Garrett v Freeman

[2006] NSWCCA 278

Reported Decision: 147 LGERA 96

New South Wales

Court of Criminal Appeal

CITATION:	Garrett v Freeman [2006] NSWCCA 278
HEARING DATE(S):	17 August 2006
JUDGMENT DATE:	6 September 2006
JUDGMENT OF:	McColl JA at 1; Grove J at 14; James J at 20
DECISION:	The questions in the stated case are as follows: 1. No 2. Yes 3. Yes 4. Yes 5. No 6. No 7. No.
CATCHWORDS:	CRIMINAL LAW - stated case pursuant to s 5AE Criminal Appeal Act 1912 - prosecutions pursuant to ss 118D and 175B of the National Parks and Wildlife Act 1974 - whether proceedings taken by person authorised in that behalf - PRACTICE AND PROCEDURE - defect in substance or form - whether capable of cure by s 16(2) Criminal Procedure Act 1986 - LOCAL GOVERNMENT - statutory protection to employee of council if acts in good faith - s 731 Local Government Act 1993 - whether s 731 applies to criminal prosecutions
LEGISLATION CITED:	Clean Waters Act 1970 Crimes Act 1900 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Justices Act 1902 Local Government Act 1993 Milk Act 1931 National Parks and Wildlife Act 1974 Workers Compensation Act 1987 Victorian Health Act 1928 Income Tax and Social Security Contribution Assessment Act 1936 (Cth) Supreme Court Rules 1970
CASES CITED:	Bankstown City Council v Alamdo Holdings Pty Ltd (2004) 135 LGERA 312 Board of Fire Commissioners (NSW) v Ardouin [1961] HCA 71; (1961) 109 CLR 105 Boral Gas (NSW) Pty Ltd v Magill & Anor (1993) 32 NSWLR 501 Corporate Affairs Commission v Bain (1991) 55 A Crim R 73 Crothers v Sheil [1933] HCA 42; (1933) 49 CLR 399 Ex parte Lovell; re Buckley (1938) 38 SR (NSW) 153 Fairfield City Council v Colorpak Products (NSW) Pty Ltd (1988) 78 LGERA 144 Fowler v Taylor [1957] VR 593 London City Council v Agricultural Food Products Ltd [1955] 2QB 218 McRae v Coulton (1986) 7 NSWLR 644 New South Wales Bar Association v Muirhead (1998) 14 NSWLR 173 O’Reilly v Commissioners of State Bank of Victoria [1982] HCA 74; (1983) 153 CLR 1 R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10 Stephen Garrett for and on behalf of the Director-General, Department of Environment and Conservation (NSW) v Freeman [2006] NSWLEC 322. Stuckey v Iliff [1960] HCA 57; (1960) 105 CLR 164
PARTIES:	Stephen Garrett - Prosecutor/Respondent Geoffrey Noel Freeman - Defendant/Appellant
FILE NUMBER(S):	CCA 2006/1663
COUNSEL:	T A Game SC - Prosecutor/Respondent M G Craig QC with E Y Ozen - Defendant/Appellant
SOLICITORS:	Stephen Garrett, Solicitor, Department of Environment and Conservation - Prosecutor/Respondent Donovan Oates Hannaford - Defendant/Appellant
LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	LEC 05/50043; 05/50044
LOWER COURT JUDICIAL OFFICER:	Lloyd J
LOWER COURT DATE OF DECISION:	8 June 2006; 15 June 2006
LOWER COURT MEDIUM NEUTRAL CITATION:	[2006]NSWLEC 322; [2006]NSWLEC 334

- 1 -

CCA 2006/1663
LEC 05/50043
LEC 05/50044

McCOLL JA
GROVE J
JAMES J

Wednesday 6 September 2006

Stephen GARRETT v Geoffrey Noel FREEMAN

Judgment

1 McCOLL JA: I have had the benefit of reading in draft the judgment of James J. I agree with his Honour’s reasons and the orders he proposes. I would add the following observations concerning the question raised in the Stated Case concerning the commencement of the prosecutions.

2 Section 179 of the National Parks and Wildlife Act 1974 (the “Parks Act”) relevantly provides that “any legal proceedings for an offence against … this Act … may only be taken by a police officer or by a person duly authorised by the Director-General in that behalf, either generally or in any particular case.”

3 Lloyd J concluded that proceedings commenced by the respondent, “Stephen Garrett for and on behalf of the Director General of the Department of the Environment and Conservation” had been commenced by him in his own right: Stephen Garrett for and on behalf of the Director-General, Department of Environment and Conservation (NSW) v Freeman [2006] NSWLEC 322.

4 His Honour held (at [14]) that the proceedings had been commenced by the respondent because he concluded that the present case was relevantly indistinguishable from Stuckey v Iliff [1960] HCA 57; (1960) 105 CLR 164.

5 Stuckey v Iliff turned on whether proceedings had been commenced “in the name of the Commissioner” as required by s 244 of the Income Tax and Social Security Contribution Assessment Act 1936 (Cth) so as to be characterised as a “taxation prosecution” for the purposes of s 243 of that Act. The proceedings had been commenced by “Iliff, an officer of the Taxation Branch of the Department of the Treasury, in the name of and for and on behalf of the Deputy Commissioner of Taxation …”. Dixon CJ, McTiernan, Kitto, Menzies and Windeyer JJ concluded that in order to satisfy s 244 the information had to be in the Commissioner’s name whereas, on its face, it was in Iliff’s name. Applying that literal approach their Honours concluded that the complaint was Iliff’s and not the Commissioner’s. The Court did not expressly consider the significance of the phrase “for and on behalf of….”. It was concerned only with the question whether the proceedings had been commenced in the Commissioner’s name, not whether Iliff had brought the proceedings on behalf of the Commissioner.

6 The critical question in the present case is the capacity in which the respondent brought the proceedings. The Prosecutor in each summons was identified as:

“Stephen Garrett for and on behalf of the Director-General of the Department of the Environment and Conservation.”

7 Resolution of that question turns on the meaning of the phrase “for and on behalf of”. Words indicating something is done on behalf of another (per procurationem) are classic words of agency indicating that A (in this case the respondent) is acting on B’s (in this case the Director-General’s) behalf: London City Council v Agricultural Food Products Ltd [1955] 2QB 218 at 222 per Denning LJ; at 223–224 per Romer LJ; see also McRae v Coulton (1986) 7 NSWLR 644 at 663–666 per Hope JA (with whom Kirby P and McHugh JA agreed); O’Reilly v Commissioners of State Bank of Victoria [1982] HCA 74; (1983) 153 CLR 1 at 10-11 per Gibbs CJ (with whom Murphy J agreed).

8 It was common ground that it was the respondent (among others, but not including the Director-General) who had been authorised to commence prosecutions for breaches of the Parks Act. Section 179 required that he commence the proceedings in his own capacity as a person so authorised. Instead he commenced them as agent for the Director-General. That did not comply with s 179. Accordingly, Lloyd J erred in concluding (at [15]) that the proceedings had been brought by a person duly authorised by the Director-General in that behalf and, further, (at [16]) in concluding that the words “for and on behalf of the Director-General of the Department of the Environment and Conservation” were mere surplusage. They were not. They indicated the capacity in which the respondent had commenced the prosecutions.

9 I agree with Lloyd J, however, that the defect thus exposed was capable of cure pursuant to s 16(2) of the Criminal Procedure Act 1986. Subject to the decision in R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10, to which I will shortly come, Crothers v Sheil [1933] HCA 42; (1933) 49 CLR 399 was authority for the proposition that s 16(2) applied in the present circumstances.

10 A critical distinction between R v Janceski and this case, in my view, was that the defect at issue in that case did not fall within either s 16 or s 17 of the Criminal Procedure Act: see R v Janceski (at [79]) per Spigelman CJ (with whom Woods CJ at CL (at [173]) agreed, adding (at [206]) his agreement with the proposition that s 16 could not be called in aid to cure the defect in the indictment; see also Howie J (at [273]), with whom Hunt AJA (at [212]) agreed; Johnson J agreeing with Howie J (at [287]). That situation was remedied after Janceski by the insertion of subs (1)(i) in s 16.

11 It is, accordingly, inapposite, for the appellant to seek to pray in aid Spigelman CJ’s observation (R v Janceski at [90]) that: “the criminal law is one of the last areas of the law in which a technical point is still a good point.” That observation must be understood to be subject to the historic availability of provisions such as that now enshrined in s 16 of the Criminal Procedure Act, intended to ensure that defects to which it applies do not invalidate criminal proceedings or convictions. This legislation, as James J has said, derives from Lord Jervis’ Act, the history of which was traced by Jordan CJ in Ex parte Lovell; re Buckley (1938) 38 SR (NSW) 153 at 167 ff.

12 Lord Jervis’ Act was, as Jordan CJ pointed out (at 170) adopted in New South Wales in 1850. The purpose of Lord Jervis’ Act was to render summary convictions “less open to attack” in circumstances where “large numbers of delinquents escaped punishment upon grounds some of which were highly technical.” (Lovell at 167; see also Boral Gas (NSW) Pty Ltd v Magill & Anor (1993) 32 NSWLR 501 at 515–518 per Mahoney JA).

13 Section 16 operated, accordingly to allow the proceedings to continue notwithstanding the defect in their commencement and be disposed of on their merits: Boral Gas(NSW) Pty Ltd v Magill & Anor (at 517); Corporate Affairs Commission v Bain (1991) 55 A Crim R 73 at 78.

14 GROVE J: I have had the advantage of reading the judgment of James J in draft form.

15 At the hearing there was, as his Honour has noted, agreement between the contesting parties that s 179 of the National Parks and Wildlife Act 1974 providing that legal proceedings for an offence against the Act “may only be taken by a police officer or by a person duly authorized by the Director-General (of the Department of Environment and Conservation) in that behalf, either generally or in any particular case” be construed so that, while there was no limit on the range of persons who could be authorized, the Director-General could not institute proceedings herself. Whether that exclusion could be overcome by the Director-General solemnly authorizing herself does not need to be addressed.

16 Resort to dictionaries reveals that the word “behalf” has etymological roots in notions of division or share such as in old expressions like “on his halve”. On one view, “in that behalf” may connote delegation of a shared (halved) power, therefore a power by necessary implication vested in the delegator. I wish simply to record a reservation about the assumption of the correctness of the concession concerning the exclusion of the Director-General.

17 In the present instance, as James J has pointed out, the respondent proclaimed his institution of proceedings to be “for and on behalf” of the Director-General which are words of agency. The clear purpose of the proclamation was that the respondent was agent for the sole person who was conceded for the purposes of the case stated to be incapable of instituting proceedings.

18 In the light of the practical consequences of the answers which his Honour has proposed to questions 5, 6 and 7, answers to questions 2, 3 and 4 may not be required to resolve the issues in the prosecution, but in the circumstances and acting upon the agreed construction which was not debated, I do not dissent from his analysis and reasons.

19 I agree with the answers which James J has proposed to the questions asked in the case stated.

20 JAMES J: This is a case stated by his Honour Justice Lloyd of the Land and Environment Court pursuant to s 5AE of the Criminal Appeal Act 1912 submitting a number of questions of law to this Court for determination by it.

21 Two prosecutions commenced by summons were brought in the Land and Environment Court as being within Class 5 of that Court’s jurisdiction (proceedings number 50043 of 2005 and 50044 of 2005).

22 The defendant to both summonses was Mr Geoffrey Noel Freeman, who is the appellant in this Court. At all relevant times Mr Freeman was an employee of the Port Macquarie-Hastings Council.

23 Before the summonses were amended pursuant to leave granted by Lloyd J on 8 June 2006 the prosecutor was identified in each summons as “Stephen Garrett for and on behalf of the Director-General of the Department of Environment and Conservation”. In this appeal Mr Garrett is identified as being the respondent.

24 Each prosecution was based on ss 118D and 175B of the National Parks and Wildlife Act 1974.

25 Section 118D of the National Parks and Wildlife Act provides, so far as is relevant, that a person must not do anything that causes danger to any habitat (other than a critical habitat) of a threatened species if the person knows that the land concerned is habitat of that kind. In proceedings number 50043 of 2005 the threatened species was identified as the eastern chestnut mouse. In proceedings number 50044 of 2005 the threatened species was identified as the grass owl. In each summons it was alleged that the Council had caused damage to the habitat of the threatened species by undertaking the construction of road works, knowing that the land concerned was habitat for the species.

26 Section 175B of the National Parks and Wildlife Act provides, so far as is relevant, that, if any corporation contravenes any provision of the Act, each person who is concerned in the management of the corporation is taken to have contravened the same provision, unless the person can satisfy the court of one or more of certain matters. None of these matters are relevant to the present appeal.

27 In each summons it was alleged that the appellant had committed an offence against s 118D by reason of s 175B of the National Parks and Wildlife Act, in that the Council being a corporation had committed an offence against s 118D of the Act and the appellant had been concerned in the management of the Council.

28 The appellant pleaded not guilty to both of the charges. Similar charges based on s 118D of the Act had also been brought against the Council, which pleaded guilty to the charges.

29 The hearing of the charges against the appellant took place before Lloyd J in June 2006.

30 At the hearing it was submitted on behalf of the appellant that the proceedings were defective, because they had been taken otherwise than in accordance with the requirements of the National Parks and Wildlife Act and in particular s 179. Section 179 of the Act provides, so far as is relevant, that any legal proceedings for an offence against the Act “may only be taken by a police officer or by a person duly authorised by the Director-General (of National Parks and Wildlife) in that behalf, either generally or in any particular case”. It was submitted that on the proper interpretation of s 179 proceedings for an offence against the Act can be taken only by a police officer or by a person authorised by the Director-General and cannot be taken by the Director-General herself. However, it was submitted, both of the proceedings had been taken by the Director-General and not by Mr Garrett.

31 Lloyd J delivered a judgment dated 8 June 2006, which is annexed to the stated case. In his judgment Lloyd J held that each of the proceedings had been taken by Mr Garrett and not the Director-General and that the words in the description of the prosecutor in each summons “for and on behalf of the Director-General of the Department of Environment and Conservation” were mere surplusage. It will be necessary to refer to Lloyd J’s judgment of 8 June 2006 in more detail later in this judgment.

32 At the hearing in the Land and Environment Court the prosecutor made two applications concerning the description of the prosecutor in the summonses, namely:-

1. That the provisions of s 16(2) of the Criminal Procedure Act 1986 should be applied in favour of the prosecutor.

2. That leave should be granted to the prosecutor to amend the summonses pursuant to Pt 20 of the Supreme Court Rules 1970 by deleting from the description of the prosecutor the words “for and on behalf of the Director-General of the Department of Environment and Conservation”.

33 Section 16(2) of the Criminal Procedure Act is one of the many statutory provisions derived from the original imperial enactment known as “Lord Jervis’ Act”. It provides that no objection may be taken or allowed to any indictment by which criminal proceedings are commenced “on the grounds of any alleged defect in it in substance or in form”.

34 It has been common ground between the parties before Lloyd J and on this appeal that, by virtue of s 15 of the Criminal Procedure Act, s 16(2) of that Act applied to the proceedings in the Land and Environment Court, the word “indictment” in s 16(2) being read as a reference to each of the summonses.

35 Lloyd J decided that, if he was wrong in holding that the words in the description of the prosecutor in each summons “for and on behalf of the Director-General of the Department of Environment and Conservation” were mere surplusage, then the presence of those words was a defect falling within s 16(2) of the Criminal Procedure Act and was cured by s 16(2).

36 Lloyd J also decided that leave should be granted to the prosecutor to amend the summonses pursuant to Pt 20 r 4(3) of the Supreme Court Rules by deleting the words “for and on behalf of the Director-General of the Department of Environment and Conservation”. It has been common ground between the parties that Part 20 of the Supreme Court Rules was applicable to the proceedings in the Land and Environment Court.

37 After the prosecutor had closed the prosecution case at the hearing before Lloyd J, it was submitted on behalf of Mr Freeman that there was no case to answer in either proceeding. This submission was based on s 731 of the Local Government Act 1993 which provides:-

“A matter or thing done by the Minister, the Director-General, a council, a councillor, a member of a committee of the council or an employee of the council or any person acting under the direction of the Minister, the Director-General, the council or a committee of the council does not, if the matter or thing was done in good faith for the purpose of executing this or any other Act, and for and on behalf of the Minister, the Director-General, the council or a committee of the council, subject a councillor, a member, an employee or a person so acting personally to any action, liability, claim or demand.”

38 At the hearing of the appeal counsel for the appellant isolated the words in the section which he submitted were relevant as being:-

“A matter or thing done by…an employee of the council…does not, if the matter or thing was done in good faith for the purpose of executing this or any other Act and for and on behalf of…the council… subject…an employee…to any action liability claim or demand”.

39 Lloyd J found that what the appellant had done had been done by him as an employee of the Council, had been done in good faith for the purpose of executing the Local Government Act and for and on behalf of the Council. The only matter in issue was whether s 731 extended to criminal prosecutions, so that an employee of a council, if the conditions for the operation of the section were otherwise satisfied, would not be subjected to any criminal liability.

40 In a judgment dated 15 June 2006, which is annexed to the stated case, Lloyd J concluded that the exemption from liability in s 731 of the Act did not extend to criminal prosecutions.

41 In the case stated by Lloyd J the appellant’s contentions are stated as being:-

“The appellant contends that I have erred in law in the interpretation of:-
a) s 731 of the Local Government Act ,
b) s 179 of the National Parks and Wildlife Act ,
c) s 16(2) of the Criminal Procedure Act , and

d) Part 20 Rule 4 of the incorporated Supreme Court Rules .”

42 In the stated case the contentions by the respondent are stated as being that the various decisions made by Lloyd J were correct for the reasons given by his Honour. It is also contended that an additional reason why Lloyd J’s decision of 15 June 2006 should be regarded as being correct is that it is in conformity with New South Wales Bar Association v Muirhead (1998) 14 NSWLR 173 per Kirby P at 195 D-E, Hope JA agreeing at 198.

43 In the stated case the questions submitted to this Court for determination are stated as being:-

1. Did I err in law in holding that s 731 of the Local Government Act does not apply to criminal prosecutions?
2. Did I err in law in finding that the proceedings were in each case taken by the respondent rather than by the Director-General of the Department of Environment and Conservation?
3. Did I err in law in finding that the proceedings were in each case properly taken by the respondent for the purposes of s 179 National Parks and Wildlife Act?
4. Did I err in law in finding that the words in the name of the prosecutor in the summonses, “for and on behalf of the Director-General of the Department of Environment and Conservation”, were mere surplusage?
5. Did I err in law in finding that the inclusion of the words “for and on behalf of the Director-General of the Department of Environment and Conservation” in each of the summonses was governed by s 16(2) of the Criminal Procedure Act?
6. Did I err in law in finding that there was a mistake in the name of the party in the summonses for the purposes of Part 20 Rule 4(3) of the incorporated Supreme Court Rules?
7. Did I err in law in permitting the second further amendment to each of the summonses?

44 I will deal with each of the questions in turn.

1. Did I err in law in holding that s 731 of the Local Government Act does not apply to criminal prosecutions?

45 I have already set out earlier in this judgment the full terms of s 731 of the Local Government Act and also those of its terms which were isolated by counsel for the appellant as being the relevant terms in the present appeal. It is convenient to repeat the terms of s 731 which were isolated by counsel for the appellant, as follows:-

“A matter or thing done by…an employee of the council…does not, if the matter or thing was done in good faith for the purpose of executing this or any other Act and for and on behalf of…the council…subject…an employee…to any action liability claim or demand”.

46 On this appeal there was no dispute that each matter or thing done by the appellant, who was an employee of the Council, was done by him in good faith for the purpose of executing the Local Government Act and for and on behalf of the Council. The only issue is whether s 731 protects the appellant from being subjected to criminal liability. It was accepted by counsel for the appellant that, of the collection of words “action, liability, claim or demand” in s 731, only the word “liability” could be apt to include criminal liability.

47 In his judgment of 15 June 2006 Lloyd J held that an exemption from liability provision such as s 731 is to be strictly construed, citing Board of Fire Commissioners (NSW) v Ardouin [1961] HCA 71; (1961) 109 CLR 105 especially per Kitto J at 116 and Bankstown City Council v Alamdo Holdings Pty Ltd (2004) 135 LGERA 312 per Spigelman CJ at 321 (33-34). Lloyd J observed that Alamdo Holdings had been reversed by the High Court ((2005) 79 ALJR 1511) but the principle of construction stated by Spigelman CJ in the Court of Appeal had remained undisturbed.

48 Lloyd J concluded at par 22 of his judgment:-

“In applying the principles referred to in the Court of Appeal and in the High Court in Alamdo Holdings — that is, to give the exemption from liability provision the most strict interpretation its words demand, and by having regard to the scope and purpose of the section — I conclude that it does not offer protection from criminal prosecution. If an employee of a council commits a criminal offence which applies to all citizens generally, then any subsequent criminal prosecution is not an “action, liability, claim or demand” within the meaning of s 731 of the Act.”

49 Lloyd J also considered that the language used in s 731 was the language of civil actions and not criminal proceedings.

50 It was submitted by counsel for the appellant on this appeal that the word “liability” in s 731 had to be interpreted in context and that the context included, not merely the other terms of s 731, but the rest of the Local Government Act.

51 It was submitted that in a number of other sections of the Local Government Act the legislature has expressly provided that the sections are to be limited in their operation to “civil” proceedings or, conversely, that the sections are to be limited in their operation to “criminal” proceedings. Counsel referred to ss 8(2), 439(2), 440(8), 647(5) and 679(5) and to ss 440C, 440D and 440E. Counsel pointed out that in s 731 the legislature had not expressly limited the operation of the section to civil proceedings.

52 Attention was drawn by counsel for the appellant to the apparent width of the words in s 731, “any action, liability, claim or demand”. Counsel pointed to the difference in language between those words in s 731 and the different collections of words used in certain other sections of the Act, for example in s 679(5) where the words used are “any civil claim, action or proceeding”.

53 It was submitted on behalf of the appellant that Alamdo Holdings was of little assistance in the present case because it was concerned with the interpretation of s 733 of the Act, which has a different context from s 731, and in Alamdo Holdings in the High Court Gleeson CJ, Gummow J, Hayne J and Callinan J had stressed at par 36 of their joint judgment “the importance which must be attached to context indicates the caution with which there must be approached holdings in cases upon statutes with a different subject, scope and purpose to that of s 733”.

54 Counsel for the appellant submitted that the liability, if any, of the appellant was a derivative liability, the Council itself being the principal offender, and that s 731, on the interpretation urged by counsel for the appellant, would strike an appropriate balance between the various competing interests, by exempting from liability, including criminal liability, any person acting in a derivative capacity, provided that the other conditions in the section were satisfied, while not affecting the liability of the principal offender, the council.

55 Counsel also referred to s 353A (1A) of the Crimes Act 1900 (since repealed) as an example of a statutory provision where the words “action, liability, claim or demand” could not be read down so that the word “liability” only applied to civil liability.

56 Counsel for the respondent accepted that the word “liability” is capable of referring to criminal liability, as well as civil liability. However, it was submitted that the other words with which the word “liability” occurs in s 731, namely “action”, “claim” and “demand” are words which are inapt to refer to criminal proceedings and hence the immediate context in s 731 would suggest that “liability” in s 731 does not extend to criminal liability.

57 It was submitted by counsel for the respondent that the other sections of the Local Government Act to which counsel for the appellant had referred the Court were in such different contexts as not to provide any assistance in interpreting s 731.

58 Reliance was placed by counsel for the respondent on the principle of construction of statutory provisions exempting from liability, which had been referred to by Lloyd J, and to what, it was submitted, would be the far-reaching consequences of interpreting s 731 so as to protect councillors, members of committees, employees of councils and other persons acting under direction, from any kind of criminal liability.

59 Counsel for the respondent referred to Fowler v Taylor [1957] VR 593 (Dean J) and New South Wales Bar Association v Muirhead as supporting the respondent’s submissions.

60 I will now proceed to consider the submissions made by counsel.

61 I accept that s 731 of the Local Government Act must be interpreted in its context (Alamdo Holdings at [36]).

62 The immediate context of the word “liability” in s 731 is that it is joined with the words “action”, “claim” and “demand” and, as was submitted by counsel for the respondent and not disputed by counsel for the appellant, none of those other words would be apt to refer to criminal proceedings or to criminal charges. Hence, the immediate context of the word “liability” tends to favour the respondent.

63 I accept the submission by counsel for the appellant that, apart from the general statements of principle about the interpretation of statutory provisions conferring exemptions from liability, the judgments of the Court of Appeal and of the High Court in Alamdo Holdings, which concerned s 733 of the Local Government Act, are of little assistance.

64 Section 733 of the Local Government Act provides that a council does not incur any liability in respect of any advice furnished in good faith by a council relating to the likelihood of any land being flooded or the nature or extent of any flooding or any thing done or omitted to be done in good faith by the council insofar as it relates to the likelihood of land being flooded or the nature or extent of any such flooding.

65 One issue in Alamdo Holdings, which was ultimately resolved in favour of the Council, was whether the Council had acted in good faith.

66 Another issue, which was also ultimately resolved in favour of the Council by the High Court, overruling the Court of Appeal, was whether s 733 protected the council from liability to injunctive relief. The High Court held that the need of a council for protection against injunctive relief, which might require substantial expenditure of funds to comply with the injunctive relief, was no less than if a court, in lieu of injunctive relief, had awarded damages in a similar substantial sum.

67 I do not consider that the other sections of the Local Government Act to which this Court and Lloyd J were referred by counsel for Mr Freeman offer any assistance in interpreting s 731.

68 The Local Government Act is an extremely long Act containing over 700 sections and the other sections of the Act to which counsel referred occur in different chapters of the Act from s 731 and deal with quite different subject matters and in each case it is obvious why the legal proceedings referred to are limited to either civil proceedings or criminal proceedings.

69 Section 8 of the Act sets out “a charter” a council has and then in sub-s (2) provides that a council in the exercise of its functions must pursue its charter but that nothing in the charter or in s 8 gives rise to, or can be taken into account in, any civil cause of action. The obvious intention of sub-s (2) is to prevent a failure by a council to observe its charter grounding a civil cause of action against the council or being taken into account in a civil cause of action against the council.

70 Sections 439 and 440 occur in chapter 14 of the Act which is headed ”Honesty and disclosure of interests”. Section 439 requires members of a council and others to act honestly and exercise a reasonable degree of care and diligence in carrying out their functions. Sub-section (2) provides that nothing in s 439 gives rise to, or can be taken into account in, any civil cause of action. Section 440 provides that regulations under the Act may prescribe a model code of conduct for members of councils and others. Sub-section (8) provides that nothing in s 440 or in a code gives rise to, or can be taken into account in, any civil cause of action. The obvious intention of s 439(2) and s 440(8) is to prevent any contravention of s 439 or of a code grounding a civil cause of action or being taken into account in a civil cause of action, while at the same time preserving any criminal liability.

71 Section 647(5) occurs in chapter 16 of the Act which is headed “Offences” and section 679(5) occurs in chapter 17 of the Act which is headed “Enforcement”. Both provisions state that payment of a penalty notice for an offence is not to be regarded as an admission of liability for the purpose of, and does not affect or prejudice, any civil claim, action or proceeding arising out of the same occurrence. Payment of a penalty notice obviously can be regarded as an admission of the criminal liability involved in the commission of the offence in respect of which the notice issued.

72 Sections 440C, 440D and 440E are in Division 2 of Part 1 of chapter 14 of the Act, which is headed “Serious corrupt conduct”. Sections 440C and 440D confer a power on the Minister or the general manager of a council to suspend certain persons from office or duty “if criminal proceedings for serious corrupt conduct are instituted against the person” (s 440C (1)(b) and s 440D (1)(b)). It is obvious that the legislative intention is that the drastic power of suspension should be limited to cases where criminal proceedings have been instituted for serious corrupt conduct.

73 Section 353A of the Crimes Act was a provision of a different Act dealing with a quite different subject matter.

74 Section 353A of the Crimes Act conferred a power to search any person who was in lawful custody on a charge of committing an offence. The power was conferred on any constable of police and, where a person in custody was a female and no female constable was available to conduct the search, any female acting under and in accordance with the request of a constable (sub-s (1)(b)).

75 Sub-section (1A) provided that a search conducted by a person in accordance with sub-s (1)(b) did not, “if the search would be lawful if conducted by a constable”, subject the person making the search to any action, liability, claim or demand “whatever”.

76 It may well be that s 353(1A) gave protection against criminal liability. However, it was to be interpreted in its own specific context. The person making the search was protected, only if the search would have been lawful if conducted by a constable and the emphatic word “whatever” occurred after the words action, liability, claim or demand.

77 Section 731 is a statutory provision conferring an exemption from liability. In Alamdo Spigelman CJ, in a passage in the Chief Justice’s judgment which is not affected by anything said in the High Court judgments, after referring to Board of Fire Commissioners (NSW) v Ardouin, in which Kitto J said at 116 that “the protective nature of the provision (protecting the Board from liability) is such that a most strict interpretation of its words is plainly demanded”, said at 321 (34):-

“Since Ardouin exemption from liability provisions have often been strictly, even jealously, construed”.

78 The adoption of such an approach in the interpretation of s 731 favours a conclusion that the word “liability” in s 731 does not include criminal liability.

79 As was said in the joint judgment in the High Court in Alamdo Holdings (at par 29), general statements calling for a narrow reading of immunity provisions do not provide a substitute for a consideration of the subject, scope and purpose of a statutory text. In the present case it seems to me that a consideration of the subject, scope and purpose of s 731 favours the same conclusion as would be favoured by the general statements of statutory interpretation, that s 731 does not confer an immunity from criminal liability. As was submitted by counsel for the respondent, it would be surprising if all of the many persons who are protected by s 731 were to be exempted from all forms of criminal liability.

80 Before Lloyd J counsel for Mr Freeman offered as an example of a case where there would be an injustice, if s 731 was not interpreted as extending to criminal liability, the case of an employee of a council hurrying in a vehicle to a bushfire for the purpose of controlling the fire and exceeding the speed limit.

81 In his judgment of 15 June 2006 Lloyd J responded to this example by saying:-

“But what would happen if in doing so the employee caused the death of a pedestrian or the occupant of another vehicle? It could not be suggested in such an event that the employee would be immune from prosecution for an offence of culpable driving causing death. The circumstances may be a mitigating factor on the question of sentence, but I cannot see any policy reason providing an exemption from liability or immunity from prosecution in such circumstances.”

82 In my opinion, there is considerable force in this response by Lloyd J to the example given by counsel for the appellant.

83 Counsel for the respondent referred to Fowler v Taylor and New South Wales Bar Association v Muirhead.

84 In Fowler v Taylor, a health officer employed by a shire council was convicted for an assault which the informant alleged the officer had committed by pushing her aside to enter a house which the officer desired to inspect in the course of his duty. Dean J of the Victorian Supreme Court held that an officer exercising a power of entry conferred by a section of the Victorian Health Act 1928 was entitled to use reasonable force to enter premises and was not guilty of assault, if he used no more force than was reasonably necessary to gain admittance.

85 The officer also sought to rely on s 392 of the Health Act which provided, so far as is relevant:-

“No matter or thing done…by any officer of any council…acting under the…authority of…any council shall (if a matter or thing was done…bona fide for the purpose of executing this Act) subject…any of them personally to any action liability claim or demand whatsoever”.

86 At p 595 Dean J said:-

“But I do not think the protection afforded by s392 of the Health Act 1928 extends to criminal responsibility. The word "liability" is found in association with the words "action claim or demand", all of which relate to civil liability. This colours the sense in which the word "liability" is used in the section, upon the principle expressed in the maxim noscitur a sociis. Further, I think if the section had been intended to give protection from criminal responsibility, it would have been clearly so stated. Again, I can find no case in which the section has been invoked for this purpose. I therefore think s392 affords no answer to a charge of assault even when committed bona fide in the execution of the Act.”

87 Counsel for the appellant criticised Dean J’s judgment in Fowler v Taylor on the grounds that Dean J had had regard only to the immediate context of the word “liability” in s 392 of the Health Act. However, in my opinion Fowler v Taylor, which is a judgment on the meaning of the word “liability” in the same collection of words as in the present case, that is “action, liability, claim or demand” assists the respondent.

88 In New South Wales Bar Association v Muirhead the New South Wales Bar Association took proceedings for contempt of court against a Senior Commissioner of the Compensation Court.

89 In his judgment Kirby P referred to s 247 of the Workers Compensation Act 1987 which provided:-

“247. No matter or thing done by a commissioner in the exercise of any of the commissioner's functions shall, if the matter or thing was done in good faith, subject the commissioner personally to any action, liability, claim or demand.”

90 At p 195 Kirby P said:-

“Certainly, the protection from liability in s 247 is limited to matters or things done “in good faith”. It is also limited to liability to “any action, liability, claim or demand”. At the least, the summons for relief in respect of alleged contempt of court would not fall within the protection of that section, any more than other criminal conduct would. The section is designed to provide protection from civil suits and then only in respect of conduct done “in the exercise of any of the commissioner's functions”. To the extent that the senior commissioner was shown to have exceeded those functions, as the claimant's summons suggests, s 247 would have no protective application.”

91 Hope JA delivered a short separate judgment in which, after dealing with other matters, Hope JA said that he otherwise agreed with Kirby P. Mahoney JA, the other member of the Court, delivered a separate judgment in which he did not deal with the interpretation of s 247.

92 What Kirby P said in Muirhead was obiter and was said by his Honour in a different context. However, it provides some support for the respondent.

93 In my opinion, for the reasons I have given, s 731 of the Local Government Act should be interpreted as not applying to confer protection against criminal liability and question 1 in the stated case should be answered “no”.

2. Did I err in law in finding that the proceedings were in each case taken by the respondent rather than by the Director-General of the Department of Environment and Conservation?

3. Did I err in law in finding that the proceedings were in each case properly taken by the respondent for the purposes of s 179 National Parks and Wildlife Act?

4. Did I err in law in finding that the words in the name of the prosecutor in the summonses, “for and on behalf of the Director-General of the Department of Environment and Conservation”, were mere surplusage?

94 These three questions are closely interrelated and can conveniently be considered together.

95 Earlier in this judgment I referred to s 179 of the National Parks and Wildlife Act, which provides that any legal proceedings for an offence against the Act “may only be taken by a police officer or by a person duly authorised by the Director-General in that behalf”. I also referred to some submissions made by counsel to Lloyd J concerning the interpretation of s 179 and to Lloyd J’s conclusion in his judgment of 8 June 2006 that each of the legal proceedings had been taken by Mr Garrett as the prosecutor and that the words in each summons “for and on behalf of the Director-General of the Department of Environment and Conservation” were mere surplusage.

96 On this appeal counsel for the appellant repeated the submissions which had been made before Lloyd J, that, on the proper interpretation of s 179, legal proceedings for an offence against the Act may be taken only by a police officer or by a person authorised by the Director-General and cannot be taken by the Director-General herself. These submissions were not disputed by counsel for the respondent.

97 It was then submitted by counsel for the appellant that the words “for and on behalf of”, occurring in the description of the prosecutor in each summons before the amendments made pursuant to the leave granted on 8 June 2006, were words of agency, so that the prosecutor in each summons was, not Mr Garrett, but his principal the Director-General and, accordingly, the proceedings had not been taken in accordance with s 179.

98 It was submitted by counsel for the appellant that a conclusion that the proceedings had not been properly taken was supported by the decision of Hemmings J in Fairfield City Council v Colorpak Products (NSW) Pty Ltd (1988) 78 LGERA 144.

99 Insofar as might be objected that such a conclusion would be unduly technical, counsel referred to the judgment of Spigelman CJ in R v Janceski (2005) 64 NSWLR 10, in which his Honour said inter alia at 29 (95):-

“…courts have always insisted on punctilious compliance with legal formalities which have any substantive purpose, before the State imposes the stigma of a criminal conviction on any citizen”.

100 Counsel for the appellant submitted that the decision of the High Court in Stuckey v Iliff (1960) 105 CLR 164, on which Lloyd J had relied and on which counsel for the respondent continued to rely, was distinguishable.

101 On this appeal counsel for the respondent submitted that Lloyd J had been correct in finding that the proceedings had been taken by Mr Garrett and not by the Director-General. It was submitted that the words “for and on behalf of the Director-General”, which appeared in the summonses before they were amended, were not words of agency but words intended to demonstrate Mr Garrett’s authority to bring the proceedings, that is that he was a person who had been authorised by the Director-General to bring the proceedings.

102 Counsel for the respondent submitted that Colorpak was distinguishable and that the decision of the High Court in Stuckey v Iliff supported the respondent.

103 I will now proceed to consider the submissions made by counsel.

104 I accept the submission by counsel for the respondent that the decision of Hemmings J in Colorpak is distinguishable from the present case.

105 Colorpak concerned s 33 of the Clean Waters Act 1970 (since repealed). Section 33 provided that the consent of the responsible Minister or of a member or officer of the State Pollution Control Commission was required for the institution of proceedings for the prosecution of an offence under the Act, unless the proceedings were instituted “by a servant of the council with the consent of either the council of an authorised member of servant of it”. Hemmings J held that s 33 did not authorise the institution of proceedings, without the consent of the Minister or a member or officer of the Commission, by the council itself, as distinct from a servant of the council acting with the consent of the council.

106 Hemmings J’s decision would lend some support to s 179 of the National Parks and Wildlife Act being interpreted so that proceedings within s 179 can only be taken by a person authorised by the Director-General and not by the Director-General herself. However, it is common ground between the appellant and the respondent that this is the proper interpretation of s 179. No issue corresponding to questions 2, 3 and 4 in the stated case arose in Colorpak, because it was not disputed in Colorpak that the prosecutor was the Fairfield City Council.

107 In Stuckey v Iliff a prosecution had been brought under s 251L of the Income Tax and Social Security Contribution Assessment Act 1936, which prohibited a person demanding a fee for the preparation of an income tax return, if he was not a registered tax agent.

108 Under s 243 of the Act the prosecutor could rely on an averment in the complaint commencing the prosecution as prima facie evidence of a matter averred, if the prosecution was a “taxation prosecution” within certain sections of the Act. That in turn depended on whether the prosecution had been instituted by an officer of the Department “in the name of the Commissioner” within s 244 of the Act. The complaint had been drawn as one by a named officer of the Department of Taxation (Mr Iliff) “in the name of and for and on behalf of the Deputy Commissioner of Taxation”.

109 In Stuckey v Iliff the High Court held that the complaint was not a complaint “in the name of the Commissioner” within s 244 of the Act and hence the prosecution was not a “taxation prosecution” and, consequently, s 243 of the Act was not applicable to the prosecution.

110 In the present case Lloyd J held that Stuckey v Iliff was an authority that a criminal proceeding commenced by an originating document in which the prosecutor is described as a named individual “for and on behalf of” an official or a body is a criminal prosecution by the named individual and not by the official or the body.

111 In Stuckey v Iliff, Dixon CJ, McTiernan J, Kitto J, Menzies J and Windeyer J in their joint judgment, after referring to a number of sections of the Act, said:-

“The difficulty, however, is that the actual information in the present case was laid by the respondent Iliff and not by a Commissioner or Deputy Commissioner. S 244 provides that where any taxation prosecution has been instituted by an officer in the name of the Commissioner the prosecution shall, unless the contrary is proved, be deemed to have been instituted by the authority of the Commissioner or Deputy Commissioner, as the case may be. With an evident intention of complying with this provision the complaint was drawn as a complaint of Iliff, an officer of the Taxation Branch of the Department of the Treasury, in the name of and for and on behalf of the Deputy Commissioner of Taxation under the Income Tax and Social Services Contribution Assessment Act 1936–1959 for the State of Queensland. But does this comply with the provisions so as to bring the complaint within s 233 and s 243? It is Iliff's complaint. When he says that he makes it in the name of the Deputy Commissioner he must mean that he makes it for him. For a mere inspection of the complaint shows that it is not in the name of the Commissioner. Apparently the formula "in the name of and for and on behalf of" is used simply to mean "on behalf of". At all events it is not in his name. Indeed the proceedings have been headed as between the appellant Stuckey and the respondent Iliff. Unfortunately the form adopted does not comply with s 244(1). It becomes the complaint of the officer and not the complaint of the Commissioner or a Deputy Commissioner notwithstanding that such a complaint may be instituted by the officer under the authority of the Commissioner or Deputy Commissioner. The distinction may be regarded as refined and of little practical significance, but the effect is that, although the complaint states that it is a complaint in the name of and for and on behalf of the Deputy Commissioner, it is the complaint of Iliff and unfortunately, unless it falls within s 244, it cannot fall within s 243 because to fall within s 243 it must be a taxation prosecution, and to be a taxation prosecution it must fall within s 222. It follows that the complainant could not avail himself of the averment provisions of s 243 to support a complaint in the form which he adopted. Perhaps it may be the good fortune of the appellant but on the state of the record he is entitled to the dismissal of the complaint. Accordingly the appeal should be allowed and the conviction quashed. In lieu of the conviction the complaint should be dismissed.”

112 I have not found it an easy matter to assess the significance for the present appeal of this passage in the joint judgment in Stuckey v Iliff. There are a number of statements in the passage that the complaint (or information) should be regarded as having been made by Iliff and these statements might be capable of supporting Lloyd J’s view of the effect of Stuckey v Iliff. However, the conclusion I have ultimately come to is that Stuckey v Iliff should be regarded as simply a decision that the complaint in question had not been brought “in the name of the Commissioner” as required by s 244 of the Act and that the decision does not have the general significance attributed to it by Lloyd J.

113 In the present case, before the summonses were amended the prosecutor was described in each summons as “Stephen Garrett for and on behalf of the Director-General of the Department of Environment and Conservation”. I do not consider that the words “for and on behalf of the Director-General of the Department of Environment and Conservation” occurring in the description of the prosecutor can be discarded as mere surplusage. In my opinion, the natural interpretation of the words “for and on behalf of” is that they are words of agency and that the proceedings should be regarded as having been taken by Mr Garrett as an agent on behalf of a principal, the Director-General, and hence the proceeding should be regarded as having been taken by the Director-General. Consequently, I would answer questions 2, 3, and 4 of the stated case as follows:-

2. Yes.
3. Yes.
4. Yes.

5. Did I err in law in finding that the inclusion of the words “for and on behalf of the Director-General of the Department of Environment and Conservation” in each of the summonses was governed by s 16(2) of the Criminal Procedure Act?

114 Earlier in this judgment I noted that Lloyd J decided that, if he was wrong in holding that the words in the description of the prosecutor in each summons “for and on behalf of the Director-General of the Department of Environment and Conservation” were mere surplusage, then the presence of those words was a defect falling within s 16(2) of the Criminal Procedure Act (a Lord Jervis Act provision), which was applicable to the proceedings, and was cured by s 16(2). In his judgment Lloyd J referred to Crothers v Shiel (1933) 49 CLR 399 and Corporate Affairs Commission v Bain (1991) 55 A Crim R 73 as supporting this decision.

115 On this appeal counsel for the appellant submitted that, if the words in question were not mere surplusage, s 16(2) could not properly be applied. Counsel sought to distinguish Crothers v Shiel and Corporate Affairs Commission v Bain and sought to rely on the decision of the Court of Criminal Appeal in R v Janceski (2005) 64 NSWLR 10.

116 Counsel for the respondent submitted that Lloyd J had been correct in holding that the words in question were a defect falling within s 16(2), which could be cured by the operation of s 16(2).

117 It is clearly the case that some defects in an indictment or some other document by which criminal proceedings are commenced are incapable of being cured by a Lord Jervis Act provision. See for example ex parte Lovell, re Buckley (1938) 38 SR (NSW) 153 especially at 173-174.

118 However, in my opinion, the High Court decision of Crothers v Shiel is a strong authority that s 16(2) of the Criminal Procedure Act could properly be applied in the present case.

119 Crothers v Shiel concerned a prosecution under the Milk Act 1931 and the Lord Jervis Act provision was s 65 of the Justices Act 1902. Section 80 of the Milk Act provided that “any information complaint or other legal proceeding under this Act may be taken in the name of the Milk Board by the secretary or any other officer authorised by the Board in that behalf either generally or in any particular case”. The information in question was signed by Mr Crothers who was described in the information as “an officer in the service of the Milk Board duly authorised to prosecute herein”. In the proceedings Mr Crothers was described as being the informant and he was named as the prosecuting party.

120 The leading judgment in the High Court was given by Rich J, with whom Dixon J and McTiernan J agreed, and with whom Evatt J also agreed, apart from one, unrelated, aspect of the case.

121 In his judgment Rich J said at p 407:-

“It is true that the information does not comply with it (s 80) but I find it unnecessary to decide whether it is an exhaustive statement of the mode of prosecution. The appellant was the proper officer to lay the information on behalf of the Board and the information shows that he did so prosecute. Where the information fails to comply with s 80 is that the appellant exercised his authority in his own name and not in the name of his principal the Board. This, in my opinion, is a defect in the information, and is healed by s 65 of the Justices Act 1902. I cannot agree with Mr Watt’s contention that the information is not defective in substance or in form and that all that is wrong is that the informant had no locus standi. When s 80 of the Milk Act is looked at with the information what appears is that the right person had proceeded by an appropriate information and in the information has proceeded expressly on behalf of his principal but has drawn up the information in his own but not in his principal’s name. “

122 Accordingly, in Crothers v Shiel the proceedings were brought by an individual in his own name, and not in the name of his principal, who under the relevant legislation was the person in whose name the proceedings should have been brought, whereas, in the present case, on the interpretation I have put on the description of the prosecutor in the unamended summonses, the proceedings were brought by an individual on behalf of his principal when under the relevant legislation the proper person to bring the proceedings was the individual himself. Although the proper party to take proceedings was the Milk Board in Crothers v Shiel but Mr Garrett in the present case, similar reasoning to that employed by the High Court in Crothers v Shiel would strongly support a conclusion that the defect in the summonses was within the Lord Jervis Act provision and was capable of being cured by the operation of that provision.

123 On the hearing of the appeal little real attempt was made by counsel for the appellant to distinguish Crothers v Shiel.

124 In Corporate Affairs Commission v Bain, Bain had successfully defended four informations laid against him by the Corporate Affairs Commission. The seal of the Corporate Affairs Commission had been affixed to each information by Mr O’Dea, an authorised officer of the Commission.

125 After the informations had been dismissed, a Local Court Magistrate made an order that the Corporate Affairs Commission pay Mr Bain’s assessed costs. A notice of appeal to the District Court was lodged against the costs order. In the notice of appeal Mr O’Dea, and not the Commission, was identified as the appellant.

126 A submission was made to the District Court judge who heard the appeal that the appeal had not been brought by the proper appellant. The District Court judge hearing the appeal held that s 127 of the Justices Act (a Lord Jervis Act provision applying to appeals) was applicable to the appeal and should be applied in favour of the Corporate Affairs Commission.

127 The District Court judge stated a case for the Court of Criminal Appeal. The Court of Criminal Appeal held that an error had been made, in that Mr O’Dea had been identified as the appellant, but that the error was cured by s 127. In so holding the Court of Criminal Appeal referred to Crothers v Shiel.

128 In its judgment the Court of Criminal Appeal said of s 65 of the JusticesAct (the general Lord Jervis Act provision in the Justices Act):-

“There is much authority for the view that s 65 should be given a wide construction. Thus, in Ex parte McAuley;Re Cam, (1944) 44 SR (NSW) 258 at 259–60 Jordan CJ (with whom Halse-Rogers J concurred) said: “Section 65(1)(a) is a most valuable section, and it is important that it should not be whittled away by the allowance of objections to an information if they can be cured without causing injustice. As was pointed out by Griffith CJ in Hedberg v Woodhall (1913) 15 CLR 531 at 534–5 the section means that ‘if objections are taken which really do not go to the merits of the case the magistrate is not to stay his hand, but to proceed to dispose of the case on the merits’. If the defect is curable, it is the duty of the magistrate to aid in curing it.” See also Parmeter v Proctor (1949) 66 WN 48”

129 It was submitted on behalf of the appellant in the present case that Corporate Affairs Commission v Bain was distinguishable from the present case, in that the Corporate Affairs Commission was obviously the proper party to appeal and had resolved to appeal against the costs order and the Court of Criminal Appeal referred to the error which had occurred as being in the nature of a “clerical error”.

130 I would accept that Corporate Affairs Commission v Bain is not as strong an authority in favour of the respondent as Crothers v Shiel but, nevertheless, I consider that it lends some support to the respondent.

131 Counsel for the appellant sought to rely on the decision of the Court of Criminal Appeal in R v Janceski.

132 In Janceski the indictment which had been presented at a trial had been signed by a barrister at the private bar who was not authorised to do so pursuant to s 126 of the Criminal Procedure Act. Section 126 of the Criminal Procedure Act provides that an indictment shall be signed by the Attorney General, the Solicitor General or the Director of Public Prosecutions or for and on behalf of the Attorney General or the Director of Public Prosecutions by a Crown prosecutor, a Deputy Director of Public Prosecutions or a person authorised by the Director of Public Prosecutions to sign indictments for and on behalf of the Director. It was held by the Court of Criminal Appeal that the indictment was invalid because it had not been signed by an authorised person.

133 The Court of Criminal Appeal in R v Janceski was constituted by a bench of five judges. All of the five judges agreed in the result. The Chief Justice delivered a long judgment, in par 96 and 97 of which he indicated concurrence with part of Howie J’s judgment. Wood CJ at CL delivered a judgment in which his Honour said that he agreed with both the Chief Justice and Howie J. Howie J delivered a judgment with which Hunt AJA and Johnson J agreed.

134 The reasoning in the judgments in Janceski is intricate and I do not propose to endeavour to summarise all of the reasoning. However, important grounds for the decision included:-

1. An indictment is the instrument by which the jurisdiction of a court to try an accused person is invoked (see for example Spigelman CJ at 22 (54), Wood CJ at CL at 40 (205), Howie J at 54 (271)). For a court’s jurisdiction to be invoked it is essential for an indictment be a valid indictment. An indictment which has not been signed by a person authorised by s 126 is not a valid indictment.

2. There was an important substantive purpose in maintaining strict compliance with s 126, that is of ensuring that the Director of Public Prosecutions, subject only to the Attorney General’s power, would be in control of the process of instituting criminal proceedings and that that would be manifest to all parties to the proceedings (see for example Spigelman CJ at 29 (97), Howie J at 54 (272)).

135 As regards the first ground in the present case the summonses by which the proceedings were commenced were sufficient to invoke the jurisdiction of the Land and Environment Court, even though that Court, acting in the exercise of its jurisdiction, might decide that the proceedings had been brought by the wrong prosecutor.

136 As regards the second ground, there is no such important substantive purpose in refraining from applying s 16(2) of the Criminal Procedure Act in the present proceedings.

137 I consider that question 5 in the stated case should be answered “no”.

6. Did I err in law in finding that there was a mistake in the name of the party in the summonses for the purposes of Part 20 Rule 4(3) of the incorporated Supreme Court Rules?

7. Did I err in law in permitting the second further amendment to each of the summonses?

138 These questions were dealt with together in counsel’s submissions and it is convenient to deal with them together.

139 Earlier in this judgment I noted that Lloyd J decided that leave should be granted to the prosecutor to amend the summonses pursuant to Pt 20 r 4(3) of the Supreme Court Rules by deleting the words “for and on behalf of the Director-General of the Department of Environment and Conservation”.

140 It was common ground between the parties both before Lloyd J and on this appeal that Pt 20 of the Supreme Court Rules 1970 applied to the proceedings before Lloyd J in the Land and Environment Court.

141 If, as I have held, the defect in the summonses could be cured by s 16(2) of the Criminal Procedure Act, it was not strictly necessary for the summonses to be amended. Section 16(2) of the Criminal Procedure Act would operate according to its tenor to prevent any objection being taken or allowed on the grounds of the alleged defect. However, as was stated in Corporate Affairs Commission v Bain at p 78:-

“For the sake of good order, what is implied should properly be amended so that it becomes express”.

142 Part 20 r 4(3) of the Supreme Court Rules provided:-

“Where there has been a mistake in the name of a party and the court is satisfied that the mistake was not misleading or such as to cause reasonable doubt as to the identity of the person intended to be made a party, the court may make an order for leave to make an amendment to correct the mistake, whether or not the effect of the amendment is to substitute a new party”.

143 The question asked in question 6 in the stated case is whether Lloyd J erred in finding that there was “a mistake in the name of a party” within Pt 20 r 4(3).

144 It is correct, as counsel for the appellant submitted, that Lloyd J’s conclusion that there had been “a mistake in the name of a party” was based on his Honour’s view that the words which were omitted by the amendments were mere surplusage and I have held that those words were not mere surplusage. However, I consider that his Honour’s conclusion that there had been “a mistake in the name of a party” within Pt 20 r 4(3) of the Rules can be justified on another basis.

145 Although I have held that the words which were omitted by the amendments were not to be regarded as having been mere surplusage and that the inclusion of those words in the summonses produced the consequence that the proceedings were to be regarded as having been taken by Mr Garrett’s principal the Director-General of the Department of Environment and Conservation, Lloyd J made a separate finding “that it was always intended that Stephen Garrett was to be the prosecutor”. On this basis I would hold that there was a mistake in the name of a party and his Honour did not err in so finding.

146 It was clearly open to Lloyd J to find that the other conditions for the application of Pt 20 r 4(3), that the mistake was not misleading and not such as to cause reasonable doubt as to the identity of the person intended to be made a party, were satisfied. By virtue of the concluding words of Pt 20 r 4(3) the amendments could be made, even if the effect of the amendments was to substitute a new party.

147 In my opinion, questions 6 and 7 in the stated case should be answered “no”.

Conclusion

148 The questions in the stated case should be answered as follows:-

1. No.
2. Yes.
3. Yes.
4. Yes.
5. No.
6. No.
7. No.

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