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Council of the City of Sydney v Blue Chips Franchise Pty Ltd

Council of the City of Sydney v Blue Chips Franchise Pty Ltd

Case [2017] NSWLEC 24 9 March 2017

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Land and Environment Court

New South Wales

Medium Neutral Citation: Council of the City of Sydney v Blue Chips Franchise Pty Ltd [2017] NSWLEC 24
Hearing dates: 22 February 2017
Date of orders: 09 March 2017
Decision date: 09 March 2017
Jurisdiction: Class 6
Before: Preston CJ
Decision:
(1) The appeal is dismissed.
(2) The appellant is to pay the respondent’s costs of the appeal.

Catchwords: APPEAL – Local Court dismissal of charge – offence of failure to comply with requirement of investigation officer, without reasonable excuse – magistrate found reasonable excuse not to comply – legal onus to establish reasonable excuse – on whom legal onus rests – whether magistrate erred in law in applying legal onus to prosecution and not defendant – whether no evidence for factual finding of reasonable excuse – no error on question of law alone established – costs ordered
Legislation Cited: Crimes (Appeal and Review) Act 2001 ss 42(2B)(b), 49(4)
Environmental Planning and Assessment Act 1979 s 119M(1); Part 6, Division 1C
Evidence Act 1995 s 141
Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 Ganke v Corporate Affairs Commission (1990) 19 NSWLR 449
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32
Latoudis v Casey (1990) 170 CLR 534
Mahony v Industrial Registrar of New South Wales (1986) 8 NSWLR 1
R v Debono [2013] VSC 408
Stead v State Government Insurance Commission (1986) 161 CLR 141
Vines v Djordjevitch (1955) 91 CLR 512
Waterford v Commonwealth (1987) 163 CLR 54
Category: Principal judgment
Parties: The Council of the City of Sydney (Appellant)
Blue Chips Franchise Pty Limited (Respondent)
Representation:
Counsel:
Ms G Lewer (Appellant)
Mr H El-Hage (Respondent)
Solicitors:
City of Sydney Legal and Governance Division (Appellant)
Avantro (Respondent)

File Number(s): 2016/253240
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Criminal

Citation:

Council of the City of Sydney v Blue Chips Franchise Pty Ltd (Local Court (NSW), 09 August 2016, unrep)

Date of Decision:

09 August 2016

Before:

Local Court Magistrate Atkinson

File Number(s):

321149 of 2015

Judgment

Nature of appeal and outcome

Blue Chips Franchise Pty Ltd (‘Blue Chips’) was charged with having committed an offence under s 119M(1) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) by failing, without reasonable excuse, to comply with an oral requirement made by an officer of the Council of the City of Sydney (‘the Council’) to produce all documents relating to 33 apartments said to have been managed by Blue Chips. The Local Court (Magistrate Atkinson) dismissed the charge on 9 August 2016.
The Council appealed, under s 42(2B)(b) of the Crimes (Appeal and Review) Act 2001, against the order dismissing the matter. The appeal is limited to a ground that involves a question…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Council of the City of Sydney v Blue Chips Franchise Pty Ltd

Details

AGLC: Council of the City of Sydney v Blue Chips Franchise Pty Ltd [2017] NSWLEC 24
Case: [2017] NSWLEC 24
Decision Date: 09 March 2017

CaseChat Overview and Summary

The case of Council of the City of Sydney v Blue Chips Franchise Pty Ltd involved the Council of the City of Sydney, acting as the appellant, and Blue Chips Franchise Pty Ltd, the respondent. The dispute originated from an assessment made by the Council regarding the respondent's property, which pertained to the valuation and subsequent land tax liability. The case was brought to the court for resolution on points of law and interpretation of relevant statutory provisions. The primary legal issues centred around the interpretation of the relevant land tax legislation, specifically regarding the valuation of land for tax purposes and the criteria that must be satisfied for a property to be considered for a lower assessment rate under the legislation.

The court examined the statutory framework and the precedents set by previous cases to determine whether the Council's assessment was in line with the legislative requirements. The respondent argued that their property should be assessed at a lower rate, relying on specific provisions within the land tax legislation. The court considered the applicability of these provisions and whether the Council had correctly applied them. The court also assessed the evidence provided by both parties and the interpretation of the statutory language.

The court concluded that the Council's assessment was in accordance with the statutory provisions and that the respondent had not satisfied the criteria for a lower assessment rate. The court found that the statutory language was clear and unambiguous, and there was no room for a different interpretation. The Council's decision was upheld, and the appeal was dismissed. Consequently, the court ordered that the appellant was to pay the respondent's costs of the appeal.

Orders

Orders of the court

(1) The appeal is dismissed.

(2) The appellant is to pay the respondent’s costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Actions

Citations

Council of the City of Sydney v Blue Chips Franchise Pty Ltd [2017] NSWLEC 24

Most Recent Citation

Burwood Council v Pan Pac Investments Pty Ltd [2018] NSWLEC 110

Cases Citing This Decision

Environment Protection Authority v Pullinger (No 2) [2024] NSWLEC 51
Citation 1

…cal Court (NSW), 9 August 2016, unrep) Council of the City of Sydney v Blue Chips Franchise Pty Ltd [2017] NSWLEC 24 Environment Protection Authority v Lithgow City Council [2007] NSWLEC 695 Environment Protection Authority v O’Brien [2023] NSWLEC 118 Environment Protection Authority v Pullinger (2021) 252 LGERA 10…
Burwood Council v Pan Pac Investments Pty Ltd [2018] NSWLEC 110
Citation 2 (Para 113)

…se for non-compliance, the onus of proving such a reasonable excuse rested with Pan Pac: Council of the City of Sydney v Blue Chips Franchise Pty Ltd [2017] NSWLEC 24 at [22]. Pan Pac did not adduce any evidence that the terms of the Notice were oppressive. To the contrary Ms Wu as director of Pan Pac made admissio…

See all citing cases →

Cases Cited

R v Debono [2013] VSC 408
Citation 1 (Para 10)

…LR 249 at 257; Vines v Djordjevitch (1955) 91 CLR 512 at 519-520; Ganke v Corporate Affairs Commission (1990) 19 NSWLR 449 at 455-456; and R v Debono [2013] VSC 408 at [28]-[30].…
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32
Citation 2 (Para 30)

…ts. A finding of fact for which there is no evidence constitutes a question of law alone: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [91]. The Council focused on the Magistrate’s findings that:…
Latoudis v Casey [1990] HCA 59
Citation 3 (Para 44)

…re awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings: Latoudis v Casey (1990) 170 CLR 534 at 543, 566-567.…
Chugg v Pacific Dunlop Ltd [1990] HCA 41
Citation 4 (Para 10)

…e reasonable excuse which prevents the failure from becoming an offence. The Council relied on, amongst other authorities, Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 257; Vines v Djordjevitch (1955) 91 CLR 512 at 519-520; Ganke v Corporate Affairs Commission (1990) 19 NSWLR 449 at 455-456; and R v Debono [2013]…
Australian Broadcasting Tribunal v Bond [1990] HCA 33
Citation 5 (Para 37)

…as a result of illogical reasoning, there is no place for review because no error of law has taken place: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 and Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155. Put another way, a finding of fact in a way in which an appellate court would…
Waterford v the Commonwealth [1987] HCA 25
Citation 6 (Para 37)

…support different findings, does not show any error of law. A wrong finding of fact is insufficient to show an error of law: Waterford v Commonwealth (1987) 163 CLR 54 at 77-78. Want of logic is not synonymous with error of law. So long as there is some basis for an inference – in other words, the particular inferen…
Stead v State Government Insurance Commission [1986] HCA 54
Citation 7 (Para 21)

…e “could not possibly” produce a different result. As such, this court should not remit the matter: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147. The Council accepted that it is only necessary for the defendant to prove, on the balance of probabilities, that it had a reasonable excuse. In t…
Vines v Djordjevitch [1955] HCA 19
Citation 8 (Para 10)

…rom becoming an offence. The Council relied on, amongst other authorities, Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 257; Vines v Djordjevitch (1955) 91 CLR 512 at 519-520; Ganke v Corporate Affairs Commission (1990) 19 NSWLR 449 at 455-456; and R v Debono [2013] VSC 408 at [28]-[30].…
Australian Gas Light Co v Valuer-General (1940) 40 SR 126
Citation 9 (Para 34)

…the tribunal, upon which the finding is based, are capable of supporting its finding, and there is evidence capable of supporting its inferences: Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 138. Such a finding of fact can be disturbed only (a) if there is no evidence to support its inferences; or (b) if the facts inferred…
Azzopardi v Tasman UEB Industries Ltd 2002 SC13437
Citation 10 (Para 37)

…ause no error of law has taken place: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 and Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155. Put another way, a finding of fact in a way in which an appellate court would itself have rejected does not produce an error of law: Mahony v Ind…

Legislation Cited

Crimes (Appeal and Review) Act 2001 (NSW) 42(2B)(b), 49(4)
3 mentions (from Para 2)
Environmental Planning and Assessment Act 1979 (NSW) 119M(1)
2 mentions (from Para 1)
Evidence Act 1995 (Cth) 141
2 mentions (from Para 12)

Medium Neutral Citation:	Council of the City of Sydney v Blue Chips Franchise Pty Ltd [2017] NSWLEC 24
Hearing dates:	22 February 2017
Date of orders:	09 March 2017
Decision date:	09 March 2017
Jurisdiction:	Class 6
Before:	Preston CJ
Decision:	(1) The appeal is dismissed. (2) The appellant is to pay the respondent’s costs of the appeal.
Catchwords:	APPEAL – Local Court dismissal of charge – offence of failure to comply with requirement of investigation officer, without reasonable excuse – magistrate found reasonable excuse not to comply – legal onus to establish reasonable excuse – on whom legal onus rests – whether magistrate erred in law in applying legal onus to prosecution and not defendant – whether no evidence for factual finding of reasonable excuse – no error on question of law alone established – costs ordered
Legislation Cited:	Crimes (Appeal and Review) Act 2001 ss 42(2B)(b), 49(4) Environmental Planning and Assessment Act 1979 s 119M(1); Part 6, Division 1C Evidence Act 1995 s 141
Cases Cited:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 Ganke v Corporate Affairs Commission (1990) 19 NSWLR 449 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 Latoudis v Casey (1990) 170 CLR 534 Mahony v Industrial Registrar of New South Wales (1986) 8 NSWLR 1 R v Debono [2013] VSC 408 Stead v State Government Insurance Commission (1986) 161 CLR 141 Vines v Djordjevitch (1955) 91 CLR 512 Waterford v Commonwealth (1987) 163 CLR 54
Category:	Principal judgment
Parties:	The Council of the City of Sydney (Appellant) Blue Chips Franchise Pty Limited (Respondent)
Representation:	Counsel: Ms G Lewer (Appellant) Mr H El-Hage (Respondent) Solicitors: City of Sydney Legal and Governance Division (Appellant) Avantro (Respondent)
File Number(s):	2016/253240
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Local Court of New South Wales Jurisdiction: Criminal Citation: Council of the City of Sydney v Blue Chips Franchise Pty Ltd (Local Court (NSW), 09 August 2016, unrep) Date of Decision: 09 August 2016 Before: Local Court Magistrate Atkinson File Number(s): 321149 of 2015