Happy Cruising Pty Ltd v City of Gosnells - [2022] WASC 322

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   HAPPY CRUISING PTY LTD -v- CITY OF GOSNELLS [2022] WASC 322
CORAM:   FORRESTER J
HEARD:   1 SEPTEMBER 2022
DELIVERED          :   19 SEPTEMBER 2022
FILE NO/S:   SJA 1043 of 2022
BETWEEN:   HAPPY CRUISING PTY LTD
Appellant
AND
CITY OF GOSNELLS
Respondent

ON APPEAL FROM:
For File No:   SJA 1043 of 2022
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MALLEY SM
File Number            :   AR 13176/2021

Catchwords:

Criminal law – Single judge appeal – Appeal against conviction – Whether corporation without appointed representative can be convicted of a simple offence in its absence – Criminal Procedure Act 2004 (WA) s 55 and s 153

Legislation:

Corporations Act 2001 (Cth)
Criminal Appeals Act 2004 (WA)
Criminal Law and Evidence Amendment Act 2008 (WA)
Criminal Procedure Rules 2000 (WA)
Justices Act 1902 (WA)
Planning and Development Act 2005 (WA)

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

Cases referred to in decision:

DPP v MN [2009] VSCA 312; (2009) 26 VR 563
R v Ampol Refineries Ltd (1978) Qd R 378
R v Lavender [2005] HCA 37; (2005) 222 CLR 67
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

FORRESTER J:

Introduction

On 17 May 2022, the appellant lodged an appeal against the decision by a magistrate on 18 January 2022 to convict the appellant of an offence contrary to s 218(b) of the Planning and Development Act 2005 (WA).
The conviction was entered in the absence of the appellant pursuant to s 55 of the Criminal Procedure Act 2004 (WA) (the CPA). On 29 March 2022, the appellant applied to have the decision to convict the appellant set aside. On 6 April 2022, the magistrate dismissed that application.
On 19 April 2022, the magistrate sentenced the appellant to a $250,000 fine and a $12,200 daily penalty. The appellant was ordered to pay the respondent's costs in the sum of $2,253.
The appellant initially appealed against the refusal of the magistrate to set aside the conviction and the sentence imposed, but abandoned those appeals by its amended notice of appeal dated 5 August 2022.

Ground of appeal

The sole ground of appeal is:[1]
The Magistrate made an error of law by convicting the appellant in its absence, in circumstances where the Magistrate was required, by virtue of s.153 of the Criminal Procedure Act 2004 (WA) to enter a plea of not guilty and adjourn the matter for trial.
[1] Amended notice of appeal filed 9 August 2022.

Leave to appeal - legal principles

The application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act). A decision to convict an accused after a trial is a decision which may be appealed.[2]
[2] CA Act s 6(c) and s 7(1).
Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding,[3] meaning that the ground is required to have a rational and logical prospect of succeeding.[4] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[5]
[3] CA Act s 9(2).
[4] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[5] CA Act s 9(3).
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[6]
[6] CA Act s 14(2).

Decision at first instance

The appellant was charged on prosecution notice AR 13176/2021 that between 15 June 2021 and 14 October 2021 it:
…Used land within the City of Gosnells Town Planning Scheme No.6 Scheme Area without having obtained the development approval of the local government under Part 8 of Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 thereby carrying out development otherwise than in accordance with the provisions of the said Scheme, contrary to section 218(b) of the Planning and Development Act 2005.
The appellant is an Australian proprietary company registered under the Corporations Act 2001 (Cth).
The matter was first listed in the Armadale Magistrates Court on 21 December 2021. The record of court proceedings records that the matter was adjourned to 18 January 2022 and has the notation: 'Legal Advice Orders: Notice of Adjournment.'
The court file contains a document entitled 'Notice to the Accused of an Adjournment s 75 Criminal Procedure Act 2004' dated 21 December 2021, notifying the appellant that the charge was listed on 18 January 2022. The notice contains a warning stating:
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.
A court officer signed the form on 21 December 2021 and ticked the box on the notice which indicated that the notice was served 'by handing it to the accused personally'.[7]
[7] It is a valid means of service on a corporation to hand the document personally to a director of the company who resides in Australia: cl 4(2)(a) sch 2 Criminal Procedure Act 2004 (WA); s 9 and s 109X Corporations Act 2001. At the hearing of the appeal, the appellant conceded it was validly served.
On 18 January 2022, the matter was called on. There was no appearance for the appellant. The magistrate convicted the appellant in its absence pursuant to s 55 of the CPA.
The transcript of the proceedings on 18 January 2022 relevantly reads as follows:
HIS HONOUR: Is anybody from the company here?
JSO: No sir, I have called it.
[PROSECUTOR]: …This matter came before your Honour back on 21 December 2021. On that day the company director, Mr Michael Donnes, was present. He sought an adjournment. The matter was adjourned through to today. I might say sir, I will seek leave to have the company convicted in its absence. The only thing else I would say that I wouldn't seek to sentencing today: I would ask that the matter be adjourned because of the history of the matter…
HIS HONOUR: Well, they're not here and there's no reason. He received notification of the hearing - the company did. Yes…So convicted 55. I will issue a summons for a sentencing.
PROSECUTOR: Sir, given that it's a company is it a notice under section 150 - something or other of the Criminal Procedure Act?
HIS HONOUR: Something like that.
PROSECUTOR: Requiring a director to or a representative to attend. If I can double check the - section - somewhere between 152 and 155, sir.
HIS HONOUR: Yes. 155. Yes. So there has got to be an approved notice to the corporation that requires it to appear before the court at a time specified in the notice by a representative…
On 18 January 2022, a summons to attend court was issued to the director of the appellant requiring his attendance on 15 February 2022. Section 155 of the CPA is not referred to in the notice.[8] However, the reason for the issue of the summons was stated as:
The Director Michael Donnes is to appear as representative of the company for sentencing purposes in relation to Happy Cruising Pty Ltd.[9]
[8] The summons refers only to various provisions of the Sentencing Act 1995.
[9] There is a serious question as to whether this was an effective notice under s 155 of the CPA, as it did not require the representative to be appointed pursuant to s 152 of the CPA. However, resolution of this issue has no bearing on the outcome of this appeal.
On 29 March 2022, the appellant appeared by its legal representative and made an application, supported by affidavit, to have the conviction set aside. The submission was made that the magistrate was not entitled to convict the appellant in its absence on 18 January 2022, having regard to the requirements of s 153 of the CPA.
The prosecution submitted that the provisions in pt 5 of div 6 of the CPA do not override s 55 of the CPA and that, if an individual or corporation fails to appear, they can be convicted in their absence. It submitted that the purpose of div 6 was to ensure that if a person appeared on behalf of a company, the court satisfies itself that the person was properly authorised to do so.
On 6 April 2022, the magistrate refused the application. He observed that the appellant's sole director had been served with a court hearing notice and that the explanation for him failing to appear was that he had mis‑diarised the appearance for 19 January 2022 instead of 18 January 2022.
His Honour noted that the court notice provided to the appellant stated that, in the absence of a plea, the court may determine the matter in the appellant's absence, if it did not appear on 18 January 2022.
The magistrate noted that there has been no judicial guidance on the interaction between s 153(3)(b) and s 55 of the CPA and said:
In my view, all the procedural provisions bearing upon prosecution in courts of summary jurisdiction should be considered as a whole. The legislation under section 55 clearly allows for an accused to be dealt with in the absence on a simple offence. I take the view that a corporation properly served with a court hearing notice was put on notice of options. Procedural fairness is afforded to the corporation, just like an individual, and if it chooses not to appear it does so at its peril.
One can easily understand the absurdity of the issue when one considers traffic regulatory matters relevant to companies and the consequences where no pleas were entered. It is clear, likewise, that the provisions relating to setting aside in Criminal Procedure Act apply and hence, my - any prejudice can be avoided. In my view, section 55 is available with regard to the setting aside.
The magistrate refused to set the conviction aside on the substantive argument, finding that the failure to appear was as the result of carelessness and that the company had no good defence to the charge.
The matter proceeded to sentence on 19 April 2022 and the appellant was fined $250,000. It was also penalised a penalty of $100 per day totalling $12,200 and ordered to pay the costs of the prosecution.

Legal framework

The offence

The offence with which the appellant was charged was an offence contrary to s 218(b) of the Planning and Development Act 2005 (WA). Such an offence is a simple offence.[10]

Application of the CPA

[10] Interpretation Act 1984 (WA) s 67(2).

The procedure for prosecuting and dealing with offences is set out in the CPA.[11]
[11] Interpretation Act 1984 (WA) s 67(3).
In the CPA, the term 'accused' means a person alleged in a prosecution notice or indictment to have committed an offence.[12] The term 'person' includes a public body, company or association or body of persons, corporate or unincorporate.[13] 'Corporation' means any body corporate, whether incorporated in this State or elsewhere.[14]

Part 3 of the CPA

[12] CPA s 3.

[13] Interpretation Act 1984 (WA) s 5.

[14] CPA s 3.

Part 3 of the CPA provides for the procedure to be followed in prosecutions in courts of summary jurisdiction.[15]
[15] CPA s 19.
Section 18 provides that, for the purposes of pt 3, in the case of a corporation, a 'written plea' is defined as a plea of guilty or not guilty to the charge made in writing in accordance with s 154(1).
Section 55 of the CPA appears in pt 3 div 5, which applies if an accused is charged in a court of summary jurisdiction with a simple offence.[16] It is sufficient for the purposes of this appeal to replicate subsections (1) and (2) only:[17]
55. No appearance by accused and no plea of guilty
(1) 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.
(2) If on 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, the court may -
(a) adjourn the charge; or
(b)hear and determine the charge in the accused's absence.
[16] CPA s 48.
[17] s 55(3) was deleted in 2008.
Section 60 sets out the procedure to be followed in the event of a plea of not guilty. Relevantly, it states:
60. Plea of not guilty, procedure on
…
(2) This section applies if an accused pleads not guilty to -
(a) an either way charge that is to be dealt with summarily; or
(b) a charge of a simple offence, whether orally or by means of a written plea,
and the court does not discharge the accused under section 128(2) or (3).
…
(5) In the case of a charge of any other simple offence, 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; 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).
(6) The new court date to which a charge is adjourned under subsection (3), (4) or (5) may be the date for the trial of the charge or some date prior to that date, as the court decides.
(7) 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.
Pt 3 div 7 sets out the procedure for setting aside decisions made in the absence of a party.

Part 5 of the CPA

Pt 5 includes provisions applicable to any prosecution.[18]

Part 5 Division 6 of the CPA

[18] CPA s 125.

Part 5 div 6 applies if a corporation is charged with an offence before a court.[19] It is necessary to set out s 152 to s 155 in full:
[19] CPA s 151.
152.     Corporation may appoint representative
(1) A corporation may appoint an individual, who need not be a legal practitioner, to be its representative in proceedings before the court.
(2) The appointment need not be under the seal of the corporation.
(3) The following documents are proof of the appointment of an individual as a corporation's representative in the absence of evidence to the contrary -
(a) a document under the seal of the corporation that makes the appointment; or
(b) a certificate, signed by an officer (as defined in section 9 of the Corporations Act 2001 of the Commonwealth) of the corporation, that the appointment has been made.
(4) A corporation's representative is not, by reason only of the appointment, qualified or entitled to act on behalf of the corporation for any purposes other than those of this Division.
153.     Representative's functions
(1) 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.
(2) 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.
(3) 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.
(4) This section does not limit the operation of section 172.
154.     Pleas by or on behalf of corporation
(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.
155.     Compelling representative to appear
(1) If a court is satisfied that the presence of a representative of a corporation is needed, the court may issue an approved notice to the corporation that requires it to appear before the court at the time and place specified in the notice by a representative appointed under section 152.
(2) The approved notice must be served on the corporation in accordance with Schedule 2 clause 4.
(3)In this Act an approved notice issued under this section is referred to as a section 155 notice.
(4)If a corporation, without a reasonable excuse, does not obey a notice issued under subsection (1) and served on it under subsection (2), it commits an offence.
Penalty: $60 000.

Appellant's submissions

The appellant submitted that in circumstances where the appellant had not appointed a representative in accordance with s 152 of the CPA,[20] and the corporation did not appear by a representative, s 153(3)(b) required the court to enter a plea of not guilty on behalf of the corporation (it not having entered a written plea under s 154) and adjourn the matter to a new court date, pursuant to s 60(5)(c) of the CPA.[21]
[20] It is common ground that that appellant did not do so.
[21] Appellant's outline of submissions filed 5 August 2022 [1] and oral submissions (Appellant's submissions).
The appellant argued that s 55 of the CPA could therefore not apply on the first occasion on which the corporation failed to appear. However, it conceded that, if the corporation failed to appear on or after that new court date, s 55(2)(b) could apply and the corporation could be dealt with in its absence.[22]
[22] Appellant's submissions [18], [22].
The appellant submitted that, when pt 5 div 6 is read as a whole, it is axiomatic that the legislature intended a different procedural approach to be adopted for the purposes of initially dealing with charges against a corporation, and that this is readily understandable given that corporations can only act through their agents.[23]
[23] Appellant's submissions [17].
The appellant argued that s 153(3) 'gives effect to the fact that a corporation cannot appear in answer to a charge without an agent.'[24]
[24] Appellant's submissions [17].
To this extent, the appellant submitted, pt 5 div 6 operates to impose additional requirements where a corporation is charged with an offence and that, where another part of the CPA is inconsistent with div 6, div 6 prevails.[25]
[25] Appellant's submissions [18].
The appellant contended:
(1) section 153 does not expressly permit a court to hear and determine a charge in the absence of a company;[26]
(2) if the provisions of s 153 do not prevent s 55(2)(b) operating until after a plea of not guilty has been entered and the matter adjourned, this would leave s 153 with no practical work to do;[27]
(3) the operation of s 155 provides further support for the appellant's construction. If a court is satisfied that the presence of a representative of a corporation is needed, the court may issue a notice requiring a representative appointed under s 152 to appear. For the court to be satisfied that a s 155 notice ought to be issued, there would need to first be a hearing at which the corporation did not appear by a representative.[28]
[26] Appellant's submissions [19].
[27] Appellant's submissions [20].
[28] Appellant's submissions [21].

In a supplementary submission filed after the hearing of the appeal, the appellant submitted that, if a corporation appointed a representative under s 152, there was no requirement for any notice to be filed informing the court of that appointment. Accordingly, in the event that there was no appearance on the part of the corporation, the court would not necessarily be aware whether the corporation had appointed a representative or not. It follows, it was argued, that s 153 must apply whether or not a representative had been appointed by the corporation.[29]
[29] Letter filed by the applicant dated 1 September 2022.

Respondent's submissions

The respondent submitted that, properly construed, a corporation can be convicted of a simple offence in its absence under s 55(2)(b) of the CPA despite a plea of not guilty not having been entered and the charge not being adjourned pursuant to s 153(3)(b) of the CPA.[30]
[30] Respondent's outline of submissions dated 26 August 2022 [5] (Respondent's submissions).
The respondent referred to s 135 and s 136AA of the Justices Act 1902 (WA) (repealed), upon which s 55 of the CPA was based,[31] which permitted a corporation to be convicted of a simple offence in its absence. At the time, r 18 of the Criminal Procedure Rules 2000 (WA) (repealed) applied, which was, in relevant respects identical to s 153. However, it applied only to proceedings in the superior courts.[32]
[31] Explanatory Memorandum, Criminal Procedure Bill 2004 8.
[32] Criminal Procedure Rules 2000 (repealed) r 4.
The respondent submitted that the similarity in language and application between the provisions of the Justices Act 1902 (repealed) and Criminal Procedure Rules 2000 (repealed) on the one hand and the CPA on the other indicates that the legislative intention was that the procedure was to remain the same after the commencement of the CPA.[33]
[33] Respondent's submissions [15].
The respondent submitted that s 153(3) does not simply commence 'If a corporation does not appear'; its opening words are 'If a corporation does not appear by its representative'.[34] It submitted that if s 153(3) were intended to apply to a corporation which did not appear in court, regardless of whether it had appointed an individual to act as its representative under s 152, the words 'by its representative' in s 153(3) would be superfluous.
[34] Underlining added.
The respondent also contended its construction is in the interests of justice and that, in any event, there has been no substantial miscarriage of justice.[35]
[35] Respondent's submissions [5], [19] - [29].

Disposition

The issue is whether a magistrate has jurisdiction to hear and determine a charge of a simple offence under s 55(2)(b) of the CPA on the first occasion on which an accused corporation fails to appear in answer to the charge, or whether the magistrate is instead obliged to (a) enter a plea of not guilty pursuant to s 153(3)(b) of the CPA and (b) adjourn the matter in accordance with s 60(5)(c) of the CPA.

Part 3 of the CPA

It is common ground that the provisions of the CPA in pt 3, which includes s 55, apply to all accused when appearing before a court of summary jurisdiction, whether they be a natural person or a corporation.
Pt 3 comprehensively sets out the procedure to be followed for prosecutions in courts of summary jurisdictions. Within pt 3, where the procedure to be applied in the case of an individual is different to that in the case of a corporation, specific provision is made.
An example of this is that there is a distinction drawn in the CPA between accused who are natural persons and accused who are corporations when it comes to notifying an accused of a prosecution against them. Section 28 sets out the steps to be taken if the accused is not a corporation. Section 29 applies if the accused is a corporation.
Importantly, s 29 provides that a 'court hearing notice' must be issued to the accused corporation.
Pursuant to s 33(2)(e) of the CPA, a 'court hearing notice' must inform the accused 'that 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.'
To 'deal with' a charge includes to hear and determine that charge.[36]
[36] CPA s 3.
It is difficult to reconcile the requirements of s 29 and s 33(2)(e) with the appellant's contention that a magistrate does not have the power to deal with a charge in the accused's absence if the accused corporation does not appear having been served with the court hearing notice.
The requirement that a court hearing notice issued to a corporation notifying it of the prosecution must inform the accused corporation that, if it does not enter a written plea to the charge and does not appear, the charge may be dealt with in the accused's absence, strongly favours a construction which enables the court to hear and determine the charge under s 55(2)(b) of the CPA on the first occasion on which the corporation fails to appear.

Amendments to s 55 of the CPA

The present version of s 55 draws no distinction between an accused which is a corporation and an accused who is a natural person and makes no reference to pt 5 div 6.
However, s 55 is not as originally enacted. It was amended by the Criminal Law and Evidence Amendment Act 2008 (WA) (the amending Act), effective 27 April 2008.
It is permissible in determining the meaning of a statutory provision to have regard to the legislative history, including - where necessary - to provisions which have been repealed.[37]
[37] R v Lavender [2005] HCA 37; (2005) 222 CLR 67, 81 ‑ 85; DPP v MN [2009] VSCA 312; (2009) 26 VR 563 [8].
The amending Act amended s 55(2), which originally read:
If on the court date the court is satisfied that the accused has been served under this Part with the prosecution notice containing the charge and either a summons, a court hearing notice, or an approved notice, notifying the accused of the court date, the court may:
(a) adjourn the charge; or
(b) hear and determine the charge in the accused's absence.[38]
[38] Underlining added.
The amending Act deleted the underlined words and substituted words so that s 55(2) reads as follows:
If on 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, the court may:
(a) adjourn the charge; or
(b) hear and determine the charge in the accused's absence. [39]
[39] Substituted words underlined.
The effect of the amendment was that, after 27 April 2008, s 55 could only operate if the accused had been served with a notice which expressly notified the accused that, if they did not appear on the court date specified therein, the court may deal with the charge in their absence.
The original version of s 55 also included subs (3), which provided:
If the court adjourns the charge, the court may exercise any of its powers in section 139 or 155 in order to compel the accused to appear on the new court date.
A plain reading of this provision, with its reference to s 155, compels the conclusion that, where the charge was against a corporation which did not appear (and the other requirements were satisfied), the court was entitled to deal with the charge under either s 55(2)(a) or s 55(2)(b). As originally enacted, s 55 did not require the court to adjourn the charge under s 55(2)(a), although it did give the court the discretion to do so.
In addition, even if the court did adjourn the matter under s 55(2)(a), it was not then obliged to exercise its power under s 155 to require a representative of the corporation to attend, although it had a discretion to do so.
Accordingly, the CPA as originally drafted did not provide that 'a corporation cannot appear in answer to a charge without an agent', as is argued by the appellant is now its effect.
The Explanatory Memorandum for the amending Act does not address the deletion of s 55(3).
However, in my view, the deletion of s 55(3) was not intended to, and did not, alter the overall effect of s 55.
In my view, s 55(3) was deleted because it was unnecessary, particularly after the amendment to s 55(2) which ensured (as it had not previously) that in all circumstances an accused was required to be made aware that the charge could be dealt with in their absence before s 55 could apply. In those circumstances, s 55(3) added nothing to the general adjournment power under s 75.

Part 5 of the CPA

Unlike pt 3 of the CPA, which applies only to prosecutions before a court of summary jurisdiction, pt 5 of the CPA[40] applies to any prosecution in any court.[41] As such, it supplements pt 3 and pt 4, which apply to prosecutions in courts of summary jurisdiction and prosecutions in superior courts respectively.
[40] CPA ss 125 - 172 inclusive.
[41] CPA s 125.
Div 6, which includes s 151 - s 155, appears in this part. It applies only to corporations.[42]
[42] CPA s 151.
The appellant submits that the provisions of pt 5 div 6 are inconsistent with s 55 such that the operation of s 55 must be moderated to accommodate the provisions of pt 5 div 6.

Part 5 Division 6

The primary issue in relation to pt 5 div 6 is whether s 153(3) of the CPA operates in a case in which an accused corporation has not appointed a representative under s 152 of the CPA, so as to require the court to enter a plea of not guilty on behalf of the corporation if it does not appear in court.
Section 152 provides that a corporation may appoint a representative and sets out what is required and how such an appointment can be proved. The provision does not mandate the appointment of a representative by a corporation.
Section 153(1) provides that a corporation may appear before a court by its representative. Again, there is no requirement that it do so; a corporation may instead appear by a legal practitioner pursuant to s 172 of the CPA.[43]
[43] CPA s 153(4).
Subsection (2) provides, in effect, that if a corporation appears by its representative, its representative is to be treated as if they are the accused, and their acts and omissions may bind the corporation.
Subsection (3) applies 'If a corporation does not appear by its representative…' This is ambiguous. It raises the question whether s 153(3) only applies when the corporation has appointed a representative under s 152 and that representative does not appear, or whether s 153(3) applies whether or not a representative has been appointed by the corporation under s 152.
Section 154 enables the entry of a plea in the absence of a representative appointed under s 152.
Section 155 provides that if the court is satisfied that the presence of a representative of a corporation is needed, the court may issue a notice requiring the corporation to appear before the court by a representative appointed under s 152. This is discretionary; there is no requirement for a court to order a corporation to appoint a representative under s 152 or to appear.
In short, pt 5 div 6 provides a mechanism by which a corporation can appear by a representative appointed to do so on its behalf at any stage, but there is no requirement that it do so, unless specifically ordered by a court under s 155.
In default of such an appointment, pt 3 or pt 4 (as applicable) will continue to provide for the procedure to be followed for a corporation (as with individuals).
The appellant submitted that the legislation imposes no obligation on a corporation to inform the court if it has appointed a representative under s 152.[44] As a result, a court before which a corporation does not appear will not necessarily know whether the corporation has or has not appointed such a representative. I accept the appellant's submission that this counts against s 153 applying only when a representative has been appointed.
[44] There is no subsidiary legislation which imposes such an obligation.
The appellant also submitted that, in order to give proper effect to s 155, there must have been a prior court hearing at which the accused corporation has not appeared. It submitted that, if this were the case, the court could not hear and determine a charge under s 55(2)(b) on the first occasion on which a corporation does not appear and s 155 therefore compels a modified operation of s 55 in the case of corporations.
I do not accept this submission. There is no reason why a court cannot issue a s 155 notice for a future appearance, even if the corporation has appeared by a representative on each occasion when the matter has been listed. Further, this submission does not adequately recognise that pt 5 applies in the case of both simple and indictable offences, while s 55 applies only to simple offences.
In my view, s 155 does not by necessary implication prevent the court from acting under s 55(2)(b) on the first hearing date. It sets out a process which may be followed in the event that the court elects instead to adjourn pursuant to s 55(2)(a) (in the case of simple offences) or under other relevant provisions, such as s 75 and s 89 (which relate to adjournments more generally) and seeks to compel the accused corporation to appear before it.
In this regard, the power of a court to issue a s 155 notice is expressly provided for in s 75(4)(c) (which is in pt 3) which deals with the power to adjourn cases. While the power to issue a s 155 notice is not expressly provided for in s 89 (which is the equivalent pt 4 provision to s 75) there is no reason why a court cannot issue a s 155 notice under s 89(2)(d). The operation of s 155 is therefore not confined to circumstances in which s 153 applies. Accordingly, in my view, s 155 does not significantly aid in the interpretation of s 153(3).
In my view, the key to the proper construction of s 153(3) is its application to prosecutions of offences other than simple offences.

Progressing the prosecution of an indictable charge when the accused fails to enter a plea

The manner in which a prosecution proceeds depends on the plea that is entered on behalf of an accused.
In the case of a natural person, there are various provisions of the CPA which operate to enable the court to require that person to appear (aside from any bail conditions) and to be required to plead.
Regardless of the nature of the charge, s 139 (which applies to all prosecutions) applies to enable a court to require an individual to appear in court, and provides for various mechanisms, including an arrest warrant, to enforce that requirement if the individual then fails to appear.[45]
[45] This is over and above s 88, which requires the appearance of an accused in certain 'proceedings' in a superior court.
Section 126(5) (which also applies to all prosecutions) relevantly provides that if an accused, on being required by a court to plead to a charge:
(a)enters a plea of guilty other than one permitted by subsection (1); or
(b) does not plead in accordance with subsection (4); or
(c) does not plead,
the court must enter a plea of not guilty...[46]
[46] Except in certain circumstances which do not apply in his case.
The combination of s 126 and s 139 enables the prosecution process to continue by bringing an individual before the court and requiring the entry of a plea of not guilty on the part of the accused individual if they decline to plead when required to do so.
While s 155 is broadly analogous to s 139 in its ability to issue a notice compelling an accused corporation to appear in court, if a s 155 notice fails to successfully compel the attendance of a representative of the accused corporation, an issue arises as to how the prosecution can proceed.[47] A corporation cannot be arrested.
[47] There is the capacity to fine the corporation: s 155(4).
This was a matter which arose in R v Ampol Refineries Ltd.[48] In that case, the prosecution could not proceed as there was no mechanism for the entry of a plea on the part of the corporation. In The Criminal Code: A General Review,[49] Mr MJ Murray (as he then was) addressed this deficiency in the Western Australian legislation and proposed an enactment which is in broadly similar terms to s 153(3)(b).
[48] R v Ampol Refineries Ltd (1978) Qd R 378.
[49] (1983) Qd R 378, 388 - 389, 596 - 598.
Prior to the enactment of the CPA, r 18 of the Criminal Procedure Rules 2000 (WA) addressed this issue in relation to indictable offences in practically identical terms to s 153.
In my view, it is clear that the purpose of s 153(3) is to provide for the means by which a prosecution against an accused corporation can progress in a situation in which the corporation fails to appear by way of a properly authorised representative (whether or not one has been appointed), and the corporation has failed to enter a written plea under s 154. It does this by facilitating the entry of a plea of not guilty on the part of the corporation and the matter can then proceed accordingly.
The court is entitled to issue a s 155 notice to compel the attendance of a representative if it is satisfied that the presence of a representative is needed, but there is no requirement for it to do so, as s 88(6) makes clear in the case of prosecutions in superior courts.
There is a potential question as to whether s 153(2) overrides s 154 such that a corporation's representative can enter an oral plea. It is difficult to reconcile the express language of s 154 with a construction of s 153(2) which permits a representative to enter an oral plea. In my view, the better view is that s 154 prevails, to require in all cases that the plea be in writing. If a representative appointed under s 152 appears and is required to plead to the charge but refuses to put that plea in writing, s 126(5) would operate to require the court to enter a plea of not guilty on the accused corporation's behalf.
In my view, this construction does not render the words 'by its representative' in s 153(3) to be superfluous, as was argued by the respondent. This is because in the case of many types of appearances, a corporation can properly appear by its legal representative, pursuant to s 172 of the CPA.[50] Further, as noted above, s 88(6) provides that proceedings may take place in the absence of the accused. The words 'by its representative' in s 153 make it clear that it is the failure of the corporation to appear by its representative appointed under s 152 which triggers the entry of a plea of not guilty.
[50] CPA s 153(4).
Accordingly, in my view, s 153(3) applies to the situation in which an accused corporation does not appear by a representative appointed under s 152 of the CPA, whether or not it has actually appointed such a representative.

Plea of not guilty entered on behalf of corporation for simple offence

If my preferred construction of s 153(3) is correct, the magistrate was obliged to enter a plea of not guilty on behalf of the appellant.
It is not in dispute that the magistrate did not enter a plea of not guilty on behalf of the appellant under s 153(3)(b). However, as the ground of appeal makes clear, the ultimate issue in this appeal is whether the magistrate erred in law in convicting the appellant in its absence, instead of entering a plea of not guilty and adjourning the matter.
The appellant submitted that, if s 153(3)(b) applied in order to require the magistrate to enter a plea of not guilty, s 60(5)(c) would require the court to adjourn the matter to a new court date, and the court would not be permitted to apply s 55(2)(b) on the same day as the plea of not guilty was entered.
Section 60 falls within pt 3 div 6, which applies in a court of summary jurisdiction where an accused is charged with an either way charge to be dealt with summarily or a simple offence.[51]
[51] CPA s 57(1).

In the case of a charge of a simple offence, s 60 of the CPA provides for the procedure to be followed if the accused pleads not guilty, 'whether orally or by means of a written plea'.
In such a case, s 60(5)(c) requires the court to adjourn the charge to a new court date to allow a reasonable time for the prosecutor to comply with any disclosure order made under s 60(5)(a) or (b), even if no such disclosure order is made.
At the hearing of the appeal, both parties submitted that, if s 153(3)(b) applied to require a plea of not guilty to be entered on behalf of the appellant, s 60(5)(c) would operate to require the court to adjourn the matter to a new court date and s 55 would not operate unless the accused failed to appear on the new court date.
However, in my view, s 60 does not apply in the case of a plea of not guilty entered in accordance with s 153(3)(b).
Section 18 of the CPA provides that a 'written plea' means a plea of guilty or not guilty to the charge made in writing and, if the accused is a corporation, made in accordance with s 154(1). As I have determined above, a corporation cannot enter an oral plea,[52] but even if it can, it did not do so in this case.
[52] CPA s 154(1).
A plea of not guilty entered in accordance with s 153(3)(b) does not fall within the definition of a 'written plea' on the part of the appellant. Further, any suggestion that such a plea should be treated as a 'written plea' for the purposes of s 60 is substantially undermined by the omission of any reference in s 18 to s 153(3), given the express reference in s 18 to s 154(1).
If s 60 does not apply in the event of a plea of not guilty being entered under s 153(3)(b), there would be no requirement for the court to adjourn the matter to a new court date before s 55 could apply. This is because s 55 applies in any case in which a plea of guilty has not been entered. A plea of not guilty is not, of itself, an impediment to the operation of s 55.
I do not accept the appellant's submission that, if s 153(3) and s 60(5)(c) do not exclude the operation of s 55(2)(b) on the first appearance, s 153(3) would, in practical terms, have 'no work to do'. As already noted, pt 5 div 6 applies in the case of all offences, not just simple offences, and s 153(3) also enables those matters to proceed notwithstanding a failure of the accused corporation to enter a plea.
If s 153(3) and s 60 combined to operate as contended by the appellant, the result would be that, in the case of any simple offence, a corporation which failed to appear could not be dealt with under s 55 on the first occasion on which it does so. The court would have to adjourn the matter for at least 14 days[53] and only if the corporation again failed to appear could it deal with the matter. This would create a substantial and quite unjustified administrative burden on the Magistrates Court, contrary to the very purpose of s 55, which is to enable simple offences to be dealt with expeditiously.
[53] To enable sch 2 cl 4(3) to be complied with.
The construction contended for by the appellant, that a corporation which does not appear in court by a representative or properly enter a plea under s 154 is entitled to have a plea of not guilty entered and the matter adjourned, would result in a corporation being in a significantly more favourable position than a natural person in criminal proceedings for a simple offence. There is no apparent justification for such a disparity.
Accordingly, it is my view that, had the magistrate entered a plea of not guilty in accordance with s 153(3)(b), his Honour would still have been entitled to proceed in accordance with s 55(2)(b), to hear and determine the charge in the absence of the appellant. As such, the error of law had no material impact on the outcome.
In my view, the appellant can only make out the ground of appeal if it establishes not only an error of law on the part of the magistrate in failing to enter the plea of not guilty, but also in failing to adjourn the charge under s 60(5)(c). As the appellant has failed to establish the second, fundamental error, the ground of appeal cannot succeed.

Conclusion

Pursuant to s 55 of the CPA, a court may, at the first or any subsequent court date, hear and determine a charge of a simple offence against a corporation which has been validly served with a compliant court hearing notice or approved notice, if the corporation fails to appear by a representative appointed under s 152 in answer to the charge and has not entered a written plea pursuant to s 154.
Where an accused corporation fails to appear on a charge of a simple offence, and has not entered a plea under s 154, a plea of not guilty must be entered on behalf of the corporation pursuant to s 153(3)(b). However, there is no requirement that the matter must then be adjourned pursuant to s 60(5)(c), regardless of whether the corporation has appointed a representative pursuant to s 152, and the court is entitled to deal with the matter in accordance with s 55(2)(b) of the CPA.
I would grant leave to appeal but dismiss the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AT
Associate to the Honourable Justice Forrester
19 SEPTEMBER 2022