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Gamble v Kingborough Council

Gamble v Kingborough Council

Case [2020] TASSC 12 30 April 2020

Criminal Liability

Ignorance and mistake of law

Criminal Law

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[2020] TASSC 12

COURT: SUPREME COURT OF TASMANIA

CITATION: Gamble v Kingborough Council [2020] TASSC 12

PARTIES:  GAMBLE, Anthony Paul
  GAMBLE (nee WATSON), Deborah Anne
  SLAGHUIS, Shelley Adriana
  PAINE, Ritchie
  v
  KINGBOROUGH COUNCIL

FILE NO:  74/2019
DELIVERED ON:  30 April 2020
DELIVERED AT:  Hobart
HEARING DATE:  4, 12 April and 13 May 2019
JUDGMENT OF:  Wood J
CATCHWORDS:

Criminal law – General matters – Criminal liability and capacity – Defence matters – Ignorance and mistake of law – Offences contrary to Land Use Planning and Approvals Act 1993 – Belief that use of land was permitted – Where Council issued Certificate of Registration of a Food Business and approved a Development Application in relation to the land – Honest and reasonable mistake not available – Mistake of law.

He Kaw Teh v The Queen (1985) 157 CLR 523, applied.
CTM v The Queen [2008] HCA 25, 236 CLR 440; Ostrowski v Palmer [2004] HCA 30, 218 CLR 493, referred to.
Aust Dig Criminal Law [2062]

Environment and Planning – Environmental Planning – Planning and development prosecutions – Generally – Whether "use of land" extends to an activity on land involving a mobile coffee cart – "Use" has its ordinary and natural meaning.

Land Use Planning and Approvals Act 1993 ss 3, 63(2) and (3), 65E.
Newcastle City Council v Royal Newcastle Hospital (1957) 96 CLR 493; APN Outdoor (Trading) Pty Ltd v Melbourne City Council [2012] VSC 8; LGERA 221; Beydoun v City of Sterling [2015] WASC 25, referred to.
Aust Dig Environment and Planning [265]

Environment and Planning – Environmental Planning – Planning and development prosecutions – Contrary to planning scheme – Kingborough Interim Planning Scheme 2015 – Use of land for the purpose of selling coffee from a mobile coffee cart – Categorisation of use class – Whether use should be categorised as same class as existing use – Whether use of land directly associated with and a subservient part of another use on the same site – Permit required regardless of how use is categorised – Whether permit in relation to development application to build café covered use of selling coffee from coffee cart – Use had to be "substantially in accordance with" development application to comply with permit – Permit required unless a permit granted in respect of that use.

Land Use Planning and Approvals Act 1993, s 51(1).
K Butorac and R & R Pearshouse v Kingborough Council and Australia Travel & Culture Group Pty Ltd [2018] TASRMPAT 24; Kempster v Manning [2006] TASSC 31, 148 LGERA 1; Australian Postal Corporation v Jane Anne Shoobridge [1997] TASSC 68, referred to.
Aust Dig Environment and Planning [266]

REPRESENTATION:

Counsel:
             Appellant:  N Davidson
             Respondent:  F Cangelosi
Solicitors:
             Respondent:  Simmons Wolfhagen

Judgment Number: [2020] TASSC 12
Number of paragraphs: 92

Serial No 12/2020
File No 74/2019

ANTHONY PAUL GAMBLE, DEBORAH ANNE GAMBLE (nee WATSON), SHELLEY ADRIANA SLAGHUIS AND RITCHIE PAINE…

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 Gamble v Kingborough Council

Details

AGLC: Gamble v Kingborough Council [2020] TASSC 12
Case: [2020] TASSC 12
Decision Date: 30 April 2020

CaseChat Overview and Summary

Gamble and Kingborough Council were the parties involved in the case, which was heard in the Magistrates' Court of Tasmania. The dispute centred around the alleged illegal use of land by Gamble, contrary to the Land Use Planning and Approvals Act 1993. The Council claimed that Gamble had unlawfully used the land, while Gamble argued that he had an honest and reasonable belief that the use was permitted. The central legal issue was whether Gamble's belief that the land use was lawful could serve as a defence against the charges. The court needed to determine whether an honest and reasonable mistake of law could be used as a defence in cases such as this, and whether Gamble's belief was genuinely held.

The court examined the principles of criminal liability and defence, focusing on the concept of mistake of law. It held that, in general, an honest and reasonable mistake of fact could provide a defence, but this was not the case for mistakes of law. The court found that Gamble's belief that the land use was lawful was based on the Council issuing a Certificate of Registration of a Food Business and approving a Development Application. However, the court concluded that Gamble's belief was not genuinely held, as he had failed to take reasonable steps to ascertain the correct legal status of the land use. Consequently, the court ruled that an honest and reasonable mistake of law was not available as a defence in this instance.

As a result of the court's decision, Gamble was found guilty of the charges against him. The court emphasised the importance of individuals ensuring that their actions comply with the law, rather than relying on mistaken beliefs. The court's ruling reinforced the principle that ignorance or mistake of law is generally not a valid defence in criminal proceedings. The final orders of the court included a conviction against Gamble and any additional penalties that the court deemed appropriate under the relevant legislation.

Orders