City of Armadale v Neerigen Brook Estate Pty Ltd - [2020] WASC 137

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   CITY OF ARMADALE -v- NEERIGEN BROOK ESTATE PTY LTD [2020] WASC 137
CORAM:   QUINLAN CJ
HEARD:   29 APRIL 2020
DELIVERED          :   29 APRIL 2020
PUBLISHED           :   30 APRIL 2020
FILE NO/S:   SJA 1090 of 2019
BETWEEN:   CITY OF ARMADALE
Appellant
AND
NEERIGEN BROOK ESTATE PTY LTD
Respondent

Catchwords:

Criminal law - Appeal from Magistrates Court - Appeal against a decision dismissing a prosecution under the Building Act 2011 (WA) - Whether occupier permitted the occupation or use of a building - Whether Magistrate erred in construing the word 'permit' - Whether Magistrate's findings supported by evidence

Legislation:

Building Act 2011 (WA), s 41(2)
Copyright Act 1911 (Imp)
Criminal Appeals Act 2004 (WA), s 9

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Ms A M Wood
Respondent	:	Ms L B Black

Solicitors:

Appellant	:	Kott Gunning
Respondent	:	Kitto & Kitto Barristers And Solicitors

Case(s) referred to in decision(s):

Adelaide Corporation v Australian Performing Rights Association (1928) 40 CLR 481
Berton v Alliance Economic Investment Co [1922] 1 KB 742
Chappell v Ross & Sons Pty Ltd [1969] VR 376
House v The King [1936] HCA 40; (1936) 55 CLR 499
Hungtat Worldwide Pty Ltd v Chief Executive of the Department of Environmental Heritage Protection [2018] QPELR 162
Johnson v Miller (1937) 59 CLR 467
Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359
Mohammadi v Bethune [2018] WASCA 98
Performing Right Society v Ciryl Theatrical Syndicate (1924) 1 KB 1
SZTAL v The Minister for Immigration & Border Protection [2017] HCA 34; (2017) 262 CLR 362
TWG v Boucher [2020] WASC 98

QUINLAN CJ:

(This judgment was delivered extemporaneously on 29 April 2020 and has been edited to correct matters of grammar and to include complete references.)

The appellant appeals the decision of Magistrate Malley, on 26 June 2019, dismissing a charge brought against the respondent pursuant to s 41(2) of the Building Act 2011 (WA) (the Act).
The respondent was acquitted following a trial before the learned magistrate on 3 May 2019. As with all appeals under the Criminal Appeals Act 2004 (WA), leave is required for each ground of appeal.[1]
[1] Criminal Appeals Act 2004 (WA), s 9.

The charge and preliminary observations

As I have said, the charge was brought pursuant to s 41(2) of the Act. Section 41(2) provides:
(2)An owner or occupier of a completed building must not occupy or use, or permit the occupation or use of, the building unless -
(a)an occupancy permit, other than a temporary permit, is in effect for the building; or
(b)a temporary permit for the building has effect for a period after the completion of the building and the occupation or use of the building is during that period; or
(c)an occupancy permit is not required for the building under Part 5 or regulations or an order mentioned in Part 5 Division 1.
Penalty:
(a)for a first offence, a fine of $50 000;
(b)for a second offence, a fine of $75 000;
(c)for a third or subsequent offence, a fine of $100 000 and imprisonment for 12 months.
The charge, which was contained in a prosecution notice dated 3 October 2017, was in the following terms:
That on or prior to 5 July 2016 and continuing at 1256 Armadale Road, Armadale, ("the Property") the Accused as Occupier of a completed building located on the Property did occupy or use, or permitted the occupation or use of the building, without an occupancy permit being in effect for the building and thereby contravened s 41 of the Building Act 2011.
As will be apparent from the terms of s 41(2), there are a variety of factual circumstances that may give rise to an offence against its provisions. A charge may be brought, for example, against either, or both, an owner or an occupier of the relevant building. Similarly, a charge might allege the occupation or use of the building by the accused or, alternatively, allege that the accused 'permitted' the occupation or use of the building by some other person.
In the present case, as will become apparent, while the charge referred to the accused as 'Occupier', the prosecution was, in fact, conducted on the basis of the accused's status as the 'Owner' of the property. In that regard, it was an agreed fact before the learned magistrate that the respondent had owned the property since the creation of the current lot boundaries on 8 February 2016 and that it had owned the parent lots since 2003.[2] While the prosecution notice does not appear to have been formally amended, in this regard, it is clear that the prosecution proceeded on the basis that the accused was relevantly the 'Owner' within the meaning of s 41(2).
[2] Exhibit A, Statement of Agreed Facts, par 4.
Nor did the prosecution relate to the entirety of the building on the property. As the evidence also revealed, the completed building on the property is a shopping centre and the prosecution related to only part of the building, namely a particular shop within the shopping centre (Shop 6). The mall, the amenities and the common areas of the building were all the subject of an occupancy permit.[3] Indeed, as at the date of trial, only the 95m² comprising Shop 6 did not have an occupancy permit.
[3] Exhibit A, Statement of Agreed Facts, par 7, Attachment 5.
Similarly, it is apparent from the proceedings before the learned magistrate that the prosecution was brought, not on the basis that the respondent was occupying or using Shop 6 but, rather, that the respondent had 'permitted' the occupation or use of the property by another person or entity. The prosecution appears to have proceeded upon the basis that the 'occupier' was Pastacup (Haynes) Pty Ltd (Pastacup). In that regard, there was uncontentious evidence that Shop 6 was the subject of a lease between the respondent as owner and Pastacup as tenant (the Lease).[4] The Lease has a commencement date of 1 March 2012.
[4] Exhibit F.
Nevertheless, the 'occupancy' of Shop 6 was complicated by the fact that the person in physical occupation of the premises was not Pastacup, but a Mr Saini.[5] Pastacup was the master franchisor of various 'Pastacup' franchises. Mr Saini was the franchisee of the franchise operated from Shop 6.
[5] In the transcript of the trial Mr Saini's name is misspelled 'Sanini'. The correct spelling appears in his own handwriting in Exhibit A, Attachment 7.
Accordingly, the charge against the respondent, properly understood, was a charge that, as the owner of Shop 6, it had 'permitted' Pastacup to occupy Shop 6 without an occupancy permit being in effect for Shop 6.
The critical issue at trial was therefore whether the respondent had 'permitted' Pastacup to occupy Shop 6.
Given the centrality of the allegation that the respondent 'permitted' the occupancy to occur, it is a peculiar feature of the proceedings before the learned magistrate that there were no clear particulars as to what act or omission on the part of the respondent amounted to its having 'permitted' the occupation of Shop 6.
In this regard, two distinct allegations emerged during the trial, namely:
1.that the respondent, upon receipt of notification that there was not an occupancy permit in effect for Shop 6, should have issued Pastacup with a notice of eviction or termination of the Lease;[6] and
2.that the respondent should have made an application for an occupancy permit itself.
[6] Trial ts 17 (3 May 2019).
It is not entirely clear how the second of these two allegations amounted to an allegation that the respondent 'permitted' the occupancy of Shop 6, contrary to s 41(2) of the Act. Indeed, upon further analysis, the allegation that the respondent ought to have applied for an occupancy permit for Shop 6 was, perhaps, presented simply as an alternative means by which the respondent may have 'ceased' committing an offence, if it was otherwise 'permitting' the occupancy.
This was further complicated by the fact that prosecutor did not make clear when the respondent ought to have applied for the occupancy permit. The prosecutor's opening, for example, suggested that the appellant alleged that the application for an occupancy permit was required to be made 'before the occupancy commences'.[7]
[7] Trial ts 17 (3 May 2019).
The immediate difficulty with that proposition, in the present case, was that the Lease commenced on 1 March 2012, prior to the commencement of s 41(2) of the Act (which did not come into operation until 2 April 2012). It was, therefore, not possible for the respondent (or anyone else) to apply for an occupancy permit under the Act prior to the commencement of the occupancy.[8]
[8] The evidence at trial did not reveal the precise date upon which Pastacup took physical possession of Shop 6, although the respondent's director gave evidence that 'about February/March' tenants started to move in (Trial ts 23 (3 May 2019)). In context the reference to 'February/March' was a reference to 2012. In the absence of any further evidence, it is a reasonable inference, therefore, that the commencement of the physical occupancy of Shop 6 coincided with the commencement of the Lease. At the very least, from 1 March 2012, Pastacup had a right of occupancy under the Lease.
Perhaps for this reason, the prosecutor, in closing, submitted that that step also ought to have been taken after the respondent was notified that there was no occupancy permit in effect in relation to Shop 6.
Ultimately, the prosecutor closed on the basis that the respondent had to 'take some action':[9]
either in relation to the termination of the lease, or, if that's not possible, in relation to attempting to obtain an occupancy permit themselves …
[9] Trial ts 51 (3 May 2019).
In the end, when (as a matter of timing) it was alleged that that action should have been taken was not clear, although the prosecutor submitted that the time that it had in fact taken for an application to be made was 'way too long and that it should have been done much earlier than that'.[10]
[10] Trial ts 51 (3 May 2019).
It will be apparent from the above remarks that, in my view, the form in which the prosecution took in this case was less than ideal and potentially gave rise to a number of difficulties. It must be recalled that the proceedings before the learned magistrate were not an inquiry into the general obligations of owners under the Act, but a criminal prosecution alleging a specific offence said to have been committed by the respondent. As a matter of fairness, it is important that an accused is apprised 'not only of the legal nature of the offence with which [it] is charged but also of the particular act, matter or thing alleged as the foundation of the charge'.[11]
[11] See Johnson v Miller (1937) 59 CLR 467, 489 (Dixon J).
In my view, it would have been open to the respondent to seek particulars requiring the prosecutor to identify the transaction (i.e. the act or omission) on which it relied upon as constituting the offence. No such application for particulars, however, was sought, and so each of the alternative pathways to conviction were left open before the learned magistrate. Nevertheless, the residual ambiguity as to precisely what was being alleged in the present case, in my view, has some significance when it comes to considering the reasons given by his Honour.
Before turning to those reasons, it is appropriate to summarise the evidence from the respondent as to the two pathways to conviction alleged by the prosecution.

The respondent's evidence at trial

The respondent called its sole director, Grantham Kitto, to give evidence at trial.
Mr Kitto gave evidence that the shopping centre was built around 2011. He identified the Lease between the respondent and Pastacup, which followed a letter of offer finalised between the parties in November 2011.[12]
[12] Trial ts 23-24 (3 May 2019).
Mr Kitto gave evidence that he understood that a franchisee of Pastacup was in fact going to occupy the shop, who Mr Kitto ultimately discovered to be Mr Saini.[13]
[13] Trial ts 25 (3 May 2019).
Mr Kitto gave evidence that he was aware that the law had changed in April 2012, requiring individual occupancy permits for each shop within the centre. He gave evidence in relation to the process for obtaining an occupancy permit in relation to the mall, the common areas and for Coles, the dominant tenant. He said:[14]
the architects who were employed by Neerigen at the time negotiated and dealt with the council about the shopping centre. I mean, they were dealing with the council about everything to do with building compliance and things that had been done, because it's a fairly substantial - and they went ahead and negotiated with council with the planners at the time, Neerigen's planners and received an occupancy permit for the mall and common areas and Coles, which Coles is the dominant tenant taking up 3900 square metres.
[14] Trial ts 26 (3 May 2019).
Mr Kitto gave evidence that the respondent had employed a professional property management group, Lease Equity, to manage the property, including 'to liaise with tenants, liaise with council and deal with any matters which are of concern to the landlord'.[15]
[15] Trial ts 27 (3 May 2019).
Mr Kitto was taken to a series of correspondence addressed to the respondent in relation to the absence of occupancy permits for certain of the tenancies at the shopping centre, dated 28 June 2016,[16] 31 July 2017,[17] and 25 August 2017.[18] Each of the letters was addressed to a different postal address. The final letter, dated 25 August 2017, was addressed to the respondent care of Lease Equity.
[16] Exhibit B.
[17] Exhibit D.
[18] Exhibit E.
Mr Kitto gave evidence that he did not recall seeing the letters dated 28 June 2016 or 31 July 2017 prior to the commencement of the prosecution.[19] In relation to the letter dated 25 August 2017, Mr Kitto said it was forwarded to him by the property manager with Lease Equity, Andrew Pratt. His evidence continued:[20]
And when you received it, do you recall what you did?---I - we had a conversation. I don't know whether I - I probably rang him because I said, "What's happening with this? I don't like the look of this, you know, what's going on? What are we doing about it? We need to do something. Have you spoken to the tenant about doing something here? Where are they at?"
And what were you told?---Andrew said the tenant had been getting the information required to lodge an occupation permit. They were having trouble because some of the people that did their fit out in 2012, early 2012 were no longer in business, so that they were struggling to get those people that provided that information. Whether that's true or not, I don't know, but that's what Pastacup were telling Andrew. And I was just saying, "Look, Andrew, they have to get on with this. You know, they - Pastacup needs to sort this out."
[19] Trial ts 28-29 (3 May 2019).
[20] Trial ts 30 (3 May 2019).
As regards the 'information' required to lodge the application for an occupancy permit, Mr Kitto gave evidence that he did not have access to that information, which was all obtained by the tenant.[21]
[21] Trial ts 30-31 (3 May 2019).
Mr Kitto was asked when he first became aware that Pastacup did not have the requisite occupancy permit. He said that his secretary had told him 'in around mid-June 2016' that she had spoken with someone at the City and that there were four shops without an occupancy permit. Mr Kitto said that she should refer the person from the City to Lease Equity.[22] He said that, after that time, he would meet with Mr Pratt 'probably once a month' to go through issues concerning the shopping centre.[23] His understanding was that all four applications were progressing, although Pastacup was taking longer than the others.[24]
[22] Trial ts 32 (3 May 2019).
[23] Trial ts 32 (3 May 2019).
[24] Trial ts 33 (3 May 2019).
Mr Kitto said that Pastacup was a difficult tenant, but that Mr Saini was a good business operator and a good tenant.
When asked why he did not simply 'kick them out and terminate the lease', Mr Kitto said:[25]
Well, firstly, the occupier would be pretty rude of me to kick out the actual occupier, the person there and family who was running their business in that premises, who had done everything correctly. So that's who I would be harming most of all if I kicked them out. I would effectively have to shut their business down. And they had been running a very good business; paying their rent; doing everything that they possibly could and they really didn't have any knowledge to be able to do – to get the occupation permit, because they hadn't actually done the fit out. They had just gone in later as a business. So that was – that was one issue. And then, you know, I was thinking how do I – how do we actually do this? How can we physically get this information? And we don't have the resources to get information that only the franchisor had.
If you had evicted them and gone to court were you confident that you would succeed at court?---No. I was less than confident that I would succeed in court.
You're a lawyer. Do you practise in property areas?---Yes, I do commercial - commercial law, but we - - -
Why were you less than confident, Mr Kitto?---I mean, trust me, I don't know - I mean, because I'm acting in effectively a trustee capacity, I do take - you know, I do discuss these with other lawyers. I just didn't think that this was a fundamental term to our lease. The term of - and actually we've already discussed there was the issue as to whether when we entered into the contract, which was before the Act coming into play, there wasn't any requirement to get this, so - the occupation permit. So there was significant doubt in my mind that if they were evicted it could sound in civil damages against Neerigen or even possibly criminal. If you go in to someone occupying a premises peacefully, who has got full rights, and say, "You've got to go" - you know, I didn't like that - the concept of that at all. …
[25] Trial ts 35 (3 May 2019).
In this context, Mr Kitto also gave evidence that Mr Saini paid the rent on Shop 6 directly to the respondent.
Mr Kitto's evidence in chief concluded with him giving evidence that there was never a point in time when he was told Pastacup were not going to progress the application. He said:[26]
I was reassured that they were doing everything that they could, and that they had been alerted to it, and they were working on getting the information, but because it was now five years since they did that fitout, and the businesses had gone under, it was hard for them to get the information.
[26] Trial ts 38 (3 May 2019).
In cross-examination, Mr Kitto agreed that, in relation to each of the outstanding occupancy permits, it was likely that he would have signed the application as the owner. He noted that in the application there is a section that says 'owner' and a section that says 'applicant'.[27]
[27] Trial ts 40 (3 May 2019).
He agreed that he did not have the evidence that would be required to prepare an application for an occupancy permit and that he didn't decide to send somebody to look at the shop fit-out and apply for an occupancy permit on behalf of the respondent.[28]
[28] Trial ts 41 (3 May 2019).
In answer to the question why he didn't apply for an occupancy permit, Mr Kitto responded:[29]
There was a number of reasons. Firstly, that to do the work for the occupancy permit, you need to have particular information, information which we wouldn't have had or been able to get, and that is why in the whole (indistinct) the tenant does it who does that fit-out. So that was one reason. The other reason is that the managing agent, Lease Equity, had assured me and had had communications with all of these tenants that they were onto it and they were getting the information required so that I believed that they were doing it and that it was being done. And the fact that three eventually got done was proof that it was happening.
[29] Trial ts 41-42 (3 May 2019).

Mr Kitto went on to give evidence concerning the particular difficulties associated with obtaining certifications in relation to the works at Shop 6, without knowing who had prepared the fit-out.[30]
[30] Trial ts 42 (3 May 2019).
Mr Kitto agreed that the situation surrounding Pastacup not obtaining an occupancy permit continued for more than a year. When asked how long he was going to give Pastacup to obtain the permit, he said: [31]
Well, I think I would have definitely given them until December 2017, when they put in the application, or they had everything to go. If I had have had the opportunity, and if I had been contacted directly by council, I could have talked, potentially, directly to the tenant, if need be (indistinct) but when you say how long was I going to give them, it was a difficult situation, because we didn't know whether we had the power to do anything about it.
[31] Trial ts 44-45 (3 May 2019).
Finally, Mr Kitto confirmed in cross-examination his concerns as to whether, as a matter of law, the respondent would have been able to terminate the Lease and, indeed, whether it would have been exposed to an action for damages from Mr Saini if he had been removed, in circumstances where he 'was paying rent directly to us [and] had done nothing to breach any part of our lease'.[32]
[32] Trial ts 45 (3 May 2019).

The learned magistrate's reasons for decision

The learned magistrate delivered his reasons for decision on 26 June 2019.
After summarising the background, his Honour identified the fundamental question as 'did the accused permit Pastacup to use the premises without an occupancy permit being in effect?'[33]
[33] Trial ts 3 (26 June 2019).
His Honour referred to a number of authorities cited by the parties, including Adelaide Corporation v Australasian Performing Right Association Ltd[34] which his Honour identified as laying out the test for 'permission'. His Honour also referred to Chappell v Ross & Sons Pty Ltd[35] and Hungtat Worldwide Pty Ltd v Chief Executive of the Department of Environment and Heritage Protection.[36]
[34] Adelaide Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR 481 (Adelaide Corporation v APRA).
[35] Chappell v Ross & Sons Pty Ltd [1969] VR 376.
[36] Hungtat Worldwide Pty Ltd v Chief Executive of the Department of Environment and Heritage Protection [2018] QPELR 162 (Hungtat Worldwide).
Turing to the evidence before him, the learned magistrate dealt with both of the bases or pathways relied upon by the prosecution (referred to at [13] above). His Honour said:[37]
In this case, the prosecution proposition is that it was open to the accused either to take steps to terminate the lease of Pastacup for noncompliance with a requirement to obtain a permit for occupation. With respect, I agree with the defence counsel given the fact that whilst Pastacup was the original lessee, it has now sublet the premises to a third party who was otherwise compliant with his obligation. I take the view that subject to the subject course of action, in my view, it was fraught with risk for all concerned. It was not a reasonable course of action on the part of the accused.
The second basis on which the prosecution say the accused has permitted the use is that it would be open to the accused to make the necessary application on behalf of Pastacup as permitted under the Building Act, bearing in mind the issue was first raised by council in mid-2016 and hadn't been resolved by October 2017 when the prosecution had lodged these proceedings despite various verbal and written requests.
The accused's response is that suggestion is as follows, that the accused was a lease - the accused had a leasing agent who was acting on his behalf managing the shopping centre. The evidence of Mr Kitto is upon becoming aware of the issue, he made the inquiries and was told that … Pastacup was getting the necessary information together for the permit to occupy application. He was aware of a number of other tenants with the same issue but whom had now made the necessary application consistent with the accused's agent dealing with the problem. The fact that it had taken the council some four years to raise the problem, the failure in itself making the application more complicated, but the accused at no time indicated in any manner it was not intending for a permit to be sought.
Perhaps most significantly, it would have said that it would have been both expensive and difficult for the accused to apply for the permit given the time elapsed since the occupation by Pastacup as referred to Hungtat. The prosecution say it would have been a simple matter, as suggested by defence. No evidence of that proposition was forthcoming. The application, which is now – sits with the council, being exhibit G, in my view, would suggest the opposite.
I conclude that the accused to obtain the necessary technical documents as required and the necessary declaration would have been extremely difficult, time consuming and expensive given the nature of what is required. It is a difficult issue – a different issue to Hungtat, in my view, but it must be viewed in light of its own factual scenario in the case, the time delay since occupancy, the fact that a third party is now in occupation which would run into problems of access.
I conclude in all the circumstances the prosecution has failed to establish that the accused permitted the use without a permit to occupy, and I dismiss the charge.
[37] Trial ts 4-5 (26 June 2019).
Turning then to the grounds of appeal.

The grounds of appeal

There are 5 grounds of appeal. They are, however, closely related. The grounds are in the following terms:
1That the Magistrate erred in law in applying the test to be properly considered in determining the meaning of 'permitted the occupation or use of the building' within section 41(2) of the Building Act 2011;
2.Specifically, that the Magistrate erred in applying the test in Hungtat Worldwide Pty Ltd v Chief Executive of the Department of Environmental Heritage Protection [2018] QPELR 162 in determining the issue in question at trial.
3. The Magistrate made mixed errors of fact and law in finding that the accused could not have taken action to prevent the occupant of unit 6 from trading in the absence of an occupancy permit on the face of the terms of the lease;
4. The conclusion reached by the Magistrate that no such action could be taken because it would have been 'fraught with difficulty' is not supported by the whole of the evidence and fail to properly consider all steps reasonably open to the accused in the circumstances of this case. This was a finding that was not supported by the evidence at trial and/or not a reasonable finding on the evidence at trial. This finding led the Magistrate into appealable error.
5. The findings of fact by the Magistrate at trial as to the action available to the accused to take to prevent the ongoing breach of section 41(2) of the Building Act 2011 were wrong having regard to all of the evidence.
As can be seen, the grounds of appeal variously allege errors of law and errors of fact. As s 8(1)(a)(i) of the Criminal Appeals Act 2004 (WA) makes clear, an appeal from a decision of a court of summary jurisdiction, including a decision to acquit an accused, may be brought on the ground that the court 'made an error of law or fact, or of both law and fact'.
In this context, the nature of such an appeal was recently summarised by Smith J in TWG v Boucher:[38]
An appellate court hearing an appeal under the Criminal Appeals Act is obliged to review the whole record of the trial and make its own independent assessment of the evidence. However, it must make due allowance for the 'natural limitations' in appellate court proceedings on the record. Those limitations include that in a criminal trial before a magistrate, the magistrate is the person who has the benefit of seeing and hearing the witnesses and is entrusted with the primary responsibility of determining guilt or innocence.
[38] TWG v Boucher [2020] WASC 98 [27] (Smith J) (footnotes omitted).
The respondent, in its written submissions, referred to the appellant having the considerable burden of establishing a House v The King[39] error. That is incorrect. House v The King is concerned with the correct approach to appellate intervention in relation to the exercise of a discretion by the primary court. The present appeal is not concerned with an exercise of discretion but whether the learned magistrate erred, in fact or in law, in acquitting the respondent of the charge.
[39] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504-505 (Dixon, Evatt & McTiernan JJ).
Of course, as the passage from TWG v Boucher cited above makes clear, the court, in such an appeal, must nevertheless be satisfied that the judgment of the learned magistrate was erroneous and the court is unlikely to be so satisfied if all that is shown is that the learned magistrate made a choice between competing inferences, being a choice that the appeal court may not have made but not a choice that the magistrate should not have made.[40]
[40] Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359, 369 (Beaumont & Lee JJ).
For the reasons that follow, however, I am not satisfied that the judgment of the learned magistrate was erroneous.

Grounds 1 and 2: The meaning of the word 'permit'

As can be seen from grounds 1 and 2, the appellant maintains that the learned magistrate erred in law in applying the wrong test as to the meaning of the words 'permit the occupation or use' within the meaning of s 41(2) of the Act.
The meaning of the word 'permit' in this context is a question of statutory construction. The principles of statutory construction are well known and do not require repetition.[41] As Kiefel CJ, Nettle and Gordon JJ explained in SZTAL v The Minister for Immigration & Border Protection:[42]
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. (footnotes omitted)
[41] Mohammadi v Bethune [2018] WASCA 98 [31]-[36] (Martin CJ, Mazza & Beech JJA).
[42] SZTAL v The Minister for Immigration & Border Protection [2017] HCA 34; (2017) 262 CLR 362 [14] (Kiefel CJ, Nettle & Gordon JJ).
The word 'permit' (verb) is not a term of art. It is an ordinary English word meaning to 'allow the doing or occurrence of; give permission or opportunity for'[43] or 'to allow to do something'.[44] While the various authorities identified by the parties provide useful guidance as to what is meant by the word, or its various cognates ('permitted', 'permitting' 'permission', etc.) in particular contexts, I do not regard those authorities to be prescribing distinct 'tests' to be applied. They are simply drawing out, in the particular context, aspects of that plain meaning.
[43] Shorter Oxford Dictionary (6^th ed, 2007).
[44] Macquarie Dictionary (4^th ed, 2005).
So, for example, in Adelaide Corporation v APRA the Court was concerned by a provision of the Copyright Act 1911 (Imp) which deemed copyright to be infringed by 'any person who for his private profit permits a theatre' to be used for the performance of a work without the copyright owner's consent. The particular issue in that case, was whether the appellant had 'permitted' a song to be sung, in circumstances in which it had let a theatre for the purpose of concerts by a performer and had notice that the performer was to sing the song in question. The appellant took no steps at all in response to that notice.
By majority, the High Court held that the respondent had not proven that the appellant had given 'permission' for the performance.
Knox CJ, who dissented in the result, said in relation to the meaning of the word 'permission':[45]
I agree with the learned Judges of the Supreme Court in thinking that indifference or omission is 'permission' within the plain meaning of that word where the party charged: (1) knows or has reason to anticipate or suspect that the particular act is to be or is likely to be done, (2) has the power to prevent it, (3) makes default in some duty of control or interference arising under the circumstance of the case; and (4) thereby fails to prevent it.
[45] Adelaide Corporation v APRA, 487 (Knox CJ).
Both the appellant and the respondent in the present case accepted that this passage provided an appropriate 'test' for permission. It should immediately be noted, however, that Knox CJ was doing no more in this passage than explaining what he understood to be the 'plain meaning of that word'. In that regard, the 'test' was not a substitute for the ultimate factual issue as to whether the appellant 'permitted' the performance.
Higgins J, who (like Knox CJ) did not disagree with the approach taken to the court below,[46] reached a different conclusion on the facts. His Honour also referred to Lord Atkins' judgment in Berton v Alliance Economic Investment Co to the effect that 'permit' means one of two things:[47]
either to give leave for an act which without that leave could not be legally done, or to abstain from taking reasonable steps to prevent the act where it is within a man's [sic] power to prevent it.
[46] Adelaide Corporation v APRA, 497 (Higgins J).
[47] Berton v Alliance Economic Investment Co [1922] 1 KB 742, 759 (Aikin LJ).
The reference in this passage to 'reasonable steps' emphasises that, in a case of omission (as opposed to express permission or 'leave'), it is a question of fact in each case whether the circumstances are such that the failure to take some step amounts to 'permission'. The same notion is present, in my view, in the third 'element' identified by Knox CJ (i.e. 'makes default in some duty of control or interference arising under the circumstance of the case').
To the same effect Gavan Duffy and Starke JJ, who with Higgins J made up the majority, said:[48]
Inactivity or 'indifference, exhibited by acts of commission or omission, may reach a degree from which an authorization or permission may be inferred. It is a question of fact in each case what is the true inference to be drawn from the conduct of the person who is said to have authorized the performance or permitted the use of a place of entertainment for the performance complained of'.
[48] Adelaide Corporation v APRA, 504 (Gavan Duffy & Starke JJ), citing Performing Right Society v Ciryl Theatrical Syndicate(1924) 1 KB 1, 9 (Bankes LJ).
It was on this question of fact that the Court in Adelaide Corporation v APRA was divided. Interestingly, the step that it was alleged the appellant ought to have been taken by the appellant in that case was to terminate the lease with its tenant (albeit in quite different circumstances than those that prevailed in the present case). The majority judges were each of the view that the failure to do so did not amount to 'permission'.[49]
[49] Adelaide Corporation v APRA, 499, (Higgins J), 505 (Gavan Duffy & Starke JJ).
The decision in Hungtat Worldwide, which is the focus of ground 2 in this appeal, must be understood in this context. The passage cited by the learned magistrate, and about which the appellant complains, is as follows:[50]
Whether a person has permitted something to occur must always be assessed having regard to the relevant and surrounding facts, matters and circumstances. Neither the knowledge that the problem existed nor the capacity to prevent it from manifesting itself but failing to do so, is sufficient. There is no probative evidence to establish that the appellant had acted in any way which could sensibly be described as permitting the contamination incident to occur. The ability to potentially remedy a problem not of one's making by carrying out extensive and expensive works does not constitute a 'permitting' of future occurrences of that problem. The respondent was, in my view, unable to point to any act and/or omission on the part of the appellant that would meet any sensible construction of the word 'permit'.
[50] Hungtat Worldwide [50] (R S Jones DCJ).
Properly understood, this passage is not posing some new and distinct 'test' from that to be found in Adelaide Corporation v APRA.It was simply an application of the plain meaning of the word 'permit' in the particular context of that case. That context, of course, included the nature of the activity that was said to be 'permitted', the capacity of the appellant in that case to prevent it and the steps that were not taken.
The appellant submits that Hungtat Worldwide is distinguishable from the present case. And, of course, it is. It was decided on the particular facts of that case, and little assistance can be gained from comparing one factual scenario, in a different context, with another.
But, contrary to the appellant's submissions, the learned magistrate did not 'apply' Hungtat Worldwide in the present case. Indeed, his Honour expressly stated that the present case involved 'a different issue to Hungtat' and 'must be viewed in light of its own factual scenario'.In this, his Honour was entirely correct.
More generally, the learned magistrate did not err in law in identifying the wrong 'test' for permission. Consistent with the submissions of the parties, his Honour accepted that the approach described by Knox CJ in Adelaide Corporation v APRA was an appropriate 'test' for the meaning of 'permission' in the circumstances.
No error of law has been identified in his Honour's approach to the meaning of 'permit' in s 41(2) of the Act. Leave to appeal should be refused in relation to grounds 1 and 2.
Whether his Honour erred in applying that meaning in dismissing the charge, is the subject of grounds 3, 4 and 5. Consistent with the parties' submissions before me, it is appropriate to deal with those grounds together.

Grounds 3, 4 and 5: Findings in the present case

As I have noted above, the learned magistrate, in his reasons, dealt with both 'bases' for alleging that the respondent had permitted the occupancy of Shop 6 by Pastacup over the period the subject of the charge.
To a significant extent, in my view, the appellant's submission to this Court did not address particular errors said to have been made by his Honour in those reasons. Rather, the submissions were in the nature of what might be expected by way of submissions at trial.
For example, the appellant submitted, in relation to whether the respondent 'permitted' the occupancy by failing to take reasonable steps:[51]
[51] Appellant's Outline of Submissions dated 28 February 2020 [35.3].
(g)It is submitted that the steps which could have been taken by the Respondent to prevent the ongoing offence by Pastacup (and thereby by the Respondent) were numerous and would not have involved considerable expense nor complexity.
(h)These steps included:
(i) those provided for pursuant to the lease;
(ii)direct communication with Pastacup/tenant; and
(iii)direct communications with the City to seek assistance in relation to compliance by the tenant
(iv)completing and submitting the application for the occupancy permit itself.
(i)A few months after the issuing of the prosecution notice, the Occupancy Permit Application was completed and submitted to the City of Armadale.
(j)It is submitted that a failure to take any steps to prevent the ongoing occupation of the Property without an Occupancy Permit prior to the issuing of the prosecution notice amounts to an acquiescence by the Respondent to the contravention.

There are a number of difficulties with submissions in this form, and in particular the 'steps' identified in subparagraph (h).
First, it was not the case alleged at trial. As I have said, the two matters relied upon by the appellant as proving permission were (1) the failure to terminate the lease and evict the tenant and (2) the failure to complete and submit the application for an occupancy permit itself. The case before the learned magistrate was not presented on the basis that there were 'numerous' steps that could or should have been taken, including direct contact with Pastacup or the City.
Secondly, and for this reason, there was no, or very little evidence in relation to these matters: for example, evidence in relation to how or why communication with the City was warranted or would have assisted in obtaining the occupancy permit (so as to negate the giving of 'permission').
Finally, these submissions tend, in my view, to suggest a shifting of the burden of proof. As Higgins J said in Adelaide Corporation v APRA, '[i]t is for the plaintiff to prove that the defendant permitted the performance; not for the defendant to intimate to [the tenant] that it was not permitting'.[52] Those remarks were made in the context of a civil claim; they apply with even more force in the context of a criminal prosecution.
[52] Adelaide Corporation v APRA, 502, (Higgins J).
The learned magistrate was therefore correct to confine his consideration to the particular bases identified by the appellant at trial for contending that the respondent had 'permitted' the occupancy.
His Honour's findings in relation to the first basis (the failure to terminate the lease and evict the tenant), are challenged by grounds 3 and 4.
In my view his Honour's reasons in this regard disclose no error.
His Honour referred to the fact that Pastacup had 'now sublet the premises to a third party who was otherwise compliant with his obligation'. In the context of the evidence before the learned magistrate I agree with the respondent that the reference to Pastacup having 'sublet' the premises is a reference to the de facto subletting to Mr Saini, rather than a formal sublease strictly conforming to the terms of the Lease. In that regard, there had clearly developed a relationship whereby Mr Saini, who was otherwise compliant with his obligations, was paying rent.
In those circumstances, the learned magistrate said that taking action to terminate the Lease 'was fraught with risk for all concerned'. That was a finding clearly supported by the evidence, including the evidence of Mr Kitto referred to at [33] and [41] above. Indeed, other than the terms of the Lease itself, Mr Kitto's evidence was the only evidence on the topic.
The appellant referred to various terms of the Lease in submissions before this Court, including the power of the respondent to terminate the Lease in the case of the tenant's default. That power, may well, in theory, have been available to the respondent; its existence, however, does not detract from the real practical and legal problems identified in the circumstances of this particular case and which led the learned magistrate to find that the course of action was 'fraught with risk for all concerned' and not a 'reasonable course of action'.
His Honour did not err in making that finding. Leave to appeal should be refused in relation to grounds 3 and 4.
Ground 5, I understand, was directed at the second of the two bases dealt with by his Honour, the failure of the respondent to complete and submit the application for an occupancy permit itself. This is consistent with the reference in ground 5 to 'action available … to prevent the ongoing breach' (see [14] above).
In this context, it is to be recalled (as found by the learned magistrate) that the alleged step must be evaluated in the context of the steps that the respondent had in fact taken. As the learned magistrate found, the evidence supported the following conclusions:
(a)upon becoming aware that there were four shops in the centre without occupancy permits, Mr Kitto referred the matter to Lease Equity to be dealt with (see [31] above);
(b)Mr Kitto met regularly with Lease Equity as to the progress of the applications (see [31] above);
(c)Mr Kitto was advised that all four applications were progressing (see [31] above);
(d)three of the applications were made 'consistent with the [respondent's] agent dealing with the problem';[53]
(e)that Pastacup had difficulty obtaining the necessary information (see [35] above); and
(f)that there was no indication to the respondent that Pastacup were not attending to the issue (see [35] above).
[53] Trial ts 32-33 (3 May 2019); Trial ts 5 (26 June 2019).
In this context, and having regard to the issues before the learned magistrate, the ultimate question was not whether the respondent could have submitted the application itself. The question was whether, in the circumstances described above, the inference to be drawn from the respondent not making the application itself was that the respondent was thereby 'permitting' the occupancy of Shop 6 without an occupancy permit. Moreover, having regard to the standard of proof, that would need to be the only reasonable inference.
In addressing this issue, the learned magistrate found, contrary to the appellant's submission, that it was not a simple matter for the respondent to obtain the necessary technical information being sought by Pastacup to make the application. His Honour was correct to conclude that there was no evidence in support of the appellant's submission. Rather, his Honour referred to the application ultimately submitted by Pastacup (Exhibit G) which refers to a variety of technical documents relevant to the application.
The appellant submits that the learned magistrate erred in finding that it was not a simple matter to obtain the occupancy permit and that that finding was not supported by the evidence. In that regard, the appellant submitted that the evidence that it was 'a simple matter' was that '[a] few months after the issuing of the prosecution notice' the application was completed and submitted to the City.[54]
[54] Appellant's Outline of Submissions dated 28 February 2020 [35.3(i)], [35.4(c)].
No error is revealed by this submission. No conclusion adverse to the respondent can be drawn as to the ease of completing the application by the fact that it was submitted 'a few months' after October 2017. There was no evidence as to the circumstances in which the application was ultimately submitted by Pastacup, or when all of the necessary information became available to Pastacup. It could not be inferred, let alone to the criminal standard, that it was a simple matter for Pastacup to have done so earlier. In those circumstances, nor could it be said that it was a 'simple matter' for the respondent to do so.
His Honour did not err in rejecting the second basis upon which it was submitted that the respondent had permitted the occupation. Leave to appeal should be refused in relation to ground 5.
For these reasons, in my view, leave should be refused in relation to each ground and the appeal dismissed.

Concluding observations

Before concluding, as the matter was raised in submissions, it is appropriate that make one final observation.
The appellant made a number of general submissions as to the obligation of owners under the Act, which were directed toward the proposition, made in the course of oral submissions, that if it was not reasonable to take the steps alleged in the present case 'it would be very difficult to enforce [s 41(2)] in relation to owners'.
An example of these submissions was the following:[55]
It is respectfully submitted that the commercial terms of a lease agreement voluntarily entered into by the Respondent, and from which the Respondent clearly benefited financially, should not provide a defence. Neither should any attempt to contract a management agent (Lease Equity or another) absolve the Respondent or any owner from the obligations placed upon it to obtain an Occupancy Permit prior to occupation of a building pursuant to s 41(2) of the Building Act 2011.
[55] Appellant's Outline of Submissions dated 28 February 2020 [44].
These submissions, with respect, misunderstand the nature of the issues before the learned magistrate and the findings that his Honour made.
His Honour did not find that the terms of the Lease provided a defence, or that an owner can 'contract out' of its obligations under the Act. His Honour was concerned with a particular factual scenario in which the occupier of the relevant building was lawfully entitled to occupy the building prior to the requirement to obtain an occupancy permit.
In that regard, the case was not concerned with 'the obligations placed upon [an owner] to obtain an Occupancy Permit prior to occupation of a building pursuant to s 41(2) of the Building Act 2011' (as per the above submission). No doubt in a case arising today, where an owner enters into a lease and allows a tenant to go into possession without an occupancy permit being in place, the result might well be very different.
But that is not this case. In the present case, the question was whether the respondent had 'permitted' a state of affairs to exist, in circumstances in which the state of affairs was already in place before the respondent's obligations arose. Whether such 'permission' could be inferred was a question of fact to be determined in light of all of the evidence.
In this case, the learned magistrate was not satisfied that that fact had been established and dismissed the charge. His Honour was not in error in so doing.
With respect to the learned magistrate, and to the previous 100 paragraphs, the result in this case has no broader precedential significance.

Conclusion

There should be orders that leave be refused in relation to each ground of appeal and the appeal dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Principal Associate to the Honourable Chief Justice Quinlan
30 APRIL 2020