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

[1999] NSWLEC 106

Land and Environment Court

of New South Wales

CITATION:

Byron Shire Council v Vigden C J & Donna's Beach Pty Limited [1999] NSWLEC 106

PARTIES

PROSECUTOR
Byron Shire Council

DEFENDANT
Vigden C J & Donna's Beach Pty Limited

NUMBER:

50148-9 & 50150-1 of 1998

CORAM:

Cowdroy AJ

KEY ISSUES:

Environmental Offences :- Prosecution - ex parte application to judge in chambers for Class Five Order - no affidavit in support of summons - waiver of Rules - Judge granting order - failure to serve any affidavits with summons before nominated return day - whether summons a nullity.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, s125(1), s41(1)
Land and Environment Court Act 1979, s68(2)(b)
Land and Environment Court Rules 1996, Pt 1 Rule 5(2),Pt 6 Rule 2(1) & (2), Pt 15 Rule 9
Supreme Court Rules 1970, Pt 75 Rule 9(2), Pt 75 Rule 11

DATES OF HEARING:

04/30/1999

DATE OF JUDGMENT DELIVERY:

05/07/1999

LEGAL REPRESENTATIVES:

PROSECUTOR
William R Davison SC

SOLICITORS
Wroth Wall

DEFENDANT
Mr John J Webster

SOLICITORS
Halliday & Stainlay

JUDGMENT:

Background

1. By notice of motion filed on 24 February 1999 the respondent seeks an order that the summons issued on the 24 December 1998 in each of these matters be set aside. As the issue raised by the motion is common to each proceedings, they have been heard together.

2. On 24 December 1998 an application was made to this Court for the issue of an order Class Five directing the defendant to appear before the court to answer a charge that an offence had been committed under s125(1) of the Environmental Planning and Assessment Act 1979 (“the Act”). The application was made on a court holiday and Justice Sheahan to whom it was made, was informed that the order was urgent as the offence was alleged to have been committed on 14 July 1998.

3. During the ex parte application in chambers His Honour was informed by Counsel for the prosecution that there was insufficient time to prepare formal affidavits. Instead, signed statements of various witnesses including council’s officers, an officer of the National Parks and Wildlife Service and an eye witness were produced together with other relevant records and photographs depicting the alleged clearing work. Counsel took His Honour to the relevant documents and summarised the salient matters referred to in the witness statements. Upon the production of other relevant documents, namely company searches, His Honour made the relevant order requiring the defendant to appear before the court on the 19 February 1999 at 9.30 am to answer such charge. Identical orders were made in respect of four proceedings namely 50148, 50149, 50150 and 50151 of 1998. The Orders and Summonses in each case were duly issued and served upon the defendants but the material placed before His Honour was not served nor were any affidavits. On 19 February 1999, the defendants appeared and indicated that notices of motion would be filed seeking orders that the summonses filed in each case be set aside. The proceedings have been adjourned since that date and no directions have been made concerning the future conduct of the proceedings until the determination of the notices of motion. The material placed before His Honour upon the making of the initiating orders was served upon the defendants on 24 February 1999.

4. At the hearing of this motion no affidavits have been filed by the prosecutor in support of the summons.

Grounds relied upon

5. The respondent submits that the requirements of Pt 6 Rule 2(2) of the Land and Environment Court Rules 1996 (“the Rules”) are mandatory. It provides:-

(2) Despite subrule (1) a summons seeking an order pursuant to section 41 of the Act is to be accompanied by the affidavits intended to be relied on by the prosecutor an establishing prima facie proof of the offence charged.


The respondent says that there is no discretion to dispense with the requirement and accordingly the summons in each case served without affidavits is a nullity. Alternatively the respondent says that the summons has been issued as a result of an irregularity and pursuant to s68(2)(b) of the Land and Environment Court Act 1979 (“the Court Act”) the summons in each case should be set aside. Section 68(2) of the Court Act provides:-

(2) Where, in beginning or purporting to begin any proceedings before the Court or at any stage in the course of or in connection with any such proceedings, there is, by reason of anything done or left undone, a failure to comply with the requirements of this Act or of the rules whether in respect of time, place, manner, form or content or in any other respect:
(a) the failure shall be treated as an irregularity and shall not nullify the proceedings, or any step taken in the proceedings, or any document, judgment or order in the proceedings; and
(b) subject to subsection (3), the Court may, on terms, set aside wholly or in part the proceedings or any step taken in the proceedings or any document, judgment or order in the proceedings or exercise its functions under this Act and the rules to allow amendments and to make orders dealing with the proceedings generally.

6. The respondent also relies upon the requirements of Pt 75 Rule 9(2) of the Supreme Court Rules 1970 (“SC Rules”). Such part is specifically incorporated into the Rules of this Court pursuant to Part 6 Rule 2(1) of the Rules. Pt 75 Rule 9(2) of the SC Rules provide:-

(2) Subject to any Act, a minute of any order made under section 4(1) or section 10(b) of the subject Act and any affidavits used to obtain either of those orders shall be served personally upon the defendant.

In addition to the above Rule the respondent relies upon Pt 75 Rule 11 of the SC Rules which deals generally with pre-trial procedures and provision of particulars to be relied upon by a prosecution in proceedings under the provisions of the Supreme Court (Summary Jurisdiction) Act 1967.

7. The respondent relies upon authorities which have drawn the distinction between a defect in procedure which can be classified as an irregularity compared to defects which by their nature are so fundamental that they cannot be remedied as considered in the authorities such as Sheldon v Brown Bailey’s Steel Works Limited & Dawnays Limited [1953] 2 QB 393; re Chittenden [1970] 1 WLR 1618; Hornsby Shire Council v Winsloe NSWLEC 50039 of 1998 Bignold J; Clayton v John L Pty Limited ( 1984) 1 NSWLR 344; John L Proprietary Ltd v Attorney General for NSW (1987) 163 CLR 508. The respondent also referred to R v Mai & Anor (1991) 26 NSWLR 371 (CCA). In the last mentioned decision Hunt CJ at CL discussed (at p 377) the procedural differences between civil and criminal proceedings and of the necessity in the latter for an indictment to disclose an offence punishable by law.

8. The respondent submits that in summary criminal offences, the provision of affidavits is essential to enable the respondent to know the nature of the case to be made against it. Even if the failure to provide such evidence was remediable, the question remains whether the court would exercise its discretion as considered by the New South Wales Court of Appeal in Australian Coastal Shipping Commission v Curtis Cruising Pty Limited & Ors (1989) 17 NSWLR 734.

Statutory Provisions

9. The prosecutor submits that this Court has no jurisdiction to review an order made by another judge and the proper forum for this Motion is the Court of Criminal Appeal. Such argument however can be readily rejected in view of the provisions of Pt 15 Rule 9 of the Rules. Such rules provide:-

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

(a) if the order has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default, and whether or not the absent party had notice of the motion for the order;
(b) - (f) not relevant

Since the order was made in the absence of the respondent the provisions of such rule are applicable.

10. Section 41 of the Act is the source of power which enabled Sheahan J to grant the order Class Five. Section 41(1) provides:-

41 (1) Upon an application being made by any person (in this Division referred to as the “prosecutor”) in accordance with the rules, a Judge shall make an order:

(a) ordering any person alleged in the application to have committed an offence specified in the order to answer to the offence charged in the order; or
(b) ordering the apprehension of any such person for the purpose of the person’s being brought before a Judge to answer to the offence charged in the order.

The issue is whether the application was made within accordance with the Rules.

11. Pt 1 Rule 5(2) allows the rules to be varied as required. Such subrule provides:-

5 (2) However, the Court may, on terms, dispense with compliance with any requirements of these rules, either before or after the occasion for the compliance arises.


12. Whilst there was no express reference by His Honour to Part 1 Rule 5(2), it was not necessary for him to cite such rule prior to exercising such power (see Warringah Council v Franks & Ors NSWLEC 40123 of 1997, Pearlman J). By implication it was exercised when the order was made after His Honour satisfied himself of the existence of a prima facie case. His Honour was specifically informed that there was insufficient time to enable the preparation of affidavits prior to granting the order.

13. In these circumstances, the requirements of s41 of the Court Act have been met. His Honour granted the order in accordance with the rules as varied by the exercise of the provisions of Pt 1 Rule 5(2), and it follows that there is no nullity nor irregularity in the issue of the summons.

14. The respondent further submits that the failure to serve affidavits relied upon by the prosecutor prior to the first return day renders the proceedings either a nullity or an irregularity which the court, in the exercise of its discretion, would not remedy.

15. No explanation has been provided by the prosecutor for its failure to serve affidavits upon the respondents prior to the 19 February 1999 or indeed at all. The respondents ought to have been served with the relevant material prior to 19 February 1999 and such material should have been in affidavit form. The prosecutor’s conduct is quite unsatisfactory.

16. Despite such lapse, it is not to be regarded as one which is sufficient to vitiate the proceedings. The respondent was not placed at any significant disadvantage on 19 February 1999 because it was not required to make any plea on that day. It was treated as a return day of the summons. Accordingly no injustice has been occasioned by virtue of the failure to serve either the supporting material or the affidavits in support of the summons. Further, the summons itself contains particulars including the date, location and nature of the alleged offence. Accordingly the respondent was placed on notice of the nature of the charge against it. In these circumstances the failure of the prosecutor to serve affidavits is to be treated as an irregularity within the meaning of s68(2)(a) of the Court Act.

Costs

17. The motion of the respondents therefore fails. The claim was arguable and resulted directly from the unexplained failure of the prosecutor to serve its evidence. In these circumstances the court will order the prosecutor to pay the respondents costs.

Orders

18. The Court Orders:-

1. The motion be dismissed.

2. The Prosecutor pay the costs of this Motion.