Happy Cruising Pty Ltd v City of Gosnells - [2023] WASCA 112

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   HAPPY CRUISING PTY LTD -v- CITY OF GOSNELLS [2023] WASCA 112
CORAM:   BUSS P
MITCHELL JA
BEECH JA

HEARD:   25 MAY 2023
DELIVERED          :   17 JULY 2023
FILE NO/S:   CACR 103 of 2022
BETWEEN:   HAPPY CRUISING PTY LTD
Appellant
AND
CITY OF GOSNELLS
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   FORRESTER J
Citation: HAPPY CRUISING PTY LTD -v- CITY OF GOSNELLS [2022] WASC 322
File Number            :   SJA 1043 of 2022

Catchwords:

Criminal law - Procedure - Whether corporation charged with a simple offence which does not appear at a court date, of which it has been properly notified, can be convicted in its absence at that notified court hearing date

Legislation:

Criminal Procedure Act 2004 (WA) s 55, s 60, s 153
Planning and Development Act 2005 (WA) s 218(b)

Result:

Leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	F P Merenda
Respondent	:	D P Gillett

Solicitors:

Appellant	:	Mendelawitz Morton Commercial Lawyers
Respondent	:	McLeods

Case(s) referred to in decision(s):

Aldi Foods Pty Ltd v Shop, Distributive & Allied Employees Association [2017] HCA 53; (2017) 262 CLR 593
Kelly v Birchwood Consolidated Pty Ltd [2023] WASCA 76
Mohammadi v Bethune [2018] WASCA 98
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Saad v Baron [2012] WASC 507

JUDGMENT OF THE COURT:

The appellant, a corporation, was convicted of a simple offence of carrying out unauthorised development contrary to s 218(b) of the Planning and Development Act 2005 (WA). The appellant was convicted in its absence under s 55 of the Criminal Procedure Act 2004 (WA) (CP Act) after it failed to appear at a court date of which it was properly notified. The appellant appealed against its conviction to the General Division of the Supreme Court, contending that the power under s 55 to determine the charge in the absence of the accused did not arise in this case. The primary judge dismissed the appeal to the General Division. The appellant now appeals against the primary judge's order dismissing its appeal to the General Division.
For the following reasons, the appeal to this court must be dismissed.

Statutory context

The following provisions of the CP Act provide the relevant statutory context for considering the way in which a charge of a simple offence against a corporation is to be dealt with.

Commencement and notification of a prosecution in the Magistrates Court

A prosecution is commenced by lodging a prosecution notice with the Magistrates Court under s 24 of the CP Act.
The procedure for notifying an individual accused of a prosecution is set out in s 28 of the CP Act. Section 28 expressly does not apply where the accused is a corporation.[1] Generally, in the case of a simple offence, s 28 provides for the issue of a court hearing notice to an individual accused or an application to a magistrate for an arrest warrant.[2]
[1] Section 28(2) of the CP Act.
[2] See CP Act s 28(4).
Section 29 of the CP Act provides for the notification procedure that applies to a corporation charged with any offence. This section provides for the issue of a court hearing notice to the accused.
Section 33 of the CP Act provides for the contents of a court hearing notice, including advice as to the options for an accused to enter a written plea. The notice must advise the accused of matters including that:
1.The accused need not appear at the time when the prosecution notice to which it relates will be dealt with by the court (s 33(2)(a)).
2.If the accused, in writing, pleads guilty or not guilty to a charge and does not appear, the charge may be dealt with in the accused's absence (s 33(2)(d)).
3.If the accused does not enter a written plea to a charge in the prosecution notice and does not appear, the charge may be dealt with in the accused's absence (s 33(2)(e)).
The term 'deal with' is defined by s 3(1) of the CP Act to include hearing and determining a charge.
Section 75(2) and s 75(3) of the CP Act relevantly empower the court to 'adjourn a charge' whether or not the accused has pleaded guilty to the charge. By s 75(4)(a), if the court adjourns a charge, the court must ensure that the parties are advised of the time and place to which the charge is adjourned and for that purpose, relevantly, may issue a court hearing notice.

Procedure where a party does not appear in the Magistrates Court

Division 5 of pt 3 of the CP Act is expressed, by s 48, to apply if an accused is charged in a court of summary jurisdiction with a simple offence. Section 50 ‑ s 55 of the CP Act deal with a range of permutations in which one of the parties to the prosecution does not, or may not, appear.
Section 50 applies where, on the first court date for a charge, the prosecutor appears and the court has received a written plea of not guilty to the charge by the accused. In those circumstances:
(2)If on the first court date the accused appears, the court must proceed in accordance with Division 6.
(3)If on the first court date the accused does not appear, the court must adjourn the charge to a new court date.
(4)If on the new court date the accused appears, the court must proceed in accordance with section 54 or Division 6, as the case requires.
(5)If on the new court date the accused does not appear, the court must proceed in accordance with section 53 or 55, as the case requires.
Section 51 applies if, on a court date for a charge, the prosecutor appears and the court has received a written plea of guilty to the charge by the accused. This section provides for the way the accused is to be sentenced. However, s 51(6) provides for an accused to notify the court that the accused wants to withdraw the plea. Where that is done then, on the court date for the charge, the court must strike out the guilty plea and enter a plea of not guilty on the accused's behalf. Section 51(8)(a) provides that, if the accused does not appear on the court date, the court may hear and determine the charge under s 55(4) or div 6 in the absence of the accused in certain circumstances.
Section 52 - s 54 respectively deal with the position where there is no appearance by any party and no plea is received, where there is no appearance by any party but the accused has pleaded to the charge, and where there is no appearance by the prosecutor but the accused does appear.
Section 55(1) provides for that section to apply in the following circumstances:
This section applies if on a court date for a charge the prosecutor appears and the accused does not and the accused has not pleaded guilty to the charge, whether orally or by means of a written plea.
Section 55(2) provides for the court's powers if:
[O]n the court date the court is satisfied that the accused has been served under this Part with the prosecution notice containing the charge and a court hearing notice, or an approved notice, notifying the accused of that date and that the court may deal with the charge in the accused's absence if the accused does not appear on that date.
In those circumstances, the court may adjourn the charge or hear and determine the charge in the accused's absence.
Section 55(4) of the CP Act provides how a charge may be proved in the accused's absence, including that the court 'may take as proved any allegation in the prosecution notice containing the charge that was served on the accused'.
Section 71(2) of the CP Act enables an accused convicted in their absence to apply to the court for an order that sets aside the decision and orders the charge to be dealt with again. The grounds for making such an application are, in essence, that the accused did not receive notice or adequate notice of the court date on which the conviction occurred or that the accused 'did not appear for some good reason'. Section 73 provides that, whether or not an application is made under s 71, a court on its own initiative may make an order that sets aside a decision it has made in a party's absence on a charge and that orders that the charge be dealt with again, if it is satisfied that it is in the interests of justice to do so.

Ordinary trial procedure

Division 6 of pt 3 of the CP Act relevantly provides for the general procedure for dealing summarily with any charge and contains s 57 ‑ s 69 of the CP Act. Section 57(1)(b) of the CP Act provides for div 6 to apply if, in a court of summary jurisdiction, an accused is charged with a simple offence. However, s 57(2) provides:
If under Division 5 a court proceeds in accordance with this Division, the court may nevertheless at any time exercise a power under Division 5, and in particular under section 55, in relation to any charge of a simple offence if the occasion to do so arises. (emphasis added)
Section 58 of the CP Act is expressed by subsection (1) to apply if on a first court date, or any new court date set under s 75, for a charge of a simple offence both the prosecutor and the accused appear and the court has not received a written plea to the charge by the accused. Section 58(2) provides that, if the date is the first court date for the prosecution notice, the court may only hear and determine the charge if the prosecutor consents but otherwise it must adjourn the charge. Section 58(3) provides that, subject to s 58(2), the court must proceed to deal with the charge in accordance with div 6 of pt 3.
Section 59(1)(b) relevantly provides that where an accused is charged with a simple offence and the court has not received a written plea of guilty, the court must comply with s 59 as soon as practicable after the accused first appears. After complying with s 59(2), the court must require the accused to plead to the charge.
Section 126(1) of the CP Act provides for the ways in which an accused may plead to the charge, including by pleading guilty or not guilty to the charge. Section 126(5) provides that the court 'must enter a plea of not guilty on behalf of the accused' in certain circumstances which include where the accused does not plead to the charge on being required by the court to do so. Section 126(6) provides:
A plea entered by a court under this Act on behalf of an accused has the same effect as if it had been entered by the accused.
Subject to a presently immaterial exception, s 60 of the CP Act is expressed to apply 'if an accused pleads not guilty to … a charge of a simple offence, whether orally or by means of a written plea'. In the case of a charge of a simple offence which is not listed in sch 4 to the Criminal Procedure Regulations 2005 (WA) (which is the present case), s 60(5) provides that the court:
(a)may order the prosecutor to serve the accused with any confessional material (as defined in section 42(1)) of the accused that is relevant to the charge and that the accused has not already received from the prosecutor; and
(b)if it makes an order under paragraph (a), may also order the prosecutor to comply with section 61 [relating to disclosure by the prosecutor]; and
(c)in any event must adjourn the charge to a new court date that allows a reasonable time for the prosecutor to comply with any order made under paragraph (a) or (b).
Section 60(6) of the CP Act relevantly provides that the new court date to which a charge is adjourned under s 60(5) may be the date for the trial of the charge or some other date prior to that date, as the court decides. Section 60(7) of the CP Act provides:
On the date for the trial of the charge, the court may proceed to conduct a trial of the charge if all parties appear but otherwise may proceed under section 53, 54 or 55, as the case requires.
Section 65 of the CP Act provides for the procedure to be followed at trial.

Prosecutions against corporations

Division 6 of pt 5 of the CP Act contains specific provisions in relation to prosecutions against corporations, which are applicable to any such prosecution. Section 151 provides that div 6 of pt 5 applies if a corporation is charged with an offence before a court. Under s 152(1), a corporation may appoint an individual, who need not be a legal practitioner, to be its representative in proceedings before the court. Section 153(1) provides that a corporation may appear before a court by its representative who, on behalf of the corporation, may do all things that an accused who is an individual may do before the court. Section 153(2) makes the following provision where a corporation appears by its representative:
If a corporation appears by its representative -
(a)a requirement to read, say, ask or do any thing in the presence of the accused is to be construed as a requirement to read, say, ask or do the thing in the presence of the representative; and
(b)any thing that must or may be done or said by an accused personally may be done or said by the representative; and
(c)any thing done or said or omitted to be said by the representative is to be taken as having been done or said or omitted to be said by the corporation.
Section 153(3) makes the following provision where a corporation does not appear by its representative:
If a corporation does not appear by its representative -
(a)it is not necessary for any requirement referred to in subsection (2)(a) to be complied with; and
(b)the court must enter a plea of not guilty on behalf of the corporation unless the corporation has entered a plea under section 154.
Section 153(4) provides that s 153 does not limit the operation of s 172 of the CP Act (which provides for representation of parties including by a legal practitioner).
Section 154 of the CP Act provides for the manner in which a corporation may plead to a charge in the following terms:
(1)Any plea by a corporation to a charge must be in writing and either sealed with the corporation's seal or signed by a representative appointed under section 152.
(2)A plea signed by the representative is for all purposes to be taken to be the plea of the corporation.
Section 155 contains provisions for compelling a representative of a corporation to appear where the court is satisfied that the presence of a representative of the corporation is needed.

Factual and procedural background

By prosecution notice dated 23 November 2021, the appellant was charged with carrying out development otherwise than in accordance with the respondent's local planning scheme, contrary to s 218(b) of the Planning and Development Act. A court hearing notice, indicating that the charge would be first dealt with by the Magistrates Court at Armadale at 9.30 am on 21 December 2021, was served on the appellant on 3 December 2021.
On 21 December 2021, Michael Donnes, a director of the appellant, attended and indicated that he wanted an adjournment of the charge. It was common ground before the primary judge that the appellant had not appointed a representative under s 152 of the CP Act at that time.[3] A representative of the respondent also attended at that time and did not oppose the adjournment. The matter was adjourned to 18 January 2022. The appellant was not called on to enter a plea to the charge at this time.
[3] Primary decision [34], esp footnote 20.
On 21 December 2021, a written notice of the adjournment under s 75 of the CP Act was personally served on the appellant, by giving it to Mr Donnes. The notice indicated that the charge had been adjourned for mention to the Magistrates Court, Armadale on 18 January 2022 at 9.30 am. The notice also contained the following warning:
If you do not appear at the time and place specified below, the Court may hear and determine the charge or charges in your absence.
There was no appearance by the appellant when the charge was called on at 10.48 am on 18 January 2022. The magistrate then proceeded to convict the appellant in its absence under s 55 of the CP Act and issued a summons for sentencing.
Subsequently, the appellant made an application to set aside the conviction under s 71 of the CP Act. That application was refused on 6 April 2022. On 19 April 2022, the appellant was sentenced to a fine of $250,000 and a $12,200 daily penalty, with costs fixed in the sum of $2,253.
On 17 May 2022, the appellant appealed to the General Division of the Supreme Court against its conviction, the refusal of its application to set aside the conviction and the sentence imposed. Ultimately, only the appeal against conviction was pursued on the sole ground that the magistrate erred in law in convicting the appellant in its absence where the magistrate was required, by virtue of s 153 of the CP Act, to enter a plea of not guilty and adjourn the matter to trial.
The primary judge dismissed the appellant's appeal against conviction. Her Honour accepted that the magistrate erred in failing to enter a plea of not guilty on the appellant's behalf on 18 January 2022 under s 153(3)(b) of the CP Act.[4] However, the judge found that the ground of appeal would only be made out if the appellant also established that the magistrate erred in failing to adjourn the charge under s 60(5)(c) of the CP Act.[5] Her Honour concluded that s 60 did not apply in the event of a plea of not guilty being entered under s 153(3)(b) of the CP Act. This was on the basis that a plea entered by the court under s 153(3)(b) was not a plea of not guilty orally or by means of a written plea within the meaning of s 60(2)(b) of the CP Act.[6] There was therefore no need for the magistrate to have adjourned the charge to a new court date before s 55 of the CP Act could apply, as contended by the appellant.[7] Accordingly, the judge held that the magistrate was entitled to deal with the charge under s 55 of the CP Act and enter a judgment of conviction on 18 January 2022.[8]
[4] Primary decision [98] - [100].
[5] Primary decision [114].
[6] Primary decision [106] - [108].
[7] Primary decision [109], [113].
[8] Primary decision [116].
The appellant now appeals to this court against the dismissal of its appeal to the General Division. The sole ground of appeal is that:
The primary Judge erred in law by determining that the Magistrate had jurisdiction to hear and determine the appellant's charge pursuant to s.55(2)(a) of the [CP Act], notwithstanding that he was required by s.153(3)(b) to have entered a plea of not guilty on behalf of the appellant.

Disposition

The appellant's challenge is to the existence of the power conferred by s 55 rather than the manner of its exercise. If the power arose on 18 January 2022, the appellant does not contend that the magistrate erred in the exercise of his discretion to hear and determine the charge in the appellant's absence rather than adjourn the charge.[9] The appellant also does not challenge the orders which refused its application to set aside the conviction entered in its absence. The appeal therefore turns on whether the power in s 55 to hear and determine the charge in the appellant's absence existed on 18 January 2022.
[9] Appeal ts 19 - 20.
The appellant accepts that the express criteria for the application of s 55 of the CP Act were satisfied in this case,[10] namely that at the court date on 18 January 2022:
1.the prosecutor appeared;
2.the accused did not appear;
3.the accused had not pleaded guilty to the charge; and
4.the court was satisfied that the appellant had been served with the prosecution notice and a court hearing notice which notified the appellant of the court date and that the court may deal with the charge in the accused's absence if the accused does not appear on that date.
[10] Appeal ts 10, 21, 26.
The appellant submitted that the operation of s 55 of the CP Act was implicitly excluded in the following manner:
1.When the appellant did not appear by its representative on 18 January 2022, in circumstances where it had not entered a plea under s 154, s 153(3)(b) required the magistrate to enter a plea of not guilty on behalf of the appellant.
2.The plea of not guilty which the magistrate was required to enter engaged s 60, which applied 'if an accused pleads not guilty to … a charge of a simple offence, whether orally or by means of a written plea'.
3.In those circumstances, s 60(5)(c) operated to the exclusion of s 55 and required the magistrate to adjourn the charge to a new court date.

At one point, the appellant advanced an argument that s 153 operating by itself excluded the operation of s 55 of the CP Act. However, counsel ultimately accepted that the appellant's argument that s 55 did not apply depended on the combined operation of s 60 and s 153 in the manner described above.[11]
[11] Appeal ts 26 - 27.
The primary judge accepted the first proposition noted at [40] above,[12] and the respondent does not contend to the contrary in this appeal. This appeal can be resolved on the assumption that this proposition is correct, without exploring the interaction between s 59, s 126 and s 153 of the CP Act. We will proceed on that assumption.
[12] Primary decision [98] - [100].
The primary judge rejected the appellant's second proposition noted at [40] above, holding that s 60 does not apply in the case of a plea of not guilty entered in accordance with s 153(3)(b) of the CP Act.[13] We have taken a different view and accept the appellant's second proposition. In our view, the words 'whether orally or by means of a written plea' are words of expansion rather than limitation of the words 'pleads not guilty'. The natural meaning of the statutory text is that s 60 applies if an accused pleads not guilty, irrespective of the form in which that plea is entered. Further, s 126(6) of the CP Act provides that a plea entered by a court under the CP Act on behalf of an accused has the same effect as if it had been entered by an accused. As such, a plea of not guilty entered by the court under s 153(3)(b) of the CP Act operates as a plea of not guilty for the purposes of other provisions of the CP Act, including s 60, which depend on an accused pleading not guilty. If that were not the case, then there would be no statutory basis for the court to order disclosure by the prosecutor where a plea of not guilty was entered under s 153(3)(b) and the court proceeded to trial. An objective intention to achieve such an incongruous result should not be attributed to the legislature in the absence of very clear language compelling that outcome.
[13] Primary decision [106].
In our view, the appellant's argument fails at the third proposition noted at [40] above. Section 60 does not operate to the exclusion of s 55 of the CP Act in cases to which the latter provision otherwise applies, for the following reasons.
Like other provisions in div 5 of pt 3, s 55 expressly identifies - in subsection (1) - the circumstances in which, and conditions under which, it applies. Nothing in the text of s 55 suggests that its operation is affected by the application of s 60 specifically, or, more generally, by the application of the provisions in div 6 of pt 3. The appellant accepted that this is so.[14] Neither s 60, nor div 6 generally, provide that when s 60 applies, or when div 6 applies, s 55, or div 5, is thereby excluded.
[14] Appeal ts 26.
Consequently, in construing s 55, the natural starting point is to give effect to the express provision in subsection (1) by applying s 55 to any case that falls within the sphere of operation stipulated in s 55(1).
This starting point is reinforced by consideration of div 5 and div 6 as a whole. Examination of the provisions of these two divisions of pt 3 reveals that they have evidently been framed as part of a coherent legislative scheme in which the conditions for application of each provision have been specifically and expressly identified.
Division 5 of pt 3 is expressed to apply to a charge in a court of summary jurisdiction of a simple offence: s 48. By contrast, div 6 applies both to such charges and to an either way charge that is to be tried summarily: s 57(1). Thus, prima facie, where, as here, an accused is charged in the Magistrates Court with a simple offence, both div 5 and div 6 apply.
Division 5 makes specific provision for various scenarios, each of which is a permutation of (i) both parties or either party appearing or not appearing and (ii) there being, or not being, a written plea. As will be seen, with the minor exception identified in point 4 of [65] below, the provisions of div 5 and div 6 together comprehend the universe of possible permutations of those matters.
Section 50 deals comprehensively with the scenario where the prosecutor appears on the first court date and the court has received a written plea of not guilty by the accused. If the accused also appears, the matter proceeds under div 6. If not, it is adjourned to another court date, at which, if the accused appears, the matter proceeds under s 54 or div 6 and, if not, the matter proceeds under s 53 or s 55, as the case may be.
Section 51 deals comprehensively with the scenario where there is a written plea of guilty and the prosecutor appears. It applies, and governs the position in that scenario, whether the accused does or does not appear.
Division 5 does not otherwise deal with the scenario where, on a court date, both parties appear. Such scenarios are governed by s 58 and by div 6 generally.
Sections 52 and 53 together deal comprehensively with the scenario where, on any court date, neither party appears. Section 53 deals with that situation where a plea has been entered, while s 52 deals with it when no plea has been entered.
Section 54 deals comprehensively with a situation where, on any court date, the prosecutor does not appear but the accused does.
The scenario where the prosecutor appears and the accused does not is covered, in part, by s 50(3), s 50(5), s 51 and s 55. As will be seen, it is also governed, in part, by s 60.
If there is a written plea of guilty and the accused does not appear, s 51 applies. If there is a written plea of not guilty before the first court date, and the accused does not appear, s 50 applies. Section 55 is expressed to apply if three conditions are satisfied: (i) the prosecutor appears; (ii) the accused does not appear; and (iii) the accused has not pleaded guilty. Thus, s 55 encompasses a scenario where the accused pleads not guilty in writing, after the first court date, as well as a scenario where no plea has been entered or an oral plea of not guilty has earlier been made.
If a written plea of not guilty is received after the first court date, at the next court date, as already explained, s 55 applies. In that scenario, s 60 will also apply, as that provision is expressed to apply where the accused pleads not guilty 'whether orally or by means of a written plea' (s 60(2)(b)).
In such circumstances, must the court adjourn the charge under s 60(5)? Or can it exercise the discretion under s 55 to deal with the charge in the accused's absence? Thus, in this scenario, the question of the interaction of s 55 and s 60 arises in the same manner as it is assumed to arise in this appeal through the (assumed) operation of s 153(3)(b). Consequently, contrary to the appellant's submission,[15] the question raised by this appeal is not confined to the circumstance where a corporate accused does not appear.
[15] Appeal ts 27.
As already noted, neither s 55 nor s 60 expressly qualifies its application by reference to the other. Nor does either provision purport to qualify the operation of the other provision.
Logically, s 55 and s 60 cannot both apply, in an unqualified way, simultaneously. The power conferred by s 55 - to hear and determine the charge - is inconsistent with the duty imposed by s 60 - to adjourn the charge. Thus, it is necessary to reconcile the apparent application of the two provisions.
The provisions of the CP Act must be understood, so far as possible, as parts of a coherent whole.[16] As observed in Project Blue Sky Inc v Australian Broadcasting Authority:[17]
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. (footnotes omitted)
[16] Aldi Foods Pty Ltd v Shop, Distributive & Allied Employees Association [2017] HCA 53; (2017) 262 CLR 593 [16].
[17] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [70].
Where the text, read in context, permits of more than one potential meaning, the choice between those meanings may turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies.[18] In our view, this is such a case.
[18] Mohammadi v Bethune [2018] WASCA 98 [34]; Kelly v Birchwood Consolidated Pty Ltd [2023] WASCA 76 [180] and the authorities cited in those cases.
Acceptance of the appellant's construction - that s 60 applies to the exclusion of s 55 - involves giving s 55 no content and no work to do in circumstances where, according to s 55(1), s 55 applies. By contrast, s 60 still has utility in a case where the court exercises its discretion under s 55 to adjourn the charge. This consideration counts against acceptance of the appellant's construction.
More significantly, by reason of the following matters in combination, considerations of coherence firmly favour our preferred construction - that s 55 applies notwithstanding that s 60 also applies. Considerations of coherence thus reinforce the starting point identified in [46] above.
First, the structure of pt 3 of the CP Act counts against the conclusion that s 60 excludes the application of s 55. Division 6 of pt 3 of the CP Act applies to a simple offence where:
1.before the first court date, the court receives a written plea of not guilty to the charge and, on the first court date or a new court date, both the accused and prosecutor appear;[19]
2.the court strikes out a written guilty plea under s 51(8) of the CP Act and enters a plea of not guilty on the accused's behalf;
3.on the first court date or a new court date set under s 75, both the prosecutor and accused appear and the court has not received a written plea to the charge by the accused;[20] or
4.after the first court date but before a new court date, the court receives a written plea of not guilty and, on the new court date, both parties appear.[21]
[19] Section 50(1), s 50(2) and s 50(4) of the CP Act.
[20] Section 58 of the CP Act.
[21] This scenario is not the subject of express provision in div 5 or div 6, but, by necessary implication, div 6 must be taken to apply to it.
In that context, s 59 provides for the accused to be required to plead to the charge once certain preconditions are satisfied; s 60 ‑ s 63 provide for disclosure before trial; s 64 provides for issues to be dealt with before trial; s 65 ‑ s 66 provide for a contested trial procedure; s 67 relates to costs; and s 68 and s 69 deal with the recording and notification of the court's decision. Those provisions are contained within div 6 of pt 3.
These provisions indicate that div 6 is generally concerned with the procedure to be followed in a case where both the prosecutor and accused appear and, absent a plea of guilty, a contested trial occurs. By contrast, the provisions of div 5 of pt 3, including s 55, deal with the procedure to be adopted when either or both the prosecutor or the accused do not appear. That context counts against s 60 operating to the exclusion of s 55 of the CP Act in a case where the accused does not appear.
Secondly, the purpose of s 60, apparent from the terms of the provision, counts against s 60 operating to the exclusion of s 55 in a case where the accused does not appear. The purpose of the adjournment for which s 60 provides is to enable the prosecutor and (where applicable) the accused to comply with statutory pre-trial disclosure obligations. There would be no utility in requiring an adjournment and pre‑trial disclosure in a case which was ultimately going to be determined in the absence of the accused under s 55 of the CP Act.
Thirdly, as the primary judge correctly recognised,[22] the appellant's construction of s 153(3) and s 60 of the CP Act is incongruous with the provisions of s 29 of that Act. Section 29 provides for the issue of a court hearing notice specifically to a corporate accused. A court hearing notice must, under s 33(2)(e), warn the accused that the charge may be dealt with in its absence if it does not enter a written plea and does not appear. On the appellant's construction, that warning would be incorrect as s 60 and s 153(3) of the CP Act would prevent the charge being dealt with in the absence of a corporate accused at the notified court hearing date.
[22] Primary decision [53] - [54].
Fourthly, s 57(2) of the CP Act expressly contemplates that s 55 may apply where a court proceeds in accordance with div 6 of pt 3 of the CP Act. It provides that if under div 5 the court proceeds in accordance with div 6, the court may 'nevertheless at any time' exercise a div 5 power if the occasion to do so arises. The power to determine a charge under s 55 of the Act is specifically mentioned. Section 57(2) is not directly applicable in the present case as the court was proceeding under div 6 by operation of s 58 (and so was not doing so under div 5). However, s 57(2) indicates that s 55 can apply when the prosecutor appears at a court date and an accused, who has not pleaded guilty, does not appear 'at any time' when the court is dealing with a charge in accordance with div 6 of pt 3 of the CP Act.
Fifthly, the provisions of s 51(8), referred to at [12] above, show that there is nothing incongruous in a court entering a plea of not guilty on behalf of an accused at the same hearing where a charge is determined under s 55 in the absence of the accused. That situation is expressly contemplated under s 51(8)(a) where the court is notified that an accused wishes to withdraw a written plea of guilty. Further, contrary to the appellant's submissions, its argument is not supported by the reference to that outcome in s 51(8) and the absence of any specific reference in s 153. Specific reference was required in s 51(8) to apply s 55 in a case where an accused had entered a written plea of guilty (which would otherwise exclude the operation of s 55 on its terms). No specific reference was required to enable s 55 to operate in a case where s 153(3) applies, in which the corporate accused has not entered a plea of guilty and in which the conditions for the operation of s 55 exist.
Sixthly, contrary to the appellant's submissions, the view we prefer does not result in s 153(3) being rendered redundant. As counsel for the appellant accepted in oral submissions,[23] s 153(3) can apply where a corporation appears at a court hearing by a legal practitioner (as permitted by s 172 of the CP Act) who is not appointed to be the corporation's representative for the purposes of s 152 of the CP Act. Section 55 is not engaged when an accused, although not personally present, is represented at a court hearing by counsel.[24] Further, s 153(3) still has utility in a case where the court exercises its discretion under s 55 to adjourn a charge and the corporation appears at the new court date, as well as in cases of indictable offences to which the power in s 55 does not apply.
[23] Appeal ts 15 - 16.
[24] Saad v Baron [2012] WASC 507 [78].
Seventhly, there is nothing in the legislative history or purpose in relation to s 153 of the CP Act that suggests it is intended to place a corporate accused which does not appear in a privileged position as compared to an individual accused. The history, referred to by the primary judge,[25] indicates that the purpose of s 153 is to provide for a mechanism by which a corporate accused (which cannot be arrested) can be required to attend court and enter a plea. It is a provision which enables a corporation to be effectively dealt with in criminal proceedings, rather than a provision designed to place a corporate accused in a privileged position as compared to a natural person accused.
[25] Primary decision [91] - [94].

Conclusion and orders

For the above reasons, the discretion of the Magistrates Court to hear and determine the charge in the accused's absence under s 55 of the CP Act was enlivened when the appellant did not appear at the court date on 18 January 2022. The primary judge was therefore correct to dismiss the appeal to the General Division against the appellant's conviction. The following orders should be made in this appeal:
1.Leave to appeal is granted on the sole ground of appeal.
2.The appeal is dismissed.
We would hear from the parties on the question of costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Mitchell
17 JULY 2023