City of Armadale v Merrick
[2014] WASCA 125
•19 JUNE 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CITY OF ARMADALE -v- MERRICK [2014] WASCA 125
CORAM: PULLIN JA
NEWNES JA
MAZZA JA
HEARD: 12 MARCH 2014
DELIVERED : 19 JUNE 2014
FILE NO/S: CACR 161 of 2013
BETWEEN: CITY OF ARMADALE
Appellant
AND
GEOFFREY MERRICK
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :JENKINS J
Citation :MERRICK -v- CITY OF ARMADALE [2013] WASC 175
File No :SJA 1123 of 2012
Catchwords:
Statutory construction - Litter Act 1979 (WA), s 23 - Meaning of 'appointed area' - Whether area where respondent deposited litter was 'appointed area'
Legislation:
Criminal Appeals Act 2004 (WA), pt 2 div 2
Criminal Code (WA), s 24
Criminal Procedure Act 2004 (WA), s 78(3)
Litter Act 1979 (WA), s 23, s 30
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant: Mr P G McGowan
Respondent: No appearance
Solicitors:
Appellant: Cornerstone Legal
Respondent: No appearance
Case(s) referred to in judgment(s):
Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
Merrick v City of Armadale [2013] WASC 175
PULLIN & NEWNES JJA: This is an appeal from a decision of Jenkins J, who allowed an appeal by the respondent (Mr Merrick) against his conviction in the Magistrates Court for an offence under s 23 of the Litter Act 1979 (WA). The appeal turns on whether the area of land on which Mr Merrick deposited a load of rubbish was 'an appointed area' under the Act.
Mr Merrick chose not to take part in the appeal to this court.
Background
On 21 July 2011, Mr Merrick took a load of rubbish, consisting of wood, plastic, fabric and piping, in his utility to a waste disposal facility operated by the appellant (the City) in Hopkinson Road, Hilbert. The whole of the facility was on land owned by and under the control of the City.
A weighbridge operator was located at the entrance to the facility. The duties of the weighbridge operator included checking whether visitors to the facility were prepared to sort the rubbish they wished to deposit, in order to deposit different categories of material in the different areas in the facility set aside for that material. Whether or not they were prepared to do so determined the amount payable to deposit the litter, a higher charge being imposed to deposit unsorted litter (ts 38). Mr Merrick was asked by the weighbridge operator if he would sort his rubbish. It was accepted at first instance that Mr Merrick may not have heard what the weighbridge operator said, but the weighbridge operator obviously understood him to say that he would do so. She gave him a ticket which referred to sorted rubbish, but again it was accepted that Mr Merrick may not have read it.
Mr Merrick then entered the facility. He passed a large sign which read, 'Before unloading the vehicle, please see the landfill attendant'. It was accepted that he may not have seen or read the sign. In any event, he did not seek out or speak to a landfill attendant, although there was at least one attendant nearby.
As Mr Merrick proceeded into the facility, he passed a large area containing some brick rubble with a sign in front of it bearing the words, 'Brick rubble only. No other waste'. He continued until he came to another collection of material where there was no sign. He reversed his vehicle up to the mound of material and deposited his rubbish. He then left the facility.
The place where Mr Merrick left his rubbish was a place intended by the City for the deposit of a specific category of material, namely steel, not for the deposit of general litter.
Mr Merrick was charged with depositing litter on land, contrary to s 23 of the Act. He was convicted after trial in the Magistrates Court and fined $150, with $1,500 costs.
The statutory framework
Section 23 of the Act is as follows:
Any person who deposits litter, or causes litter to be deposited, on any land or on or into any waters commits an offence unless the litter is deposited -
(a)on private land by consent; or
(b)in an appointed area; or
(c)in a place or receptacle set aside or provided for that purpose; or
(d)on land adjacent to private land by arrangement with, or at the invitation of, a public authority with a view to the litter being collected and removed by the public authority.
That is, under s 23 of the Act, it is unlawful to deposit litter unless the litter is deposited in accordance with subparagraphs (a), (b), (c) or (d) of s 23.
An 'appointed area' is defined in s 5(1) of the Act to mean:
[A]n area set aside by a public authority on land under its control as an area for the deposit of litter.
In s 5(1), 'litter' is defined to include:
(a)all kinds of rubbish, refuse, junk, garbage or scrap; and
(b)any articles or material abandoned or unwanted by the owner or the person in possession thereof;
but does not include dust, smoke or other like products emitted or produced during the normal operations of any mining, extractive, primary or manufacturing industry.
The City, being a local government, is a 'public authority' within the meaning of the Act: s 5(1).
The decision of the magistrate
It was not in issue that the case turned on whether the area where Mr Merrick had deposited the rubbish was an 'appointed area' within the meaning of s 23(b) of the Act, and that the onus lay on Mr Merrick to prove that on the balance of probabilities: Criminal Procedure Act 2004 (WA), s 78(3).
The magistrate found that the area in which Mr Merrick had left his rubbish was an area set aside by the City for the deposit of steel which had some value, other than as litter. The steel which was to be deposited in that area did not fall within par (a) of the definition of litter as it was not 'rubbish, refuse, junk, garbage or scrap'. Nor was it 'unwanted by the owner' within the meaning of par (b) of the definition, as that would include only items having no commercial value. The area was not therefore an 'appointed area', not being an 'area set aside by [the City] … as an area for the deposit of litter'.
The magistrate concluded that Mr Merrick had not established that he left his rubbish in an area which had been set aside by the City for litter. His Honour did not accept that Mr Merrick had made an honest and reasonable mistake of fact, in that he believed the area in which he left his rubbish was an area set aside for litter. The magistrate found that such a belief would not have been a reasonable belief.
The magistrate considered that it was unnecessary to make a finding as to whether or not the City could set aside different areas for the deposit of different types of litter, as he was satisfied that the City had not set aside the particular area where Mr Merrick left his rubbish as an area for the deposit of litter.
The appeal against that decision
Mr Merrick appealed to a single judge of the Supreme Court, contending that the magistrate had erred in finding that the rubbish had not been deposited in an appointed area. The City filed a notice of contention seeking to support the magistrate's decision on the alternative ground that the area in which Mr Merrick had left his rubbish was an appointed area for the depositing of a particular type of litter only (namely, scrap metal) and that Mr Merrick committed an offence by dumping another type of litter in that area.
The primary judge allowed the appeal, set aside Mr Merrick's conviction and dismissed the charge: Merrick v City of Armadale [2013] WASC 175.
The decision of the primary judge
On the appeal, Mr Merrick's primary submission was, as it had been below, that the whole area of the facility was an 'appointed area' (ts 6 ‑ 8). The primary judge rejected that submission. Her Honour considered that for the purposes of the Act, an 'appointed area' is an area of land set aside for the purpose of having litter physically deposited on it. There were areas in the facility which were obviously not for that purpose. Her Honour observed that, for instance, the weighbridge, driveways, and staff areas of the facility existed to facilitate the deposit of litter in appointed areas within the site, but they could not themselves be 'appointed areas'.
The primary judge rejected an argument by the appellant that an 'appointed area' was not limited to an area set aside for the deposit of general litter, but included an area set aside for the deposit of a particular category, or particular categories, of litter. Her Honour concluded that that would require the meaning of 'litter' in the definition of an 'appointed area' to be read down to mean 'particular types of litter', a meaning contrary to the defined meaning of 'litter' and for which there was no basis.
As we understand the primary judge's reasons, her Honour found that the magistrate had erred in holding that steel which still has some value but is unwanted by its owner is not 'litter' within the meaning of the Act. Under the Act, 'litter' included not only items which had no value but also items of some value which are not wanted by the owner or person in possession of them. Thus, steel unwanted by its owner was litter for the purpose of s 23 of the Act. Accordingly, an area set aside for the deposit of unwanted steel was 'an area set aside for the deposit of litter' within the meaning of the Act [29] ‑ [30].
Her Honour concluded that, having deposited his rubbish in an area set aside for the deposit of unwanted steel, Mr Merrick had deposited it in 'an area set aside for the deposit of litter'; that is, an 'appointed area' for the purpose of s 23. Accordingly, the appeal was allowed and the charge dismissed.
The grounds of appeal
The appellant relied on the following two alternative grounds of appeal:
1.Her Honour erred in law in finding that the designated area, set aside by the appellant for the purpose of depositing scrap metal was an appointed area for the purposes of ss 5 and 23 in circumstances where:
i.the area was not an area set aside for the depositing of all types of litter; and
ii.the area was solely designated for the purposes of depositing one type of litter, being scrap metal.
2.Alternatively, her Honour erred in law in failing to find that a local government has the power to impose conditions on the use of an appointed area including a restriction as to the nature and type of litter deposited in that area, and that the appellant did so in relation to the area.
The disposition of the appeal
Ground 1
The Act does not specify any particular formalities to be observed in setting aside an area for the deposit of litter and it seems that the City did not observe any. From time to time, employees of the City at the facility set aside specific areas for the disposal of particular categories of litter and general litter, respectively, as was considered necessary for the best operation of the facility. The location of those areas changed as areas were filled in. Mr Sutton, the City's waste services co‑ordinator and the manager of the facility, said in evidence that as a landfill site, the site was a 'continually moving one' and the areas 'are signed when they are changed' (ts 37). However, there was no evidence that the City had authorised any particular person to 'set aside' areas of land for the deposit of litter.
It seems from the evidence of Mr Woodenberg, the City's supervisor of waste services, that while some areas were indicated by signs, the signage was not comprehensive and that the City placed a good deal of reliance on landfill attendants to direct visitors to the appropriate area of the facility. It was for that purpose that the sign near the entrance to the facility instructed visitors to speak to a landfill attendant before depositing their litter (ts 11). It is not apparent from the evidence whether there was a sign on the area (or areas) set aside for the deposit of general litter, identifying it (or them) as such.
In any event, we do not think that anything turns in this case on whether or not the areas were adequately sign‑posted. The onus lay on Mr Merrick to establish that he deposited his rubbish in an 'appointed area' within the meaning of the Act. In our respectful opinion, the primary judge erred in concluding that Mr Merrick had discharged that onus.
We respectfully agree with her Honour that the whole facility was not an 'appointed area', for the reasons her Honour gives. For present purposes, an 'appointed area' was an area of land within the facility which the City had set aside as an area on which 'litter' may physically be deposited. We do not, however, agree that any area of land which is set aside by the City for the deposit of unwanted material of a particular kind (in this case, steel) thereby becomes an 'appointed area' on which litter of any kind may lawfully be deposited.
As McHugh J pointed out in Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216, 253, when construing a statute where a definition applies, the proper course is to read the words of the definition into the substantive enactment and then construe the substantive enactment. When the definitions are inserted into s 23(b), it provides, relevantly, that it is an offence to deposit litter on any land unless the litter is deposited 'in an area set aside by a public authority … as an area for the deposit' of 'all kinds of rubbish, refuse, junk, garbage or scrap … and any articles or material abandoned or unwanted by the owner or the person in possession thereof'.
In this case, there was no evidence that the area of land on which Mr Merritt deposited his litter was such an area. On the contrary, the unchallenged evidence of Mr Woodenberg and Mr Sutton was that the area in question was not such an area; it was an area which had been set aside by the City as an area on which unwanted steel only may be deposited. It is irrelevant for present purposes whether or not the City had the power under s 23(b) to appoint an area for a specific category of litter. What is clear is that it was not an area set aside for the deposit of all kinds of litter, and nor was it an area set aside for the deposit of rubbish of the kind deposited by the respondent.
Mr Merrick therefore failed to discharge the onus which lay on him of establishing that he had deposited his litter in an appointed area and,
accordingly, he was properly convicted of an offence under s 23 of the Act.
Ground 2
In light of the conclusion we have reached, it is unnecessary to consider this ground of appeal. We might observe in passing, however, that it would seem that, at the least, under s 23(a) of the Act (which is to be read with s 32) a local authority may consent to the deposit of unwanted material of a particular kind only on an area of land which it controls.
Conclusion
We would:
(a)allow the appeal;
(b)set aside the orders of the primary judge; and
(c)order that the appeal from the decision of the Magistrates Court be dismissed.
MAZZA JA: I have read in draft the proposed reasons for decision of Pullin and Newnes JJA. I agree with them that this appeal should be allowed and I would join with them in the orders they propose. My reasons for doing so are as follows.
The factual background
The City of Armadale (the City) owned and controlled land on Hopkinson Road, Hilbert, which it used as a waste disposal facility. At all relevant times, the facility was run by employees of the City.
The facility is on a broadacre site and comprises a weighbridge, roads, buildings, unused areas, areas of landfill and areas where waste can be deposited. Waste can only be deposited in particular areas chosen and designated, from time to time, by the City's employees.
The system used at the facility as to the depositing of waste was to set aside specific areas for specific types of waste. For example, there were separate and distinct areas for concrete, brick rubble, waste timber and steel. There was also a particular area set aside for unsorted waste (see aerial photograph exhibit 5).
Users of the facility would drive their vehicle to the weighbridge. The waste would be weighed and any fee paid. Ratepayers of the City, such as Mr Merrick, who had 1.3 cubic metres or less of sorted rubbish, could use the facility without payment if they possessed a tip pass. However, if a ratepayer wished to deposit unsorted rubbish, a fee would have to be paid.
Because the location of the areas where waste could be deposited changed frequently, users of the facility were instructed to see a landfill attendant before unloading. A prominent sign to this effect was positioned at the weighbridge (exhibits 9 and 10). A sign to the same effect was also positioned in the general area where waste could be deposited (exhibit 11).
At about noon on 21 July 2011, Mr Merrick drove to the facility in his utility. He wished to deposit there various items of unsorted household rubbish, including timber, plastic hosepipe, other plastic items and fabric (exhibit 1 ‑ 4). He presented a tip pass to the weighbridge operator. According to the weighbridge operator, he replied in the affirmative when he was asked if he intended to sort his load.
Mr Merrick, without seeking out or speaking to the landfill attendant who was on site at the time and, without sorting his waste, deposited it in an area which had been designated by the City only for the deposit of steel. Unlike other designated areas at the facility, there was no sign to that effect at that area. After depositing his unsorted rubbish, Mr Merrick drove away. An employee of the City had seen what occurred.
In due course, Mr Merrick was presented with an infringement notice issued under s 30 of the Litter Act 1979 (WA) (the Act), alleging an offence under s 23. Mr Merrick declined to be dealt with in this fashion. Later, he was charged by prosecution notice in the Armadale Magistrates Court with depositing litter on land contrary to s 23 of the Act.
At his trial on 12 September 2012, Mr Merrick represented himself. He testified that he was born in 1938 and that he had, at the time of the alleged offence, industrial deafness. As a result, he did not hear the weighbridge operator ask him if he intended to sort his rubbish. Mr Merrick said he had not seen the sign instructing him to see the landfill attendant before unloading and, in any event, he did not see a landfill attendant on site. He said, in effect, that he deposited his waste at a place where he thought he was permitted to do so.
The relevant statutory provisions
Section 23 of the Act states:
23. Littering, offence
Any person who deposits litter, or causes litter to be deposited, on any land or on or into any waters commits an offence unless the litter is deposited -
(a)on private land by consent; or
(b)in an appointed area; or
(c)in a place or receptacle set aside or provided for that purpose; or
(d)on land adjacent to private land by arrangement with, or at the invitation of, a public authority with a view to the litter being collected and removed by the public authority.
It is clear that a person commits an offence if that person deposits litter or causes litter to be deposited on any land or into any waters unless he or she comes within the various exceptions set out in the section. By virtue of s 78(3) of the Criminal Procedure Act 2004 (WA), any exception in s 23 of the Act is to be taken not to apply unless the person charged proves on the balance of probabilities that it does.
The definitional section of the Act is s 5. The definitions relevant to this case are set out in that section as follows:
5. Terms used
(1)In this Act, unless the contrary intention appears -
appointed area means an area set aside by a public authority on land under its control as an area for the deposit of litter;
…
land means any land in the open air;
litter includes -
(a)all kinds of rubbish, refuse, junk, garbage or scrap; and
(b)any articles or material abandoned or unwanted by the owner or the person in possession thereof,
but does not include dust, smoke or other like products emitted or produced during the normal operations of any mining, extractive, primary or manufacturing industry;
…
public authority means a Department or State instrumentality, a local government within its district, and any other person or body, whether corporate or not, who or which under the authority of any Act is charged with the carrying out of any duty whilst acting in the discharge of that duty;
…
(2)For the purposes of this Act litter is deposited on land or on or in waters if -
(a)it is placed, put, left, dropped or thrown there; or
(b)it is allowed to fall there or be carried there by the action of wind or water, or both.
There was no dispute at trial that Mr Merrick had deposited litter in the form of rubbish on land. Accordingly, Mr Merrick was bound to be convicted of the offence for which he had been charged unless he established on the balance of probabilities that he deposited the rubbish in an appointed area. Thus the issue for the magistrate to determine was whether Mr Merrick had discharged this onus.
In his reasons for decision, the learned magistrate found that there was 'a reasonable possibility' that Mr Merrick:
(a)had not heard the weighbridge officer ask him if he had sorted his rubbish;
(b)had not read the conditions of his tip pass; and
(c)had not read the sign requiring users to see a landfill attendant.
The learned magistrate found that where Mr Merrick had left his rubbish had been set aside by the City for the deposit of steel. He held that steel was not litter as defined in the Act because it had value. Accordingly, the area where Mr Merrick had deposited his rubbish was not an area set aside by the City for the deposit of litter. Thus, the magistrate found Mr Merrick had not discharged the onus cast upon him.
The learned magistrate considered whether Mr Merrick had an honest and reasonable, but mistaken, belief that he left his rubbish in an area set aside for litter, pursuant to s 24 of the Criminal Code (WA). The learned magistrate said that there was a reasonable possibility that Mr Merrick honestly believed that where he left his rubbish was an area set aside for the deposit of litter. However, he found that this belief was unreasonable, having regard to the signage at the entrance of the weighbridge which he had said, at an earlier part of his reasons, was 'clearly visible to anybody who was entering the facility'.
The learned magistrate fined Mr Merrick $150 (a fine less than the infringement notice amount) and ordered him to pay the City's legal costs fixed in the sum of $1,500.
The learned magistrate found it unnecessary to determine whether or not the City could set aside different areas for the deposit of different types of litter.
Mr Merrick's appeal to the Supreme Court
Mr Merrick appealed to a single judge of the Supreme Court pursuant to pt 2 div 2 of the Criminal Appeals Act 2004 (WA). He acted for himself in the proceedings. The sole ground of appeal for determination was whether the learned magistrate erred in law in deciding that the exception in s 23(b) of the Act did not apply. The City filed a notice of contention which sought to support the magistrate's decision on the alternative reasoning that the area in which Mr Merrick left his rubbish was the appointed area for the depositing of a particular type of litter, specifically scrap metal, and Mr Merrick committed an offence by depositing another type of litter in that area.
Mr Merrick did not appeal in respect of the learned magistrate's ruling with respect to s 24 of the Criminal Code.
The learned primary judge found that the magistrate erred in holding that light steel or steel which is unwanted by its owner is not litter as defined in the Act. I respectfully agree with her Honour's reasoning in support of this conclusion: see Merrick v City of Armadale [2013] WASC 175 [27] ‑ [30].
Her Honour also rejected an argument proffered by Mr Merrick that the whole of the waste disposal facility was an 'appointed area' for the purpose of the definition in s 5(1) of the Act. As to this argument, her Honour said:
An appointed area is only an area set aside for litter to be physically deposited and not any area nearby. To hold otherwise would be contrary to common sense and the evidence. For example, the respondent did not set aside the driveways or the staff areas of the Hopkinson Road facility as an area for the deposit of litter. Those areas existed to facilitate the deposit of litter in appointed areas within the site but they were not appointed areas [31].
Again, I respectfully agree with her Honour.
The determination of these issues was not decisive to the outcome of the appeal.
Mr Merrick submitted the onus in s 23 of the Act would be discharged if he proved on the balance of probabilities that he deposited his rubbish in any area set aside for litter, regardless of whether it was set aside for a particular sort of litter. On the other hand, the City submitted that Mr Merrick was guilty because he failed to prove on the balance of probabilities that he deposited his rubbish in an area which was set aside for the particular type of litter which he deposited.
Her Honour considered that the resolution of the appeal turned on whether the word 'litter', when used in the definition of 'appointed area' in s 5(1) of the Act, is to be read as meaning litter of a certain type specified by the public authority, or whether it is to be read as including any type of litter which falls within the definition of litter in that section [32]. Her Honour was not satisfied that she should construe the definition of 'appointed area' in the manner contended for by the City. She upheld Mr Merrick's submission and allowed his appeal. Essentially, her Honour reasoned that the construction favoured by the respondent required the definition of 'appointed area' to be impliedly altered to relate to 'litter of a certain type specified by the public authority'. Her Honour held that the word 'litter' in the definition of 'appointed area' should not be read down in this way.
The appeal to this court by the City
Mr Merrick did not take part in the appeal in this court.
The grounds of appeal are somewhat clumsily drawn. The City, in essence, challenges her Honour's decision that an appointed area can only be an area set aside for the depositing of 'all kinds of litter as defined in s 5(1) of the Act'. The City submits that an appointed area may be set aside by a public authority for the depositing of a specific type of litter.
I would uphold this submission. I respectfully disagree with the primary judge that, in order for an appointed area to be an area for the depositing of a specific type of litter, the definition of that word would need to be read down.
The definition of the word 'litter' in s 5(1) comprises a number of components being all kinds of rubbish, refuse, junk, garbage, scrap or any abandoned or unwanted articles or material. Each of these items constitutes litter. Where a public authority wishes to set aside land under its control as an area for the deposit of one particular type of litter, I am unable to see how this requires the implication of words into the definition of 'appointed area' or a reading down of the word 'litter' in the definition of 'appointed area'.
Thus, if a public authority wishes to set aside an area of land under its control as an area for the deposit of a particular kind or kinds of litter that would, in my opinion, be an appointed area pursuant to s 5(1) of the Act.
In any event, the unchallenged evidence at trial was that the area upon which Mr Merrick deposited his unsorted household rubbish had been set aside by the City only for the deposit of steel. There was no evidence that the area had been set aside by the City for the deposit of anything else and certainly not for rubbish. In these circumstances, it cannot be said that the setting aside of an area for the deposit of steel could somehow translate to the setting aside of an area for the deposit of all kinds of litter including rubbish. However 'appointed area' is defined in s 5(1), Mr Merrick had not deposited his litter in an appointed area.
Conclusion
In my opinion, an appointed area may be an area set aside by a public authority on land under its control for the deposit of litter generally or a particular kind or kinds of litter. In any event, on no view of the evidence adduced at trial was the area in which Mr Merrick deposited his unsorted household rubbish an appointed area. Thus, he failed to discharge the onus that was cast upon him and he was, having deposited litter on land, guilty of the charged offence.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CITY OF ARMADALE -v- MERRICK [2014] WASCA 125 (S)
CORAM: PULLIN JA
NEWNES JA
MAZZA JA
HEARD: ON THE PAPERS
DELIVERED : 18 SEPTEMBER 2014
FILE NO/S: CACR 161 of 2013
BETWEEN: CITY OF ARMADALE
Appellant
AND
GEOFFREY MERRICK
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :JENKINS J
Citation :MERRICK -v- CITY OF ARMADALE [2013] WASC 175
File No :SJA 1123 of 2012
Catchwords:
Costs - Appeal against conviction in Magistrates Court - Appeal allowed - Whether respondent should pay appellant's costs - Criminal Appeals Act 2004 (WA) s, 14(1)(h), s 18 - Public interest element
Legislation:
Criminal Appeals Act 2004 (WA), s 14(1)(h), s 18
Result:
Each party bear their own costs
Category: B
Representation:
Counsel:
Appellant: No appearance
Respondent: No appearance
Solicitors:
Appellant: Cornerstone Legal
Respondent: No appearance
Case(s) referred to in judgment(s):
City of Armadale v Merrick [2014] WASCA 125
Wilson v McDonald [2009] WASCA 39 (S)
JUDGMENT OF THE COURT: On 19 June 2014, this court allowed an appeal by the appellant against a decision of Jenkins J in which her Honour had set aside the respondent's conviction for an offence under the Litter Act 1979 (WA) (the Act): City of Armadale v Merrick [2014] WASCA 125.
The respondent had been convicted in the Magistrates Court of depositing litter on land, being land which was not an 'appointed area' within the meaning of s 23 of the Act. The respondent was convicted as a result of depositing general household rubbish in an area of the appellant's waste disposal facility that had been set aside for the deposit of unwanted steel only. The case turned on whether that area was an 'appointed area'.
The Act defined an 'appointed area' to mean 'an area set aside by a public authority on land under its control for the deposit of litter'. In the Act, 'litter' included 'all kinds of rubbish, refuse, junk, garbage or scrap': s 5.
The primary judge set aside the respondent's conviction on the ground, in substance, that as the area in question was set aside for one sort of rubbish ‑ steel or light steel ‑ it constituted an 'appointed area' in which rubbish of any sort may be deposited. This court overturned her Honour's decision, finding that the area was not an 'appointed area', being neither an area set aside for the deposit of all kinds of rubbish nor an area set aside for the deposit of the kind of rubbish the respondent had deposited there.
The appellant seeks an order for its costs of the appeal to the primary judge and the appeal to this court. That is opposed by the respondent. Written submissions have been filed and served by each party and the question of costs is to be determined on the papers.
It was not in issue that the court has the power to make an order for costs of both the appeal before the primary judge and the costs in this court: Criminal Appeals Act 2004 (WA), s 14(1)(h), s 18. It was also accepted by the parties that in criminal matters there is no general rule that costs follow the event; rather, save that the discretion must be exercised judicially, the court has a general and unconstrained discretion with respect to costs, except in certain limited cases which are irrelevant for present purposes: see Wilson v McDonald [2009] WASCA 39 (S) [5]. In exercising the discretion as to costs, a relevant circumstance may be whether there is any relevant element of public interest involved in the case: Wilson v McDonald [10].
It was submitted on behalf of the appellant that there was no public interest element in this case. While the decision of this court clarified the meaning of 'appointed area' in s 23(b) of the Act, the facts and law were of a 'regulatory character' and were analogous to civil proceedings where ordinarily costs follow the event. The appellant was a public authority responsible for enforcing the Act and it had been ultimately successful in the proceedings. There was no reason that costs should not follow the event.
The respondent submitted that the case did involve a broader public interest element, namely, questions of law as to the meaning of 'litter' and 'appointed area' under the Act, which had not previously been the subject of judicial consideration. The decision clarified the operation and effect of the Act for the benefit of all local authorities and the public.
In support of that contention, the respondent relied upon an affidavit he had filed (without objection by the appellant) to which was annexed an extract from the minutes of the annual general meeting of electors of the respondent on 4 December 2013 (after the decision of the primary judge and before the decision of this court). The extract revealed that at the meeting the appellant had rejected a suggestion that the proceedings were 'a trivial matter', describing the decision of the primary judge as one which would adversely affect many of the appellant's waste collection and disposal operations, and if not successfully challenged would mean that the Act would need to be amended.
We should also say that, quite apart from that material, it was evident from the evidence as to the current organisation of the facility that if the decision of the primary judge were correct, the appellant's current operations at the facility would be adversely affected to a significant extent.
We consider that, in the somewhat unusual circumstances of this case, it is appropriate that each party bear their own costs of both the appeal to the primary judge and to this court. While the respondent was ultimately unsuccessful, the case on appeal went beyond an ordinary prosecution of a regulatory nature. It turned solely on the proper construction of s 23(b) of the Act, a provision which upon analysis falls somewhat short of pellucid. That provision had not previously been judicially considered and its proper construction was, for the reasons identified above, a matter of considerable importance to the appellant. That, no doubt, is why the matter reached this court. The appeal has clarified the meaning of the provision.
The order will be that each party bear their own costs of the appeal to the primary judge and to this court.
In light of the order as to costs we have made, the respondent's application for a certificate under the Suitors' Fund Act 1964 (WA) does not arise.
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