Legal Research
Cases
Disorganized Developments Pty Ltd v South Australia

Disorganized Developments Pty Ltd v South Australia

Link copied

Case Copied 2 August 2023 49 min read

Contents

On this page

HIGH COURT OF AUSTRALIA
KIEFEL CJ,
GAGELER, STEWARD, GLEESON AND JAGOT JJ
DISORGANIZED DEVELOPMENTS PTY LTD
& ORS APPELLANTS
AND
STATE OF SOUTH AUSTRALIA RESPONDENT
Disorganized Developments Pty Ltd v South Australia
[2023] HCA 22
Date of Hearing: 10 March 2023
Date of Judgment: 2 August 2023
A22/2022
ORDER
1. Appeal allowed with costs.
2. Set aside the orders of the Court of Appeal of the Supreme Court of South Australia made on 16 February 2022 and, in their place, order that:
(a)It is declared that the Criminal Law Consolidation (Criminal Organisations) (Prescribed Place—Cowirra) Variation Regulations 2020 (SA) and the Criminal Law Consolidation (Criminal Organisations) (Prescribed Place—Cowirra) (No 2) Variation Regulations 2020 (SA) are invalid.
(b)The respondent pay the appellants' costs.

On appeal from the Supreme Court of South Australia
Representation
W J N Wells KC and C Jacobi KC for the appellants (instructed by Jon Lister Barrister & Solicitor)
M J Wait SC, Solicitor-General for the State of South Australia, with C M Nolan for the respondent (instructed by Crown Solicitor for South Australia)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

KIEFEL CJ, GAGELER, GLEESON AND JAGOT JJ. Section 83GD(1) of the Criminal Law Consolidation Act 1935 (SA) ("the 1935 Act") makes it an offence for a participant in a criminal organisation to enter or attempt to enter a "prescribed place". For the purposes of that offence, the Hells Angels motorcycle club is a criminal organisation[1]. The second and third appellants, Mr Stacy and Mr Taylor, are members of that motorcycle club and, accordingly, they are participants in a criminal organisation for the purposes of s 83GD(1)[2].
[1]1935 Act, s 83GA(1), definition of "criminal organisation" (paras (b) and (c)). See also Disorganized Developments Pty Ltd v South Australia (2022) 140 SASR 206 at 212 [7]; Criminal Law Consolidation (Criminal Organisations) Regulations 2015 (SA), reg 2(f), enacted by Sch 1 to the Statutes Amendment (Serious and Organised Crime) Act 2015 (SA).
[2]Disorganized Developments (2022) 140 SASR 206 at 212 [7].
This appeal from a decision of the Court of Appeal of the Supreme Court of South Australia concerns the validity of two Regulations[3] ("the Cowirra Regulations") which each purport to declare a portion of land in Cowirra, east of Adelaide in South Australia ("the Cowirra land"), as a "prescribed place" for the purposes of the 1935 Act. The first appellant ("Disorganized Developments") is the registered proprietor of the two parcels of land that comprise the Cowirra land. Mr Stacy and Mr Taylor are the directors and only shareholders of Disorganized Developments and are occupiers of the Cowirra land.
[3]Criminal Law Consolidation (Criminal Organisations) (Prescribed Place—Cowirra) Variation Regulations 2020 (SA) ("Cowirra Regulation No 1") and Criminal Law Consolidation (Criminal Organisations) (Prescribed Place—Cowirra) (No 2) Variation Regulations 2020 (SA) ("Cowirra Regulation No 2").
There are improvements on the land including a cabin occupied by Mr…

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.

Keep reading for free

Create a free CaseChat account to read Disorganized Developments Pty Ltd v South Australia and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] HCA 22
Decision Date: 2 August 2023

CaseChat Overview and Summary

Disorganized Developments Pty Ltd and others appealed to the High Court of Australia against a decision of the Supreme Court of South Australia. The dispute concerned the validity of two regulations, the Criminal Law Consolidation (Criminal Organisations) (Prescribed Place—Cowirra) Variation Regulations 2020 (SA) and the Criminal Law Consolidation (Criminal Organisations) (Prescribed Place—Cowirra) (No 2) Variation Regulations 2020 (SA) (collectively, the "Cowirra Regulations"). These regulations purported to vary the Criminal Law Consolidation (Criminal Organisations) Regulations 2015 (SA) to include certain blocks of land at Cowirra, South Australia, as "prescribed places". The appellants, who were the owners and occupiers of this land, argued that the Cowirra Regulations were invalid.

The High Court was required to determine two primary legal issues. First, whether the Governor, in purporting to vary the list of prescribed places under section 370 of the *Criminal Law Consolidation Act 1935* (SA), had validly exercised the regulation-making power. This involved considering whether the Cowirra Regulations, which did not explicitly "declare" the Cowirra land to be prescribed places, met the requirements of the enabling legislation. Second, the Court considered whether the statutory power to make regulations prescribing places was conditioned by a presumption that procedural fairness must be afforded to the owners and occupiers of the land, and if so, whether this presumption was displaced by the *Criminal Law Consolidation Act 1935* (SA).

The Court reasoned that the power to make regulations under section 370 of the *Criminal Law Consolidation Act 1935* (SA) required a clear declaration of the places to be prescribed. The Cowirra Regulations failed to do this, instead purporting to vary existing regulations in a manner that did not constitute a direct declaration. Furthermore, the Court held that the presumption of a duty to afford procedural fairness to owners and occupiers of land when their property rights are significantly affected by regulation-making powers is a strong one, and it was not displaced by the terms of the *Criminal Law Consolidation Act 1935* (SA). The failure to provide notice or an opportunity to be heard to the appellants before their land was designated as a prescribed place rendered the Cowirra Regulations invalid.

Consequently, the High Court allowed the appeal, set aside the orders of the Supreme Court of South Australia, and declared that the Cowirra Regulations were invalid. The respondent was ordered to pay the appellants' costs.

Orders

Orders of the court

1. Appeal allowed with costs.

2. Set aside the orders of the Court of Appeal of the Supreme Court of South Australia made on 16 February 2022 and, in their place, order that:

(a) It is declared that the Criminal Law Consolidation (Criminal Organisations) (Prescribed Place—Cowirra) Variation Regulations 2020 (SA) and the Criminal Law Consolidation (Criminal Organisations) (Prescribed Place—Cowirra) (No 2) Variation Regulations 2020 (SA) are invalid.

(b) The respondent pay the appellants' costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KIEFEL CJ, GAGELER, GLEESON AND JAGOT JJ STEWARD J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, GAGELER, GLEESON AND JAGOT JJ, STEWARD J

Full text does not contain this section.