Dai (Martin) Shi v North Sydney Council; Mary's Crows Nest EPS Pty Ltd v North Sydney Council

[2017] NSWLEC 12

Land and Environment Court

New South Wales

Medium Neutral Citation:	Dai (Martin) Shi v North Sydney Council; Mary’s Crows Nest EPS Pty Ltd v North Sydney Council [2017] NSWLEC 12
Hearing dates:	30 and 31 January 2017
Date of orders:	28 February 2017
Decision date:	28 February 2017
Jurisdiction:	Class 6
Before:	Robson J
Decision:	See orders at [41]
Catchwords:	APPEAL – applications for leave to appeal against sentence and conviction in local court – whether leave to appeal out of time should be granted – interests of justice justifying grant of leave to appeal not established
Legislation Cited:	Crimes (Appeal and Review) Act 2001 ss 31, 33, 34 36, 37, 39, 62 Crimes (Sentencing Procedure) Act 1999 s 3A Environmental Planning and Assessment Act 1979 s 125
Cases Cited:	Attorney-General v Curran [2004] NSWCCA 234 Brown & Chandler v R (1985) 18 A Crim R 257 Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Cookson v R (1989) 45 A Crim R 121 Heatscape Pty Ltd v Mahoney [2015] NSWLEC 126 Jopar v R (2013) 44 VR 695; [2013] VSCA 83 Nona v R (No 2) [2014] ACTCA 48 Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 Terrey v Dept of Environment, Climate Change and Water [2011] NSWLEC 141 You Qin Lin v Fairfield City Council (2007) 159 LGERA 264; [2007] NSWLEC 568 Wimbridge v State of Western Australia [2009] WASCA 196
Category:	Procedural and other rulings
Parties:	Dai (Martin) Shi (Appellant) Mary’s Crows Nest EPS Pty Ltd (Appellant) North Sydney Council (Respondent)
Representation:	Counsel: Self-represented (Appellants) M Fraser (Respondent)   Solicitors: N/A (Appellants) M Pearce – North Sydney Council (Respondent)
File Number(s):	2016/00206141; 2016/00206081; 2016/00206163; 2016/00206168

Judgment

1. Before the Court are four proceedings each commenced by Summons Seeking Leave to Appeal, brought by two appellants, Dai Shi (also known as Martin Shi) and Mary’s Crows Nest EPS Pty Ltd (‘the Company’). The proceedings relate to appeals from convictions and sentences imposed on each appellant in the Local Court.

2. For the reasons below I am not satisfied, as I must be under s 36(2) of the Crimes (Appeal and Review) Act 2001 (NSW) (‘Appeal and Review Act’), that it is in the interests of justice that leave be granted in any of the applications under s 33 of the Appeal and Review Act for leave to appeal outside the time period under s 31.

Background

3. Each appellant came before the Local Court at Sydney Downing Centre in response to two Court Attendance Notices (‘CANs’), which in summary provided as follows:

Dai Shi (Mr Shi)

1. The defendant Dai Shi, between 5 March 2015 to 21 April 2015, operated a business known as “Relax EPS” at premises at 7-7A Falcon Street, Crows Nest NSW for the provision of sex services in exchange for payment. This conduct was in breach of Condition 2 of a development consent dated 25 May 1998 issued by North Sydney Council. Condition 2 specified that the premises could only be used as a massage parlour and that use as a brothel or for adult sexual services required a further development application. The defendant thus committed an offence under s 125 of the Environmental Planning and Assessment Act1979 (NSW) (‘EPA Act’) (‘CAN 1’).

2. The defendant Dai Shi, between 5 March 2015 to 21 April 2015, operated a business known as “Relax EPS” at premises at 7-7A Falcon Street, Crows Nest NSW for the provision of sex services in exchange for payment. The defendant operated this business without first obtaining a development consent for the use of those premises for the provision of sex services in exchange for payment. The defendant thus committed an offence under s 125 of the EPA Act (‘CAN 2’).

The Company

1. The defendant the Company, between 5 March 2015 to 21 April 2015, operated a business known as “Relax EPS” at premises at 7-7A Falcon Street, Crows Nest NSW for the provision of sex services in exchange for payment. This conduct was in breach of Condition 2 of a development consent dated 25 May 1998 issued by North Sydney Council. Condition 2 specified that the premises could only be used as a massage parlour and that use as a brothel or for adult sexual services required a further development application. The defendant thus committed an offence under s 125 of the EPA Act (‘CAN 3’).

2. The defendant the Company, between 5 March 2015 to 21 April 2015, operated a business known as “Relax EPS” at premises at 7-7A Falcon Street, Crows Nest NSW for the provision of sex services in exchange for payment. The defendant operated this business without first obtaining a development consent for the use of those premises for the provision of sex services in exchange for payment. The defendant thus committed an offence under s 125 of the EPA Act (‘CAN 4’).

4. Both Mr Shi and the Company pleaded not guilty to the respective charges.

5. On 8 April 2016 after a concurrent hearing over four days (7 October 2015, 20 October 2015, 25 January 2016 and 8 April 2016), the Magistrate convicted each appellant and imposed fines and orders in relation to the respective charges as follows:

Mr Shi		The Company
CAN 1	CAN 2	CAN 3	CAN 4
Fine	$15,000.00	$3,000.00	$15,000.00	$3,000.00
Legal Costs	$8,421.50	N/A	$8,421.50	N/A

6. A separate Summons Seeking Leave to Appeal was filed with this Court on 7 July 2016 in respect of each of the four convictions and sentences. Leave is required because each of the proceedings were commenced outside the 28 day limitation period provided for in s 31 of the Appeal and Review Act. Each of the four summons was drafted in common form and each stated:

TYPE OF CLAIM

Common Law, Appeal from local court, under s33 Crimes (Appeal and Review) Act 2001

DETAILS OF APPEAL

1    The decision maker was Magistrate J Keogh.

2    The decision to be reviewed was penalty.

3    The plaintiff seeks relief from the whole of the decision.

ORDERS SOUGHT

1    Appeal is allowed.

2    Order of 18/04/2016 set aside.

3    The defendant seeks to appeal both conviction and sentence.

APPEAL GROUNDS

1    The Magistrate did not give an opportunity to consider facts made by the plaintiffs.

2    The plaintiff did not have lawyers.

3    Extended delay to file appeal due to the refusal of the district court to accept the application in part.

7. It is clear that the date of the ‘Order’ in each Summons was incorrectly stated as the orders were each made on 8 April 2016.

8. As was the case before the Local Court, at hearing before this Court on 30 and 31 January 2017, both Mr Shi and the Company appeared without legal representation. I do however note that Mr Shi gave evidence, both before this Court and below, that he had obtained legal qualifications in China and had been a “magistrate” in that country. In both this Court and the Local Court Mr Shi gave evidence and made submissions through a Mandarin interpreter on his own behalf and on behalf of the Company. Similarly in this Court, Ms Ju Shen (‘Ms Shen’), as she had done in the Local Court hearing, made short submissions (and provided a statement) through a Mandarin interpreter on behalf of the Company of which she had been public officer, director and sole member. She otherwise relied upon Mr Shi’s submissions.

9. The proceedings before this Court are brought pursuant to the Appeal and Review Act. For present purposes, the relevant provisions are:

31    Appeals as of right

(1)    Any person who has been convicted or sentenced by the Local Court with respect to an environmental offence may appeal to the Land and Environment Court against the conviction or sentence.

…

(2)    An appeal must be made:

(a)    within 28 days after sentence is imposed, or

…

…

33    Late applications for leave to appeal

(1)    An appeal to the Land and Environment Court may be made:

(a) by any person by whom an appeal could be made under section 31, but for section 31 (2), and

…

but only by leave of the Land and Environment Court.

(2)    An application for leave to appeal must be made within 3 months after the relevant conviction, sentence or order is made or imposed.

34    Lodgment of appeals and applications for leave to appeal

…

(3) An application for leave to appeal under section 32 or 33 is to be made by lodging a written application for leave to appeal, together with a written notice of appeal, with:

(a)    the Registrar of the Land and Environment Court, or

…

(4) An application for leave to appeal must state the general grounds of the application and, in the case of an application under section 33, must state the reasons why an appeal or an application for leave to appeal was not made within the time allowed by section 31 or 32, as the case may be.

(5)    On the granting of leave to appeal, an appeal is taken to have been made in accordance with the written notice of appeal referred to in subsection (3).

…

36    Determination of applications for leave to appeal

(1)    The Land and Environment Court may determine an application for leave to appeal by dismissing the application or by granting leave to appeal.

(2) Leave to appeal must not be granted in relation to an application under section 33 unless the Land and Environment Court is satisfied that it is in the interests of justice that leave be granted.

(3)    If the Land and Environment Court dismisses an application for leave to appeal, it may make such order as to the costs to be paid by the appellant as it thinks just.

(4)    If the Land and Environment Court grants leave to appeal, it may proceed to hear the appeal immediately or it may adjourn the appeal proceedings.

37    Appeals to be by way of rehearing on the evidence

(1)    An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by section 38.

(2)    Fresh evidence may be given, but only by leave of the Land and Environment Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given.

…

39    Determination of appeals

(1)    The Land and Environment Court may determine an appeal against conviction:

(a)    by setting aside the conviction, or

(b)    by dismissing the appeal, or

…

(2)    The Land and Environment Court may determine an appeal against sentence:

(a)    by setting aside the sentence, or

(b)    by varying the sentence, or

(c)    by dismissing the appeal.

…

62    Effect of defect in notice of appeal or application for leave to appeal

(1)    A notice of appeal or application for leave to appeal is not invalid merely because of a defect, whether of substance or form, in the notice or application.

(2)    An appeal court hearing an appeal or application for leave to appeal may amend any such notice or application if it is satisfied that the notice or application is capable of amendment and ought to be amended.

…

10. The proceedings in this Court were commenced in Class 6 of the Court’s jurisdiction on 7 July 2016, which was outside the 28 days otherwise provided for pursuant to s 31 of the Appeal and Review Act. Section 33 provides for late applications for leave to appeal but only by leave of the Court in circumstances where the application for leave to appeal is made within three months after the relevant order is made. As the Local Court made orders on 8 April 2016, the applications were filed within the three month period.

11. Section 34(3) requires that applications for leave to appeal are to be made by lodging a written application for leave to appeal together with a written notice of appeal with the Registrar of this Court. Section 34(4) requires that such applications must state the general grounds of the application and, “must state the reasons why … an application for leave to appeal was not made within the time allowed by s 31 ...”. Section 36(2) provides that leave to appeal “… must not be granted in relation to an application … unless the Land and Environment Court is satisfied that it is in the interests of justice that leave be granted”.

Nature of the appeal

12. Subject to leave being granted, the nature of an appeal from the determination of a Local Court (as to either conviction or sentence) is well known and was recently considered by Pepper J in Heatscape Pty Ltd v Mahoney [2015] NSWLEC 126 at [10]-[14]; and by Preston CJ of LEC in Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349 at [10]-[12]. I adopt the analysis in each of those decisions. It is clear that, if leave was granted pursuant to s 37 of the Appeal and Review Act, an appeal against conviction is to be heard by way of re-hearing on the basis of the evidence given in the original Local Court proceedings (subject to leave being given to rely on further evidence).

Evidence

13. The position of the appellants was that whilst Mr Shi was appearing for himself, he was also tendering evidence and making submissions on behalf of the Company, and that it was his intention (and that of Ms Shen) that the evidence (and the further submissions made by himself and Ms Shen) be the evidence and submissions in all of the applications.

14. The evidence before this Court in relation to the applications comprised the following:

1. a bundle of documents tendered by the respondent, which became Exhibit 1, comprising the summons in each matter; the CANs; the transcript of the four days of hearing (7 October 2015, 20 October 2015, 25 January 2016 and 8 April 2016) before the Local Court; all exhibits (numbered 1-33) before the Local Court; opening and closing written submissions (including submissions relating to sentencing) made on behalf of North Sydney Council in the Local Court; a statement of Mr Shi dated 4 March 2016; and the Certificates of Convictions in relation to each of the appellants; and

2. a bundle of documents tendered by the appellants styled “Submissions and Evidence” which became Exhibit 2. Exhibit 2 comprised a statement of Mr Shi of 4 March 2016 (which had been provided to the Local Court during the earlier hearing); a statement of “David” of 25 May 2016; a statement of Ms Shen of 5 October 2016; a further statement of Mr Shi of 5 October 2016; two expert reports which had been exhibits in an earlier unrelated Class 1 appeal hearing in this Court before Commissioner Hussey (A & S City Classic Pty Limited v North Sydney Council [2006] NSWLEC 346); an extract of a minute of a meeting of North Sydney Council held 9 February 1998; and a number of photographs.

15. Although Mr Fraser expressed some concern in relation to the relevance of the further material tendered by the appellants, there was no objection to the Court receiving and considering the whole of Exhibit 2 in relation to the applications for leave to appeal. Further, Mr Shi and Ms Shen stated that the further material was the whole of the evidence and submissions to be relied upon both in the applications for leave and in any appeals that would follow if leave to appeal was granted.

Further evidence

16. During the hearing, having considered the above evidence, I was not satisfied that the appellants had provided “reasons” why an appeal (or an application for leave to appeal) was not made within the time allowed by s 31 of the Appeal and Review Act, especially as it was apparent that Exhibit 2 was prepared in relation to a substantive appeal and did not express any reasons for delay.

17. In the circumstances of the appellants’ lack of legal representation and noting the respondent’s submission that each of the summons did not satisfy s 34(4) of the Appeal and Review Act in that “reasons” were either non-existent or insufficient, and having heard opening submissions from Mr Shi, I requested that he give evidence under oath as to the reasons for the delay (noting also that he was briefly cross-examined on this point). Mr Shi gave evidence that he took advice from “a female lawyer called Ying Zhang” who advised him that the appeals should be lodged in the District Court. Although he attended the District Court on 6 May 2016, on 9 May 2016 some documents were lodged in the District Court, however sometime after 6 June 2016 those documents were returned to Mr Shi. A copy of correspondence from the District Court dated 6 June 2016 to Mr Shi and a copy of the Application for Leave to Appeal (signed by Mr Shi and dated 9 May 2016) became Exhibit 3. Having had the documents returned from the District Court, Mr Shi then filed each of the current summons in this Court on 7 July 2016, a date outside the 28 days provided for in s 31(2) of the Appeal and Review Act, however just within the three months otherwise provided for in s 33 of the Appeal and Review Act. There was little explanation for the further delay.

18. It should be noted that although Exhibit 3 contained correspondence from the District Court to Mr Shi in relation to his “applications” only, Mr Shi gave evidence that similar correspondence had been received by the Company, although that correspondence could not be located.

Appellants’ submissions

19. The appellants’ primary position as to why leave to appeal should be granted (and the convictions set aside), is that the Magistrate did not give appropriate or sufficient weight to Mr Shi’s evidence regarding his belief that the premises at 7-7A Falcon Street (‘Premises’), Crows Nest, had appropriate approval for use as a brothel or for the provision of sexual services. Mr Shi submitted that, he had given evidence before the Magistrate that in 2010 he attended North Sydney Council and inspected extensive documentation. One of the documents sighted led him to believe that the Premises had a development consent which permitted its use as a brothel, and/or for the provision of adult sexual services. This submission was in effect the only basis put forward to challenge the decision of the Magistrate, should leave be granted.

Respondent’s submissions

20. Mr Fraser, of counsel, who appears for North Sydney Council, the respondent, submits that each of the applications should be dismissed. First, Mr Fraser submits that no proper explanation for the delay (over 28 days) is given in that the applications do not state the reasons why an appeal was not made within time. Second, Mr Fraser submits that the appellants’ evidence (including the submissions and further evidence sought to be relied upon by the appellants in this Court both in relation to the applications for leave and in any appeal if leave is granted) provides no proper explanation as to why the appellant (in each case) contends that the convictions were made in error. Third, the Court would not be satisfied that it is in the interests of justice that leave be granted because, considering the evidence before the Local Court and the further evidence sought to be relied upon in this Court, the prospects of any appeal succeeding are “very low” and there is a real prospect that a higher penalty would be imposed even if, on appeal, the convictions were confirmed.

Evidence before Local Court

21. To understand the appellants’ submissions, some consideration of the extensive evidence before the Local Court is required. As noted above, the Local Court received extensive evidence. The following evidence was mostly uncontroversial:

1. Level 1, 5 Falcon Street, Crows Nest and 7-7A Falcon Street, Crows Nest are two street addresses which apply to the same premises. The Premises occupy the entire first floor of a two-storey commercial building. On 24 August 1998 North Sydney Council granted development consent 1588/97/3 (‘1998 Consent’) for the change of use of the Premises to a massage therapy studio. The 1998 Consent had a condition (‘Condition 2’) which provided:

“The premises shall only be used as a massage parlour. Use of the premises as a brothel or other adult sexual services would need to be the subject of a further development application.”

2. The only evidence of any development consent applicable to the Premises was the 1998 Consent.

3. The Company was first registered on 19 November 2010 with its public officer, director, secretary and sole member being Ms Shen, and its registered office and principal place of business being Level 1, 5 Falcon Street, Crows Nest.

2. Mr Shi was the “lessee” of the Premises on a week to week basis, paying weekly rental to the landlord Mr Bayramian, who owned the Premises since before 2010. The Premises were leased to Mr Shi on an informal lease, with Mr Shi delivering the rental payments in cash to Mr Bayramian’s father from 2010 to 2015.

3. There was evidence that Ms Shen was operating the business (“Relax EPS”) at the Premises through the Company because on 5 January 2011 she made an application pursuant to s 96 of the EPA Act to vary the trading hours in respect of the 1998 Consent. The modification application was rejected by North Sydney Council.

4. Mr Shi’s evidence was that he “took over the business 1 April [2015]” and had told a Council officer that he was taking over as its owner.

5. The “lease” (which commenced in 2010) was terminated by the landlord by written Notice of Termination dated July 2015 (a date soon after the charge period – 5 March 2015 to 21 April 2015).

6. North Sydney Council had received formal complaints that the Premises were being used as a brothel and had been given extensive photographic and advertising material and website information to this effect.

7. The Council produced evidence of Firas Majano, a licenced private investigator, who gave evidence of his attendances at the Premises (which business was marketed variously as “Relax EPS” in newspapers and other website advertisements). Mr Majano gave detailed evidence that on two occasions (5 March 2015 and 21 April 2015) he was provided with sex services by two different women at the Premises.

8. The Local Court also received evidence from Ben Boyd, a strategic planner, in relation to the zoning of the Premises under the North Sydney Local Environmental Plan and further evidence from Brett Mania, a compliance officer with North Sydney Council. Mr Mania gave evidence of the physical set out of the Premises, including private rooms, beds (with no massage tables) and “numerous boxes of condoms”. Mr Mania also provided photographs of the Premises.

9. The Local Court also received evidence of interviews with Mr Shi where he described himself as the Manager of the business “Relax EPS” and stated that he was aware that the Premises had an approval for a massage therapy studio. There was also evidence that Mr Shi had admitted (to Mr Mania) that he was the Manager of “Relax EPS” and that he was now the owner of that business (and had been the owner since 1 April 2015).

22. The Magistrate accepted that the evidence of Mr Majano established that the Premises were not being used as a “massage therapy studio” as required by the 1998 Consent but rather as a “sex service premises” or brothel.

Appellants’ reliance on brothel approval

23. Mr Shi gave evidence to the Local Court of his attendance at North Sydney Council in 2010 and seeing a document (detailed below) which he said led him to believe that there was a separate development consent for the use of the Premises as a brothel and/or for the provision of sexual services.

24. In the Local Court the appellants (or more particularly Mr Shi) claimed that the operation as a brothel was reliant upon (and in accordance with) a “decision” in Class 1 appeal proceedings conducted in 2006 in this Court (in A & S City Classic Pty Limited v North Sydney Council [2006] NSWLEC 346). The evidence was that when Commissioner Hussey gave a judgment on 21 June 2006 in a Class 1 hearing in relation to the use of premises at 407 Pacific Highway, Crows Nest, the second line of the judgment under the heading “Background” had an error in the description of the premises the subject of that appeal, and referred to the premises as “7-7A Falcon Street, Crows Nest”. In fact, the appeal was against North Sydney Council’s refusal of a development consent for a brothel at 407 Pacific Highway, Crows Nest. The error (in line 2 of the judgment and in the Court Order) was relatively quickly amended under the slip rule. (As noted below, it is clear that even a cursory reading of Commissioner Hussey’s judgment shows that there was no doubt that the hearing before Commissioner Hussey was concerned with a property at 407 Pacific Highway, Crows Nest and not 7-7A Falcon Street, Crows Nest).

25. Despite this, in the proceedings below and before this Court, Mr Shi maintained that he on an occasion in 2010 had attended the office of North Sydney Council and inspected various files and that he had seen the first page of the judgment (and/or the Court Order) which he said was unamended. Put briefly, he maintains (as he did before the Magistrate) that he placed reliance upon the fact that he had sighted this judgment and/or the Court Order prior to its correction and therefore the Premises had the benefit of a development consent for use as a brothel.

26. In delivering judgment below, the Magistrate found that the Company was, at all relevant times, the occupier of the Premises and that the business of “Relax EPS” was conducted under its authority with Mr Shi as the Manager (or if not the Manager, the person with care, control and conduct of the business). The Magistrate was satisfied and found that the evidence was abundantly clear that the only development consent for the Premises was the 1998 Consent for massage therapy, and that the 1998 Consent specifically prohibited the use of the Premises for the provision of sexual services. In those circumstances the Magistrate found that the offences (in relation to each of the appellants) were made out.

27. The Magistrate considered Mr Shi’s suggested reliance upon the search he undertook of Council’s records in 2010, however found that, even if such occurrence was sought to form the basis that there was an honest and reasonable mistake by Mr Shi, a careful reading of the judgment (even in its state before the correction under the slip rule) would have revealed that Commissioner Hussey was concerned only with 407 Pacific Highway, Crows Nest and not 7-7A Falcon Street, Crows Nest.

Consideration

28. As the only matter sought to be raised in any appeal (in the circumstance that leave to appeal may otherwise be granted) was the matter concerning Mr Shi’s reliance on the document he saw in 2010, I have closely considered the whole of the evidence both before the Local Court and the further material now before this Court.

29. The evidence before me leads me to the view that neither of the appellants could have reasonably relied upon the typographical error in the judgment of Commissioner Hussey in light of the other uncontested evidence including:

1. Ms Shen’s evidence in the Local Court that she was not aware of the decision of Commissioner Hussey (in any form) given in 2006 until “now when the hearing starts, when the hearing started this time”.

2. The evidence was that Ms Shen made an application to modify the 1998 Consent pursuant to s 96 of the EPA Act, which was rejected by North Sydney Council in July 2011. The request to modify the 1998 Consent, which comprised a “request [for] …extension of trading hours for the business EPS …” was, in effect, to change the closure times. It is abundantly clear that the modification application was made in respect of the 1998 Consent which is the consent which applied to the Premises and which included Condition 2 referred to at [3] and [21(1)] above. It is difficult to see why Ms Shen on behalf of the Company would seek a modification in respect of the 1998 Consent if she had any belief that there was some other, more recent consent in relation to the Premises. The 1998 Consent specifically contained the prohibition in Condition 2, and it is therefore inconceivable for Ms Shen (or the Company) to now claim that she thought there was a consent that allowed a brothel to be conducted on the Premises, given that she was, at least in 2011, seeking to modify the 1998 Consent (admitting as she did that it was her signature that appeared in the modification application and supporting material).

3. In any event, neither Mr Shi, nor Ms Shen offered any satisfactory explanation as to why the modification application was made in respect of the 1998 Consent and not the approval or consent (as Mr Shi contends) referred to in Commissioner Hussey’s judgment in 2006, which was otherwise said to be relied upon by Mr Shi.

4. There was other evidence which clearly militates against any purported reliance upon the temporary typographical error in Commissioner Hussey’s judgment. For example, on 4 October 2013 North Sydney Council issued a Brothel Closure Order in respect of the Premises (addressed to “The Occupants EPS”). This was responded to by “David” (self-described as the “Manager” of the Premises), indicating to the Council that inter alia, “we only do massage at shop”. This letter was dated 12 October 2013 and made no reference to any purported consent or approval permitting the conduct of a brothel.

5. Although Mr Shi gave evidence that he saw the front page of the (unamended) judgment when he attended Council and inspected the Council’s property file in 2010, surprisingly, he also gave evidence that at that time he had seen the applicable 1998 Consent “and the conditions attached thereto”.

6. In addition to the above, any claimed reliance upon the judgment of Commissioner Hussey was unreasonable because even if Mr Shi had initially sighted the typographical error, any proper or diligent reading or investigation would have found the corrected Court Order and further, any reading of the judgment would have revealed that it was not referring to 7-7A Falcon Street, Crows Nest. Further, there was no suggestion that the unamended judgment had been advertised or circulated.

7. The evidence in relation to the appellants’ involvement with the Company is clear. Ms Shen was the director of the Company up until 31 March 2015 and Mr Shi took over as owner of the Company on 1 April 2015. The evidence clearly shows that Mr Shi was involved, at the least, as “Manager” for a long period of time prior to the commencement of the charge period (5 March 2015 to 21 April 2015). Further, there is no doubt that when the landlord delivered the “Notice of Termination” in respect of the Premises, (which, when served, was endorsed by Mr Shi with his signature), the Notice of Termination was addressed to Ms Shen, Mary’s Crows Nest EPS Pty Ltd and Mr Shi.

8. The evidence of the private investigator Mr Majano and the evidence of the Council officers was incontrovertible. There is no doubt that the Premises were being used for the offering of sexual services for payment of money during the relevant charge period.

9. As noted above at [14], the appellants’ further “Submissions and Evidence”, which became Exhibit 2, included a further statement of Ms Shen, further evidence of a person known as “David”, two statements by Mr Shi and two expert reports that were exhibits in the Class 1 appeal hearing before Commissioner Hussey. I have considered this additional evidence and find that it does not take the appellants’ case any further, nor does it change my understanding of the facts. In particular, the further statement of Ms Shen and her short submissions before this Court appear to show that her primary concern was that she was personally implicated in the offences committed by the Company. In addition, the statement of a person known as “David”, who did not give evidence in the Local Court, does not assist the appellants. His statement does not provide any grounds for granting leave or providing any support for the submissions that the findings of the Local Court were unsound. Further, the two “statements” by Mr Shi are mostly in the form of submissions.

10. Finally, the two statements of expert evidence that were exhibits 4 and 5 before Commissioner Hussey (and referred to by Commissioner Hussey in his judgment) do not, in any way, take the appellants’ case any further and do not change the facts. In submissions before this Court, Mr Shi submitted that these statements were some form of clarification of his view regarding the decision of Commissioner Hussey. However, far from being of assistance to the appellants, both expert reports make it clear that the experts were considering a proposed brothel at 407 Pacific Highway, Crows Nest and certainly not 7-7A Falcon Street, Crows Nest. Therefore even if these statements were available to Mr Shi at the relevant time (in 2010), they would not have assisted his position.

30. In the circumstances, none of the further material sought to be relied upon in any appeal would offer any assistance.

Prospects of success on appeal

31. In considering whether to grant leave to appeal, I must be satisfied, as per s 36(2) of the Appeal and Review Act, that it is in the interests of justice that leave be granted to the appellants. In forming that view I am entitled to consider the merits of the prospective appeal (see Brown & Chandler v R (1985) 18 A Crim R 257; Cookson v R (1989) 45 A Crim R 121). This principle has been further explored in the NSW Court of Criminal Appeal (see Attorney-General v Curran [2004] NSWCCA 234 at [14]) as well as in other state superior courts of record (see e.g. Wimbridge v State of Western Australia [2009] WASCA 196 at [45]; Jopar v R (2013) 44 VR 695; [2013] VSCA 83 at [56]-[61]; Nona v R (No 2) [2014] ACTCA 48 at [15]). It was also specifically considered by Preston CJ of LEC in the case of You Qin Lin v Fairfield City Council (2007) 159 LGERA 264; [2007] NSWLEC 568, where his Honour found at [67] that “the slim prospect must weigh in the balance in determining whether it would be in the interests of justice to allow leave to appeal to be granted.”

32. In the circumstances, and taking into account the submissions and further evidence, if leave were granted I consider that the prospects for reversal of the findings made by the Local Court in relation to all four appeals is extremely poor and perhaps non-existent.

Conclusion

33. Accordingly, taking into account my finding that there is no compelling evidence to explain the delay in the commencement of proceedings and given my view regarding the slim prospects of success in any appeal, I am not satisfied, as I must be under s 36(2) of the Appeal and Review Act, that the interests of justice would be served by granting leave to appeal out of time. Each of the applications for leave to appeal is therefore dismissed.

Penalty

34. While I have found that the appellants are not entitled to leave to appeal, I have also given consideration to the sentences imposed by the Magistrate. The jurisdictional limit of the Local Court at the time the matter was heard was $110,000, however, the maximum fine under the EPA Act was $1.1 million. I note however that this limit was not available in the Local Court. Whilst the maximum penalty is of some significance in determining the objective gravity of the offence, (see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698; Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 at [60]-[64]), pursuant to s 71 of the Appeal and Review Act, in an appeal from a Local Court, this Court is confined to the jurisdictional limit of the Local Court.

35. In the circumstances I find that even, contrary to my finding, if leave to appeal was granted, in considering the sentence imposed on the appellants, this Court would be required to have regard to the purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘CSP Act’), aggravating factors as specified in s 21A of the CSP Act, the objective circumstances of the case, as well as other matters. I am therefore of the opinion that, if leave to appeal was granted, this Court would not need to find error on the part of the Magistrate to justify the imposition of a different penalty, whether that be higher or lower.

36. In the circumstances I am of the opinion that the sentences imposed by the Magistrate were not obviously outside of the appropriate range.

37. Despite the above comments, there was no evidence or submissions made in relation to the sentences imposed. However, I am of the view that if leave was granted to bring the appeals, the appellants would likely expose themselves to a higher penalty.

38. Again, for all the above reasons, I am not satisfied that it is the interests of justice and indeed the interests of the appellants themselves that leave to appeal be granted.

Costs

39. North Sydney Council seeks an order for costs in respect to the application before this Court, and also an order that the costs order made by the Local Court against each defendant for the sum of $8,421.50 remain undisturbed.

40. For the reasons set out above, I have determined that the appellants have not provided sufficient reasons to justify the grant of leave to appeal outside of the stipulated time limit. I have also determined that the appellants have slim prospects of success if appeal were granted. I therefore consider it appropriate that costs follow the event.

Orders

41. The Court orders:

In matter 2016/00206141

(1)   The application for Leave to Appeal is dismissed.

(2)   The appellant is to pay the respondent’s costs as agreed or assessed.

In matter 2016/00206081

(1)   The application for Leave to Appeal is dismissed.

(2)   The appellant is to pay the respondent’s costs as agreed or assessed.

In matter 2016/00206163

(1)   The application for Leave to Appeal is dismissed.

(2)   The appellant is to pay the respondent’s costs as agreed or assessed.

In matter 2016/00206168

(1)   The application for Leave to Appeal is dismissed.

(2)   The appellant is to pay the respondent’s costs as agreed or assessed.

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Decision last updated: 06 March 2017