Corporation of the City of Whyalla v Young - [2010] SASC 65

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
CORPORATION OF THE CITY OF WHYALLA v YOUNG
[2010] SASC 65
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice Layton)
25 March 2010
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES
LOCAL GOVERNMENT - REGULATION AND ADMINISTRATION - OFFENCES AND PENALTIES - PARTICULAR OFFENCES AND CONDUCT INVOLVING PENALTIES - OTHER CONDUCT AND OFFENCES
Respondent was the owner of a 12 tonne ship grounded at a marina owned by the appellant - the respondent was charged under s 235 of the Local Government Act 1999 (SA) with depositing "goods" on a public place - appeal against decision of single Judge setting aside conviction entered by Magistrate - whether the ship was "goods" for the purposes of s 235.
HELD: appropriate to give a broad meaning to the terms used in s 235 - "goods" commonly has the meaning of chattels and movable property - nothing in the legislative context or in the subject matter of the section that militates against giving the word "goods" its ordinary natural meaning - the ship is movable property, and can be disposed of like movable property - the ship is "goods" for the purposes of the section - appeal allowed, conviction restored.
Harbours and Navigation Act 1993 (SA) s 25; Local Government Act 1999 (SA) s 235, referred to.
Young v The Corporation of the City of Whyalla (2009) 105 SASR 348, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"Goods"

CORPORATION OF THE CITY OF WHYALLA v YOUNG
[2010] SASC 65
Full Court: Doyle CJ, Anderson and Layton JJ

DOYLE CJ: Section 235 of the Local Government Act 1999 (SA) (“the LGA”) provides:
235    Deposit of rubbish etc
(1)     A person who, without the council's authorisation or permit –
(a)deposits rubbish on a public road or public place; or
(b)deposits goods, materials, earth, stone, gravel, or any other substance on a public road or public place,
is guilty of an offence.
Maximum penalty: $5 000.
Expiation fee: $315.
(2)     Anything that falls from a vehicle onto a public road or public place is taken, for the purposes of subsection (1), to have been deposited by the person by or on whose behalf the vehicle is operated.
(3)     It is a defence to a charge of an offence against subsection (1) to establish-
(a)that the act subject to the charge was done by or with the consent of the owner of the land on which the act was done; or
(b)that the defendant could not, by the exercise of reasonable care, have prevented the occurrence out of which the charge arose.
(4)     The court by which a person is convicted of an offence under this section must, on application by a council in whose area the offence was committed, order the convicted person to pay to the council any costs incurred by the council in removing and disposing of anything deposited in contravention of this section.
This appeal raises the question of whether the Navarino, a sizeable vessel made of concrete, was “goods” for the purposes of the section.
That is the only issue raised on appeal. The Corporation of the City of Whyalla (“the Corporation”) was granted permission to appeal by a differently constituted Full Court.
Facts
The Corporation is the owner of a marina at Whyalla.
Mr Young owned the Navarino. It was about 12 metres long, four metres wide and had a draught of about 1.8 metres. Being made of concrete, it weighed about 12 tonnes.
Mr Young wanted to remove the Navarino’s mast, as a prelude to breaking it up. The Navarino was moored in the Corporation’s marina. At some stage the mast was removed with a crane. Due to tidal movements, the Navarino became grounded in the marina. Before Mr Young could remove it, it fell onto its side, as a result of some vandalism to its supports. For a variety of reasons, Mr Young failed to remove the Navarino. It was no easy task to do so.
After about two months the Corporation gave Mr Young notice that unless he removed the Navarino, the Corporation would do so at his cost.
The Corporation removed the Navarino, and prosecuted Mr Young under s 235 of the LGA. Mr Young was convicted and ordered to pay the costs of removal.
On appeal, a single Judge held that the conviction should be set aside. The sole reason for so deciding was that the Navarino was not “goods”.
The essence of the Judge’s reasoning appears in the following paragraphs of his reasons:
[28]As with vehicles, there are a number of ordinary usages of a boat which one would not expect to be the subject of s 235(1)(b). There would be some incongruity in regarding a boat owner who beaches a boat such as a dinghy or recreational fishing boat in order to have a rest, or to pick up or off-load passengers or gear, or who runs it onto a beach in order to retrieve it on a boat trailer, as committing an offence against s 235(1)(b). Just as the parking of a vehicle in the street is an ordinary incident of vehicle usage, so also is the beaching of a boat in the circumstances just mentioned an ordinary incident of boat usage. It is not readily to be supposed that s 235(1)(b) is directed to circumstances of this kind. That suggests that the word “goods” in s 235(1)(b) should not be regarded as encompassing boats.
[29]The LGA 1999 does not contain any counterparts to s 236 and s 237 in relation to vessels, but I do not consider that to be decisive. It does not seem to be appropriate to give an expanded meaning to the word “goods” in s 235(1)(b) in order to overcome what appears otherwise to be a gap in the legislation.
[30]In summary, two considerations lead me to conclude that the Navarino was not “goods” for the purposes of s 235(1)(b). The first is that I do not consider the word “goods” encompasses objects such as vehicles or vessels which will, as an incident of ordinary usage, be placed on public land, and the usage of which will, in many cases, account for the development of the public land in a particular way. Secondly, I regard the sheer size and weight of the Navarino to be a relevant, albeit not decisive, consideration.
Appeal to Full Court
As I have said, the only issue is whether the Navarino was “goods” for the purposes of s 235 of the LGA.
There is no issue on appeal to this Court as to whether Mr Young “deposited” the Navarino in the circumstances, or as to whether the marina is a public place.
Mr Young raised the question of whether s 25 of the Harbours and Navigation Act 1993 (SA) governed the situation to the exclusion of the LGA. That Act and that section might have empowered the Minister in question to require the removal of the Navarino, but I am satisfied that the provisions of that Act do not apply to the exclusion of the provisions of the LGA.
Consideration of appeal
The expression “goods” is not defined in the LGA.
It is appropriate to give a broad meaning to the terms used in s 235.
There are other provisions enabling a council to keep roads clear, but s 235 is part of a council’s armoury. There is good reason for giving a council a wide power to clear and to keep clean public places, as well as roads.
Section 235 uses terms that have a wide reach.
The word “goods” commonly has the meaning of chattels and movable property. The Navarino is movable property, can be disposed of like movable property, and despite its size can be transported or moved around like goods.
At first sight it might seem odd to call a sizeable vessel like the Navarino “goods”. But vessels range in size. To my mind, no such difficulty occurs if one thinks of a small dinghy or other small vessel. There is no reason why the size of the vessel should, in principle, exclude the vessel from the concept of “goods”. I realise that when one gets to the question of a large ocean going vessel one might take a different approach. In my respectful opinion the size and weight of the item are not decisive, as the Judge recognised at [21]. Despite that, as appears from the Judge’s reasons at [30] above, in the end size and weight were factors that influenced the Judge’s conclusion.
The Judge was also influenced by the consideration that “goods” should not encompass objects which could be placed on public land as an incident of their ordinary usage. As to that, I respectfully disagree. There are other things which might be placed on public land as an incident of their ordinary usage, which one would never hesitate to describe as goods. For example, a person might place chairs and tables and other items in a public place for the purpose of a picnic. Or they might be left on a road as a prelude to a “hard rubbish” day. I see no reason why, depending on the particular circumstances, that could not amount to a deposit of goods for the purposes of the section. It may be that in this context the word “deposit” is used in the sense of putting down other than temporarily, or for a short time. The concept of an “authorisation” under s 235(1), and implied “consent” under s 235(3)(a) will probably resolve some of the situations envisaged by the Judge.
In the end, I consider that the Navarino was capable of being described as “goods”. It was personal property. There is nothing in the legislative context, or in the subject matter of the section, that persuades me that the expression “goods” should not be given its ordinary natural meaning in this case.
Conclusion
I would allow the appeal. I would set aside the order of 2 October 2009 allowing the appeal to this Court. I would substitute an order dismissing the appeal against conviction. I would order that there be no order as to the costs of the appeal to this Court, that having been a condition of the grant of permission to appeal.
ANDERSON J: I agree that the appeal should be allowed. I agree with the orders proposed by Doyle CJ and with his reasons.
LAYTON J: I consider the appeal should be allowed. I agree with the reasons of the Chief Justice and with the orders which he proposes.