r 9(1) thereof.

7. Part 40 of the SC Rules is not adopted by the LEC Rules. However an analogous provision allowing for similar contingencies is provided by Pt 15 r 9 of the LEC Rules which relevantly provides:-

9. The Court, may, on terms, set aside or vary an order in any of the following cases:

(b) if notice of motion for the setting aside or variation is filed before the signing and filing of the minute of the order under rule 4;

8. It is critical to draw a distinction between the effect of the judgment that has been delivered compared to the disposal of proceedings as provided by Pt 15 r 4 and r 5 of the LEC Rules. It has long been recognised that at least in criminal cases a finding of guilt or innocence is the definitive function of a court. In the Rex v Manchester Justices Ex parte Lever [1937] 2KB 96 Humphreys J at 101 made the observation that it was difficult to treat seriously an argument that a finding of guilt did not constitute a conviction until a clerk had made a record of finding in the register of the court. This principle was affirmed in Regina v Essex Justices; Ex parte Final [1963] 2QB 816 wherein Lord Parker CJ at p 820 observed:-

It is also clear from Rex v Manchester Justices, Ex parte Lever [1937] 2 KB 96 that there is a complete and effective conviction although that conviction has not been entered in the register.

Salmon J at 823 observed:-

It is quite plain on authority that once a decision by justices is announced in open court that decision so announced amounts either to an acquittal or to a conviction, as the case may be. Once the justices have convicted or acquitted, they are functi officio and cannot alter their decision.

9. The procedure provided by Pt 15 r 4 and r 5 is a clerical step only “to dispose of” the proceedings. No judicial function is involved. The operation of Pt 15 r 5 in the present application can readily be compared to the analogous provision considered in R v Manchester Justices at 101 where Lord Hewart CJ said:-

It is not the entry in the register which makes, or contributes to the making of, the conviction. That has already been made. All that remained to be done on January 20 was to perform a formal act. The conviction itself was complete.

There is no distinction in this context between a conviction, acquittal or dismissal. It would be contrary to established principle that the Court’s determination in respect of any of these findings would take effect only after an order has been signed by the Registrar.

10. In Ward v Williams [1954-55] 92 CLR 496 the High Court of Australia observed that the right provided by s 131A of the Justices Act 1951 to request the chairman of quarter sessions to submit a question of law to the Supreme Court had to be exercised before its decision was announced. The court said:-

This provision does not give an appeal from a determination of order of quarter sessions but it enables the chairman to refer any question of law to the Supreme Court for its determination. Once an appeal to quarter sessions has been heard and determined, so that that court has disposed of it by a judicial decision, the opportunity of stating a case under s 131A has passed: Roberts v Jones [1928] 28 S.R.(NSW) 543.

The same principle has been followed in Reg v Lazarevic (1966) 85 WN at 159.

11. The High Court of Australia in Autodesk Inc & Anor v Dyason & Ors (No 2) (1992 - 1993) 176 CLR 300 has affirmed the need for finality in litigation. At page 309 thereof, Brennan J having observed there was no suggestion of denial of natural justice, referred to the decision of the High Court in University of Wollongong v Metwally (No 2) (1985) 59 ALJR 483 where the High Court said:-

Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

12. There is no reason to depart from the established principles set out in the above cases. To do so would contradict the principle confirmed in Bailey v Marinoff (1971) 125 CLR 529 namely a court cannot make orders in litigation that has been brought to an end without any error or lack of jurisdiction. The prosecutor’s motion that the Court now state a case would undermine the finality in litigation. The Court is functus officio and has no power to state a case.

Orders

13. The Court orders:-

1. The Notice of Motion filed on 16 June 1999 be dismissed.

2. The question of costs be stood over for argument.